Central Administrative Tribunal - Jabalpur
Ram Roop Kanaujia vs Union Of India on 20 September, 2013
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH,
JABALPUR
Original Application No. 536 of 2010
Jabalpur, this Friday, the 20th day of September, 2013
Honble Mr. Justice Dhirendra Mishra, Judicial Member
Honble Mr. G.P.Singhal, Administrative Member
Ram Roop Kanaujia, S/o late Kamta Prasad Kanojia,
Date of birth 7.3.1964, R/o 8, Ravindra Nagar (Sethi Nagar),
Ujjain-456010 (M.P.) - Applicant
(By Advocate Shri S.K.Nandy)
V e r s u s
1. Union of India, Ministry of Railway,
Through its General Manager, West Central Railway,
Indira Market, Jabalpur-482001
2. Chief Signal & Telecommunication Engineer (CSTE),
West Central Railway, First Floor, Annex Building-II,
Platform No.4, Railway Station, Jabalpur-482001
3. Shri V.K.Sharma, Divisional Signal & Telecommunication
Engineer, (DSTE) (Works), West Central Railway, DRM Office,
Bhopal-462001 (Reporting Officer)
4. Shri Ashwin Shukla, Sr. Divisional Signal & Telecommunication
Engineer, (Coordinator), DRM Office, West Central Railway,
Kota (Rajasthan)-324002 (Counter Signing Officer)
5. Shri K.S. Krishna Kumar, Chief Signal & Telecommunication
Engineer, Western Railway, Churchgate,
Mumbai (M.H.)-400020 (Accepting Authority) -Respondents
(By Advocate Shri Swapnil Ganguly)
(Date of reserving the order: 09.09.2013)
ORDER
By Dhirendra Mishra, JM.-
Through this Original Application, the applicant has prayed for quashing of entries in the Annual Performance Appraisal Report (for brevity APAR) communicated to him vide letter dated 17.09.2009 (Annexure A-1), as also the rejection order dated 19.02.2010 (Annexure A-2) whereby his representation against the aforesaid communication has been rejected. He has further prayed for direction to the respondents to provide him consequential benefits as if impugned orders were never passed.
2. The learned counsel for the applicant submits that the respondents vide their communication dated 17.09.2009 (Annexure A-1) forwarded his entries in his APAR for the reporting year 2008-2009 and called upon the applicant to submit his representation against the aforesaid entry. The applicant submitted his detailed representation dated 08.11.2009 (Annexure A-3). However, his representation was rejected vide order dated 19.02.2010 (Annexure A-2), without considering the grounds raised by the applicant in his representation, and without assigning any reason in a most arbitrary, unjust, unfair and malafide manner. It was specifically mentioned by the applicant that in the relevant period i.e. from April, 2008 to July,2008 and again between February 2009 and March 2009 he worked under Shri U.K.Pawar, Deputy Chief Signal and Telecommunication Engineer (for brevity Dy.CSTE), and he worked from August 2008 to January 2009 under Shri Ashwin Shukla, the private respondent, who was Senior Divisional Signal and Telecommunication Engineer (for brevity Sr.DSTE), at that point of time, and as such both of them should have initiated the APAR of the applicant for the respective period as reporting officer as per instructions of Annexures A-4 and A-5, however, in his case APAR has been initiated by one Shri V.K.Sharma, who is only a senior scale rank officer, a post inferior than the post of Junior Administrative Grade (for brevity JAG), who alone is competent to act as reporting officer as would be evident from entry in Part-IV of the APAR. It appears that to plug the above illegality Shri Ashwin Shukla has countersigned the entries made unauthorisedly by Shri V.K.Sharma. It was vehemently argued that Shri V.K.Sharma and Shri Ashwin Shukla attempted to pressurize the applicant during the aforesaid period for facilitating unauthorised payment to the contractor towards material utilized by him which was being issued by the railway, however, when he refused to join hands with the private respondents, and lodged complaint with the Chief Vigilance Officer (for brevity CVO), Jabalpur and Chief Vigilance Commissioner (for brevity CVC) also, adverse entries have been malafidely made by them in his APAR.
