Central Administrative Tribunal - Chandigarh
Ena Passi vs Central Public Works Division on 23 September, 2024
1- O.A. No. 1059/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Original Application No.060/1059/2018
Pronounced on: 23.09.2024
Reserved on: 22.08.2024
CORAM: HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
HON'BLE MRS. RASHMI SAXENA SAHNI, MEMBER (A)
Enna Passi, Aged 54 years D/o Sh. P.S. Passi, working as Senior
Architect, group „A‟ Office of Additional Director General (NR-1), Central
Public Works Department, Kendriya Sadan, Sector 9-A, Chandigarh-
160009.
.... Applicant
By Advocate: Mr. Rohit Seth
Versus
1. Union of India through Secretary to Government of India, Ministry
of Housing and Urban Development, Nirman Bhawan, New Delhi -
110001.
2. Director General of Works, Central Public Works Department,
Nirman Bhawan, New Delhi - 110001.
3. Shri Prabhaker Kumar Verma, Additional Director General (NR-1)
(Retd.), Central Public Works Department, Kendriya Sadan, Sector
9-A, Chandigarh through Respondent No. 2-160009.
... .Respondents
By Advocate: Mr. K.K. Thakur
ORDER
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act 1985 seeking the following reliefs:-
(i) To quash Annual Performance Assessment Report for the period from 01.04.2016 to 30.11.2016 (Annexure A-1), reported upon by Respondent No.3.
2- O.A. No. 1059/2018
(ii) To quash order No. 19/01/2017/ENAPASSI/ SA/ CR Cell
dated 12.12.2017 (Annexure A-2), whereby
representation dated 19.04.2017 of the applicant
against the below bench mark and adverse grading in the APAR for the period from 01.04.2016 to 30.11.2016 has been rejected.
(iii) Directions may be issued to the respondents to ignore
the afore-mentioned APAR for the period from
01.04.2016 to 30.11.2016 for all intents and purposes including consideration of her claim for promotion to the next post of Chief Architect and non-functional financial Upgradation etc.
2. The factual matrix of the case is that the applicant is working as Senior Architect in Central Public Works Department, Northern Zone No.1, Chandigarh since 23.06.2014 and Shri Prabhaker Kumar Verma, Respondent No.3, then the Architect was her Reporting Officer. The Respondent No.3 made below bench mark grading in the APARs of the applicant for the years 2014-15 and 2015-16 (Annexures A-3 and A-
4), but the Reviewing Officer did not agree with the Reporting given by Respondent No.3 and upgraded the APAR of the applicant to 'Very Good', which was duly accepted by the department. For the period 01.04.2016 to 30.11.2016 also, the respondent no. 3 graded the APAR of the applicant below bench mark. The respondent no. 3 was promoted as ADG and posted as ADG, Northern Region-I, Chandigarh for the period from 23.11.2016 to 30.11.2016 i.e. only for a period of 08 days. He reviewed the APAR of the applicant as Reviewing Officer agreeing with his own report written by him as Reporting Officer for 3- O.A. No. 1059/2018 the period from 01.04.2016 to 30.11.2016. The Reviewing Authority for the period from 01.04.2016 to 30.11.2016 was another officer namely Sh. D.S. Kapoor, ADG, Northern Region-I Chandigarh, who also reviewed the APAR of the applicant for the period 01.04.2016 to 14.09.2016 and he did not agree with the Reporting Officer and the reason given was „underrated‟ and he upgraded the APAR to „Very Good‟. However, the Accepting Authority in Part-VI of the APAR agreed with the Reporting Officer, ignoring the upgradation given by the Reviewing Authority, who supervised the work of the applicant for substantial period of the year. The applicant made representation dated 19.04.2017 (Annexure A-5) to Respondent No. 2 against the below bench mark grading in the APAR for the period from 01.04.2016 to 30.11.2016, which has been rejected vide order dated 12.12.2017 (Annexure A-2).
