Central Administrative Tribunal - Ernakulam
P. Venu vs The Union Of India on 20 July, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 180/00370/2014
Wednesday, this the 20th day of July, 2016
CORAM:
HON'BLE MR. U. SARATHCHANDRAN, JUDICIAL MEMBER
P. Venu, aged 60 years,
Assistant Salt Commissioner (Retired),
Residing at Nandavanam, Udayanapuram,
Vaikom-686 143. . . . Applicant
(Applicant in person)
Versus
1. The Union of India, through the Secretary,
Department of Industrial Policy & Promotion,
Ministry of Commerce & Industry, Udyog Bhavan,
New Delhi - 110 011.
2. The Salt Commissioner, Lavan Bhavan, 2A - Lavan Marg,
Jhalara Doongri, Jaipur - 302 004.
3. The Deputy Salt Commissioner,
Shastri Bhavan,
Chennai - 600 006. ... Respondents
(By Advocate : Mr. Thomas Mathew Nellimoottil, Sr. PCGC)
This application having been heard on 29.06.2016, the Tribunal on
20.07.2016 delivered the following:
ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
This is the 4th in the series of the OAs filed by the applicant challenging his adverse entries in the Annual Confidential Reports/Annual Performance Appraisal Report (ACRs/APARs).
2. Applicant was working as Assistant Salt Commissioner in the Salt Commissioner's Organization (SCO) under respondent No. 1. In this OA he is challenging the adverse remarks made in his APAR for the year 2008-2009. Respondent No. 3 is the reporting officer and respondent No. 2 is the reviewing officer in the APARs under challenge. The adverse entries made by the reporting officer under the various heads reads:
'PART-III A. NATURE AND QUALITY OF WORK
1. ..........
I do not agree with the targets and achievements mentioned in part-ii(2) as they are part of the routine duties. The targets for production of common/iodized salt, expenditure on development and labour welfare works, no. of samples of salt/iodized salt drawn/analyzed have been fixed by this office. But the officer reported upon has not made any mention on these aspects. Further, I do not agree with the reasons for shortfall/constraints mentioned in 3(a), part-II as (i) he has not mentioned anything about targets and achievements, (ii) they are contrary to truth, (iii) guidelines/procedures of the government can not be amended at divisional/regional level as they are to be followed in letter and spirit and (iv) the question of withholding relevant information does not arise as he has not mentioned anything about targets and achievements though are fixed for him. QUALITY OF OUTPUT
2. .............
His quality of performance having regard to standard of work and program objectives was not satisfactory. He simply criticized the implementation of programms and objectives of the government.
KNOWLEDGE OF SPHERE OF WORK
3. ..............
........................
Though his level of knowledge of functions, related instructions is fair, he never applied them.
B. ATTRIBUTES
1. Attitude to work
........................
Showed average zeal and devotion to work. But he never took initiative to learn and systematize his work.
2. Decision making ability .........................
His ability of decision making was satisfactory. But he was unable to weigh pros and cons of alternatives.
3. Initiative ..........................
His capacity and resourcefulness in handling unforeseen situations on his own and willingness to take additional responsibility and new areas of work were just satisfactory.
4. Ability to inspire and motivate ........................
His capacity to motivate, obtain willing support by own conduct and inspire confidence was satisfactory.
5. Not adverse
6. Inter-personal relations and team work ........................
Maintained cordial relationship with colleagues and subordinates. He never appreciated others point of view especially that of the superiors and did not take advice in proper spirit. His capacity to work as a member of a team and to promote team spirit and optimize out put of the team was satisfactory.
7. Not adverse
8. Not adverse PART-III GENERAL
1. ..........
2. ..........
3. General Assessment ..........overall assessment................
He is disobedient, indisciplined and gives scant respect to the instructions of higher officers. Uses undesirable and intemperate language while making official communications, especially with higher officers, meddling with the instructions of the higher authorities, passes adverse comments on the functioning of regional office and staff and prone to commit financial irregularities. His overall performance has been average.
4. Grading ............
............
