Central Administrative Tribunal - Delhi
Shri G.P. Sinha Son Of Late Sh. Chandrika ... vs Union Of India (Uoi) Through The ... on 2 June, 2006
ORDER Shanker Raju, Member (J)
1. Heard the learned Counsel for the parties.
2. As this OA is restricted to the adverse remarks communicated to applicant in his ACR for the period 1.4.1997 to 31.3.1998, against which a representation preferred was also turned down in 2001 and also a memorial in 2004.
3. Learned Counsel of applicant at the outset states that it is incumbent upon the reporting officer in case of recording adverse remarks against a government servant to accord him an opportunity to improve by way of written communication which includes advisory memos, warnings, explanations etc. in absence of which there would not be any objectivity in writing ACR and it would amount to deprivation of an opportunity to the concerned and such remarks cannot be countenanced in law.
4. A decision of the Apex Court in Sukhdeo v. Commr. Amravati Division (1996) SCC (L&S) 1141, has been relied upon, where the following observations have been made:
5. In view of the above remarks made by the officer, the conclusion reached is obviously incorrect and it is not in public interest. A man does not become poor in public image when his relationship with the public and subordinates is good and he is a man of integrity and honesty and he has got the satisfactory intelligence for discharging his duties and is fit for promotion. How can in such circumstances his performance would be held unsatisfactory when he is capable of coordinating with subordinates and get the work done. How his technical ability is not satisfactory. The remarks are mutually inconsistence and reasons are self-evident of lack of bona fides in making these remarks. Under these circumstances, it could be characterized that the remarks were not bona fide made in public interest but was a self-serving statement to weed him out from service.
6. It is settled law that when the Government resorts to compulsorily retire a government servant, the entire record of service, particularly, in the last period of service is required to be closely scrutinized and the power would be reasonably exercised. In State Bank of India v. Kashinath Kher JT 1992 (2) SC 569 at p.578 para 15, this Court has held that the controlling officer while writing confidential and character roll report, should be a superior officer higher above the cadres of the officer whose confidential reports are written. Such officer should show objectivity, impartiality and fair assessment without any prejudice whatsoever with highest sense of responsibility to inculcate in the officer's devotion to duty, honesty and integrity so as to improve excellence of the individual officer, lest the officers get demoralized which would be deleterious to the efficacy and efficiency of public service. In that case it was pointed out that confidential reports written and submitted by the officer of the same cadre and adopted without any independent scrutiny and assessment by the committee was held to be illegal. In this case, the power exercised is illegal and it is not expected of from that high responsible officer who made the remarks. When an officer makes the remarks he must eschew making vague remarks causing jeopardy to the service of the subordinate officer. He must bestow careful attention to collect all correct and truthful information and give necessary particulars when he seeks to make adverse remarks against the subordinate officer whose career prospect and service were in jeopardy. In this case, the controlling officer has not used due diligence in making 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. In spite of the opportunity given if the officer/employee does not improve then it would be an obvious fact and would form material basis in support of the adverse remarks. It should also be mentioned that he had given prior opportunity in writing for improvement and yet was not availed of so that it would form part of the record. The power exercised by the controlling officer is per se illegal. The Tribunal has not considered this aspect of the matter in dismissing the petition. The appellant is entitled to reinstatement with all consequential benefits. The appeal is accordingly allowed with exemplary costs quantified at Rs. 10,000 recoverable by the State from the officer who made the remarks.
5. Furthermore, in another decision of the Apex Court in State of U.P. v. Yamuna Shankar Misra , the following observations were made:
Though sometimes, it may not be part of the record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within the knowledge of such officer. Before forming an opinion to make adverse entries in Confidential Reports, the Reporting/Reviewing Officers should share the information which is not a part of the record, with the officer concerned. This amounts to an opportunity given to the erring/corrupt officer to correct the efforts of the judgment, conduct, behaviour, integrity or corrupt proclivity. If, despite giving such an opportunity, the officer fails to perform the duty or correct his conduct or improve himself, necessarily the same is to be recorded in the Confidential Report and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes a successful tool to manage the services with officers of integrity, honesty, efficiency and devotion
6. Having regard to the above, it is stated that the remarks cannot be sustained in law.
7. We have carefully considered the rival contentions of the parties and perused the material on record.
8. Annual Confidential Report (ACR) of a government servant is a mirror reflecting the performance, which is important not only for advancement in the service career but also in the matter when due to adverse performance the question of compulsorily retiring a perios under FR 56 (j) comes into being.
9. The object of apprising the concerned of the shortcomings and defects in his functioning when he is reported upon for the period he had worked under the controlling officer, i.e., reporting officer is that subsequently once the ACR is recorded and the performance is commented upon adversely one cannot be allowed to say that though he has performed well but the reporting officer with some bias or malafide recorded adverse remarks. To rule out that, the aforesaid procedure has been prescribed.
10. Though admittedly the guidelines issued by the DoPT for recording ACR are directory but once there are no statutory rules on the subject even the administrative instructions assume the role of statutory rules by virtue of long practice, as for want of these guidelines there is no other parameter laid down by which the ACR is to be recorded.
11. Accordingly, the Apex Court in Sukhdeo's case (supra), while dealing with a question of compulsory retirement necessitated as a salutary provision to the controlling officer while writing ACR to accord reasonable opportunity which cannot be, but by virtue of communicating in writing the deficiency and defects about the functioning of the government servant which not only affords him an opportunity but also is in the interest of good administration. But once these measures are not taken as a salutary principles the justification of giving verbal warnings has no sanctity in law, which is a proof, as for want of the written communication it is very difficult in a judicial review for the Tribunal to accept the contention that necessary pre-conditions are satisfied before recording adverse remarks. The same is an illegality, as held by the Apex Court in Yamuna Shankar Misra's case (supra).
12. Leaving other grounds open, only on this ground, OA succeeds. The adverse remarks recorded in the ACR of applicant for the period 1.4.1997 to 31.3.1998 by the respondents and the orders passed on representation and memorial of applicant are set aside. Respondents are directed to expunge these remarks from the ACR of applicant. He would be entitled to all consequential benefits. No costs.