3. The contention of the applicant is that the Respondent No.3 being prejudiced and biased mind down-graded her APAR for the period 01.04.2016 to 30.11.2016 and even went to the extent of reviewing the same though he worked as ADG, NR-1 only for 8 days and could not have reviewed APAR of the applicant for the period from 01.04.2016 to 30.11.2016, his period being less than 90 days. Furthermore he had written APAR of the applicant for this period, therefore, he could not review his own report. On the other hand, another Reviewing Authority Sh. D.S. Kapoor rated the APAR of the applicant for this period as 'Very Good'. She alleged malafide against Respondent No. 3. She also contended that during the period under report, applicant was never issued any warning or Memo. Thus, the impugned APAR has been written in a cryptic manner just to spoil the 4- O.A. No. 1059/2018 career of the applicant. It is also the contention of the applicant that the representation of the applicant against the adverse APAR has been rejected in a cryptic manner and by passing a non- speaking order, thus the rejection order is bad in law and liable to be quashed. Reliance has been placed upon judgments in the cases of State of Gujarat V. S. Tripathy, 1986 SCC (L&S)273, State of Gujarat & Anr. Vs. Suryakant Chunilal Shah, 1999(1)SCT 208 (SC), Abhijit Ghosh Dostidar Vs. Union of India, 2009(16)SCC 146, Usha Savara Vs. Union of India &Anr.(TA No. 528/1987 DOD- 02.05.1991, CAT Bombay), RITES through M.D.s CAT & Ors.(CWP No. 17893 of 2011 D/d 01.09.2015), ICAR Vs. M.P Singh and Ors.(CWP. No. 3457 of 2012 D/d 01.02.2019), State of U.P. V. Yamuna Shaker Mishra & Anr, JT 1997(4) S.C. 1, A.K. Yadav V. Union of India and Ors., CAT, Jaipur Bench (OA No. 431/2000 decided on 14.06.2002), Dr. P. Surendra V. The Inspector General, North Sector, CISF, New Delhi, CAT, Hyderabad Bench (OA-577/2005 decided on 23.12.2005), S.T Ramesh V. State of Karnataka, AIR 2007 SC 1262, Dr. Parveen Chopra Vs Union of India & Ors (CAT Chandigarh Bench), OA No. 473/2011 DOD- 03.08.2012, Central Coal Fields Ltd & Ors V. Triben Prasand, 2005 LIC 354, Yoginder Sharma V. Management of Arawali Leasing Ltd, 2013(3) LLJ 381, S.N Mukherjee V. Union of India, 1991(1) S.C.T 241, State of Punjab V. Dr. Ramkrsihana Chopra, 1977 (2) SLR 809, Rajasthan State Road Transport V. Ram Yadav, 1995 (3) SCT 789.
4. The respondents no. 1 to 3 have filed written statement contesting the claim of the applicant. It has been stated therein that 5- O.A. No. 1059/2018 the APAR of the applicant has been written as per rules and law. The pleas taken by the applicant in her representation have been considered by passing a reasoned and speaking order (Annexure A-2). Further, it has been stated that Sh. Prabhaker Kumar Verma (Respondent No. 3), had no feeling of animosity towards Smt. Ena Passi. All the communication between Sh. P.K Verma & Smt. Ena Passi happened in official capacity only. Sh Prabhaker Kumar Verma has given grading "below benchmark" to Smt. Ena Passi for the year 2014- 15, because she was issued OM dated 25-09-2014 (Annexure R-1), a letter for Non- Compliance of office procedures from the O/o Chief Architect dated 01-09-2014 (Annexure R-2) and Office Memorandum regarding Non-furnishing of information by the office of Chief Architect's issued vide letter no CANRI/35/201411103 Dated 11-12- 2014 (Annexure R-3). The reviewing officer also remarked in APAR "A very good S.A. needs to be more disciplined and work on better working relations". There is only one vacancy of Senior Architect, exists in Chandigarh, Northern Region- (C.P.W.D). As per the CPWD Manual 2013, the senior architects are to report to the concerned Chief Architect. Hence her reporting cannot be changed because of the administrative reasons. It has further been stated in the written statement that Sh. Prabhaker Kumar Verma, being the reporting officer of Smt. Ena Passi, has not deliberately graded her APAR as 'Good‟. The Reviewing Officer has also not given her any marks for Discipline, Communication Skills and Inter- Personal Relations. Also, no marks have been awarded by the reporting officer for strategic Planning Ability, Decision Making Ability, Analytical Ability and Co- ordination Ability.
