Central Administrative Tribunal - Delhi
A vs Union Of India Through on 18 November, 2011
Central Administrative Tribunal Principal Bench OA No.1235/2011 New Delhi, this the 18th day of November, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Ashok Golas (Belonging to Indian Telecommunication Service Group A, superannuated on June 30, 2010) 101-A, Mount Kailash, New Delhi 110 065. Applicant. (Applicant in person) Versus 1. Union of India through The Secretary, Department of Telecommunications, Ministry of Communications & IT, Government of India, Sanchar Bhavan, 20, Ashok Road, New Delhi 11 0001. 2. The Member (Services) Department of Telecommunications, Ministry of Communications & IT, Government of India, Sanchar Bhavan, 20, AShok Road, New Delhi 110 01. 3. The Chairman & managing Director Bharat Sanchar Nigam Limited, Third Floor, Bharat Sachar Bhavan, Janpath, New Delhi 110 001. 4. Shri Kuldeep Goyal Ex-CMD, BSNL, F-703, Aditya Mega City, Vaibhav Khand, Ghaziabad (Uttar Pradesh). . Respondents. (By Advocate : Shri Rajesh Katyal for Respondent No.1&2 Shri Rajnish Prasad for Respondent No.3&4) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri Ashok Golas, the applicant herein, a retired Chief General Manager of Bharat Sanchar Nigam Limited (BSNL), superannuated on 30.06.2010 and was on deemed deputation to BSNL till his retirement but was the regular employee of the Department of Telecommunication (DOT). He is aggrieved against the grading Very Good given to him in his Annual Performance Appraisal Report (APAR) for the year 2008-2009. The applicant has 2 APARs for the said period, namely, (i) from 01.04.2008 to 31.07.2008 and (ii) from 01.08.2008 to 31.03.2009, as during the said two periods there were two different Reporting Officers but the Reviewing Authority continued to be same. It is the case of the applicant that he submitted his self appraisal report for the said APARs viz. 1st set of APARs to his Reporting Authority Shri J. R. Gupta who superannuated on 31.07.2008 and the 2nd set of APAR to Shri Rajesh Wadhwa. It is further the case of the applicant that he received the APARs from BSNL vide letter dated 27.01.2010 in violation of the Guidelines issued by the DOP&T as to how the APAR should be supplied well in time. His case is that against the said APAR for 2008-09 he submitted his representation on 16.02.2010 but the Respondent-DOT rejected his representation vide order dated 1.04.2010 (Annexure-A1). Being aggrieved by the said order, the applicant is before this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 with the following reliefs:-
(a) Quash and set aside the impugned DOTs non speaking order no.CS/Adv(HRD)/APAR/2008-09/St. No.386 dated April 1, 2010 wherein Applicants representation against the entries in his APAR for the year 2008-09 was disposed of without due application of mind (Refer Annexure A1).
(b) Quash and expunge below bench mark remarks in the Applicants APAR for the year 2008-09 on record with DOT in two parts that were made due to bias and not based on facts (Refer Annexure A2 and A3).
(c) Quash and expunge below bench mark remarks in the Applicants APAR for the year 2008-09 on record with BSNL in two parts that were made due to bias and not based on facts (Refer Annexure A4 and A5).
(d) Quash the original copy of the Applicants APAR for the period April 1, 2008 to July 31, 2008 on record with BSNL but for which BSNL has refused to make any disclosure about the same.
(e) Direct the Respondents to conduct an inquiry to fix responsibility for delinquent acts of the Reviewing/Accepting Authorities responsible for reviewing/accepting of CRs;
(f) Direct the Respondents to pay cost of litigation as well as mental agony suffered by the Applicant;
(g) pass any other order and/or directions as this Honble Tribunal may deem fit in the facts and circumstances of this case in the interest of justice.
2. The applicant, who appeared in person, argued the case to state that there had been undue delay in disclosure of his APAR to him. He submits that APAR for 2008-09 is neither complete, nor accepted by the authorities concerned. Further, he submits that the APAR was reviewed by the Reviewing Authority on 24.12.2009 which was beyond the specified period in violation of the Rules and certain remarks were made in the APAR which were not approved by the Reporting/Reviewing Officers but by other persons. His ground is that on the basis of the remarks given by the Reporting Officer on his self appraisal he should have been graded as Outstanding instead of Very Good. His statement is that the said grading of Very Good has been done under coercion and the Reviewing Officer while making general assessment in Part-IV of the APAR has interpolated the word Very in the sentence overall a (very) good officer. He further submits that other entries in the APAR would give an impression that those are below benchmark of Very Good though he has been rated as Very Good by both Reporting and Reviewing Officers. He has alleged malafide for the delay that has been caused deliberately by the 4th respondent in not showing his APAR to him in time.
