Central Administrative Tribunal - Delhi
Shri P.G. Chacko, Member (Judicial), ... vs Union Of India (Uoi) Through The ... on 4 April, 2007
Equivalent citations: 2007(213)ELT183(NULL)
ORDER V.K. Agnihotri, Member (A)
1. In this OA the applicant has sought a direction to the respondents to expunge the impugned remark (Annexure A-1) entered by respondent No. 2 in the Annual Confidential Report (ACR, for short) of the applicant for the year 2003-04.
2. The brief facts of the case are that the applicant, a practicing advocate in the High Court of Kerala at Ernakulam, was appointed as Member (Judicial) in the Customs, Excise and Service Tax Appellate Tribunal (CESTAT, for short) [then known as the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT, for short)], and joined as such on 12.04.1999. Consequent to his selection and appointment as Member (J), the applicant was posted in the Delhi Bench of the CESTAT. As a matter of practice, however, Members posted at one Bench of the CESTAT are, owing to exigencies and requirements, also deputed, on a temporary basis, to other Benches, for short durations. Thus, for the period 16.04.2001 to 27.04.2001, the applicant was, pursuant to administrative orders of the President of CESTAT to this effect, deputed to hear matters at the Mumbai Bench of CESTAT, where he was asked to sit with Shri Gowri Shanker, Member (T), who presided over the Bench.
3. During the week 16.04.2001 to 20.04.2001, a batch of appeals, numbered C/500, 599-600 and 614/88, filed by various appellants, including M/s. Nuchemo Plast and Shri Devang Rasiklal Vora, were taken up and heard by the Bench comprising Shri Gowri Shanker and the applicant. After hearing both parties, judgment was reserved thereon. Shri Gowri Shanker, Member (T), as the Presiding Member of the Bench, which had heard the abovementioned Appeal Nos. C/500, 599-600 and 614/88, retained the case file with himself. Thereafter, the applicant returned to Delhi and re-commenced his duties as Member (J) therein.
4. After a year and 9 months, the applicant was informed by his personal staff that the file of the abovementioned Appeal Nos. C/500, 599-600 and 614/88 had been sent to him at Delhi, under instructions of Shri Gowri Shaker, for writing the judgment therein. The applicant accordingly drafted the judgment and sent it back to Shri Gowri Shanker, Member (T), at Mumbai. Pursuant to concurrence of Shri Gowri Shanker, the judgment in the abovementioned appeals was pronounced, in open Court, on 06.05.2003, and was numbered as Final Order No. 978-981/2003-WZB/CII. This order was challenged by Shri Devang Rasiklal Vora before the Hon'ble Bombay High Court, by way of Writ Petition No. 1636/2003. In its judgment dated 18.08.2003, the Hon'ble Bombay High Court, inter alia, made the following observations:
11. Now turning to the merits of the challenges made out to the impugned order, prima facie, we are satisfied that some of the vital points raised in the petition and canvassed before us are not to be found in the judgment of the CEGAT though, according to the learned Counsel for the petitioner, they were canvassed before the CEGAT. Omission to make reference to the contentions canvassed can only be attributed to the delayed delivery of judgment. In the circumstances, without going into the merits or demerits of the impugned order, delay in delivery of judgment by itself is sufficient to set aside the impugned order passed by the CEGAT to the extent it is challenged by the petitioner arising out of Appeal Nos. C/500 of 1988 and C/614 of 1988.
5. Some time thereafter, the applicant received the impugned letter from the respondents, dated 23.02.2004 (sic), which reads as follows:
Sub: Adverse remarks in the ACR of Shri P.G. Chacko, Member, CESTAT, for the year 2003-04 reg.
Sir, I am directed to say that the following remarks appear in your ACR for the year 2003-04:
He has very good knowledge in both procedural and substantive law. Judgments are of good quality. There was delay in pronouncing one judgment which invited comment from the Hon'ble High Court of Bombay.