2.1 Referring to the document dated 05.03.2010 (Annexure A-6), it was argued by the learned counsel for the applicant that pursuant to the applicants aforesaid complaint, on the basis of the investigating report submitted by the West Central Railway and examined by the officer of the Railway Board vigilance, the case has been forwarded to CVC and the CVC has advised major penalty proceedings against said S/Shri V.K.Sharma and Ashwin Shukla, whereas the accepting authority Shri Krishna Kumar, the respondent No.5 has been counseled. Name of the applicant finds place at serial no.17 in the seniority list of Group-B officers filed as Annexure A-7 and thus, he is within the zone of consideration for promotion to the post of Divisional Signal & Telecommunication Engineer (for brevity DSTE), however, the private-respondents, who nourished malice against the applicant due to complaint lodged by him against them, with an oblique motive to spoil applicants career, have recorded adverse confidential report that he is an average officer and not fit for promotion.
2.2 The applicant was never served with any notice except notice dated 23.6.2008 (Annexure A-8). However, the then Divisional Railway Manager (for brevity DRM) has put a note in the letter of Annexure A-8 that the notice of Annexure A-8 has no meaning and the Dy.CSTE must handle their officers with care. It is settled law that where the employee concerned, even after giving an opportunity of counseling/warning does not improve then only such short comings should be mentioned in his APAR. Para 1607 of Indian Railway Establishment Code provides that ACRs of gazetted railway servant must contain full and frank appraisal of his work during the year on different parameters and such report must not be confined merely to general remarks and half baked impression. From perusal of applicants APAR for the relevant period it would be evident that the reporting officer agreed with the self appraisal of the applicant, and the remarks of the reporting officer that the applicant overall grading is average and unfit is not supported by any reason, reflecting from deficiency in the body of the report. However, the reviewing authority did not agree with the assessment of the reporting officer that the applicant is average and unfit officer.
2.3 The accepting authority disagreeing with remarks of Reviewing Authority again declared the applicant as not yet fit for promotion. The reporting officer, counter singing authority and the accepting authority against whom the applicant had made complaint with the vigilance are biased against him. From the fact that the accepting authority, the respondent No.5 transferred the applicant to Railway Electrification (for brevity RE) Organization out of West Central Railway violating all norms of establishment, also establishes his bias against the applicant. The entries in the APAR have been made by Shri V.K.Sharma, DSTE, as reporting officer, who is not a Junior Administrative Grade (for brevity JAG) rank officer and as such was not competent to write his APAR. However, in order to regularise the above illegality Shri Ashwin Shukla, who is a JAG officer has counter-signed at para 5 of part-IV of the APAR where grading and fitness of the officer reported upon is entered. Thus, the APAR of the applicant recorded by incompetent reporting officer is nullity.
2.4 In the relevant period applicant was site in-charge of RRE-BT Project (both indoor and outdoor). He was required to camp at the site to complete the job and was required to remain away from his family as the work was urgent in nature and it was safety related work, which require high standard of quality. Because of the tireless effort of the applicant and his team the project was successfully commissioned in August, 2009, and accordingly the applicant issued safety message and safety certificate to CRS. The entire work was commissioned without any disruption to flow of traffic and no untoward incident took place during execution. In appreciation of the outstanding work done by the team a group-cash award of Rs.1,10,000/- was awarded. However, the private respondents have graded the applicant as average and unfit officer just to harm him in the matters of promotion malafidely, and his representation against the adverse entry has been rejected by a cryptic and non-speaking order of Annexure A-2 by the then accepting authority, who has been arrayed as respondent no.5, without addressing the grounds raised by the applicant in his representation of Annexure A-2. During the relevant period the applicant was detained by the private respondents Nos.3 & 4 and pressurized, who him to alter the readings recorded in the measurement book and treated him unfairly by using harsh language which was duly recorded by him in the audio CD and the same has been forwarded by the applicant to the vigilance. He was also pressurized by the accepting authority who held a meeting at Jabalpur with a view to pressurize the applicant for the cause of the same contractor. However, the applicant refused to collude with the private respondents and he lodged a complaint to CVO Jabalpur in 2009 and thereafter to CVC also.