6- O.A. No. 1059/2018
5. For the reporting period in question i.e. 01-04-2016 to 30-11- 2016, it has been submitted that Smt. Ena Passi misbehaved with the subordinate staff. The newly appointed Assistant Architect working under Smt. Ena Passi filed a complaint regarding not allotting her work (Annexure R-4). The letters were issued to Smt. Ena Passi by office of Chief Architect regarding non submitting of the workload and complied Monthly Action plan & Monthly Action Plan of 2016 (Annexure R-5). The APAR for the period from 01-04-2016 to 30-1 1-2016 cannot be treated as nonest, as Smt. Ena Passi represented her case of downgrading of the APAR to the appealing authority, who rejected the same.
6. The respondents have placed reliance upon judgments in the cases of Chander Singh Negi Vs. State of Punjab, 1990 (1) RSJ 567, Nawal Singh Vs. State of U.P., (2003) 8 SCC 117, Court of Judicature of Allahabad through Registrar Vs. Sarnam Singh and Another, 2001 (1) RSJ 356 (SC), R.L. Butail Vs. Union of India, 1970 (2) SCC 876, Vijay Parkash Vs. State of Haryana, 2000 (1) SCT 1076, Kuldeep Singh Vs. The State of Punjab, 1992 (5) SLR 189, Dharam Singh Vs. State of Haryana, 2001 (2) SCT 1139, Om Parkash, Conductor Vs. State of Haryana and Others, 2006 (2) SCT 408 and State of Punjab and Anr. Vs. Bakhtawar Singh, 2002 (4) SCT 1026.
7. The applicant has filed rejoinder reiterating the contentions raised in the O.A. She has also placed on record the reply filed by her to the complaint filed against her by one Assistant Architect during the reporting period of 01.01.2016 to 30.11.2016.
7- O.A. No. 1059/2018
8. We have gone through the pleadings, perused the material available on record and considered the rival contentions of both sides.
9. The APAR under challenge is with respect to the reporting period of the applicant from 01.04.2016 to 30.11.2016 wherein the reporting officer Respondent No. 3 graded below bench mark, which has been reviewed by two officers. One Mr. D.S. Kapur, who was applicant‟s reviewing authority for 5 ½ months, upgraded her APAR to „Very Good‟. However, the Reporting Officer i.e. Sh. Prabhaker Kumar Verma (respondent No. 3) became applicant‟s reviewing Authority for only eight days i.e. from 23.11.2016 to 30.11.2016 agreed with his own report as Reporting Officer regarding downgraded APAR remarks. The question which arises herein for consideration is whether the action of Respondent no. 3, who became the Reviewing Officer only for eight days, was justified in agreeing with his own report of below bench mark grading given to the applicant as Reporting Officer.
10. For proper adjudication of the case, we have perused the whole APAR record of the applicant. From the perusal thereof, it is clear that the relations between the applicant and respondent no.3, who remained her Reporting Officer for almost four years and Reviewing Officer for few days before his retirement, were not cordial. This fact has been endorsed by the then reviewing officer, Mr. D.S. Kapur also, while upgrading applicant‟s APAR for the period 2015-16. To take a fair overview of the applicant‟s service career, we have also perused the chart of APAR grading given to the applicant for the period 2010 to 2023(Annexure MA-
7). From a perusal thereof, it is evident that the applicant was given overall grading of „Very Good‟ throughout her service career and it was the reporting period under Respondent no. 3 when her APAR was reported below bench 8- O.A. No. 1059/2018 mark. The below bench mark report given by respondent no. 3 was, however, upgraded to „Very Good‟ for the period 23.06.2014 to 31.03.2015 and 01.04.2015 to 31.03.2016 by the Reviewing Officer. The Reviewing Officer has recorded that the APAR given by the Reporting Officer was underrated and for this reason he upgraded it. The reason of the „not cordial relations between the applicant and the reporting officer‟ was also recorded by the same Reviewing Officer in one of the APAR. Thus, the fact of biased mindset of respondent no. 3 in writing the applicant‟s APAR cannot be ruled out. It becomes more evident when the respondent no. 3, on being the applicant‟s Reviewing Authority for a couple of days, chose to review the APAR written by himself as Reporting Officer. That too, when the other Reviewing Officer, who remained applicant‟s reviewing authority for the major period of 5 ½ months, was available for reviewing applicant‟s APAR, who upgraded it to „Very Good‟ while recording the reason that the same was underrated. The Reviewing Officer, who has written the APAR of the applicant as Reporting Officer should not review the same.