AVERAGE'
3. The reviewing authority has recorded that he is satisfied with the reporting authority's report and that he agrees with the assessment of the former. By way of general remarks the reviewing authority adds 'he has the capacity but does not channelize in productive work. I agree with the grading'. Being aggrieved by the above adverse remarks in the APAR he submitted Annexure A2 representation dated 23.10.2009 to respondent No. 1 requesting to expunge the adverse remarks. However, the respondent No. 1 vide letter dated 25.7.2010 informed the applicant that the competent authority has decided to retain the remarks in the APAR. Therefore, the applicant filed OA No. 1289 of 2010 before the Hyderbad Bench of this Tribunal praying for expunging the adverse remarks and for quashing and setting aside the order. The Tribunal disposed of the said OA and set aside the order dated 25.7.2010 of respondent No. 1 and directed the said respondent to pass a reasoned order on each and every adverse remarks made against the applicant. However, respondent No. 1 vide order dated 10.4.2013 decided to retain almost all the significant adverse remarks and expunged a few meaningless remarks vide Annexure A1 [(17) - at page 28 of the paper book].
4. Applicant states that while in service he had always been fulfilling his official responsibilities honestly, diligently and faithfully and has always acted in his best judgment and maintained independence and impartiality in discharge of duties. According to him he was strictly abiding by the Constitution and respecting its ideals and institutions and made every effort to avoid any action that could have resulted in injury and damage to the general public and compromised rule of law. He tried to ensure discipline of the officials under him and to ensure that they did not subscribe mediocrity. The reporting and reviewing officers had assessed his performance without considering the essentials that govern the conduct of a public servant. The alleged shortcomings and wrong doings recorded in the APAR are based on misconceptions borne on extraneous considerations and assessment made by the reporting and reviewing officers had neither been fair nor objective. According to him the administration of Chennai Regional Office has been a mockery and an antithesis of public administration. The competent authority has not decided his application and has not passed a reasoned order.
5. He further states that the SCO did not cultivate any salt work nor did had produced iodized salt or refined salt. The imaginary targets set by SCO do not constitute the proper tools of performance appraisal and this could be counter productive. Doctoring fake records do not constitute a system of 'achieving targets' or performance appraisal. Monitoring production, distribution, supply and quality of salt cannot be made susceptible to quantification. Therefore, appraisal or assessment need not always be quantitative but it has to be qualitative. The applicant further contends that the competent authority has decided his Annexure A2 representation based on irrelevant and disparate matters in as much as providing honest feedback amounting to criticism. According to him it is not the task of the subordinate officer to prove his official superior the degeneration of administration, when 'perversion and lack of morality is too obvious'. The competent authority decided the applicant's representation disregarding the essentials governing the conduct of the public servant that it is the duty of the public servant to furnish honest feedback and point out all defects and suggest improvement and it is their duty to ensure integrity and devotion of duty and that every public servant is under an oath of allegiance to the Constitution and owes fidelity to the rules. The competent authority has not taken into consideration that the salt department is a faulty organization and has taken into consideration all the submissions of the applicant as an organic whole. The applicant alleges that the competent authority has not taken into consideration the pronounced bias of the reporting and reviewing officers towards the applicant for no valid reasons.
6. In the reply statement the respondents while refuting the contentions of the applicant state that his representation dated 23.10.2009 was already examined covering each and every adverse remarks recorded in the APAR taking into consideration all the columns, attributes in the APAR forms, adverse remarks, his representation to expunge them, comments on the representation and number of documents in support of respective stands and other related papers. The respondents further state that 'it would be not feasible for the respondents to again and again take up the matter with CAT on the same issue as there is no scope left for considering the representation of the applicant'. It is further submitted by the respondents that the divisional officers apart from the administering the division are expected to provide technical guidance to the salt/iodized salt manufacturers, interpret and implement the rules and regulations, superintendence of execution of development and labour welfare works and ensure superintendence of the lands and buildings. It is not true that the respondent No. 1 has expunged a few meaningless remarks. In administrative matters no remarks can be considered as meaningless as it is going to have some relevance in regard to shaping up of the officer reported upon. The order passed by the competent authority in compliance with the order of the Hyderabad Bench of this Tribunal had examined each and every attributes against which the adverse remarks were made in the APAR of the applicant taking into account his representation and remarks of the reporting and reviewing officers.
