Central Administrative Tribunal - Cuttack
Sarbeawar Das vs Posts on 25 September, 2024
1 O.A.No. 260/00611 of 2021
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00611 of 2021
Reserved on 24.09.2024 Pronounced on 25.09.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Sarbeswar Das, aged about 45 years, S/o Late Gangadhar
Das, At/PO- ERTAL, PS- Basudevpur, Dist- Bhadrak-
756124.
......Applicant
VERSUS
1. Union of India, represented through its Secretary,
Department of Posts, Dak Bhawan, Sansad Marg, New
Delhi-110001.
2. The Chief Postmaster General, Odisha Circle, At/Po-
Bhubaneswar, District- Khurda-751001.
3. The Director of Postal Services, HQ Region, Bhubaneswar,
O/o The Chief Postmaster General, Odisha Circle, At/Po-
Bhubaneswar, District- Khurda-751001.
4. The Superintendent of Post Offices, Mayurbhanj Division,
At/Po-Baripada, District- Mayurbhanj -757001.
......Respondents
For the applicant : Mr. S.Jena, Counsel
For the respondents: Mr. S.K.Jee, Counsel
2 O.A.No. 260/00611 of 2021
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
The challenge of the Applicant in this O.A. is to the overall grading of 4.1 & the entry in Column Integrity as "doubtful" recorded in his APAR for the period 02.07.2020 to 31.03.2021 and the order dated 24.11.2021 rejecting the appeal preferred by him against such entry.
2. According to Applicant/Learned Counsel for the Applicant, remark "integrity is doubtful" in APAR of a Government servant has serious adverse impact in service career, yet, the authority concerned did the same without due application of mind, without following due procedure of Rule provided under Rule 174 (8) and (9) of Postal Manual Volume III so also the instruction of DoP&T and law on the subject. Further, it is submitted that an employee cannot became bad over night. Throughout his career, never any adverse remark was recorded about his integrity. At no point of time any memo or warning or reprimand for his work/short coming in work culture has been issued to him. Thus, giving him overall grading of 4.1. and remark of integrity as 3 O.A.No. 260/00611 of 2021 doubtful is nothing but shows non-application of mind and bias. Further, it is submitted that the Director Postal Services (HQ), BBSR, should not have rejected his representation in a casual manner without considering the very fact that before awarding overall grading of 4.1 and recording integrity as doubtful, due care should have been taken by the Reporting Officer that the Rules, instruction, principles of natural justice and law should have been complied with. Therefore, the rejection of representation of applicant is highly illegal and arbitrary. Hence, learned counsel for the applicant has prayed for quashing the order of rejection dated 24.11.2021 and also the overall grading of 4.1 and remark of doubtful integrity in his APAR for the period 02.07.2020 to 31.03.2021 .
3. Respondents filed their counter objecting/contesting the stand taken by the applicant which has been reiterated in course of hearing by the learned counsel for the respondents, emphasizing that the authority concerned, taking into consideration the work performance etc, is the best judge to decide what grading/remark, an employee deserves in his/her APAR and, judicial interference in such matter is not warranted. It is 4 O.A.No. 260/00611 of 2021 submitted that the Applicant was under suspension w.e.f. 18.10.2019 to 16.02.2020 for his lapses and financial irregularities while working as SPM (i/c), Dukura SO. Upon his reinstatement, he was posed as PA, Rairangpur HO with specific order that he should work only in non-sensitive post. Departmental proceedings under Rule 14 of CCS (CC&A) Rules, 1965 had also been initiated against him. The Postmaster, Rairangpur HO, who is the immediate Controlling Authority of Applicant reported against him regarding disobedience of order and non-working in the post office vide letter dated 16th November, 2020. His immediate Supervisor i.e. APM, Rairangpur HO has also given one comment against the working of applicant vide letter dated 16th November, 2020. It is also submitted that on enquiry/investigation allegation of misappropriation of government amount came to the notice in as much as he had reflected Rs. 20,000/- towards KVP discharge in Dukura Sub Office daily account dated 22.02.2018 but he had paid only Rs. 10,000/- to the depositor of KVP. Thus, Rs. 10,000/- shown as excess payment from Govt. account which was not actually paid to the depositor. The applicant subsequently credited the said 5 O.A.No. 260/00611 of 2021 amount of Rs. 10,000/- under UCR on 24.02.2018 which was not found convincing. According to Respondents, Respondent No.4 taking into account all aspects of the matter, assessed the performance of applicant judiciously, with due application of mind without being biased. Further, it is submitted that, in terms of Rule, the remark 'integrity doubtful' was supported by reason recorded in the APAR. Thus, there was no illegality in recording such remarks. In so far as rejection of his representation is concerned, by taking us through the order of rejection, learned counsel for the Respondents submitted that the authority concerned considered the representation of applicant, taking into consideration the facts on record with due application of mind and after finding no justification for interfering in the remark recorded in the APAR, rejected the representation in a well reasoned order. Hence, the Respondents' counsel has prayed for dismissal of this O.A.