3. On the other hand learned counsel for the official respondents submits that the APAR of the applicant has been recorded by his immediate superior Shri V.K.Sharma, who was competent to initiate the confidential report against the applicant as reporting officer in terms of Railway Boards circular dated 07.03.1990 filed as Annexure R-1 along with Additional Reply, as the applicant had worked under that officer for the entire period. The allegation of bias predetermined and malicious recording of APAR are without any substance. Since, in part-IV of the APAR, grading and fitness are to be filled by an officer not below the JAG, Shri Ashwin Shukla, Sr.DSTE holding the post of JAG has endorsed the same in the APAR of the applicant and thus recording of grading and fitness by Shri Ashwin Shukla is in accordance with the policy on the subject. The applicant worked under the control and supervision of immediate superior authority Shri V.K.Sharma, who was the reporting officer of the applicant, for the year 2008-2009. In this period Shri Ashwin Shukla, Sr.DSTE (CO Kota) and Shri U.K.Pawar, Sr.DSTE (W-Kota) were posted as immediate superior to the reporting authority, but they were neither reporting authority nor reviewing authority. Since the fitness and grading was required to be recorded by a JAG officer, the same was recorded by the then incumbent of the post Shri Ashwin Shukla, who was competent to write the same. The entire project work was successfully accomplished by a team and the same is not the work of applicant alone. The work could be completed without disruption due to extensive planning done by the various departments of the Kota Division.
3.1 Vigilance action against the reporting/reviewing/accepting authority and the transfer of the applicant to RE Organization is much after the period when the APAR in question was recorded, as the CVCs advice of Annexure A-6 was received only on 09.03.2010. The letter of displeasure was served to the applicant on 23.6.2008 (Annexure A-8). The reporting authority recorded the above fact in the relevant column of the APAR, however, the reviewing authority deferred with the reporting officer and upgraded his APAR. However, the accepting authority accepted the grading recorded by the reporting officer and disagreed with the opinion of the reviewing authority. The applicants representation against adverse entry has been duly considered by the accepting authority and the same has been rejected vide order dated 19.02.2010 (Annexure A-2). Though the reporting officer has not offered any detailed remarks in column 2 and 3 of part-III A of the APAR in question, but the reviewing and accepting authorities have duly recorded reasons in detail for difference of opinion.
4. Heard learned counsel for the parties and carefully perused the pleadings of the respective parties and the documents annexed therewith.
5. Shri V.K.Sharma, DSTE, respondent No.3 has filled in Part-III and Part-IV of the APAR as reporting officer of the applicant, as the applicant worked under his supervision during the entire period under consideration, whereas the respondent no.4 Shri Ashwin Shukla has countersigned the entries of paragraph 5 of Part-IV, relating to Grading and Fitness as the aforesaid paragraph is required to be recorded by an officer not below JA rank and the respondent No.5 Shri K.S.Krishna Kumar has entered his remark as accepting authority in Part-VI of the APAR.
6. The applicant has made specific allegations against above private respondents that they nourished malafide against the applicant. The contention of the applicant is that he lodged complaint against these officers for certain wrong doing as detailed in paragraphs 4.11 to 4.13 in the Original Application. Since the applicant did not become party to the corrupt practices of the private respondents despite their pressures and he lodged complaint before the CVO Jabalpur in January 2009 and thereafter to the CVC, the aforesaid officers made adverse entries in the applicants APAR malafidely.