2. The above bold and underlined remarks are adverse in nature. Representation, if any, against the above stated adverse remarks recorded in the ACR for the year 2003-04 may be submitted within 30 days of receipt of this communication to the Ministry through the Joint Secretary (R), Department of Revenue, North Block, New Delhi.
6. The applicant submitted a representation dated 21.03.2005 against the adverse remarks in his ACR for the year 2003-04. In response, respondent No. 1, vide letter dated 03.06.2005, asked the applicant to explain the reasons (with details of time) for the inordinate delay of 2 years in the pronouncement of the judgment. In his reply dated 27.06.2005, the applicant recorded the following time factors contributing to the delay in pronouncement of the judgment:
(i) Time taken at Mumbai (after conclusion of hearing) for dispatch of files to Delhi;
Time taken by my personal staff at Delhi for placing the files before me;
Time taken by me to record the order (This will include the time taken by the stenographer for submitting draft of order);
Time taken at Delhi for dispatch of files to Mumbai;
Time taken at Mumbai for placing the files before Member (Technical);
Time taken at Mumbai by Member (Technical) for signing the order; and Time taken at Mumbai for pronouncing the order.
7. He further submitted that, as the Reporting Officer, who recorded the remarks in his ACR, had not specified the 'details of time' involved, he was also not in a position to provide such details. The applicant requested that the remarks entered in his ACRs be expunged. The above representation dated 27.06.2005 of the applicant invited another communication, dated 29.07.2005, from respondent No. 1, stating that 'all arguments' in the applicant's letter dated 27.06.2005 'appeared to be strained' and it granted the applicant 'one more opportunity' to explain the circumstances under which the delay in question occurred.
8. In his reply dated 11.08.2005, the applicant stated that there had been no 'omission' on his part. He further pointed out that the entering of such remarks, and the calling for explanation thereon, from a judicial officer, was dispiriting and demoralizing. The applicant reiterated his request that the remarks be expunged. Thereafter, the impugned letter dated 04.10.2005 was issued as follows:
I am directed to refer to your representations dated 23.3.2005, 27.6.2005 and 11.8.2005 against the adverse remarks recorded in your ACR for the year 2003-04 and to communicate that after careful consideration no justification has been found for expunction of the adverse remarks communicated to you vide letter F. No. A. 28017/2/2004-HQ/Per dated 23.2.2005.
9. The applicant has argued that respondent No. 1 does not possess the authority either to communicate to the applicant the remarks entered in his ACR or to reject the representation made by the applicant there-against. O.M. No. 51/5/72-Estt.(A) dated 20.05.1972, issued by the Department of Personnel & Administrative Reforms, clearly states that the Reviewing Officer must be the superior of the Reporting Officer. The Hon'ble Supreme Court too, in its judgments in State Bank of India and Ors. v. Kashinath Kher and Ors. and State of U.P. v. Yamuna Shanker Misra and Anr. , has held that the Reviewing Officer must be higher in the cadre to the Reporting Officer. It cannot be said that respondent No. 1, who is a Secretary to Government of India, is the superior of or even higher in the cadre to respondent No. 2, who was a retired Chief Justice of the Hon'ble High Court, and is the presiding Head of a Judicial Tribunal constituted under Article 323B of the Constitution of India. Thus on the ground of want of jurisdiction, therefore, the impugned decision of respondent No. 1, as communicated to the applicant, vide the impugned letter dated 04.10.2005 (supra) cannot sustain.
