Central Administrative Tribunal - Bangalore
Vijay Kumar vs Employees State Insurance Corporation on 2 March, 2023
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OA.No.170/00764/2019/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00764/2019
DATED THIS THE 02NDDAY OF MARCH, 2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
Vijay Kumar,
Aged about 46 years,
S/o Late Ramjilal,
Deputy Director,
ESIC Medical College & Hospital
Sedam Road, Kalaburgi 585 106.... Applicant
(By Shri N.G. Phadke, Advocate)
Vs.
1. The Union of India,
Represented by its Secretary,
Ministry of Labour & Employment,
Shrama Shakti Bhavan,
Rafi Marg, New Delhi 110 001
2. Employees State Insurance Corporation,
Head Quarters Office,
'Panch Deep Bhavan', CIG Marg,
New Delhi - 110 002, by its Director General
3. Dr. Ashok Kumar Bhatia,
Then Medical Superintendent of ESIC Hospital,
Peenya, Presently working in the Directorate of
Medicals, ESI Corporation,
C/o Director General, ESIC,
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'Panch Deep Bhavan', CIG Marg,
New Dlehi 110 002....Respondents
(By Shri N. Amaresh, Senior Panel Counsel)
O R D E R (ORAL)
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(i). Quash the entire APAR of the Applicant at Annexure-A12 reported by the III-Respondent on 24.06.2016; and,
(ii) Quash the decision of the Reviewing Officer made in the APAR of the Applicant at Annexure: A-12 on 12.08.2016 in its entirety;
(iii) Quash the order No. A-29118/02/2018 dated 03.08.2018 passed by the II-Respondent, in so far as retaining the gradings and adverse entries given by the III-
Respondent in the APAR of the Applicant at Annexure:A-
16."
2. Briefly stated the facts as narrated by the applicant are that he is working as Deputy Director in the ESIC Medical College and Hospital, Kalaburgi.That the applicant, while working in the ESIC Hospital, Peenya, Bengaluru during March, 2013 to June 2016 as Deputy Director, has unearthed medical scam of several 3 OA.No.170/00764/2019/CAT/BANGALORE crores of rupees worth, reported to the Central Vigilance Officer and the 2nd respondent in the public interest in October, 2014 much against the wishes of the then Medical Superintendent, Respondent No. 3. This action resulted in spoiling the APAR of the applicant in the hands of the Respondent No. 3 intentionally. The applicant claims that the Respondent No. 3 ought not to have reported against the applicant in the APAR for the year 2015-16. By the adverse reporting, the applicant's entire career has been spoiled. The applicant could not get justice in the hands of both the 1st and 2nd respondents. Hence, this OA.
3. Learned counsel Shri N.G. Phadke representing the applicant submitted that the applicant was not considered for grant of in-situ Senior Time Scale (STS) in PB-3 (Rs. 15600-39100) + Grade Pay of Rs. 6600/- (pre-revised), though all of his batch mates have been granted this financial upgradation and also designated as Senior Deputy Director, in view of the low gradings given by the Respondent No. 3 in the applicant's APAR for the year 2015-16. This APAR was reviewed by Dr. A.K. Gupta, DMC, ESIC Hqs, who was not the Reviewing Officer as the APAR of a Deputy Director, posted at ESIC Hospital is to be reviewed only by 4 OA.No.170/00764/2019/CAT/BANGALORE Medical Commissioner and not by any officer inferior to him. As an act of vendetta and revenge, the 3rd respondent whose name was taken by the doctors and pharmacist during preliminary enquiry as main perpetrator of themedical scam, the aspersion was casted on the integrity of the applicant. In order to spoil the career of the applicant, the 3rd respondent without giving any warning or memo surreptitiously made remarks on the integrity of the applicant and assigned very low numerical grading, in utter violation of the established principles. The 3rd respondent had threatened the applicant of the dire consequences if continued with the investigation of the alleged scam of medicines. However, the applicant unfazed by the threats, forwarded the report of investigation to South Zone (Vigilance), Chennai and CVO of ESIC Hqs. Thereafter, the applicant was transferred from ESIC Hospital, Peenya to Regional Office, Bangalore.On request made by the applicant, transfer order was cancelled and he was retained at ESIC Hospital, Peenya. The 3rd respondent used to harass the applicant in all possible ways which made the applicant to lodge a complaint with the 2nd respondent by a letter dated 12.06.2015. A complaint was lodged against the 3rd respondent even with the National Commission of Scheduled Caste vide letter dated 5 OA.No.170/00764/2019/CAT/BANGALORE 12.06.2015. On 30.12.2015, CBI Inspector took the statement of the applicant as to the medicine scam of the ESIC Hospital. The request of the 3rd respondent to hand over the audio