7. The private respondents have not entered their appearance despite notices and no reply has been filed on their behalf. Thus, the allegation of lodging complaint against them by the applicant and on the basis of his complaint the CVC has taken cognizance of misconduct against the respondent Nos.3 & 4 and advised major penalty proceedings against them and further advised counselling against the respondent No.5, stands uncontroverted by the private respondents, and as such we find that the allegation of malafide against the private respondents stands uncontroverted.
8. The applicant has also averred that the reporting authority has made adverse entries in Part-III and Part-IV of the APAR, without issuing any notice to him, in the form of any wrong doing, except referring to the displeasure communicated by Sr.DSTE vide Annexure A-8. From the letter of Annexure A-8 dated 23.06.2008 issued by Mr.U.K.Pawar, Sr.DSTE we find that it bears endorsement of the CSTE dated 19.06.2009 to the effect that this note has no meaning. Dy.CSTE must handle their officers with care. In view of the above, the reference of the Dy.CSTE, the reporting officer to the document of Annexure A-8, in the impugned APAR in Paragraph 4 of part IV of the APAR was uncalled for, and the same also smacks malafide on his part.
9. It is not in dispute that at the relevant period the applicant worked under two JAG/Selection Grade officers for different period namely, Shri Ashwin Shukla Sr.DSTE and Shri U.K.Pawar, Sr.DSTE. The respondents in paragraph 7 of their reply have admitted that the applicant worked under Shri U.K.Pawar from April 2008 to July 2008 and again from February 2009 to March,2009 and for the rest of the period Shri Ashwin Shukla was the authority competent to record grading and fitness. Thus, it is clear that the applicant worked under said Shri U.K.Pawar and Shri Ashwin Shukla for more than three months each. As per Railway Board letter dated 10.01.1989 (Annexure A-5) and DOPTs instructions dated 20th of May,1972 filed as Annexure A-4, a separate report is to be recorded by different reporting officers, if the reportee officer has worked under them for a minimum period of three months. However, from perusal of paragraph 5 of Part-IV of the APAR we find that only Shri Ashwin Shukla Sr.DSTE has countersigned applicants APAR with respect to Grading and Fitness, and graded him average and unfit in the department, and there is no remark with respect to Grading and Fitness of the applicant made by said Shri U.K.Pawar under whom the applicant had also worked for more than three months. Shri Ashwin Shukla has also put his counter signature on the entries made by Shri V.K.Sharma with regard to Grading and Fitness of the applicant, whereas Shri V.K.Sharma was not competent to decide the grading and fitness of the applicant as admittedly he is not a JAG officer.
10. From perusal of the remarks of the reviewing authority contained in part V of the APAR we find that he was not satisfied with the manner in which the reporting authority had made his report and accordingly the reviewing authority has observed in para 3 of Part-V of the APAR that the officer has not been appropriately assessed by the reporting officer. His potential was clearly visible when BTE/RRI and other works were commissioned without any held up to traffic. The officer cannot be classified as Average and Unfit and accordingly he has graded the applicant as Good officer and fit in the department in para 5 of Part-IV relating to Grading and Fitness. However, the accepting authority arrayed as respondent no.5 has recorded as under:-
Sr.DSTE/W/KTT & DSTE/Spl Works/KTT being in constant and regular knowledge at the role played by the assessed officer is in a better position to write about the exact level & quality of work done by him. His role in commissioning BTE/RRI was highly ..negative and additional resources had to be put to commission the work in time. I agree with the grading given by the reporting officer and the officer reported upon is not yet considered fit for higher responsibility/promotion. Remarks against Part III A 3, 4 & B 1,3,4,6 to be communicated.