10. He has further stated that both the respondents, especially respondent No. 1, have erred in treating the remarks entered by the Hon'ble Bombay High Court as 'adverse' qua the applicant. The Hon'ble High Court did not make any comment with respect to the applicant, or his functioning. Rather, it only commented on the delay between the reservation of the judgment by the CESTAT, in Appeal Nos. C/500, 599-600 and 614/88, and the pronouncement of judgment therein. This delay is a matter of fact. However, the remarks could constitute the basis of an adverse entry in the applicant's ACR only if the Hon'ble High Court had, directly or indirectly, found the applicant to be responsible for the said delay. This is not the case. Further, neither the applicant nor Shri Gowri Shanker, were parties, in their individual capacities before it. Moreover, before entering such a remark in the applicant's ACR, it should have been first enquired and determined as to whether the delay in pronouncement of judgment in the abovementioned Appeals was attributable to the applicant or not. Had this been done, it would have become apparent that the applicant, far from having been responsible for the said delay, had, in fact, acted with utmost promptitude in drafting and preparing the judgment within a period of just 2 months after the file was placed before the applicant. The delay was mainly occasioned by the time that elapsed between the reservation of judgment by the Bench at Mumbai and the dispatch of the files to the applicant at Delhi for drafting of judgment therein.
11. The applicant has submitted that there has been an error in entering the impugned remarks in the applicant's ACR and in not expunging the same, in view of the volume of case law which has developed with respect to recording of adverse remarks in the ACRs of judicial officers. The applicant has referred to several judicial pronouncements to argue that entering adverse remarks in a Judicial Officer's ACR is, ex facie, unjustified [J.S.P. Singh v. High Court of Judicature at Allahabad 1999 (7) SLR (Allahabad)143; and Sheo Prakash Misra v. High Court of Judicature at Allahabad 1999 (8) SLR (Allahabad) 306].
12. He has further argued that adverse remarks have to be preceded by oral exhortations and would be justified only if such exhortations failed to elicit any improvement [P.K. Shastri v. State of M.P. and Ors. ; S.P. Lal v. High Court of Judicature at Allahabad and Anr. 1997 (3) SLR (Allahabad) 121; State of U.P. v. Yamuna Shanker Misra and Anr. (supra); and Sukhdeo v. Commissioner Amravati Division, Amravati and Anr. ].
13. The respondents have stated that the representation of the applicant has been considered and decided by the competent authority according to rules. The applicant has not challenged the rules and procedure on the subject. Merely because an adverse remark is recorded in the ACR of the applicant and his representation against such adverse entry is rejected, he cannot find fault with rules and procedure for recording the ACR and consideration of representations made against adverse entries. As far as the contention of the applicant against adverse entries in his ACR is concerned, he has questioned the entries, raising a dispute that even if something is adverse against him the same cannot be recorded in his ACR. Such a contention is not acceptable. When the Hon'ble High Court makes an observation regarding a judicial officer, it has to be reflected in the ACR of that judicial officer. When a judicial officer discharges judicial function only, the ACR is required to be written with reference to his that function only. If no adverse entry can be recorded in the ACR of a judicial officer, the object of writing of ACR of such an officer will be defeated. The applicant cannot take a plea that even when the Hon'ble High Court made some observation in the judicial order about the manner of writing of the judgment by the judicial officer, it cannot have any bearing on his ACR. Further, in the case of Union of India and Ors. v. E.G. Nambudiri , Hon'ble Supreme Court viewed that in deciding the representation against adverse entries in ACR, the competent authority is not under any obligation to record a reason for rejecting a representation and the order rejecting representation is not rendered illegal merely on the ground of absence of reason or its non-communication to the concerned person. In the case of Prem Singh v. Union of India and Ors. 1997 (2) ATJ (CAT-Chandigarh) 25, the Tribunal was of the view that a court cannot sit as an Appellate Authority over the adverse entries in an ACR. In the case of Jagdish Singh v. State of U.P. and Ors. 2000 (2) ATJ (Allahabad) 138, it was held that a judicial officer can be even compulsorily retired on account of adverse remarks in his confidential reports.
14. The respondents have further stated that from the remarks recorded in the ACR, it was clear that the case referred to in it was the judgment of Hon'ble Bombay High Court in W.P. No. 1636/2003. It appears that the Tribunal reserved the judgment on 19.04.2001 and delivered the same on 06.05.2003. The Hon'ble High Court was, therefore, constrained to comment adversely on the delay and set aside the order. After the judgment of the Hon'ble High Court, a Bench consisting of the applicant and another Member heard the appeals on 08.01.2004 and pronounced orders afresh on 16.04.2004. It is, therefore, not possible to accept the argument that the applicant was not aware of the case regarding which comment was made by the High Court. The applicant was given an additional opportunity to explain the circumstances under which the delay occurred in pronouncement of the said judgment.
15. The respondents have argued that the case law cited by the applicant has no application to the facts of the present case. In the present case, the applicant has not challenged the review of his ACR. Further, the status of Chief Justice is not carried by a person when after retirement he takes up a different assignment in different capacity. After assuming charge as President of CESTAT, a person is governed and guided by the rules and regulations applicable to the said post and not by the rules and regulations applicable to the position occupied by him before taking up such a position. The power of judicial superintendence is different from the power of administrative supervision. The applicant is totally confused with administrative and judicial functions of judicial bodies. The ACR of the applicant was recorded according to extant rules and regulations and practice and there is no infirmity in it. However, the applicant has not challenged the order of communication of adverse entry as well as the order of rejection of his representation. The representation of the applicant was considered by the competent authority. When the applicant has alleged that the representation was considered by an inferior authority, he has not alleged anywhere that, according to him, who was that inferior authority.
16. They have further stated that the adverse remark communicated to the applicant was not with reference to the judicial order but was with reference to delay in writing the orders. Thus, the judgment cited by the applicant is not relevant to the present case. Further, the judgments in the cases of P.K. Shastri v. State of M.P. and Ors. (supra) and S.P. Lal v. High Court of Judicature at Allahabad and Anr. (supra) are not relevant to the issued involved in the present case. In this case the Hon'ble Bombay High Court has made a general observation and not observations with reference to a particular incident.
17. The respondents have argued that it has been held time and again by the Apex Court that justice should not only be done but should also appear to have been done. Similarly, whereas justice delayed is justice denied, justice withheld is even worse than that [Madav Hayawadanrao Hoskot v. State of Maharashtra ; R.C. Sharma v. Union of India and Ors. ; and Anil Rai etc. v. State of Bihar ].
18. In his rejoinder, the applicant, apart from reiterating and elaborating on various averments made in the main application, has stated that in view of the recent judgment of the Hon'ble Madras High Court in The Secretary (Revenue) to Government of India and Anr. v. Shri Syed Liaquath Peeran, Member (J) (W.P. No. 33800/2003), the President of CESTAT is not competent to write the ACRs of its Members.
19. In the course of oral arguments, Shri A.K. Behera, learned Counsel for the applicant, apart from reiterating the various averments of the OA, drew my attention to the fact that the respondents have not denied the averments made in para numbers 4.2 to 4.8 of the OA, in which it has been clearly brought out that the applicant was not responsible for delay in writing and pronouncement of the judgment in question. He also invited attention to the judgment of the Hon'ble Madras High Court in the case of The Secretary (Revenue) to Government of India and Anr. v. Shri Syed Liaquath Peeran, Member (J) (supra) to argue that the President of CESTAT had no authority to write the ACR of the applicant and, therefore, the ACR in question was ab initio null and void. He emphasized that the facts and circumstances of the case decided by the Hon'ble Madras High Court were the same as that of the present OA. He cited the following ruling of the Hon'ble Madras High Court in that case:
12. A reading of the above, it is clear that no prescription has been made with regard to corresponding status and therefore, the President of the Tribunal has not been given any supervisory power against the members of the Tribunal. Except a retired Judge is appointed as President, the conditions of service will be the same as are applicable to the serving Judge of the High Court, but no corresponding provision was made in respect of the members of the Tribunal. The only authority to take action against the Members is the Central Government. Therefore, we are satisfied by virtue of the categoric admissions made by the petitioners in the counter and in the absence of any rule empowering the President of the Tribunal to write ACRs of the members of the Appellate Tribunal, the adverse entries made against the first respondent cannot be approved. Moreover, from the record, it is elicited that when a question in regard to performance of Members, Vice-Chairman of CAT is being monitored, the Department of Personnel & Training has clarified that there is no system of reviewing APARS (Annual Performance Assessment Report) of CAT Members and that Members/Vice Chairman of CAT are selected by a Selection Committee under the Chairmanship of a sitting Judge of Supreme Court and in such circumstances, whether it can be dispensed with. For which, it was replied that since in ITAT, ACRs of Members and Vice-Chairmen are written, the writing of similar practice in CEGAT, SC, etc. may be continued. Therefore, except this reply, there is no other material was placed. Therefore, in the absence of any provision of law governing the service conditions of the Members of the Tribunal, the question of writing ACRs as a practice cannot be permitted in the provisions of service law.
13. It is evident from the above discussion, a person who is a Judge or one of the members of the Appellate Tribunal can be selected and appointed directly as President of the Tribunal, therefore, the members of the Tribunal are made on par with the President of the Tribunal. Further, in the absence of law enabling the President of the Tribunal to supervise the work and write the confidential reports and moreover, when an opportunity was given to the petitioners to place any material apart from the Rules, the petitioners were not able to place any material before this Court for consideration, except the endorsement of DOPT which is not based on any authority. There cannot be such practice of writing ACRs without any legal basis while dealing with highly placed officials like the Members of the Appellate Tribunal, further, as admitted in the counter extracted above, in the absence of any provision of law, further when the power to terminate the services of a Member is by the Central Government, the adverse remarks written by the President of the Tribunal can be held to be without any authority or without any legal basis which cannot be allowed to continue in the service register of the first respondent and accordingly, they are liable to be expunged.
20. Shri A.K. Bhardwaj, learned Counsel for the respondents, stated that the ruling of the Hon'ble Madras High Court, cited by the learned Counsel for the applicant, was not applicable in the context of the relief sought by the applicant, which was only confined to expunction of the impugned remarks from the ACR of the applicant for the year 2003-04. There was no prayer to strike down the procedure of writing of the ACR of the Members of CESTAT by its President.
21. Learned Counsel also invited attention to the Income-Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963 (Appellate Tribunal Rules, for short) wherein Rule 13 prescribed as follows:
13. Other Conditions of service:
The conditions of service of a member in respect of matters for which no provision is made in these rules shall be the same as may for the time being be applicable to other employees of the Govt. of India of a corresponding status.
He, therefore, argued that writing of ACR of the Members of CESTAT was in conformance with this Rule. In this context, he brought to my notice a note dated 03.08.2001 in F. No. 22/8/2001-Ad.I-C, wherein a decision was taken by respondent No. 1 that since in ITAT (Income Tax Administrative Tribunal), ACRs of Members and Vice-Chairmen are written, the same practice may be continued in CEGAT. He also stated that there was no anomaly in Secretary being the Reviewing Authority insofar as the President being a former Chief Justice of the High Court does not carry the status of a serving Chief Justice.
22. Learned Counsel for the respondents also dwelt, at length, on judicial pronouncements relating to the need to deliver speedy justice and avoid delay in disposal of cases [Anil Rai etc. v. State of Bihar (supra); R.C. Sharma v. Union of India (supra); and Madav Hayawadanrao Hoskot v. State of Maharashtra (supra)]. He also cited the decision of the Allahabad High Court (Lucknow Bench) in the case of Jagdish Singh v. State of U.P. and Ors. (supra) to argue that there was nothing amiss in writing of confidential reports of judicial officers. He cited the order of the CAT, Jodhpur Bench, in the case of A.S. Tariyal v. Union of India and Ors. 2003 (2) ATJ 268 to argue that the scope of judicial review of adverse remarks in ACR is very limited. He also cited the judgment of the Hon'ble Supreme Court in the case of Union of India and Ors. v. E.G. Nambudiri (supra) to argue that absence of reasons in a communication emanating from an administrative authority does not render it illegal.
