Central Administrative Tribunal - Mumbai
Ranjit Kumar Sahay vs State Of Maharashtra And Ors. on 29 July, 2004
Equivalent citations: 2005(3)SLJ296(CAT)
JUDGMENT
A.K. Agarwal, Vice Chairman
1. Applicant Shri Ranjit Kumar Sahay, an IPS officer, of Maharashtra Cadre has filed two O.A. Nos. 2129/03 and 2133/03 for expunction of adverse remarks given to him in ACRs for the year 1999-2000 and 2000-2001 respectively. Although the wordings of the adverse remarks in both the years are different but since the issues and legal principles involved for judicial review are same, we propose to dispose of both the O.As. by this common order.
2. In O.A. No. 2129/03 the applicant has prayed for expunction of adverse remarks given to him in the ACR for 1999-2000. The applicant has stated that on his representation to the State Government, only a few of the adverse remarks have been expunged. His contention is that all adverse remarks should have been expunged. The relief sought in Para 8(i) is for "quashing the part which is against the applicant and maintaining which is in favour of the applicant". He has further prayed for declaration that the adverse remarks are the outcome of malice harboured by the 3rd respondent - Shri Nghinglova, against the applicant and therefore communication of adverse remarks vide impugned order dated 14.5.2001 is not sustainable.
3. The applicant under the head "Facts of the Case" has mentioned that he was selected by the UPSC for IPS in the year 1986 and was allotted Manipur/Tripura Cadre. Thereafter, in January, 1989 on a representation made on medical grounds, the applicant was allotted Maharashtra Cadre. During the period 1.4.1999 to 31.3.2000 the applicant worked as Superintendent of Police, Dhule and the impugned order pertains to the adverse remarks for 1999-2000. The applicant has stated that during his tenure as SP, Dhule, he received a number of appreciation letters from the superiors. Inspite of this, he has been given adverse remarks in the ACR. This, according to the applicant, is due to malice harboured by the respondent No. 3-Shri Nghinglova, against him. He has also stated that the adverse remarks given by the applicant to his subordinates were expunged or modified by respondent No. 3-Shri Nghinglova without obtaining comments of the applicant. The applicant reported this matter to the DGP vide letter dated 15.10.1999. The applicant mentioned that the respondent No. 3-Shri Nghinglova had accepted felicitation from one Mr. Joseph Malbari who had 13 prosecutions and 6 preventive actions against him. The applicant was asked by the DGP to investigate this matter and he submitted a report to DGP vide letter dated 21.10.1999. The applicant has contended that due to such reasons the respondent No. 3-Shri Nghinglova was harbouring malice against him and has given adverse remarks in ACRs while, on the other hand, he has been receiving letters of appreciation during the same year. On this ground, he has sought quashing of adverse remarks.
4. The State Government of Maharashtra, Home Department vide its letter dated 14.5.2001 had communicated following adverse remarks recorded in the ACR for the year 1999-2000:
"(i) NATURE AND QUALITY OF WORK :
The officer has failed to keep morale of his subordinates by awarding punishments which was found to be unjust in several eases. A couple of his subordinates submitted resignation due to alleged unfair treatment from the officer.
(ii) ABILITY TO INSPIRE AND MOTIVATE :
There is room for improvement in motivating/willing support from his subordinates.
(iii) INTER-PERSONAL RELATIONS AND TEAMWORK :
There is room for improvement in the quality of relationship with his superiors, colleagues & subordinates also in promoting team spirit to optimize the output.
(iv) STATE OF HEALTH : He needs to watch his weight (appears to be overweight). (v) GENERAL ASSESSMENT:
The officer has a tendency not to accept his shortcomings when pointed out to him and has the habit of taking them as an attempt of his superior to spoil him.
Hardworking, painstaking, computer savvy and dedicated officer. However, his good work is clouded by the manifest recalcitrance that he shows. While disciplining subordinates, he has acquired a reputation of being rather harsh on them. He should be tried to a non-executive assignment."