11. The adverse entry in the APAR of the applicant has been communicated to him and he has submitted a detailed representation against the same, vide Annexure A-3, however, the same has been rejected by the Accepting Authority vide Annexure A-2 without addressing the grounds raised by the applicant in his representation with the following observation:-
The Grading given by Reporting Officer is based on overall assessment of his performance. Overall performance appraisal procedure has been methodical and completed in an objective way and there is no reason to change any of the entries of APAR.
12. The respondents in their reply have not controverted the contention of the applicant that before making entries in his APAR the applicant was served with any notice by the controlling authority except the letter of Annexure A-8, about which we have already observed in the foregoing paragraph. During the course of argument the respondents have not placed any material to justify entries in the APAR of the applicant recorded by the reporting/accepting authority. The respondents have only averred that the applicant worked under the supervision of Shri V.K.Sharma, DSTE for the entire period, who has recorded the entries in the APAR as reporting officer and Shri Ashwin Shukla, Sr.DSTE Kota recorded the entries in para 5 of Part-IV with regard to Grading and Fitness, in his own handwriting and countersigned the APAR in token of having recorded the grading and fitness in respective columns, however, there is no explanation forthcoming from the respondents in their counter reply when the applicant worked under Shri U.K.Pawar also, who was a JAG Officer for a period of more than three months, why he did not assess the applicant with regard to grading and fitness in para 5 of Part-IV.
13. The object of writing confidential reports and making entries therein is to give an opportunity to the public servant to improve excellence. Article 51-A(j) of the Constitution enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Therefore, the officer entrusted with the duty to write Confidential Report has a public responsibility and trust to write the Confidential Report objectively, fairly and dispassionately while giving, as accurately as possible the statement of facts on an overall assessment of performance of the subordinate officer. [See Rajendra Singh Verma Vs.Lt. Governor (NCT of Delhi),(2011) 10 SCC 1]
14. Though the recording of reasons may not be requirement of provisions, while deciding representation against communication of adverse entry, the authority competent to consider representation is required to act in a fair and just manner and also required to consider the grounds raised by the Government servant in his representation and examine the same in the light of the comments made by the officer, who awarded the adverse entry, and he cannot act in an arbitrary manner. Mechanical rejection of representation against the adverse APAR without application of mind cannot be sustained.
15. In the instant case from pleading of the respective parties it is manifestly clear that applicant while working under the superior officers, who have been arrayed as respondents Nos.3 to 5, has made serious allegations, with regard to the misconduct committed by them, for extending pecuniary benefits to the contractors engaged in the work. They tried to pressurize the applicant also to join them, however, the applicant lodged complaint against them initially to the CVO Jabalpur in January, 2009 i.e. before recording of the APAR, and later to the CVC. On the basis of his complaint the CVC has advised major penalty proceedings against respondent No.3 who acted as reporting officer and recorded adverse entry in the APAR of the applicant, and respondent no.4 who has graded the applicant as average officer and unfit in the department. The CVC has also advised to counsel the respondent No.5, who as accepting authority, has disagreed with the remarks of the reviewing authority, who graded the applicant as a good officer and fit in the department. The reviewing authority has also assigned reasons for not accepting the remarks of the reporting authority, whereas the accepting authority has only reiterated the remarks of the reporting authority on the ground that the applicant worked under the reporting officer during the relevant period. As already observed above the reporting authority has not referred to any wrong doing of the applicant during the period in question except referring to the communication of Sr.DSTE dated 23.06.2008 filed as Annexure A-8, which has been overruled by the next higher authority.
16. On the basis of aforesaid discussions we allow this Original Application and set aside the impugned orders dated 17.09.2009 (Annexure A-1) and 19.02.2010 (Annexure A-2) and direct the respondents to ignore the impugned APAR of the applicant communicated vide Annexure A-1, while considering the applicants case for his carrier expansion for all purposes. No costs.
(G.P.Singhal) (Dhirendra Mishra) Administrative Member Judicial Member rkv 11 Sub: expunction adverse remarks OA No.536/2010 Page 11 of 11