7. Respondents further state that applicant ever since his appointment in the SCO had adopted anti-establishment attitude and indulged in criticism of the functions of the Department in implementing the policies and programmes of the Government of India. He is an inveterate litigant and filed numerous cases before the Tribunals and High Courts against the Department. He has developed a dictatorial tendency and expected that not only his subordinate officials but also his superiors should fall in line with him. If his views and impracticable suggestions are not accepted and he is is advised to follow the proper procedure, observe the rules and regulations, he immediately came up with statements questioning the integrity of the superior/subordinate officers as if he was the only sacred person in the entire Department. The remarks of the reporting officer were based on the objective assessment of the work and conduct of the applicant. The reviewing officer has exercised positive and independent judgment of the remarks of the reporting officer.
8. According to the respondents SCO after assessing the potential of an area, fixes targets for production source and expects the individuals posted in the division to achieve the set target by encouraging the salt manufacturers to produce more salt and arrange for transportation facilities in consultation with the Railways. The SCO is monitoring the quality control, supply, distribution of salt/iodized salt, execution of labour welfare and development works, etc. The applicant with cynical attitude has made unwarranted comments. He never appreciated the advise of the superiors to get prior approval on any matter before implementing them unilaterally in the name of resorting to sanity. The respondents pray for dismissing the OA.
9. The applicant filed a rejoinder almost reiterating his contentions in the OA.
10. Heard both sides. The applicant appeared in person and he was heard in extenso. Learned counsel for the respondents also was heard in detail.
11. According to the applicant by making comments on the functioning of the SCO he was trying to correct the system but the respondents were not in favour of it, instead they say that you cannot change the system. Referring to his contentions in Annexure A2 representation concerning the adverse remarks he states that he has brought to a sharp focus on the faulty administration, malpractices like fabrication of records under the pretext of taking possession of salt work lands, the absence of officers in the range offices during duty hours, doctored and fake laboratory reports of the quality of salt. Regarding the administration of the Chennai Regional Office he states in Annexure A2 representation as:
'5. .................The fact is that administration in Chennai Region is a mockery. It has been an antithesis of public administration. There has been no system in place. Instead, certain perverse malpractices have taken its place. Instances are too many. The state of affairs required one to disregard morality and indulge in breach of duty; any attempt towards diligence or in enforcing discipline has been considered a blasphemy. I have been making every effort not to succumb to the compulsion, but to introduce some sanity, but the reporting officer has been actively frustrating all such endeavors............ ' A careful reading of Annexure A2 representation against the adverse remarks strongly indicate that the applicant was highly critical of the functioning of the system in the SCO and in the regional office. His justification for not achieving the targets is by way of stating that the SCO is not involved in the production of common salt or iodized salt and that the quality assessment of the salt by the departmental laboratories are not trustworthy and are issuing doctored and fake results. It is also stated by him that the local officers are incapable of being honest and diligent. This Tribunal feels that this is not a proper explanation for the adverse remarks that he failed to achieve the targets. Regarding the other adverse remarks like the applicant's attitude to work, the applicant states that the remark is contrary to the facts and too subjective. Regarding the general assessment of the applicant made by the reporting officer he states that they are contrary to the facts and too subjective. According to the applicant the respondents were not even encouraging the official visits he had undertaken to the distant subordinate officers under him and when he made a report of the irregularities found there the respondents reacted by refusing to pay the travelling allowance. Learned counsel for the respondents submitted that his TA was denied because he undertook the tour without permission from the superior authorities.
12. The applicant argued elaborately on the duties of a Government servant, relying on Rule 3 of the CCS (Conduct) Rules, 1964 as amended in 2014. Rule 3 in amended form reads:
'3. General (1) Every Government servant shall at all times -
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a Government servant.