4. After giving due consideration to the arguments advanced by the parties, we have gone through the pleadings and documents placed in support thereof.
6 O.A.No. 260/00611 of 2021
5. Since the remark 'doubtful integrity' in APAR has its serious adverse impact, the authority concerned while recording so must give due care and caution and such recording must be supported with reasons.
6. This principle has also been reiterated time and again and suffice to quote the DoP&T OM No. 21011/27/2017-Estt.(A-II) dated 11th February, 2016, as under:
"Office Memorandum Subject: Instructions/Guidelines relating to filling up the Integrity Column of Annual Performance Assessment Reports-regarding.
The undersigned is directed to refer the existing instructions/ guidelines of this Department on filling up the column relating to integrity in ACRs (now APARs). It has been brought to the notice that many a time Reporting Officers do not make clear and categorical mention about the integrity of the officer reported upon. Further, it has also been seen that in case of doubt of integrity of the officer reported upon, the procedures prescribed for filling up the integrity column in APARs are not being followed appropriately.
2. Now, it has been decided to reiterate the followings instructions/guidelines contained in para 5.2 of this Department OM No. 51/5/72-Ests. (A) dated 20th May, 1972 on procedures prescribed for filling up the column relating to integrity in APARs:
(a) Supervisory officers should maintain a confidential diary in which instances which create suspicion about the integrity of a subordinate should be noted from time to time and action to verify the truth of such suspicions should be taken expeditiously by making confidential enquiries departmentally or by referring the matter to the Special Police Establishment. At the time of recording the annual confidential report, this diary should be consulted and the material in it utilized for filling the column about integrity. If the column is not filled on account of the unconfirmed nature of the 7 O.A.No. 260/00611 of 2021 suspicions, further action should be taken in accordance with the following sub- paragraphs.
(b) The column pertaining to integrity in the character roll should be left blank and a separate secret note about the doubts and suspicions regarding the officer's integrity should be recorded simultaneously and followed up.
(c) A copy of the secret note should be sent together with the character roll to the next superior officers who should ensure that the follow-up action is taken with due expedition.
(d) If, as a result of the follow-up action, an officer is exonerated, his integrity should be certified and an entry made in the character roll. If suspicions regarding his integrity are confirmed, this fact can also be recorded and duly communicated to the officer concerned.
(e) There are occasions when a reporting officer cannot in fairness to himself and to the officer reported upon, either certify integrity or make an adverse entry, or even be in possession of any information which would enable him to make a secret report to the Head of the Deptt. Such instances can occur when an officer is serving in a remote station and the reporting officer has not had occasion to watch his work closely or when an officer has worked under the reporting officer only for a brief period or has been on long leave, etc. In all such cases, the reporting officer should make an entry in the integrity column to the effect that he has not watched the officer's work for sufficient time to be able to make any definite remark or that he has heard nothing against the officer's integrity as the case may be. This would be a factual statement to which there can be no objection. But it is necessary that a superior officer should make every effort to form a definite judgment about the integrity of those working under him, as early as possible, so that he may be able to make a positive statement.
(f) There may be cases in which after a secret report/note has been recorded expressing suspicion about an officer's integrity, the inquiries that follow do not disclose sufficient material to remove the suspicion or to confirm it. In such a case the officer's conduct should be watched for a further period, and, in the meantime, he should, as far as practicable, be kept away from positions in which there are opportunities for indulging in corrupt practices.
3. It is further conveyed that the remarks against the integrity column of APARs of the officer reported upon shall be made by the Reporting Officer in one of three options mentioned below: 8 O.A.No. 260/00611 of 2021
(a) Beyond doubt.
