Central Administrative Tribunal - Kolkata
Brahmadeb Bandyopadhyay vs Central Excise & Customs on 31 July, 2018
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1 o.a. 350/00127/2014 ,
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
No. O.A. 350/00127/2014 Date of order: 31-'
Present Hon'ble Ms. Bidisha Banerjee, Judicial Member !
HorVBle Dr. Nandita Chatterjee, Administrative Member
Brahmadeb Bandyopadhyay,
Son of Late Hari Kinkar Banerjee,
Manushpur, Post Office - Bandel,
Police Station - Chinsurah, District - Hooghly,
Pin-712123.
.. Applicant
VERSUS-
1. Union of India^i S tfg *
Service^tHrough theSecretar;yK
Ministr^fjpn^^v ^ A.
DeR^rtmentofUi^/u^ - '
£Y
Office atpM E !X .
North Blo'ckrV/i
• ^
New Delhi'MjO/obVO!
2. Cbief'Commissioner^^C'en'tfal Excise
1
& S^rvieeTix^K^k-a^Zo^e^,/
Kendriva.Utpad Shulk.Btiawan,
180, ShantTPally.^^FIdor, Rajdanga Main Road,
(R.B. Avenue Connector),
Kolkata - 700 107;
3. Commissioner of Central Excise
Kolkata - IV Commissionerate,
M.S. Building, 15/1; Strand Road
Kolkata - 700 001.
.. Respondents
For the Applicant Mr. S.K. Dutta, Counsel
For the Respondents Mr. L.K. Chatterjee, Counsel
Mr. M.K. Ghara, Counsel
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2 o.a. 350/00127/2014
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/ ORDER
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Per Dr. Nandita Chatteriee, Administrative Member:
9 Aggrieved at the denial of MACP on ground of below bench mark gradings in APAR, the following relief has been sought in the instant O.A.:-
"(i) The adverse entry in the APAR of 2011-2012 of the applicant be substantially modified and upgraded to 'Good'.
(ii) Cost of the application;
(ii)(A). An order quashing and for setting aside the communication dated 11.2.2013 at Annexure A-7 to the original application.
(iii) Such other / further Order/ Orders as the Hon'ble Court may deem fit and proper."
2. Heard Ld. Counsel for both sides, examined pleadings, documents on record.
3. The case of the applicant, as canvassed by his Ld. Counsel, is that the applicant has joined service^if"»\fuly( 198lipnd^r^the Ministry of Finance, Department of Revenue, aslhspectoCS^enfraLExcise: \ That, he was promoted afrSupJrintMSent^f Cehtralf Excise on 29.8.1997 '-
and on 2012, the applicant had|cpmp1eted^^y^rs of s -'bontinuous I service in o %/// f vi# ^ /1 the Department of Expfendrture.r^^J,^^^^ \ / .
That, on 11.7.2012, the^applicant^had-preferred an application to the concerned authority requestinqToffinanciaLupgradation under the MACPs.
That, the respondents communicated a copy of his complete APAR for the period 2011-2012 to the applicant on 31.8.2012 against which he had represented to the Chief Commissioner of Central Excise, Kolkata on 1.9.2012. Further, on 26.10.2012, he received a copy of his completed ACR for the period 2007-2008 to which he represented on 28.10.2012.
That, on 25.2.2013, the Chief Commissioner of Central Excise had called the applicant for hearing on his representation on APAR for 2011-2012 and thereafter disposed of the representation which was communicated to the applicant vide respondents' letter dated 11.2.2013. The applicant also received the ''Note Sheet Order' dated 25.3.2013 whereby the respondents had disposed of the representation of the applicant against adverse remarks of 2011-2012 nU 3 o.a. 350/00127/2014 ■i ■ APAR and, thereafter; on 8.7.2013, he received a reply to his application dated .y 11.7.2012 for financial upgradation under MACP which stated that MACP could r/ K not be granted in his favour as because his gradings in ACR/APAR were below the bench mark for the purpose of MACP.
Being aggrieved, the applicant filed the instant O.A.
4. The grounds advanced by the applicant in his support are that:
(i) There were malafide and evil intentions in the negative remarks by the Reporting and Reviewing authority as recorded in three relied upon non official communications.
