Central Administrative Tribunal - Delhi
Shri K.K. Bhardwaj vs Union Of India on 18 November, 2011
Central Administrative Tribunal Principal Bench OA No.810 of 2011 New Delhi, this the 18th day of November, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Shri K.K. Bhardwaj, S./o Late Shri Pyare Lal, R/o J-253 Second Floor, Saket, New Delhi-17. . Applicant (By Advocates : Shri Yogesh Sharma) Versus 1. Union of India Through The Secretary, Ministry of Home Affairs, Govt. of India, New Delhi. 2. Director General, National Crime Records Bureau, Ministry of Home Affairs, Govt. of India, East Block-7, R.K. Puram, New Delhi-66. 3. Assistant Director (Admn.), National Crime Records Bureau, Ministry of Home Affairs, Govt. of India, East Block-7, R.K. Puram, New Delhi-66. Urban Development, Nirman Bhawan, New Delhi. 4. Joint Assistant Director (DCT), National Crime Records Bureau, Ministry of Home Affairs, Govt. of India, East Block-7, R.K. Puram, New Delhi-66. Respondents (By Advocate: Ms. Bela K. Chauhan) : ORDER :
Dr. Ramesh Chandra Panda, Member (A) Shri K.K. Bhardwaj working as Data Processing Assistant-B (DPA-B) in the National Crime Records Bureau (NCRB) of the Ministry of Home Affairs (MHA) is aggrieved by the adverse remarks in his Annual Confidential Report (ACR) and Annual Performance Assessment Report (APAR) for the year 2008-09, which was communicated to him by the respondents vide order dated 26.2.2010 (Annex-A1), and his representations dated 12.3.2010, 09.11.2010 and 11.01.2011 against the same were rejected by the orders dated 02.11.2010 (page-19), 10.1.2011 (page-20) and 8.2.2011 (page-21) without passing any speaking and reasoned order. He is, therefore, before this Tribunal in the present OA impugning those orders under Section 19 of the Administrative Tribunals Act, 1985 with the following prayers:-
(i) That the Honble Tribunal may further graciously be pleased to pass an order of quashing the impugned adverse remarks and grading in the ACR/APAR of the year 2008-09 in Col.22 &23, declaring to the effect that the same are illegal and arbitrary and liable to be expunge, with direction to the respondents to upgrade the grading of the applicant in ACR/APAR of the year 2008-09 accordingly.
(ii) That the Honble Tribunal may further graciously be pleased to pass an order of quashing the impugned orders dated 2.11.2010, 10.1.2011 and order dated 8.2.2011, only to the extent by which the representation of the applicant in respect of Col. 22& 23 of the ACR/APAR 2008-09 has been rejected with the further direction to the respondents not to consider the ACR/APAR 2008-09 for any purpose including for promotion/MACP of the applicant.
(iii) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation.
2. Brief facts of the case as may be relevant for determining the issues in the case would disclose that the Reviewing Officer, the 4th respondent vide the letter dated 26.2.2010 (Annexure-A3) communicated the ACR/APAR for the year 2008-09 with the adverse remarks in Columns No.22, 23 and 24 which read as follows :-
22. Overall Assessment: The Official wastes/consumes his energy in unwarranted issue rather than contributing potentially to office duties.
23. Grading: Average
24. Recommendations : Needs to improve inter personal communications skills specially with seniors. On receipt of the same, he submitted his representation dated 05.03.2010 seeking certain clarifications from the Reviewing Officer in respect of above said remarks. As no reply was received, he submitted one representation against the said remarks to the second respondent vide his letter dated 12.3.2010 (Annex-A7). In the meantime, vide order dated 15.4.2010 (Annex-A5), he received clarificatory note from the 4th respondent giving justification and the reasons for such adverse entries in Column No.21 and 22. It is the case of the applicant that the Reviewing Officer, (the 4th respondent) being the CPIO of the Department under the Right to Information Act, 2005 gave him the information based on his earlier representation on Column No.24 giving the reasons on the basis of Memorandum issued to him on 16.10.2008 and warning issued to him on 03.11.2008. The applicant further submitted his representation on 21.04.2010 (Annex-A9) clarifying the position on the points and reasons given in the Reviewing Authoritys letter dated 15.4.2010 (Annex-A8). It is stated that his representation dated 12.3.2010 (Annex-A7) was responded by Office Memorandum dated 2.11.2010 (Annex-A2) intimating him that the Competent Authority has expunged only the remarks of the Reviewing Authority under Column No.24 in APAR for 2008-09. Against the said order dated 02.11.2010, the applicant submitted one more detailed representation to the next higher authority i.e. to the first respondent vide his letter dated 09.11.2010 (Annex-A10) through proper channel. He also sought certain information through the RTI ACT, 2005 which was supplied to him on 01.12.2010. Against the alleged irregularities and wrong facts, he submitted one more representation dated 07.12.2010 (Annex-A11) to the second respondent. He was informed by the Assistant Director (Admn.) vide order dated 10.01.2011 (Annex-A3) that his representation was forwarded by the first respondent to the second respondent. In the meantime, he submitted one more representation dated 11.1.2011 (Annex-A12) appealing to the Competent Authority to reconsider his request for upgradation of his gradings in the APAR for the year 2008-09 and also to expunge adverse remarks. The same is still pending with the respondents.