11. The respondents have taken the plea that the correctness of APAR cannot be examined by the Court. The Hon‟ble Punjab and Haryana High Court in the case Of Bakhtawar Singh (supra) held that the "Civil Court can quash adverse remarks recorded in ACR only if the same are result of malice, ill will or spite of the officer towards the officer commented upon". So the objection of the respondents that the correctness of the APAR cannot be gone into by the Civil Court is negated. The way the Respondent No. 3 reviewed the APAR of the applicant, on being her Reviewing Authority only for few days, is enough evidence to show that he was hell bent upon to spoil the applicant‟s 9- O.A. No. 1059/2018 service career by downgrading her APAR. In such cases, when the biased and prejudiced mindset behind writing APAR is evident, the interference of Court is warranted.
12. As per rules, in case the reporting period is less than 90 days, the facts may be verified and NRC may be issued. In the present case, the period for which the respondent no. 3 had been the applicant‟s reviewing authority, was for only eight days i.e. prior to proceeding to superannuation. It is seen that the period under report in question is from 01.04.2016 to 14.09.2016. The rank of the officer of ADG (NR-1) was applicant‟s reviewing authority and there had been three ADG (NR-1) for different periods, who were applicant‟s reviewing authority for the period under question, the details of which is as under:-
Name Rank Date Duration
Sh. D.S.Kapur ADG (NR-1) w.e.f.1.4.16 5½
to14.09.2016
months
Sh. A.K. Garg ADG (NR-1) w.e.f.15.9.16 to 69 days
22.11.2016
Sh.P.K. Verma ADG (NR-1) w.e.f. 23.11.16 06 days
to 28.11.2016
(current duty
charge)
Sh.P.K. Verma ADG (NR-1) w.e.f. 29.11.16 02 days
to 30.11.16
From the above chart, it is clear that major part of period in question, the applicant worked under the supervision of reviewing authority of Mr. D.S. Kapur, ADG (NR-1) i.e. 5 ½ months and lesser to that was of Mr. A.K. Garg, ADG (NR-1) who was applicant‟s reviewing authority for 69 days and the least period was of respondent no. 3 as reviewing authority. In such a situation, when the applicant worked under three Reviewing Authority for three different period, a rationale 10- O.A. No. 1059/2018 decision would be to get her APAR reviewed from the Officer under which she worked major part of the period in question. The respondent no 3, who remained applicant‟s Reviewing Authority for least period i.e. of 08 days only, should have restrained himself from reviewing applicant‟s APAR ethically and professionally, especially when he already recorded her APAR as Reporting Officer. Apparently, the action of respondent no. 3 in writing applicant‟s APAR as Reviewing Officer in given facts and circumstances is not fair and seems to be done with malice and prejudice, and it is also not in consonance with the principles of natural justice, therefore, the same is held to be illegal. The High Court of Judicature for Rajasthan in the case of Jagdish Prasad (supra) held that "if the Court finds that adverse entries made in the ACR or grading given to an employee are vitiated by extraneous consideration, the Court must interfere and quash them". Further, it has been observed therein that "it is duty of the Reporting Officer and Reviewing Officer to take care not only that in their assessment of overall performance of the subordinate officer but also they are not influenced by any personal interest, bias or malice". Moreover, the allegations of bias and malice levelled by the applicant have not been denied by filing an affidavit by Respondent No. 3 against whom these allegations have specifically been levelled. The non-specific denial of any malice or bias, as pleaded by the official respondents in the written statement, could not rescue the respondent no. 3 and these are deemed to be admitted in the absence of any specific rebuttal by Respondent No. 3 himself. To form this opinion, we are fortified by the judgment of Hon‟ble Delhi High Court in the case of Rajinder Singh (supra). The relevant para of the judgment in Rajinder Singh's case, the facts 11- O.A. No. 1059/2018 whereof are somewhat similar to the present case, is reproduced hereunder:-