(b)Since the integrity of the officer is doubtful, a secret note is attached.
(c) Not watched the officer's work for sufficient time to form a definite judgment but nothing adverse has been reported to me about the officer.
4. All Ministries/Departments are requested to bring it to the notice of all concerned for strict compliance."
7. To dunk an officer into the puddle of "doubtful integrity" it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. Mere initiation of disciplinary proceedings or criminal proceeding against an employee cannot be a ground to record that his integrity is doubt is also the law of the land. The word "integrity" has also been defined by the Hon'ble Supreme Court in the matter of Vijay Singh Vs. State of Uttar Pradesh and others, AIRONLINE 2007 SC 46, stating as under: -
"... Integrity means soundness of moral principle of character, fidelity, honesty, free from every biasing or corrupting influence or motive and a character of uncorrupted virtue. It is synonymous with probity, purity, uprightness, rectitude, sinlessness and sincerity. The charge of negligence, inadvertence or unintentional acts would not culminate into the case of doubtful integrity."9 O.A.No. 260/00611 of 2021
8. Further, in the matter of M.S. Bindra Vs. Union of India and others, AIR 1998 SC 3058, the Hon'ble Supreme Court while considering the question of integrity has held as under: -
"13. While viewing this case from the next angle for judicial scrutiny, i.e., want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials, no reasonable man would reach such a conclusion. While evaluating the materials, the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim "nemo firut repente turpissimus" (no one becomes dishonest all of a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of administrative law. The authorities should not keep the eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity", it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt 35 1998 SCC (L&S) 1812 W.P.(PIL)Nos.30/2018 & 46/2019 regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity".
9. A three Judge Bench of the Hon'ble Apex Court in the case of Chandra Kishore Jha v. Mahavir Prasad & Ors., (1999) 8 SCC 266, held as under:
"17......It is a well-settled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. (See with advantage: Nazir Ahmad v. King Emperor [(193536) 63 IA 372 : AIR 1936 PC 253 (II)] , Rao Shiv Bahadur Singh v. State of V.P. [AIR 1954 SC 322 :
1954 SCR 1098] , State of U.P. v. Singhara Singh [AIR 1964 SC 358 : (1964) 1 SCWR 57] .) An election petition under the rules could only have been presented in the open court up to 16-51995 till 4.15 p.m. (working hours of the Court) in the manner prescribed by Rule 10 O.A.No. 260/00611 of 2021 6 (supra) either to the Judge or the Bench as the case may be to save the period of limitation. That, however, was not done................"
10. Further, the aforesaid principle has been followed in the case of Cherukuri Mani v. Chief Secretary, Government of Andhra Pradesh & Ors., (2015) 13 SCC 722, wherein the Hon'ble Apex Court held as under:
"14. Where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure............."
11. Similarly, we find that the Respondents intend to substantiate the remark 'doubtful integrity' based on the pen picture given by the reporting officer in Col.3 (i.e. Work and conduct not satisfactory. Requires improvement quality output, sincerity, sense of responsibility, attitude to work devotion to duty and integrity) but without following the procedure provided in DoP&T OM dated 11th February, 2016.
12. We find that the Respondents in their counter and in course of hearing have sought to substantiate the remarks in the APAR of the Applicant for the period 02.07.2020 to 31.03.2021 by referring some of the omission and commission of the year 2018 but, the remark 'doubtful integrity' recorded in the APAR for the 11 O.A.No. 260/00611 of 2021 above period, is established to have been written in violation of the cardinal principles evolved in the DoP&T OM referred to above. Also, on perusal of the order of rejection dated 24.11.2021, we find that the representation of the applicant has been rejected without taking into consideration the DoP&T OM.
13. In view of the discussions made above, we quash the order of rejection dated 24.11.2021 so also the remark 'doubtful integrity' recorded in the APAR of applicant for the period 02.07.2020 to 31.03.2021 and remit the matter back to the authority concerned, to give reconsideration in so far as the recording of integrity is concerned recorded in the APAR of the applicant and communicate the result thereof to the applicant in a well reasoned and speaking order within a period of 60 (sixty) days from the date of receipt of a copy of this order.
14. In the result, this OA stands allowed to the extent stated above.
There shall be no order as to costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS