Central Administrative Tribunal - Ahmedabad
Sh. Badriprasad vs Union Of India (Uoi) And Ors. on 16 March, 2000
JUDGMENT P.C. Kannan, Member (J)
1. Heard Mr. D.K. Mehta and Mr. M.S. Shevde, learned Counsel for both sides. At our direction, the respondents produced the relevant records also.
2. The applicant who was working as Assistant Mechanical Engineer (AME) in Group-B service under the respondents had challenged the adverse remarks recorded in the Confidential Report for the year ending 31.03.93 and also his supersession and prayed for the following reliefs:-
(A) To expunge the Adverse Remarks recorded in the Confidential Records for the year ending 31.03.1993.
(B) To hold and declare that the action of the respondent authorities of submitting and placing the Adverse Remarks recorded in the Confidential Record of the applicant for the year 1992-93 before the D.P.C. in May/June, 1993 (as a resultant effect thereof the promotion order dated 25.07.1993 is issued), is illegal, unjust and improper as the said remarks were not at all communicated to the applicant prior to its communication to the Departmental Promotion Committee for its consideration, and further to direct the respondents to consider the case of the applicant for promotion to the higher post without being influenced by the said Adverse Remarks contained in the Confidential Records for the year 1992-93 and give promotion to the applicant on the higher post with effect from 25.07.1993.
(C) To quash and set aside the order dated 27.08.1993 (Annexure A/3) passed by the first respondent General Manager, W. Rly., and also to expunge the Adverse Remarks as recorded in the Confidential Records of the applicant as per the letter dated 28.06.1993 (Annexure A/1).
3. Mr. Mehta Counsel for the applicant submits that the applicant who belongs to Schedule Caste, had served as AME from 14.04.88 at different places and there was no complaint from any of his supervisor at any place during his service tenure. The applicant was posted at Loco Shed in Mehsana in the year 1992-93. The general supervision was with the AME and under him there were one loco foreman and two FOMs. There were about 60 Steam Engines in the sub division and in comparison to the Rakjot Division and to the nature of work, the staff strength and other facilities were inadequate. The applicant by hard work too administrative steps to improve the performance of the Loco Shed. At the time of assuming the office at Mehsana, there were more instances of engine failures. However, after his postings, he improved the performance. The staff absenteeism was also on the higher side when he assumed office and he improved the performance by taking disciplinary action. He submits that about 350 charge sheets for minor penalty and about 15 charge sheets for major penalty were issued in one year's time to create an impact and bring improvement both in discipline and functioning of the Loco Shed. The Sr. D.M.E. inspected the Loco Shed in Mehsana on 18.09.92 and he found everything in order. However, Sr. D.M.E. again inspected on 28.12.92 within a short span of three days, he issued a letter dated 30.12.92 (Annexure A) in which he found the performance of the Loco Shed and AME very poor. The applicant submits that to assess his performance, the authorities have to look into the deficiencies also in not providing adequate staff and adequate materials in time. In the facts and circumstances, he submits that the adverse remarks communicated to him for the year ending 31.03.93 by letter dated 28.06.93 (Annexure A-1) is not proper. The applicant being aggrieved with the adverse remarks, filed an appeal dated 10.07.93 before the Chief Mechanical Engineer, W.Rly., Church gate (Annexure A-2). The applicant in this appeal mentioned the facts and his explanation in detail. However, the respondents rejected the appeal by its order dated 27.08.93 (Annexure A-3). The applicant has also challenged the order of his appeal in this O.A. The applicant was subsequently, considered by the DPC for promotion to the post of DME but considering the adverse remarks, the DPC did not recommend his name for promotion to the post of DME. The applicant has also challenged his supersession. Mr. Mehta submitted that the applicant was however promoted as DME in 1996 and since retired from service.