(ii) No letter of reprimand, admonition, warning was ever issued to the applicant by his superior officers indicating that the work of the applicant was found^ntcftfSfl&ory and below bench mark at any stage. ® \ T \ % l
(iii) That; ^Foug#bt54 U reeQhis iCCRs/APARs have been f. % graded eifh^as 'Sd^^Sp^^^^od' a^ t|ie ACRs / APARs of 2007-200^* ..me.
5. The respondents,vonth^th^rhand, ha^ar-gti^d 0follows:-
That, the applicant, ifte^h^ih^bien^ptomote^as the Superintendent of Central Excise, availed of his 1st finan^i'aTupgradation and thereafter was granted 2nd financial upgradation after completion of 24 years of service under ACPS in terms of 5th Pay Commission. The ACPS was modified as MACPS from 2006 under 6th Pay Commission Report resulting in three financial upgadations under MACPS on completion of 10, 20 and 30 years of service respectively.
That, the applicant completed 30 years of service on 8.7.2012. He thereafter had applied on 11.7.2012 requesting the respondent authorities to grant him 3rd financial upgradation w.e.f. 9.7.2012. MACPS was not granted to him, however, as because ACR/APAR gradings of the applicant were below bench mark for the purpose of MACPS and that ACR/APAR gradings for the preceding five years i.e. from 2007-2008 to 2011-2012 were relevant for l^x ■A'nr;
..v 4 o.a. 350/00127/2014 ■7 consideration of 3rd financier upgrdation with effect from 9.7.2012 with regard to ,7 the applicant.
7' That, in the APAR (Annual Performance Appraisal Report) for the year 2011-2012, the Reporting officer had assessed the applicant's performance as "Average" with overall Grade of ''3" and score of "O". The Reviewing Officer had agreed with the views of the Reporting Officer. The applicant, having received a copy of the APAR on 2011-2012, represented on 1.9.2012 to the Chief Commissioner of Central Excise, Kolkata Zone through proper channel against the gradings in APAR of 2011-2012.
That, on 26.10.2012, the applicant received a copy of his ACR (Annual 'i Confidential Report) for the year 2007-2008 from the Department. In the ACR, the Reviewing Officer had remarked®applicant's performance as "Just Adequate" and that 0n%2*8.1^0f2|^fre^a|iplic,aht represented to the ■A Commissioner of Central a9*te' the 1 entries in his ACR of 2001-200^^^^^^- 3 \
4) That, on 25.2.201%? the |aftehfe& a pefional hearing before the \ GenjcaKExcise (R^s^hd^nt.rNo. 2) regarding his Chief Commissioner dfL representation against th^adversC^ntiv^ thZAPAR 2011-2012 and also '■■Hr,..
received a letter from Kolkata -IV Cdfrimis'Sibnerate that ACR Remarks/Grading for the year 2007-2008 made by the Reviewing Officer had been upheld by the Commissioner, Central Excise, Kolkata-IV Commissionerate (Responent No.3).
That, regarding his APAR of 2011-2012, the applicant was communicated a copy of the order passed by the Chief Commissioner of Central Excise & Service Tax on 4.4.2013 upholding the grading of Reporting and Reviewing Officer.
That on 8.7.2013, he received a letter from his Assistant Commissioner, Central Excise, Rishra Division, Kolkata - (V Commissionerate that MACP in his favour could not be granted because ACR/APAR grading was below bench mark for the purpose of MACP.
V"
•« 5 o.a. 350/00127/2014 According to the respondents, MACP could not be granted to the applicant •/ ;1 because of his below bench marks gradings in the ACR/APAR and hence, the ' O.A. was liable to be dismissed.
ISSUE
6. The issue before us, in order to decide on the prayer made in the instant Original Application is whether the APAR gradings for 2011-2012(to which the applicant has confined his amended prayer for relief) call for upgradation and whether judicial review is invoked on the same.
FINDINGS
7. At the outset, we refer to the APAR for 2011-2012 which is germane to the lis. The self-appraisal, which has been prepared and authenticated by the applicant concerned at Annexure%%2fh'e^A.'^and particularly Part II of the same is reproduced below fSr<eadvsi5i^^n^e« K \\ ^ .■ n. A\m/X "As RO of R-IV DanEini 0);ivm^ftectea-'^,evaJsipn'i cases of Wide Angle Packaging System ^and Un£al^S^ti3^id otlger Inormal routine work. When my detection's deriSed"b^i§®RNH#eported the matter to Commr., Chief Commr. & OycL..'' £ ?