5. In the written reply filed on behalf of respondent No. 1, State of Maharashtra, it has been stated that the representation received by the applicant against the adverse remarks in ACRs for the year 1999-2000 was duly considered by the State Government and it was decided to expunge some portions of the adverse remarks and the decision of the Government was communicated to the applicant vide letter dated 26.8.2002. The State Government has denied that only remarks adverse to the applicant were communicated. It has been stated that remarks like "Hardworking, painstaking, computer savvy and dedicated officer" were also communicated to the applicant. Further, a decision of Government was arrived at after obtaining the comments of Reporting and Reviewing Officers on the representation made by the applicant.
6. On a representation made by the applicant, the Government of Maharashtra vide its letter dated 26.8.2002 communicated to the applicant that after considering his representation following remarks have been expunged :
"(i) NATURE AND QUALITY OF WORK :
the officer has failed to keep morale of his subordinates by awarding punishments which are found to be unjust in several cases. A couple of his subordinates submitted resignation due to alleged unfair treatment from the officer.
(v) GENERAL ASSESSMENT:
and has the habit of taking them as an attempt of his superior to spoil him."
7. O.A. No. 2133/03 has been filed by the applicant for quashing and setting aside the adverse remarks in his ACRs for the year 2000-01. The applicant during 2000-2001 was working on the post of District Superintendent of Police, Dhule and was communicated following adverse remarks vide letter dated 29.9.2001 of Home Department, Mantralaya, Mumbai :
"(i) Nature and quality of work :
"An unjustified allegation made in part-II, 5(a) is highly improper, called for explanation."
(ii) Knowledge of Police Rules/Procedure : "Leaves room for improvement." (iii) Attitude to work : "Leaves room for improvement." (iv) Ability to inspite and motivate :
"Leaves room for improvement in the capacity to obtain willing support of his sub-ordinate by his own conduct."
(v) Interpersonal relations and team work :
"Leaves room for improvement in his interpersonal relations and team work."
(vi) Personnel management:
"Leaves room for improvement in areas of development of his subordinates."
(vii) Sociability :
"Leaves room for improvement."
(viii) General assessment:
"An officer who is yet to find tune his work for higher degree of success."
"The reportee needs to be disciplined and despite numerous oral warning, he has not improved. Given the officer's manifest recalcitrance he should have been granted as "average".
(ix) Grading: "Average".
8. The applicant made representation on 2.2.2002 under Rule 9 of All India Services (Confidential Rolls) Rules, 1970. The applicant was informed vide letter dated 29.7.2003 of Home Department, Mantralaya, Mumbai about expunction of four remarks which have been indicated in italics in the above paras, i.e. remarks No. (i), (ii), (iii) and (vii).
9. The applicant has contended that all of the adverse remarks should have been expunged and has sought following reliefs by filing this O.A. :
(a) to quash and set aside the impugned communication dated 29.9.2001. (b) to quash and set aside the impugned communication dated 29.7.2003 in so far as it relates to (iv), (v), (vi), (viii) and (ix). (c) to direct the respondents to grade the applicant Outstanding/Very Good by making proper entires in the ACRs. (d) to hold and declare that the adverse remarks are out come of the malice harboured by the 3rd and 4th respondents against the applicant.
10. Certain common features in both the O.As. are as follows: (a) the applicant made a representation against the adverse remarks communicated to him; (b) representation received from the applicant was sent to the Reporting Officer and Reviewing Authority for their comments. Both the officers justified the remarks given in the ACRs of the applicant. (c) After taking into consideration various points raised in the representation and the comments of the Reporting Officer and Reviewing Authority, the Government of Maharashtra decided to expunge some parts of the adverse remarks. The decision of the State Government for adverse remarks in the ACRs for 1999-2000 was communicated by letter dated 26.8.2002 and with regard to ACR of 2000-2001 vide letter dated 29.7.2003. (d) It has been stated in both the written statements that the applicant has not exhausted all the remedies available under the relevant service rules. He could have given memorial to the President of India as per provisions contained in AIS (CR) Rules, 1970.