4. Mr. Mehta, Counsel for the applicant contends that the DPC which did not recommend the name of the applicant for promotion relied upon the Confidential Report for the year 1992-93 which was not even communicated to him on the date of the DPC. In the circumstances, the DPC has no authority to look into the adverse remarks for the year 1992-93. In this connection, Mr. Mehta relied upon the following judgments:- (1) 19 GLR 1021; (2) 30 (2) GLR 1041; (3) 1984 SC 531 and (4) ATR 1988 (1) 145. Mr. Shevde referred to the reply filed by the respondents and submitted that the performance of the applicant prior to the period 01.04.92 had no relevance with regard to the performance in the year 92-93 and the adverse comments in the report for the year ending 31.03.93 is based on the performance of the applicant. The vacancy position at Mehsana was never abnormal, particularly in view of the fact that there were always surplus manpower available and the work had not suffered on that account. The respondents also denied that the functioning of the Loco Shed was in a complete deteriorated state as claimed by the applicant or that there were in-discipline etc., as alleged by the applicant. The respondents submitted that the applicant was not prompt in finalising the pending DAR cases, and because of the situation he had created, there was discontentment and demoralisation amongst the employees leading to industrial unrest. The applicant's follow up action in respect of timely finalisation of DAR cases was far from satisfactory. It is stated that during the inspection, the Sr. D.M.E. had come across as much as 80 number of charge sheets were pending delivery to the employees of which some of them are as old as three months. Despite giving several advices by the Sr. D.M.E., the applicant did not change his style of working. The respondents referred to the communication given at Annexure A to shows that the applicant was given proper and timely guidance by his superiors and in case of short-comings, the same was brought to his notice, giving an opportunity to improve upon his working. In the facts and circumstances, he submitted that the applicant cannot challenge the adverse remarks communicated to him. The respondents also submitted that the applicant was working under the Sr. D.M.E. Rajkot and therefore Sr. D.M.E is competent to write the Confidential Report and DRM who is the superior authority to Sr. D.M.E. who had properly reviewed the report. The appeal submitted by the applicant was duly considered by the competent authority who after obtaining the comments of the reporting officer did not find any reason to expunge the remarks and the applicant was given reply dated 25.07.94. The respondents also stated that the DPC was constituted on 05.07.93 for the empanelment of Group 'B' Officers (AME) for ad hoc promotion to senior scale (DME). The applicant was duly considered by the DPC and was not found fit for promotion to senior scale on the basis of appraisal of preceding five years of the performance. The adverse remarks were communicated on 28th June, 93 well before the date of DPC which was had held on 05.07.93. The respondents also submitted that the competent authority after due consideration of the appeal preferred by the applicant against the adverse remarks found that the appeal was devoid of any merit and in the facts and circumstances, the respondents submitted that O.A is devoid of any merits.
5. We have carefully considered the submissions of both Counsel and examined the records. The applicant was communicated the following adverse remarks.
"PART-III : REMARKS OF THE REPORTING AUTHORITY A. NATURE AND QUALITY OF WORK
2. Task-relevant knowledge "......he had permitted the performance of loco-shed MSH to deteriorate abysmally from April, 1992 to Dec. 1992."
3. Quality of Output "Not very meticulous in paperwork, once or twice delayed submission of accident inquiry reports."
PART-1V: GENERAL
4. Any adverse remarks, including penalties etc. "........several warnings/dis-pleasures communicated."
The applicant himself had produced certain report and also certain notes issued to him (Annexure A). In the notes recorded by the Sr. D.M.E., during inspection, had found following deficiencies:-
"3. DAR action.
Far too many charge sheets are being signed by the LF and the AME. However, there is no absolute follow up action for finalising the same.
It was noticed that the Charge sheets signed in January, 92 had not even been delivered to the delinquent employees. Both the AME and the LF were holding the Clerk responsible for not issuing the charge sheets.
The AME and LF were counseled to ensure that Charge sheets issued are finalised quickly and proper stringent action is taken.
As regards major penalty charge sheets as many as 14 inquiries were pending with Shri R.B. Sharma L1/MSH. These need to be finalised early."
4. LOCO Failure Reports:-
Loco failure are not being investigated promptly. 28 failure reports are pending finalisation. This should be expedited starting with the latest ones first. The failure reports should be submitted to the Divisional Office within three days of its occurance.
5. The Millwright Chargeman had been given two important tasks :-
(a) Providing electric motor driven pump for Hydraulic Lifting Table in Schedule IV Section.
(b) Removal of all old diesel engineers and water pumps on MSW sub-division were not working or not required.
Again on 30.12.92 the Sr. D.M.E. made the following observations :-
During inspection of CMPE (R & L)/CCG at Loco Shed, MSH on 28.12.92 it has been observed that performance of Loco Shed, MSH in all spheres i.e. loco failures, late out of powers and overdue schedules, is very poor. It was also observed that there is a total break down of discipline in the Shed.
This is a direct reflection of your capabilities as an officer posted in the same station. CMPE (R & L) has warned you that if the position of Loco shed, MSH does not improve on sustained basis over the next one year, you will be held directly responsible.
You are, therefore, advised to take the matter most seriously and ensure that the performance of Loco Shed, MSH improves in all spheres in the time to come.