"...... Established^ the Sugdf^are6 ehtitloFto get MOT, breaking the myth (Reg. Barasat G^usto^SsS^^il^i^nd^p&Nvacate the unauthorised encroachment of dfe quarters-at Durgapur.^ / \\'r vy / Based upon the s a me Jh e „c6 n te'hts^bY" Pa rfj II f namely, appraisal of the _ Reporting and Review authority are reprodiJced below for further analysis of the matter:-
1. Assessment of work output (weightage to this Section would be 40%) Reporting Reviewing Initial of Authority Authority Reviewing Authority (i) Accomplishment of 3 3 planned work/work allotted as per subjects (ii) Quality of output 3 2 (originally in Hindi) (iii) Analytical ability 3 3 (iv) Accomplishment of 3 3 exceptional work/unforeseen tasks performed
(v) Overall Grading on i i-.
$ 6 o.a. 350/00127/2014 T 'Work Output1 3 2.7
2. Assessment of personal attributes (weightage to this Section would be 30%) Reporting Reviewing initial of Authority Authority Reviewing Authority (i) Attitude to work 3 3 (ii) Sense of 3 3 responsibility (iii) Maintenance of 3 3 Discipline (iv) Communication 3 3 skills (v) Leadership x 2 qualities ,Vi A\
(vi) Capacity to ir^team^ A3 spirit ^ m O' I if Capacity Jo Sork ife Sim O. 1
(vii) time limit! % w/ \W s fS»"
(viii) Inter-personal ✓C X '
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\ ../ 2
relations V
y/-
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V
J >/
(ix) Overall Grading\qn',' x.. 2.62
personal attributes »-»*■
3. Assessment of functional competency (weightage to this Section would be 30%) Reporting Reviewing Initial of Authority Authority Reviewing Authority (0 Knowledge of 3 3 Rules/Regulations/pro cedure in the area of function and ability to apply them correctly (ii) Strategic planning 3 4 ability (iii) Decision making 3 4 ability (iv) Coordination ability 3 2 7 o.a. 350/00127/2014 / ft (v) Ability to motivate & 3 2 ¥ .
7 develop subordinates r y/ (vi) Overall Grading on 3 3 functional competency
4. State of Health Physically appears to be sound but Mentally sick
5. Integrity Nothing adverse noticed or reported.
X X X x x (The remarks against the integrity column shall be made by the reporting officer in one of the three options mentioned below;-
6. Pen picture of the officer reported upon : (Please give an overall assessment of the officer with reference to his/her strengths and also drawing attention to the qualities, if any not covered by the entries above.) \ni.str^ X Notes of two ACs enclosed;
<55 ,\ X\ From the self appraisal wdftfe^by ftVoffi|er it appears that he is mentally ill. It is further sup^ec®^l^|igt|s!Mtl?s of|wd|ACs under whom he worked for earlier ^eriod.fOffiG%fnfl|^itten|about-w(Jrk done by him which 3 il IT* are not relevantffofehis alligtwlSfe^ . i >1^ vz/iv'Csy -
m -i
7. Attitude of the officer rep^ed fip(o|yp%tcds SC/ST/Weaker Sections of i ■ the society, his understSfidfeg/a'h^^wjttlngifess to Ileal with them.
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\ K ' ^ -^ast^Fair" S /
X x. ^ w *-j
".4. __
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^ ^ry' jf.
8. Overall grading, rating & scone ofThedlrficerTeported upon:
**4"-"*" ^ («) OVERALL GRADE (On a scale of 1-10):
3
(ii) RATING AND SCORE:
Average (0) Place: Kolkata Name of the Reporting Authority with designation (during the period Date: 28.6.2012 of report) Part IV of the said APAR which emanates from the Reviewing Authority is also reproduced below:-
•n^ 8 o.a. 350/00127/2014
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// 1. Do you agree with the assessment in the Pen Picture reflected by the . f Reporting Officer in respect of the strengths and qualities and lesser ■ // strengths of the officer reported upon? In case of disagreement, please si specify the reasons and give details. Is there anything your wish to modify 1! or add?