*[(iv) commit himself to and uphold the supremacy of the Constitution and democratic values;
(v) defend and uphold the sovereignty and integrity of India, the security of the State, public order, decency and morality;
(vi) maintain high ethical standards and honesty;
(vii) maintain political neutrality;
(viii) promote the principles of merit, fairness and impartiality in the discharge of duties;
(ix) maintain accountability and transparency; (x) maintain responsiveness to the public, particularly to the weaker section; (xi) maintain courtesy and good behaviour with the public;
(xii) take decisions solely in public interest and use or cause to use public resources efficiently, effectively and economically;
(xiii) declare any private interests relating to his public duties and take steps to resolve any conflicts in a way that protects the public interest;
(xiv) not place himself under any financial or other obligations to any individual or organization which may influence him in the performance of his official duties;
(xv) not misuse his position as civil servant and not take decisions in order to derive financial or material benefits for himself, h is family or his friends;
(xvi) make choices, take decisions and make recommendations on merit alone;
(xvii) act with fairness and impartiality and not discriminate against anyone, particularly the poor and the under-privileged sections of society;
(xviii) refrain from doing anything which is or may be contrary to any law, rules, regulations and established practices; (xix) maintain discipline in the discharge of his duties and be liable to implement the lawful orders duly communicated to him; (xx) maintain confidentiality in the performance of his official duties as required by any laws for the time being in force, particularly with regard to information, disclosure of which may prejudicially affect the sovereignty and integrity of India, the security of the State, strategic, scientific or economic interests of the State, friendly relation with foreign countries or led to incitement of an offence or illegal or unlawful gain to any person;
(xxi) perform and discharge his duties with the highest degree of professionalism and dedication to the best of his abilities.] (2) (i) Every Government servant holding a supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all Government servants for the time being under his control and authority;
(ii) No Government servant shall, in the performance of his official duties, or in the exercise of powers conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior;
(iii) The direction of the official superior shall ordinarily be in writing. Oral direction to subordinates shall be avoided, as far as possible. Where the issue of oral direction becomes unavoidable, the official superior shall confirm it in writing immediately thereafter;
(iv) A Government servant who has received oral direction from his official superior shall seek confirmation of the same in writing as early as possible, whereupon it shall be the duty of the official superior to confirm the direction in writing.
Explanation I - A Government servant who habitually fails to perform the task assigned to him within the time set for the purpose and with the quality of performance expected of him shall be deemed to be lacking in devotion to duty within the meaning of Clause (ii) of sub-rule (1).
Explanation II - Nothing in Clause (ii) of sub-rule (2) shall be construed as empowering a Government servant to evade his responsibilities by seeking instruction from or approval of, a superior officer or authority when such instructions are not necessary under the scheme of distribution of powers and responsibilities.' (emphasis supplied) *Inserted vide Dept. of Per. & Trg., Notification No. 11013/6/2014-Estt.(A), published as G.S.R. 845 (E) in the Gazette of India, dated the 27 th November, 2014.
13. Referring to the aforequoted conduct rules the applicant submitted that whatever communications and instructions received from the officer superiors have been dealt with by him exercising his best judgment and on finding that the said orders are not implementable or suffer from legal malice he did not carry out the directions contained therein. True, a Government official has to exercise his powers conferred on him during the performance of his official duties and shall not act otherwise than in his best judgment. In this context the term 'best judgment' simply means to act judiciously. But a Government official shall not be always judgmental on the orders and directions received from his official superiors. If he becomes judgmental on such matters it certainly is at odds with the conduct expected of him as a civil servant and is liable to be proceeded against for disciplinary action. In these cases the respondents did take a disciplinary action for the disobedience on the part of the respondents and for certain other irregularities which has resulted in a penalty of 20% cut in the pension for 5 years. It was further submitted by the applicant that another disciplinary proceedings is pending against him and the same is yet to be completed. The applicant argued that it is the duty of a Government servant to point out the fault nature of the functioning of the Department.
14. Relating to the reason as to why he pointed out the cancellation of lease deed and taking possession of the salt lands in the Kakinada Division resorted to by the respondent Department, he referred to a decision of the Bombay High Court in Shri Vinayak Yadneshwar Sathe v. Union of India & Ors. in Writ Petition No. 7916 of 2003, dated 6 th May, 2008 wherein it was held that a lessor, with the best of title, has no right to resume possession extra judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. Thus, it was not permissible to resort to extra judicial methods to resume possession. The legal position pointed out by the applicant appears to be true, but it is for a court of law to finally adjudicate such disputes, if at all the department takes a contrary stand.