3. Shri Yogesh Sharma, learned counsel appearing on behalf of the applicant would contend that the replies furnished to the applicant on his representation against the adverse remarks in the ACR/APAR of 2008-09 are all non-speaking and non-reasoned ones. He further submits that the representation of the applicant should have been considered by the Competent Authority who should be higher to that of the last authority who has given his remarks. On the other hand, it is the Reviewing Officer who has decided all his representations and such action of the Reviewing Officer is not tenable in law, as per the extant guidelines issued by the DOP&T. In view of these specific reasons, he submits that the OA should be allowed with appropriate directions to the Competent Authority to decide all the representations pending with them.
4. Per contra Ms. Bela K. Chauhan, learned counsel for respondents would submit that the applicants representations have been properly considered and rejected. The detailed reply has been given to the applicant by the JAD (DCT) in his letter dated 15.4.2010. Her contention is that the respondents have acted as per the rules to give him the reply that the applicants adverse remarks in his APAR would stand as the representations have been considered and rejected by the Competent Authority.
5. We have heard the rival contentions and perused the pleadings as well. The issue is whether the orders passed by the respondents on the representations of the applicant against the adverse remarks in his ACRs/APARs for the year 2008-09 are sustainable in the eyes of law.
6. After a very careful scrutiny of the impugned orders, we find that the orders are very cryptic and by no stretch of imagination can be called as speaking and reasoned orders though the counsel for respondents would attract our attention to the letter written to the applicant by Ms. Kamini Shaw JAD (DCT) vide her letter dated 15.4.2010 giving certain information. We notice that the said note of 15.4.2010 has some information given to the applicant by the Reviewing Officer and cannot be considered objective decision taken by the Competent Authority on the representations against the adverse remarks.
7. With regard to the conclusions that the orders passed by the respondents are non-speaking and non-reasoned orders, we reproduce the same which read as follows :-
I Office Memorandum No.(035)48/1/2009-Ad.II/NCRB dated 02.11.2010 OFFICE MEMORANDUM Subject : Upgradation of APAR regarding The undersigned is directed to refer to Shri K.K. Bhardwaj, DPA-Bs representation dated 12/03/2010 on the subject mentioned above and to convey that the Competent Authority has expunged only the remarks of the Reviewing Officer under Col. No.24 of the APAR for the year 2008-09. Needs to improve in the personnel communication skills, specially with seniors. However, representation against other remarks/gradings have been rejected.
( N.K. Singh) Assistant Director (Admn.) II Office Memorandum No.(035)48/1/2009-Ad.II/NCRB dated 10.01.2011 OFFICE MEMORANDUM Subject : Upgradation of APAR regarding
The undersigned is directed to refer to Shri K.K. Bhardwaj, DPA-Bs representation dated 09/11/2010 addressed to MHA and subsequently forwarded by MHA to this Bureau without any remarks on the subject mentioned above and to say that the Competent Authority, after having re-considered the matter, has rejected his representation in the absence of any new grounds in it.
( N.K. Singh) Assistant Director (Admn.) III Office Memorandum No.(035)48/1/2009-Ad.II/NCRB dated 08.02.2011 OFFICE MEMORANDUM Subject : Upgradation of APAR regarding
The undersigned is directed to refer to Shri K.K. Bhardwaj, DPA-Bs representation dated 11/01/2011 on the subject mentioned above and to say that the Competent Authority, has rejected his representation as there is no reason to reconsider the matter again.
( N.K. Singh) Assistant Director (Admn.)
8. The above orders are not detailed speaking orders on the grounds taken by the applicant in his representations against the adverse remarks. Though these are executive orders and are not quasi judicial, it would be proper for the Competent Authority to pass order in a manner that consideration of the representation of the applicant would be brought out and properly dealt in the orders while rejecting the same even though on brevity. The subjective satisfaction is dependent on the objective analyses of the facts of the case while deciding the matter like this. The above orders passed by the respondents cannot stand the test of the above scrutiny.
9. We may refer to the second issue : whether the Competent Authority has passed the orders or not? It is noted that the applicants ACRs/APARs have been written by the Reporting Officer [Shri S.K. Pandey (JSO)] and reviewed by Ms. Kamini Shaw, JAD(DCT). The replies received by the applicant are from Assistant Director (Admn.) and the clarificatory note has been received from Ms. Kamini, the Reviewing Officer. As per extant guidelines in the subject, it stipulates that the representations against the adverse remarks are to be considered by an authority superior to the last authority who has recorded the remarks. In the present case, Ms. Kamini Shaw, JAD (DCT), being the Reviewing Officer, she is incompetent to decide the representations of the applicant against the adverse remarks though she along with the Reporting Officer can submit their views on the applicants representation. Thus, on this point, we are of the opinion that the decisions have been taken by the incompetent authority as a result of which, those orders are liable to be quashed and set aside. We order accordingly.
10. Having considered the totality of facts and circumstances of the case, we are of the considered opinion that the applicant has made a good case in support of his claims in the OA, as the orders passed by the respondents suffer from legal infirmities i.e those orders have been passed by Incompetent Authority and are non-speaking and non-reasoned orders.
11. Resultantly, the Original Application succeeds with the directions to the respondents to place all the representations of the applicant against adverse remarks before the Competent Authority who should be the Authority superior to the Reviewing Officer and the appropriate orders need to be passed by the Competent Authority within a period of 9 weeks from the date of receipt of a certified copy of this order. No costs.
( Dr.Ramesh Chandra Panda ) ( V.K.Bali )
Member (A) Chairman
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