recordings of the inquiry meeting held on 20.10.2014 was turned down by the applicant apprehending that the 3rd respondent may tamper with the audio recordings, submitted the record to the CBI. In retaliation, the Respondent No. 3 has spoiled the APARs of the applicant for the year 2015-16. The same was communicated to the applicant belatedly on 17.04.2018. The applicant represented to the 2nd respondent against the unjust reporting of the 3rd respondent as to the APAR of the applicant for the year 2015-16. The Respondent No. 2 by order dated 03.08.2018 rightly quashed the entry made in the integrity column of the APAR, whereas arbitrarily retained the gradings given therein without applying his mind to the facts. Representation submitted by the applicant to review the order of the 2nd respondent dated 03.08.2018 has not yielded any results, as such, the applicant was constrained to prefer an appeal dated 16.10.2018 before the Respondent No. 1. Reminder letters were submitted but no decision has been taken on the said appeal. Learned counsel further submitted that the applicant has also represented to the Chairperson of the Litigation Committee of the 6 OA.No.170/00764/2019/CAT/BANGALORE ESIC and that the committee has not looked into the grievances of the applicant to this date. The APARs for the years 2013-14 and 2016-17 would indicate that the Reporting Officer, 3rd respondent, out of bias towards the applicant has reported in the APAR of the applicant for the year 2015-16 adversely, intentionally.
4. Learned counsel pointed out that despite the allegations of malafides were made against the Respondent No. 3 and arrayed as a party by name, no counter is filed rebutting the allegations made against him. The reply statement filed on behalf of all the respondents does not indicate any denial of the allegations made against the Respondent No. 3.Placing reliance on the judgment of the Hon'ble Apex Court in the case of State of Punjab &Anr. vs Gurdial Singh& Ors. reported in (1980) 2 SCC 471, submitted that in the absence of counter affidavit filed by the Respondent No. 3 to the allegations of malafides alleged, the same requires to be accepted. The Reviewing Officer had no competency to review the APARs of the applicant. Learned counsel further submitted that the Director General, Respondent No. 2, merely consulting the Reporting Officer and the Reviewing Officer retained the low 7 OA.No.170/00764/2019/CAT/BANGALORE gradings of APAR expunging the adverse remarks given in the integrity column of the APAR. No reasons being assigned for retaining the overall grading in the APARs, the said order is violative of principles of natural justice and the same deserves to be set aside. Learned counsel has referred to the order of CAT, Ernakulam Bench in the case of K. Radhakrishna Menon vs Collector of Central Excise, Cochin and Others reported in (1989) 10 Administrative Tribunals Cases 203 in support of his contention that unless the order is reasoned, it will be invalid and the low gradings awarded in the APAR for the year 2015-16 requires to be set aside.
5. The respondents have filed common reply statement and rejoinder is filed by the applicant. Learned counsel Shri N. Amaresh justifying the impugned orders submitted that sufficient opportunity was given to the applicant to represent against the adverse entries/final grading awarded in his APAR for the year 2015-16. In response, the officer concerned had submitted his representation dated 18.04.2018 against the grading in his APAR for the year 2015-16. The same has been disposed of by taking the views of the Reporting Officer and Reviewing Officer as per 8 OA.No.170/00764/2019/CAT/BANGALORE procedure/instructions laid down in DOP&T OMs. The representation of the applicant was considered carefully examining the comments of the Reporting Officer and Reviewing Officer vis- a-vis close scrutiny of the APAR for the year 2015-16 and noticing that the procedures laid down in DOP&T OM dated 11.02.2016 were not followed by both the Reporting and Reviewing Officer while writing remarks on "integrity column" of the APAR of the officer concerned, 2nd respondent has decided to expunge the remarks given in the "integrity column". However, overall grading awarded was retained, as the applicant did not submit any documentary evidence to upgrade the grading given to him. Past performance cannot be a guide for future performance. The applicant has been assessed and graded by the Reporting and Reviewing Officer on the basis of his work and conduct noticed by them during the period under consideration. Since the matter was decided by the competent authority-2nd respondent - after following procedure by a reasoned order dated 03.08.2018, no further review was required. The impugned orders being in conformity with law, deserves to be upheld.