3. On receipt of the notice from the Tribunal, the Respondent No.1 & 2 have entered appearance through Mr. Rajesh Katyal, Senior Central Government Counsel and have filed their reply affidavit on 10.10.2011. Third and 4th respondents have entered appearance through Shri Rajnish Prasad, learned counsel, who have filed their reply affidavit on 10.10.2011. Opposing the grounds taken by the applicant they would contend that the order passed by the competent authority was in consonance with the principles and practices followed in recording remarks in the APAR. There has been no intentional delay in sending him the copy of the APAR for the year 2008-2009. Their contention is that all the relevant materials like the APAR, the representation of the applicant dated 16.02.2010 and comments of the Reporting and Reviewing Officers have been objectively assessed in the most dispassionate manner and giving the reasons in the impugned order passed by the competent authority on 1.04.2010. The competent authority has not agreed to the reports to upgrade his overall grading from Very Good to Outstanding for the year 2008-2009. Both the counsel, therefore, would submit that this is not a fit case for consideration as the applicant has already retired and it would be merely an academic exercise in futility. Therefore, they would urge that the OA deserves to be dismissed.
4. Having heard the contentions of the parties, we have perused the pleadings with their assistance. The basic issue for our determination is: whether the order passed by the competent authority dated 01.04.2010 is legally sustainable?
5. We have carefully perused the impugned order dated 1.04.2010 and note that the applicant gave his representation on 16.02.2010 requesting to upgrade the assessment in his APAR for the period 2008-09. He has inter alia raised five specific issues that there has been delay in sending the copy of his APAR which is not complete and has not been accepted. His APAR has been reviewed by the reviewing authority on 24.12.2009 which is beyond the prescribed period, and certain remarks have been made in the APAR by person other than the reporting and reviewing officers. He claims that on the basis of the remarks of the reporting officer and his self appraisal, he should have been assessed as Outstanding but rated as Very Good, which has been done under coercion. The Reviewing Officer has interpolated the word Very in the sentence Overall a (very) good officer. The competent authority has considered the above points raised in his representation dated 16.02.2010 and disposed of in terms of the observations that the entries as well as the overall grading made by the reporting and reviewing officers in the APAR for the period 2008-09 would be treated as final for all intent and purposes. Hence, his representation was rejected on the basis of the following observations:-
3. On the perusal of the APAR for the mentioned period, it has been observed that the APAR is in two parts i.e. from 01.04.2008 to 31.07.2008 and from 01.08.2008 to 31.03.2009. The comments of both the reporting officers i.e. Sh. J. R. Gupta, the then Director (O) BSNL for the 1st part and Sh. Rajesh Wadhwa, Director (CFA), BSNL and the comments of reviewing officer i.e. Sh. Kuldeep Goyal, CMD BSNL on the representation submitted by Sh. Golas were obtained.
4. All the relevant material i.e. the APAR, the representation dated 16.02.2010 and the comments of the reporting and reviewing officers have been objectively assessed in most dispassionate and fair manner and following has been observed:-
(i) That the complete APAR has been disclosed and delay caused in disclosure is due to unavoidable Administrative reasons, since the disclosure of APAR is being done for the 1st time and the system for the same needed to be in place. Further, there is no system for acceptance of the reviewed ACR.
(ii) The APAR has been reviewed by the reviewing officer on 24.05.2009 and not on 24.12.2009.
(iii) That both the reporting and reviewing officers have made their assessment based on the performance of the officer in an objective, dispassionate and fair manner. There has been no evidence of any coercion, interpolation or malafide in the assessment as well as entries made in the APAR by the reporting and reviewing officers.
6. It is trite law that the matters of APARs on the representations to be decided on APARs come under the exclusive functional domain of the executive. The above order is speaking and reasoned one. It has not only captured the grounds taken by the applicant but also has analysed those grounds and passed a well reasoned and rational order. The issue of delay in submitting the copy of the APAR to the applicant could not have prejudiced him as he has retired from service. There is no specific evidence of malafide against the 4th respondent. Wild allegation can not be considered unless strict proof thereon is placed. The onus of proving malafide lies on the applicant. He has not at all convinced us on the issue of malafide.
7. Having considered the totality of facts and circumstances of the case, we come to the considered conclusion that that there is no ground on which we can interfere in the matter.
8. Resultantly, the Original Application, having no merits is dismissed. No costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/