6. In the note dated 30.12.92, the Sr. D.M.E. commented that the performance of the applicant had been very poor and there is a total break down of discipline in the Loco shed. He attributed this deficiency directly to the AME. In the report dated 29.09.92 (Annexure A), the Sr. D.M.E. had also referred to the fact that a number of charge sheets signed in January' 92 had not even been delivered to the delinquent employees till September'92. He also found that the loco failures have not been investigated promptly and as many as 28 failure reports were pending finalisation. The applicant did not submit any records/representations against the reports of the Sr. D.M.E. In spite of the adverse comments of the Sr. D.M.E., the applicant had not made any comments on these remarks. Our examination of the relevant records of the applicant shows that the appeal filed by the applicant was duly considered by the reviewing authority in consultation with the reporting authority and other records. The reporting authority submitted a detailed para wise remarks on the representation submitted by the applicant enclosing the copies of the warning letters addressed to the applicant on 27.05.92, 25.06.92, 03.09.92, 30.12.92, 22.02.93, and 04.03.93. The DRM after considering the detailed comments of the reporting officer, agreed with him. The competent authority after obtaining the comments of both the reporting and reviewing officer, rejected the appeal filed by the applicant with the following remarks :
"The appeal has been considered and the comments of Sr. D.M.E./RJT and DRM/RJT have also been seen. There are a number of letters from SR. D.M.E./RJT pointing out various deficiencies in the working of Shri Badri Prasad and as such it is not correct for the officer to state that he was never aware of his weakness.
I am satisfied with the adverse remarks which are warranted and as such they should remain."
Our examination of the official records shows that the representation of the applicant against the adverse remarks to the competent authority was duly considered and after obtaining comments of the senior D.M.E. and DRM the competent authority rejected the same and the applicant was also communicated about this position by letter dated 25.07.94, In the facts and circumstances, it cannot be stated that the adverse remarks were arbitrary. We therefore, reject this contention of the applicant.
7. So far as the promotion of the applicant by the DPC is concerned, the DPC was convened on 05.07.93 for making the representation for ad hoc promotion before meeting of the DPC, the applicant was already communicated adverse remarks on 28.06.93. The appeal dated 16.07.93 submitted by the applicant was after the meeting of the DPC. However, the competent authority after careful consideration rejected the same on 05.08.93. The contention of the applicant is that the DPC cannot consider the adverse remarks of 1992-93 till the disposal of his representation against the same. In this connection, the Counsel for the applicant referred to certain judgments.
8. In the case of Shankerlal Ramjibhai Dabhi v. State of Gujarat, 1989(2) GLR 1041, the Hon'ble High Court held that unless such adverse remarks are communicated to the Govt. servant concerned and he is given an opportunity of making representation against it, such adverse remarks cannot be taken into consideration by the DPC. In the facts of the case, the High Court found that even if the adverse remarks in the Confidential Report for the year 1981-82 are ignored, it would not establish that the petitioner was possessing proved merit and efficiency. The Hon'ble High Court upheld the decision of the DPC which after considering the overall performance of the petitioner came to the conclusion that the petitioner did not satisfy the criterion of proved merit and efficiency and refused to interfere. In the case of Dr. Hari Dev Goyal v. UOI, ATR 1988(1) CAT 145=1987(4) SLJ 619 (CAT), the Single Bench of this Tribunal found that the appeal against the adverse remarks was not disposed by the Chief Commissioner as required under the orders of the Ministry of Home Affairs and the appeal was rejected without giving any reasons. In the circumstances, the order against the representation of the applicant was quashed. In the case of Amarkant Chaudhary v. State of Bihar, AIR 1984 SC 531, the Hon'ble Supreme Court found on facts that adverse remarks were not communicated to the employee and subsequently, the State Govt., expunged the same. In the facts and circumstances, the Hon'ble Supreme Court directed to the respondents to re-consider the case of the appellant.
9. In this connection, we may refer to the case of R.L. Butail v. UOI, (1971) 2 SLR 55. In that case, the confidential report of the appellant therein for the year 1964 contained an adverse entry and he had made a representation regarding it. When the DPC met in March 1966, the appellant's representation regarding the adverse entry was not placed. The DPC superseded the appellant without referring to the representation. The appellant contended before the Supreme Court that the omission to consider his representation before the date of the meeting vitiated its decision. The Hon'ble Supreme Court held that the omission either to place the said representation before the committee or its non-consideration before the date of the meeting had no effect on the decision of the committee as the representation had actually been rejected subsequently with the result that the confidential report for the year 1964 remained unchanged.
10. In the present O.A., the DPC met on 5.7.93 i.e., after the communication of the adverse entries to the applicant on 28.6.93. The D.P.C. on the basis of overall assessments of the confidential reports of the applicant for the preceding five years recommended that the applicant is not fit for promotion. The representation submitted by the applicant on 10.7.93 was duly considered and rejected by the competent authority.
11. In the light of the decision of the Apex Court in the case of R.L. Butail (referred to supra) and in the facts and circumstances of this case, we reject the contentions of the applicant that the decision of the DPC is vitiated. We do not find any reason to interfere in the decision of the respondents not to promote the applicant in the year 1993.
12. The O.A therefore fails and is dismissed. No costs.