11. We observe from the file of O.A. No. 2129/03 that the applicant has filed copies of a number of communications exchanged with Shri B.T. Nghinglova, the Zonal IG. The applicant who was working as SP, Dhule wrote to DGP on 20.2.1989 that IG i.e. Shri Nghinglova had lunch in the house of a Priest of the Church where one Joseph Malbari, a notorious criminal was also present. The applicant also wrote a letter dated 30.2.2000 to Additional Chief Secretary, Home Department making this as well as other complaints against Shri Nghinglova. A written complaint was also made to Lokayukta, Maharashtra stating that Spl. I.G. i.e. Shri Nghinglova is likely to create manipulation which would affect the career of the applicant. He made a prayer to the Lokayukta that the Union Government as well as the Government of Maharashtra be directed to hold an enquiry in respect of the allegations made by him. The Lokayukta, Maharashtra in its report observed that the grievances are relating to the service conditions and day to day interactions between the complainant and the superior officer Shri Nghinglova. The order passed by the Lokayukta and communicated to the applicant vide letter dated 14.12.2001 is as under :
"In view of the report, both complaints have been attended to by the appropriate authorities and, in fact, action is taken. Hence, there is no need to continue the investigation and case be closed. All parties be informed accordingly".
12. In the reply filed by Shri Nghinglova, Zonal I.G., a few instances of irresponsible behaviour of the applicant have been mentioned. It has been further stated that the performance of applicant during 1999-2000 left much to be desired. A number of complaints were received against him that he unnecessarily punished Clerks and Policemen. As a result, Shri Nghinglova received instructions from the DGP to review the punishment given by the SP to Policemen as well as to the ministerial staff.
13. We have gone through the file of the State Government, Home Department, produced by the Counsel for respondents for perusal of the Court. It is also observed from the file that a fair analysis was made with regard to points raised in the representation of the applicant and keeping in view the comments received of the Reporting Officer/Review Authority, some of the remarks were expunged.
14. In the O.A. No. 2133/03 the learned Counsel for the applicant drew our attention towards a few documents filed by the applicant along with the O.A. with a view to show the bias of respondent No. 4 towards the applicant. He said that the respondent No. 4 in his capacity as Spl. IG, Nasik wrote a letter dated 29.6.2000 to DGP complaining that the applicant proposes to purchase as plot at Nasik costing Rs. 3.75 lakhs and this complaint after enquiry was held as not proved. The respondent No. 4 also complained to DGP vide Radio Telegram dated 7.1.2001 that the applicant has not handed over important documents to the successor Amitesh Kumar and requested for suitable instructions from DGP in this regard. The learned Counsel stated that the applicant vide his letter dated 4.3.2001 has explained in detail to the Spl. IG the circumstances under which he could not hand over the charge to his successor on 15.2.2001 on account of medical advice. A copy of this communication has been marked to DGP. The applicant has also expressed his grievance about the complaint made by the Spl. IGP. Citing few such documents, the learned Counsel for the applicant stressed that they amply prove the bias of respondent No. 4 against the applicant. Therefore, the adverse remarks given by such an officer deserve to be expunged.
15. The learned Counsel for the respondents mentioned that as per directions contained in AIS (CR) Rules, order passed on representation shall be final. Further, these rules do not require communication of a speaking order and only gist of the decision has to be communicated. He has placed reliance on the ratio laid down by the Apex Court in Union of India and Ors. v. E.G. Nambudiri, . Continuing his arguments, the learned Counsel for the respondents mentioned that the allegation of bias levelled against the Reporting Officer is unfounded. The applicant had received memos not only from Zonal IG but also from DGP. He said that Police Headquarters had asked the IGP Nasik Range i.e. Respondent No. 4 for submitting a report on the complaint of the Ministerial staff and Policeman working with S.P., Dhule. The respondent No. 4, as per responsibilities entrusted to him, held enquiry and gave his report to the Police Headquarters. There has been a number of communications to the applicant for improving his performance. Further, respondent No. 4 has filed a detailed affidavit rebutting the allegations made by the applicant. The applicant has not filed any rejoinder to the reply given by respondent No. 4.
16. The learned Counsel for respondents also produced the concerned file of the State Government for the perusal of the Court. We have gone through the records and find that sufficiently detailed analysis was made of various adverse entires, points made in the representation and comments received from Reporting and Reviewing Officers and some of the remarks were expunged.
17. The learned Counsel for the applicant during his averments has stressed that the representation preferred By an All India Service Officer against adverse remarks is to be decided within a period of three months as per provisions contained in Rule 10 of AIS (CR) Rules, 1970. The State Government took almost one and a half years to communicate its decision on the representation. Secondly, only adverse remarks in only some categories were deleted retaining remarks in other categories. In fact, the remarks retained have no factual foundation. The learned Counsel further stated that the applicant had received letters of appreciation for his work during that very year from D.G.P. as well as from senior officers of MSRTC. However, for certain reasons some of the senior officers were harbouring malice against the applicant so much so that he was not allowed to go for attending a workshop.
18. The learned Counsel for respondents submitted that representations made by the applicant were given a careful consideration by the Government and after taking into account the comments received from the Reporting and Reviewing Officers along with other relevant material of the case, the Government decided to expunge only some of the remarks. He further submitted that in the ratio laid down by the Apex Court in Union of India v. E.G. Nambudiri (supra), it has been held that "in the absence of any Statutory Rules or Statutory Instructions requiring the Competent Authority to record reasons in rejecting a representation made by a Government servant against the adverse entries, a Competent Authority is not under obligation to record reasons"... "if the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons".... "However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same".... "It is always open to the Competent Authority to place the reasons before the Court which may have led to the rejection of the representation".
19. As far as time taken in communicating the remarks is concerned, it has been held that delayed communication of adverse remarks do not render them void when the applicant has been given opportunity to make a representation. Regarding the time taken by the State Government in taking decision on the representation, it is no doubt desirable that it should be decided within a period of three months but any delay will not make the decision on representation void in the eyes of law. Moreover, Rule 10 of AIS (CR) Rules, 1970 provides that the Government shall consider the representation made under Rule 9 by a Member of the service and pass orders as far as possible within three months. The wordings 'as far as possible' impart flexibility to the period.
20. Another plea raised by the applicant is that he was given adverse remarks by the Zonal I.G. on account of prejudice he was harbouring against the applicant and these should be declared as an outcome of bias. On this issue, a judgment of Supreme Court in the case of Express Newspapers Pvt. Ltd. and Ors. v. Union of India and Ors., is relevant and the observation made by the Apex Court regarding mala fide are as follows:
"Where mala fides are alleged, it is necessary that the person against whom such allegations are made should come forward with an answer refuting or denying such allegations. For otherwise such allegations remain unrebutted and the Court would in such a case be constrained to accept the allegations so remaining unrebutted and unanswered on the test of probability."
21. In this very judgment, i.e. Express Newspapers Pvt. Ltd. (supra), the Apex Court has also discussed the concept of bad faith and the scope of its review by Courts :
"The concept of bad faith eludes precise definition, but in relation to the exercise of statutory powers it may be said to comprise dishonesty (or fraud) and malice. A power is exercised fraudulently if its repository intends to achieve an object other than that for which he believes the power to have been conferred.... A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise."
22. The learned Counsel for applicant during the course of his arguments has relied on the following pronouncements of the Apex Court:
(i) State of Haryana v. P.C. Wadhwa, . (ii) P.K. Shastri v. State of M.P. and Ors., . (iii) State of Gujarat and Anr. v. Suryakant Chunilal Shah, (1999) 1 SCC 529= 1999(2) SLJ 28 (SC). (iv) Sukhdeo v. Commissioner of Amravati Division, Amravati and Anr., (1999) 5 SCC 103=1996(2) SLJ 3 (SC). (v) S. Ramchandra Raju v. State of Orissa, 1994 Supp. (3) SCC 424= 1994(3) SLJ 95 (SC).
23. After hearing the learned Counsel and going through the Supreme Court judgment in the case of State of Haryana v. P.C. Wadhwa (supra), we notice that the appeal of the State Government was disallowed essentially on the ground that adverse remarks were communicated after 27 months. The Apex Court observed that as per rules, the adverse remarks should have been communicated within seven months while in this case, they were communicated after a period of 27 months, and had concluded as follows :
"We need not, however, dilate upon the question any more and consider whether on the ground of inordinate and unreasonable delay, the adverse remarks against the respondent should be struck down or not, and suffice it to say that we do not approve of the inordinate delay made in communicating the adverse remarks to the respondent."
In the cases of the applicant before us, we find that the adverse remarks for the year ending March, 2000 were communicated in April, 2001. Thus, after a gap of about 14 months as against 7 months. There is thus a delay of seven months as against 20 months delay in the ease cited by the Counsel for applicant. In another case relating to the period 2000-2001, the delay in much less. Moreover, the applicant submitted representation which was also partly allowed by the State Government. In view of this, we hold that there is no case for ignoring the adverse remarks on account of delay in communication.
24. In the case of P.K. Shastri v. State of M.P. and Ors. (supra), the Apex Court held that "Authority directing entry of adverse remarks must take decision objectively after careful consideration of all materials before it". In the State of Gujarat and Anr. v. Suryakant Chunilal Shah (supra), the Apex Court held that the main purpose of communicating adverse remarks is to afford an opportunity to employee to improve himself or to explain his conduct. In this case, we do not see any ground to hold that the remarks were not made objectively after careful consideration of all relevant material.
25. In the case of Sukhdeo v. Commissioner, Amravati Division Amravati and Anr., it was held that "The remarks are mutually inconsistent and reasons are self-evident of lack of bona fides in making these remarks."... "It would be salutary that the Controlling Officer before writing adverse remarks would give prior sufficient opportunity in writing by informing him of the deficiency he noticed for improvement." According to us, on the basis of this ruling, no relief can be granted to the applicant since there are a good number of communications addressed by the IG as well as by DGP to the applicant pointing out the need for improvement in his performance and conduct. Secondly, we do not see any inconsistency in the remarks given by the Reporting Officer and Reviewing Authority.
26. The learned Counsel for respondents drew our attention towards a ratio laid down by the Apex Court in Amrik Singh v. Union of India, 2001 (3) SLR 584 (SC), wherein it has been stated that the scope of judicial intervention in judicial review is very limited and the Courts can neither go into the correctness of the adverse remarks nor into the assessment made by the Selection Board. In this case, the Apex Court has relied on one of its earlier judgment given in the Union of India v. Lt. General Rajendra Singh Kadyan, 2000(5) SLR 228 (SC), wherein it was held that:
"The scope of the jurisdiction of the High Court being very limited, we cannot go into the correctness of the adverse remarks nor into the assessment made by the Selection Board on the two occasions."
27. Further, in the same case the Apex Court also made following observations :
"It is a well known principle of administrative law that when relevant consideration have been taken note of and irrelevant aspects have been eschewed from consideration and that no relevant aspect has been ignored and the administrative decision have nexus to the facts on record, the same cannot be attacked on merits. Judicial review is permissible only to the extent of finding whether process in reaching decision has been observed correctly and not the decision as such. In that view of the matter, we think there is no justification for the High Court to have interfered with the order made by the Government."...
28. In O.A. No. 2129/03 the applicant has prayed for quashing the impugned order dated 26.8.2002 in so far as it maintained adverse remarks under the Head (ii), (iii), (i v) and part of the General Assessment vide (v) in the ACR 1999-2000. In O.A. No. 2133/03 the applicant has prayed for quashing and setting aside the impugned communication dated 29.7.2003 in so far as it maintained adverse remarks under heads (iv), (v), (vi), (viii) and (ix) in the ACR of 2000-2001. Generally, either the entire impugned order, or a specific part thereof is quashed. It is difficult to visualise quashing of an invisible portion of an order, thus, the prayer made is not realistic. As far as quashing and setting aside the communication dated 29.9.2001 is concerned, that only communicates the adverse remarks recorded in the ACRs. and quashing and setting aside of an order only communicating true facts cannot be accepted. Further, it cannot be said that communication of adverse remarks was in any way unwarranted by law. Another prayer made by the applicant is to grade him Outstanding/ Very Good by making proper entries in the ACRs. This prayer is also unrealistic since the Court/Tribunal are not expected to make any entries in the ACRs. As far as the prayer to declare that the adverse remarks are outcome of malice is concerned, we find that though there has been an exchange of acrimonious correspondence between the applicant and the respondent No. 4, but keeping in view the other facts of the case, it cannot be held that the adverse remarks are primarily motivated by any malice. The respondent No. 3 held a responsible position of DG Police and the correspondence seen in the file of the State Government indicates that the performance and conduct of the applicant, in many fields including observance of etiquette in correspondence left much to be desired.
29. The allegation of mala fide levelled against the Zonal I.G. have been specifically refuted in the written statement filed by him in both the cases and as pointed out by the learned Counsel for respondents, the applicant has not filed any rejoinder. We are, therefore, not convinced that adverse remarks given by the Zonal I.G. were motivated by malice or bad faith.
30. The contents and language of correspondence exchanged between the Zonal I.G. and applicant do indicate that they were not on good personal terms. However, keeping in view the remarks of the Reviewing Authority and also the contents of the communication sent to the I.G. by Police Headquarters, it cannot be concluded that such adverse remarks were only due to adverse personal relations between the two. Moreover, some of the remarks of the Reporting Officer were moderated by the Reviewing Authority. Thereafter, on the representation of the applicant, the State Government had obtained comments from Reporting Officer/Reviewing Authority and after detailed examination had decided to expunge parts of the adverse remarks. We are satisfied that due procedure was followed and orders of Competent Authority were obtained at all requisite stages.
31. The scope of judicial review in administrative matters has been circumscribed by a number of judicial pronouncements of the Apex Court. As per basic principle of judicial review of administrative action; it is desirable to amend or set aside an administrative order when (a) the order was contrary to law, (b) the relevant factors are not considered, (c) irrelevant factors were considered, (d) decision was one which no reasonable person could have taken. These principles known as Wednesbury principles have been consistently followed to weigh the administrative action on judicial balance. The Apex Court in the case of Om Kumar and Ors. v. Union of India, AIR 2000 SC 3689 has observed as follows :
"We agree that the question of the quantum of punishment in disciplinary matters is primarily for the Disciplinary Authority and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confirmed to the applicability of one or other of the well known principles known ad Wednesbury principles."
32. We find that the State Government has taken necessary action on both the representations of the applicant against the adverse remarks in ACR of 1999-2000 as well as pertaining to ACR of 2000-2001 and has followed due procedure. The approval of the Competent Authority has also been obtained at every stage. The scope of judicial review in administrative matter is very limited and is circumscribed by a number of judicial pronouncements of Apex Court. The decisions taken by the State Government also pass the test of Wednesbury principles as discussed in the above para. Therefore, no judicial intervention is called for.
33. In view of the above, we hold that both the O.A., i.e. O.A. No. 2129/03 and O.A. No. 2133/03 deserve to be dismissed and are dismissed accordingly. No order as to costs.