15. Regarding the ordeals suffered by honest civil servant he referred to the decision of the Apex Court in Vijay Shankar Pandey v. Union of India & Anr.
- (2014) 10 SCC 589, Dr. Ram Lakhan Singh v. State Government of Uttar Pradesh through Chief Secretary - 2015 AIR SCW 6323. In Vijay Shankar Pandey's case (supra), the Apex Court held that the right to judicial remedies for redressal of either personal or public grievances is a constitutional right of the subjects (both citizens and non-citizens) of this Country and that the employees of the State cannot become members of a different and inferior class to whom such right is not available.
16. It may be true that the applicant was dissatisfied with the system prevailing in the Department in which he was holding a responsible position. He seems to be too much obsessed with legal interpretations. Annexure A2 representation clearly establishes his stand and attitude relating to the SCO and functioning of the regional office at Chennai. If the applicant wanted to improve the system he could make a detailed communication to the higher authorities pointing out the faults rather resorting to sending communications in terse language criticising the functioning of the Department. This Tribunal feels that such a conduct is not expected of a Government servant even though Rule 3 of CCS (Conduct) Rules, 1964 envisages that a Government servant should be obedient to the Constitution, law and rules and also has to exercise his judgment while implementing the orders of the superior authorities. Mere criticisms on one's own assumptions regarding the legal interpretations and illegality/constitutionality of a situation prevailing in the administration is not expected of a Government servant. If every Government servant is permitted to do so, the same will result in anarchy and mis- administration in the Department.
17. In 'Public Administration for welfare state' by Paul H. Appleby, referred to by the applicant, it is stated:
'Administration is the basis of government. No government can exist without administration. Without administration government would be a discussion club, if indeed, it could exist at all '.
Paul Pigors said:
'The main purpose of administration is to preserve the status quo in society. It (Administration) ensures the continuance of the existing order with a minimum of effort or risk. Its fundamental aim is to 'carry on' rather than to venture new and untried paths. Administrators are essentially the guardians of traditions '. [Quoted in Avasthi & Maheshwari in Public Administration (Lakshmi Narain Agarwal, Agra) 31st revised and enlarged edition : 2015 page 102] It is in the above backdrop the modern administration in civilized countries, especially in democratic countries, functions. Avasthi & Maheshwari in their reputed academic work 'Public Administration' (supra) state that it is difficult to conceive of an organisation without some form of hierarchy. According to the learned Professors (both of them were renowned members of faculty in the Indian Institute of Public Administration, Ring road, New Delhi ) the meaning of the word 'hierarchy' is control of the higher over the lower. In hierarchy, all authority proceeds from the top to the bottom in descending order and the distribution of functions and responsibilities is both horizontal and vertical. Thus, it can be seen that a modern administration cannot function effectively without a hierarchical system where orders of superiors are obeyed by their subordinates. It certainly is not a master and servant relationship, but obedience and implementation of orders are essential desiderata in a good administration without which everything would be in a chaos.
18. Referring to the numerical grading awarded to him, the applicant cited an article written by Robert P. Crease on 'Measurement and Its Discontents' appeared in the Sunday Review of the New York Times October, 22 nd 2011 wherein the author says:
'In our increasingly quantified world, we have to determine precisely where and how our measurements fail to deliver. Now that we have succeeded in defining the kilogram by an absolute universal standard, we still have to remind ourselves of the human purposes that led us to create the kilogram in the first place, and always to make sure that the kilogram is serving us, and not the other way around'.
Perhaps the applicant brought this article to the attention of this Tribunal to buttress his argument that the quantitative turn out expected of him by the respondents authorities is a meaningless and unscientific exercise especially in relation to the nature of the working in the SCO.
19. Taking stock of the pleadings, arguments and records of this case, this Tribunal is of the view that the competent authority in Annexure A1(17) order dated 10.4.2013 has taken into consideration both the official versions and Annexure A2 representation submitted by the applicant and also taken into consideration the overall nature and conduct of the applicant in a subjective manner with objective consideration. This Tribunal does not find any reason to interfere with the impugned documents.
20. The Original Application is dismissed. No order as to costs.
(U. SARATHCHANDRAN) JUDICIAL MEMBER 'SA'