"6. In the instant case, it is an admitted position that in his petition, the petitioner had made specific allegations of bias against respondent No. 3 and 4. He has specifically pleaded that his earlier ACRs are excellent and the adverse entries made in his ACR for 1995-96 are outcome of bias and malice. Surprisingly, neither respondent No. 3 nor respondent No. 4 has filed an affidavit to deny the said facts pleaded by the petitioner. The counter reply filed by Dr. Aditya Arva. Deputy Commissioner of Police, Delhi on behalf of the respondents does not help respondent Nos. 3 and 4 to rebut the specific allegations of bias and malice made against them by the petitioner. Consequently, we have no option but to hold that the allegations of bias and malice made by the petitioner against respondent Nos. 3 and 4 should be deemed to have been admitted. That being so, the factum of bias and malice as alleged by the petitioner has been established. It follows that adverse entries made in the petitioner's ACR for 1995-96 by the Reporting Officer (respondent No. 3) and endorsed by respondent No. 4 are the outcome of bias and malice. The bias and malice as alleged by the petitioner is also borne out by the fact that the Reporting Officer had declined to certify his integrity on the ground of his being negligent. Surely, an officer or employee cannot be held to be dishonest on the ground of his being negligent as negligence and dishonestly have different connotation and meanings. This circumstance, to a great extent, probabilises the case of the petitioner that actuated by bias and malice, respondent No. 3 had declined to certify his integrity. However, the adverse entries made in the petitioner's ACR for 1995-96 cannot be sustained as they are vitiated by extraneous considerations. It is significant to mention that perusal of para No. 5 of the impugned order makes it clear that although the tribunal has taken note of the fact that the adverse entries made in the ACR in question are not in keeping with the petitioner's past excellent record yet the 12- O.A. No. 1059/2018 tribunal did not make any attempt to find out the real cause for his sudden down grading in the said ACR. Needless to emphasis that sudden downgrading in the ACR of an official/employee must be informed by discernible reasons.
For the foregoing reasons, the writ petition is allowed. The impugned order and the adverse entries made in the petitioner's ACR for 1995-96 are quashed and expunged from the record. No order as to costs."
13. Further, it is noticed that the Accepting Officer accepted the report made by the reporting Officer and he did not care to record the reason as to why he is agreeing with the Reporting Officer, while disagreeing with the report given by the Reviewing Officer Mr. D.S. Kapur. While accepting one report over the other, the Accepting Officer is duty bound to record detailed reasons thereof, as per Column 2 Part VI of the APAR impugned herein, especially when his acceptance is going to have a significant adverse impact on the service career of the employee. The representation dated 19.04.2017 made by the applicant against the adverse entries in her APAR has been decided after a lapse of eight months, that too by passing a non-speaking order, without making an effort to go into the details of the representation and discussing the points raised therein. Thus, the order dated 12.12.2017 (Annexure A-2) is held to be illegal being non-speaking and unreasoned being not in consonance with the O.M. dated 14.05.2009 (Annexure A-
6).
14. The applicant has placed on record a plethora of judgments to support her claim. We have perused all but there were only few relevant ones to the issue in hand which we have discussed in the order. 13- O.A. No. 1059/2018
15. For the reasons aforementioned, the Original Application is allowed. The impugned order (Annexure A-2) is hereby quashed and set aside being illegal. The adverse entries made in the APAR for the period in question are expunged and the respondent no. 2 is directed to ignore the APAR recorded for the period 01.04.2016 to 30.11.2016 for the purpose of grant of any kind of service benefit including promotion to which she is otherwise eligible. The necessary exercise to grant the service benefit flowing from this order be carried out within a period of two months from the date of receipt of a certified copy of this order. The parties are left to bear their own costs.
(RASHMI SAXENA SAHNI) (SURESH KUMAR BATRA)
MEMBER (A) MEMBER (J)
„mw‟