23. In his rebuttal, Shri A.K. Behera, learned Counsel for the applicant, stated that there was no prayer in the OA regarding lack of jurisdiction with the President of CESTAT to write the ACR of the applicant since the judgment of the Hon'ble Madras High Court was pronounced on 01.12.2006, i.e. after the OA had been filed. In any case, since the respondents were a party to that case and the subject matter of the case was directly related to the present OA, its presence cannot be ignored. Further, the said judgment was a judgment in rem and not in persona and, hence, has to be taken note of by the respondents even in respect of the applicant. With regard to Rule 13 of the Appellate Tribunal Rules, the learned Counsel stated that it was taken cognizance of in the judgment of Hon'ble Madras High Court while giving its ruling.
24. As regards the judgment of the Hon'ble Supreme Court in the case of Anil Rai etc. v. State of Bihar (supra), the learned Counsel stated that it cast a duty on the Head of the organization to put in place systems and procedures to avoid delay in delivery of justice. It was, therefore, incumbent on the President of CESTAT to find out as to why the delivery of the judgment in question was delayed, before deciding to take any action. As regards the case of Jagdish Singh v. State of U.P. and Ors. (supra), the applicant therein belonged to the subordinate judiciary and, hence, in terms of Article 227 of the Constitution of India, he was subject to the superintendence of the High Court; there is no such prescription as far as the applicant is concerned. The respondents have also not issued any specific rules regarding writing of ACR of the officers of CESTAT.
25. I have given serious consideration to the averments of the learned Counsel for both the parties and also perused the material on record. I am also thankful to the learned Counsels for providing access to various judicial pronouncements having a bearing on the subject.
26. It is an admitted fact that there was delay in pronouncing the judgment in question. According to Hon'ble Bombay High Court, this delay was fatal to the case. No doubt, this was a cause for concern to the respondents herein, who were also respondents therein. They should have, therefore, in the fitness of things, investigated the matter in all seriousness to take corrective action. What they did instead could at best be described as a knee jerk reaction. They proceeded to hang the applicant by the closest lamp post simply for the reason that his neck nicely fitted the noose.
27. The respondents did, of course, give a post decisional opportunity to the applicant to explain the delay; that was not fair. But the major time lines, such as the date of final hearing, the date of dispatch of the Paper Book/case file by the Presiding Member to the applicant, and the date of dispatch of the draft order by the applicant to the Presiding Member, could have been easily accessed by the respondents themselves, in view of their administrative status. Instead they got into an argument with the applicant to supply the data; which was also not fair.
28. As rightly argued by the learned Counsel for the applicant, insofar as respondents have not denied the facts relating to the case in para numbers 4.2 to 4.8, which conclusively establish that the delay was mostly on the part of the Presiding Member of the Bench, who sat over the case file for nearly a year and 9 months, there is no evidence at all that the applicant was, in any manner, responsible for the delay, which evoked the ire of the Hon'ble Bombay High Court. In any case, before the Bombay High Court, neither the applicant nor the Presiding Member was a party. The Hon'ble High Court also did not single out the applicant as the sole cause of delay in pronouncing the judgment in question. Thus, the action of the respondents to hold the applicant guilty for the delay is prima facie unsustainable.
29. I am also in agreement with the averment of the applicant that he should have been accorded an opportunity, not a post decisional one, to make a representation, before recording the impugned remarks in the ACR. This having not been done, the impugned remarks can, under no circumstances, be upheld.
30. Taking the totality of facts and circumstances of the case into account, I come to the inevitable conclusion that the impugned remarks recorded in the ACR of the applicant for the year 2003-04 have no basis in fact. The action of the respondents is, therefore, totally unsustainable.
31. sIn the result, the OA is allowed with a direction to the respondents to expunge the impugned remarks from the ACR of the applicant for the year 2003-04, within a period of one month from the date of receipt of a certified copy of this order, under intimation to the applicant. There will be no order as to costs.
32. Before parting with the case, I would like to suggest that the respondents should take note of the judgment of the Hon'ble Madras High Court in the case of The Secretary (Revenue) to Government of India and Anr. v. Shri Syed Liaquath Peeran, Member (J) (supra) for further necessary action, if they have not already done so.