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6. We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record.
7. The fulcrum of dispute relates to bias and malafides alleged against the Respondent No. 3 vis-a-vis APAR reported by the said Respondent No. 3 for the year 2015-16. The grounds urged by the applicant specifically speaks about the bias and malafides of the Reporting Officer - the 3rd respondent. The Respondent No. 3, Dr. Ashok Kumar Bhatia has been arrayed as a party by name.
8. In Judicial Review of Administrative Action by S.A. deSmith (3rd Edition) at page 293, it is stated that "the concept of bad faith in relation to the exercise of statutory powers....... comprise dishonesty (or fraud) and malice. A power is exercised fraudulently if its repository intends to achieve an object other than that for which he believes the power to have been conferred. His intention may be to promote another public interest or private interest. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly 10 OA.No.170/00764/2019/CAT/BANGALORE affected by its exercise....... The administrative discretion means power of being administratively discreet. It implies authority to do an act or to decide a matter of discretion".
"The power to act in discretion is not power to act adarbitrarium.
It is not a despotic power, nor hedged with arbitrariness, nor legal irresponsibility to exercise discretionary power in excess of the statutory ground disregarding the prescribed conditions for ulterior motive. If done it bring the authority concerned in conflict with law. When the power was exercised mala fide it undoubtedly gets vitiated by colourable exercise of power. It is trite that mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The determination of a plea of mala fide involves two questions, namely (i) whether there is a personal bias or an oblique motive; and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power"(vide State Of Bihar & Ors. vs P.P. Sharma, IAS & Anr. reported in (1992) Supp (1) SCC 222).11
OA.No.170/00764/2019/CAT/BANGALORE
9. It is beneficial to refer to Avinash Mathur vs State of Rajasthan and Ors. reported in 2001 (4) WLC 470.The relevant portion of the judgment is quoted hereunder:
"3. It is well to remember that there is a presumption of a Government servant, working bonafidely. There could be no presumption about working malafidely. It is held that it is easy to allege mala fides, against a public servant, but it is very difficult, to prove it. It is to be imbibed that if an allegation of mala fide, is made against a public servant, then, he is required to be impleaded in the array of respondents, in person, by name, as a party, in addition to his impleadment, in his official capacity, in a writ petition, so that against whom mala fides are alleged, may get an opportunity, to rebut the allegations of mala fides. In the present case, the petitioner has not impleaded the reporting officer, by name, in the array of respondents, separately, after impleading him, in his official capacity, giving him an opportunity, to rebut the allegations of mala fides, alleged against him, by the petitioner, therefore, the plea of mala fides, against the reporting officer, is not acceptable, and it is hereby repelled."
In the present case, Reporting Officer has been arrayed as Respondent No. 3, by name, giving him an opportunity, to rebut the allegations of mala fides attributed against him.
10. What is legal malice has been explained by the Hon'ble Apex Court in the case of S.R. Venkataraman vs Union of India 12 OA.No.170/00764/2019/CAT/BANGALORE & Anr. reported in AIR 1979 SC 49 referring to Shearer and another v. Shield, (1914) AC 808 at page 813 and the relevant paragraph is quoted hereunder:
"A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently."
Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable or probable cause."
11. The Hon'ble Apex Court in the case of Union of India & Ors. vs Ashok Kumar & Ors. reported in (2006) SCC (L&S) 47 has held thus:
"Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal ill- will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what 13 OA.No.170/00764/2019/CAT/BANGALORE the employee has to establish in this case, though this may sometimes be done. The difficulty is not lessened when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. It is not the law that mala fide in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. (S. Pratap Singh v. State of Punjab AIR 1964 SC 72). It cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demand proof of a high order of credibility. As noted by this Court in E. P. Royappa v. State of Tamil Nadu and Another (AIR 1974 SC 555), Courts would be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. (Indian Railway Construction Co. Ltd. v. Ajay Kumar 2003 (4) SCC 579)."
12. Specific allegation of personal malafides has been made by the applicant against the Respondent No. 3. No counter affidavit is filed by the 3rd respondent refuting the allegations made against 14 OA.No.170/00764/2019/CAT/BANGALORE him. Common reply statement is filed on behalf of all the respondents. No denial of allegations made against the Respondent No. 3 is found in the reply statement. It is well settled that the allegation of malafides has to be proved by substantial evidence but that burden gets diluted when the affected party fails to rebut the same. In the case of Gurdial Singh, supra, the Hon'ble Apex Court has ruled thus:
"9. The question, then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power-sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions-is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfillment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in 15 OA.No.170/00764/2019/CAT/BANGALORE Law when he stated: "I repeat...that all power is a trust-that we are accountable for its exercise-that, from the people, and for the people, all springs, and all must exist".Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impel the action, mala fides or fraud on power, vitiates the acquisition or other official act.
10. By these canons it is easy to hold that where one of the requisites of Section. 4 or6, viz., that the particular land is needed for the public purpose in view, is shown to be not the goal pursued but the private satisfaction of wreaking vengeance, if the moving consideration in the selection of the land is an extraneous one, the law is derailed and the exercise is bad. Not that this land is needed for the mandi, in the judgment of government, but that the mandi need is hijacked to reach the private destination of depriving an enemy of his land through back-seat driving of the statutory engine ! To reach this conclusion, there is a big 'if' to be proved-if the real object is the illegitimate one of taking away the lands of the respondents 1 to 21 to vent the hostility of respondent 22, under the mark of acquistion for the mandi.
11. xxxxxx 16 OA.No.170/00764/2019/CAT/BANGALORE
12. We assume the facts, stated in the counter-affidavits, to the extent not expressly denied, especially because respondent 22, Shri Bajwa, has not cared to contradict the turpitude imputed to him, which is unfortunate. We draw tentative conclusions based on the averments without the advantage of the affected party's response."
13. The 3rd respondent was appointed as Medical Superintendent of ESIC Hospital, Bengaluru in March, 2014. It was alleged that the 3rd respondent in collusion with some of the doctors and pharmacists have been involved in the medicine scam of Rs. 6.7 crore. One of the pharmacist viz., Shri Udayakanth of the hospital was caught by the security guards of the hospital while taking the medicines loaded in a Maruti Omni van on Sunday, 19.10.2014 in 22 black big size polythene bags outside the hospital. Preliminary enquiry was conducted by the applicant as Deputy Director, (Administration) in the conference room of the hospital and presided over by the Medical Superintendent (In- charge) Dr. Roopakala, HoD, Ophthalmology and other HoDs of the hospital were members of the investigation committee. The statements made by the concerned pharmacists and Dr. 17 OA.No.170/00764/2019/CAT/BANGALORE Arunudayraj were audio recorded and a note was prepared narrating the whole incident and the report of the committee.
14. The documents at Annexure-A3 to A8 complaints/allegations of the applicant made against the Respondent No. 3 supports the plea of personal grudge or vendetta of the Respondent No. 3 against the applicant.In the report of the committee with reference to investigation of officials and officers of pharmacy department in connection with incident of one of the pharmacists Shri Udayakanth being caught by security while he was transporting "ESI supply"medicines illegally outside of the hospital on 19.10.2014 (Annexure-A3), discloses that the committee met on 20.10.2014 at 12 PM in the conference hall of the Hospital, Peenya and was attended by the following members:
1. Dr. Sunil Kumar, Sp. Gr. II
2. Dr. Chandershekhar Murthy Y M, Sp. Gr. II
3. Dr. Binduraj H, Sp. Gr.II
4. Dr. Vishwanath Ankad, Sp. Gr. II
5. Dr. Layjeet Shyam, CMO (I/C)
6. Smt. Indrani A, PS to MS 18 OA.No.170/00764/2019/CAT/BANGALORE
7. Smt. Uma Devi, OS (Accounts)
8. Sh. Vijay Kumar, DD (Admn.).
Deposition of Dr. Arunudayraj referred to in the report reveals that he (Dr. Arunudayraj) had informed the Medical Superintendent (Respondent No. 3). He also discussed with the Medical Superintendent and the Medical Superintendent has informed that, if there is any discrepancy or mismatch with the actual stock of medicines and the actual status of stock book, the same can be corrected unofficially. Dr. Arun informed that approximately 6 to 7 lakh worth of medicines have expired. List of the same prepared along with worth which has to be submitted to Medical Superintendent for further necessary action. After referring to the depositions of the relevant persons, the committee in the conclusion agreed that, since it is a matter of theft of the medicines and the illegal or improper way of disposing the medicines, the matter may not be referred to the police as it may tarnish the image of the hospital.But the matter related to huge amount of insured persons money, it may be referred immediately to the Vigilance. However, 3 Members of the Committee expressed that the report 19 OA.No.170/00764/2019/CAT/BANGALORE may be put up before the regular Medical Superintendent for further action.
15. The applicant has forwarded the report with reference to the pharmacist being caught by the security staff during theft of "ESI Supply" medicines of ESIC Hospital, Bengaluru. It is the specific case of the applicant that he was threatened by the 3rd respondent of the dire consequences, if the applicant continued with the investigation. The applicant claims that unfazed by such threats, he forwarded report of investigation to South Zone (Vigilance) Chennai and Central Vigilance Officer of ESIC Hqs as per Annexure-A4 dated 25.10.2014.
16. The applicant was transferred from ESIC Hospital, Peenya to Regional Office Bengaluru on 10.04.2015.On his request, the transfer order was cancelled and the applicant was retained at ESIC Hospital, Peenya. A letter dated 11.04.2015 was addressed by the applicant to the 2nd respondent alleging complaints against the 3rd respondent and appealing for cancellation of his transfer. An FIR was lodged by the applicant with the police on 18.05.2015 alleging threat against him. Further, 20 OA.No.170/00764/2019/CAT/BANGALORE applicant has filed complaint before the Director General alleging atrocity, humiliation and discrimination on the basis of caste and derogatory remarks by the Medical Superintendent - Respondent No. 3 and Deputy Director Shri Antony P. Rajan of ESIC Hospital, Peenya, Bengaluru as per Annexure-A6 dated 12.06.2015. The applicant had also lodged the complaint against the 3rd respondent with the National Commission for Scheduled Caste as per the letter dated 12.06.2015 (Annexure-A7). The CBI Inspector recorded the statement of the applicant on 30.12.2015 as to the medicine scam of the ESIC Hospital. In the said statement, the applicant had clearly stated as to the complicity of the 3rd respondent in the scam and also of the audio recording of the inquiry dated 20.10.2014.
17. It is significant to note that the 3rd respondent vide letter dated 06.01.2016 requested the applicant to hand over the audio recordings of the inquiry meeting held on 20.10.2014 but the applicant submitted the same to the CBI and thereafter reported to the 3rd respondent by a letter dated 08.01.2016. During this period for the year 2015-16, 3rd respondent has reported the gradings of the applicant in the APARs. The allegations/complaints made against the 3rd respondent have been categorically narrated by the 21 OA.No.170/00764/2019/CAT/BANGALORE applicant in the OA but surprisingly the same has not been contradicted by the 3rd Respondent for the reasons best known to him. In this background, if we analyse the APARs reported by the Respondent No. 3 for the year 2015-16 on 24.06.2016, on comparative analysis with the previous and following years, it appears that the 3rdRespondent had personal vendetta against the applicant. It is evident from the analysis of assessment of work in the APARs relating to the years 2013-14, 2015-16 and 2016-17 that the 3rdRespondent was biased and ill-disposed towards the applicant at the time of reporting against the applicant. It is hard to accept the grading of the applicant as 2.77 in the year 2015-16 when the same is 7 in the year 2013-14 and 2016-17.In addition to the grading, the Respondent No. 3 has doubted the integrity of the applicant. Reviewing Officer has mechanically agreed with the gradings of the Reporting Officer. Downgrading of the assessment of an officer only for one year in the backdrop of the complaints made by the applicant against the Respondent No. 3 - Reporting Officer is tainted with malafide intention, cannot be ruled out. It is trite that mala fide could be discernible from the order impugned or from the established attendant factors which preceded the order not merely by direct evidence.
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18. In the recent judgment of the Hon'ble Apex Court, which has come to our notice while finalizing this order, in the case of Captain Pramod Kumar Bajaj v. Union of India and Anr.reported in 2023 LiveLaw (SC) 165, while dealing with the order of compulsory retirement passed under Rule 56 (j) of the Fundamental Rules, it has been observed that the government is vested with the absolute right to retire an employee, if it is in public interest; the scope of judicial review in respect of an order of compulsory retirement is limited. The APARs for one decade found to be consistently graded as "Outstanding", considering the allegations raised by the appellant therein, pertaining to institutional bias and malice against the Union Government and in particular, the Chairman, CBDT, the Hon'ble Apex Court observed thus:
"There is no doubt that rule of law is the very foundation of a well-governed society and the presence of bias or malafides in the system of governance would strike at the very foundation of the values of a regulated social order. The law relating to mala fide exercise of power has been the subject matter of a catena of decisions [Refer: S. Pratap Singh v. State of Punjab, AIR 1964 SC 72; Jaichand Lal Sethia v. State of W.B, AIR 1967 SC 483; J.D. Srivastava v. State of M.P And Others, (1984) 2 SCC 8; and Express Newspapers Pvt. Ltd. And Others v. Union of India And Others, (1986) 1 SCC 133]. It has been repeatedly held that any exercise of power that exceeds the parameters prescribed by law or is motivated on account of extraneous or irrelevant factors or is driven by malicious intent 23 OA.No.170/00764/2019/CAT/BANGALORE or is on the face of it, so patently arbitrary that it cannot withstand judicial scrutiny, must be struck down."
Since the Chairman was not impleaded as a party before the Tribunal or the Hon'ble High court, the Hon'ble Apex Court held that the allegation made cannot be looked into by the Apex Court.
19. Further, before the 2nd respondent seeking for review against the grading and assessment recorded by the Reporting and Reviewing Officer for the year 2015-16, comments of the Reporting Officer and Reviewing Officer were sought on the representation submitted by the applicant. In the impugned order dated 03.08.2018 (Annexure-A16), it is observed thus:
"Comments of the Reporting Officer i.e. Dr. Ashok Kumar, CMO-SAG was sought on the representation of Sh. Vijay Kumar. The Reporting Officer vide letter dated 29.05.2018 has stated that he had received numerous verbal complaints against Sh. Vijay Kumar on malpractices. There was protest by housekeeping staff in ESIC Hospital Peenya against corrupt practices of Sh. Vijay Kumar, the same was reported to Hqrs. The local media also reported the incidents. The complaint given by housekeeping and security staff was also referred to CVO-ESIC Headquarters. Serious allegations regarding Sh. Vijay Kumar's corrupt practices received by Mr. Mariswamy, O.S. was referred to the Director Vigilance (South Zone). South Zone vigilance director observed serious lapses 24 OA.No.170/00764/2019/CAT/BANGALORE on the part of Sh. Vijay Kumar in security agency tender. In one hospital development committee meeting, one of the representatives of employees raised the issue regarding his corrupt practices related to housekeeping and security services.
The reporting officer reiterated that the numerical grading assigned to him is correct after honestly evaluating the performance.
Comments of the Reviewing Officer i.e. Arun Kumar Gupta, DMC, Hqrs was also sought and the Reviewing Officer vide letter dated 03.07.2018 has stated that "The candidate has been suitably reviewed and graded."
20. Thus, it is manifestly clear that the Reporting Officer has made counter - allegations against the applicant. No semblance of denial of complaints/allegations made against the Reporting Officer is found. It was obligatory on the part of the 2nd respondent to give a finding on this aspect of malafides attributed against the Respondent No. 3. No such finding is given. However, the said authority proceeded only to expunge the remarks given in the "integrity column" retaining the gradings and adverse entries. The complaints/allegations made by the applicant against the Respondent No. 3 before writing the APARs by the Respondent No. 3 itself can be construed as the material evidence 25 OA.No.170/00764/2019/CAT/BANGALORE in support of the bias and malafides alleged. It could be inferred that the Reviewing Officer has mechanically agreed with the Report without application of mind. As discussed in the preceding paragraphs and in the light of the judgments referred to supra, there being no specific denial of malafides alleged against the Respondent No. 3 the same not being properly considered by the 2nd respondent in this regard, we are of the considered view that the APARs of the applicant for the year 2015-16 deserves to be ignored, as bad faith would vitiate the order. Hence, we pass the following :ORDER:
1) The APAR of the applicant for the year 2015-16 reported by the 3rd respondent dated 24.06.2016 at Annexure-A12 is set aside.
2) The decision of the Reviewing Officer made in the APAR of the applicant at Annexure-A12 dated 12.08.2016 is set aside.26
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3) The order No. A-29118/02/2018 dated 03.08.2018 at Annexure-A16 passed by the 2nd respondent, in so far as retaining the gradings and adverse entries given by the 3rdrespondent in the APAR of the applicant is set aside.
4) OA stands disposed of accordingly.
5) No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/