Agree. Shri A.K. Das, AC Division retired on 31.1.2012 (1.4.2011 to 17.11.2011). Shri Gangte and Smt. S. Bhattacharya ACs had less than 3 month each. Hence, Addl. Comm, written the APAR. He is in habit to harass the assesse and make false complaints against the fellow officers
2. If the reported upon is a member of the SC/St indicate whether the attitude of the Reporting Officer in assessing the performance of the SC/ST officer has been fair and just.
Fair and just.
3. Overall grade, rating and score of the officer reported upon (based on grades awarded by the Reviewing Authority in item No. 1,2 and 3 in Part III: Appraisal) (Please see instructions under Item No. 8 in Part-Ill) Please indicate xX or A.
-m \i.
i.\ 3 IP* \ 1 tJ B. C I t ,11 AVERAGE - 0 Place: Kolkata Date : 16/7/2012
There being no record of any grading by an Accepting authority, it is presumed that the Reviewing Authority was the final authority in grading the APAR of the official concerned.
In between, the Assistant Commissioners, Central Excise, Dankuni, Shri A.K. Das, Shri L.S. Gangte as well as Smt. S. Bhattacharyya had provided comments in their confidential notes to the Additional Commissioner, Central Excise Commissionerate in the context of their notings in the APARs.
The applicant submitted a representation against the observations and final gradings in his APARs in the year 2011-2012 and raised the following issues in the said representation.
9 o.a. 350/00127/2014 ■v (0 That the applicant, despite the observations of the Reporting and the j Reviewing Authority, is not in the habit of complaining against his collegues or ;/ w superiors in the Revenue Department.
(ii) The applicant could have infuriated the hierarchy as he has referred possible evasion of revenue on account of improper investigation to the vigilance.
(iii) The comments of the Reporting authority are not based on established facts and hence do not qualify as objective assessment.
(iv) That, the applicant had been rather prompt in submitting all his work related reports.
(v) The APAR gradings and observations reveal lack of application of intelligent and fearless minds of the superior hierarchy in the Department.
(vi) That, the applicant was ^\^cl?fdlrrfor^ d'fscjpline and maintenance of discipline is not confined ,to locatiSra^i^ork^lacfe^
(vii) The reviewing : authority swasiplso^nbt 1/ '\ dbjpctive in regard his / ,* J Ii |. ^ h objections/grades andjafiSld ha^-b^^^^edJs the'5p|licant had prayed for permission for foreignltra'lel byptssing the proper chanhef including that of the VS 1 /-
Reviewing authority.
SS\' •xtsfi y his case, The competent au^ho^ity.^^?sumab1y^ih/t / is the Chief Commissioner of Central Excise, wiibrin^h^orders dated 25.3.2013 (Annexure A-8 to the O.A.) had passed a detailed order analysing the APAR as well as the applicant's written representations and verbal submissions rendered during personal hearing.
The Chief Commissioner concluded that the applicant's behaviour was suggestive of "an inherent unrest in his official conduct. However, it is not on record, if any action for insubordination as specifically pointed out was ever / has been initiated or not."
The Chief Commissioner concluded that the grading of the reporting and reviewing officer was unbiased and justified but proceeded to expunge the remarks "mentally sick" from the subject APAR. Accordingly, the grading average t V, / 10 o.a. 350/00127/2014 V *> ^ if with score "zero" was retained by the competent authority in APAR for 2011-
'/ 2012.
Next, we refer to Annexure A-9 to the O.A. whereby the Superintendent / Vigilance had noted the ACR/APAR grading of the applicant for five years w.e.f. 2004-2005:
"ACR/APAR gradings of Shri Brahmadeb Bandyopadhyay, Supdt for the relevant 05 years are as under:-
Year Reporting Officer Reviewing Officer Remarks 2004-05 Very Good Good 2005-06 No Report Certificate No Report Certificate Grading of the ,v I r ^ N, Rev. Off. Has X • 2006-07 Good been upheld by O' the 2007-08 Good gr\! f / J^Adecgfefe Commissioner, ' % Kol-IV on ■'is €f\ H 06.02.2013 i c 1--- • m E3 | against . the i representations ito | dt. 28.10.2012 & 31.10.2012 fO's\ / made by Shri \ VE-V ^ V./ - Bandyopadhyay, \sNv f/r<ri Supdt.
•k* 2008-09 No Report Certificate ^No-Report'Certificate vtr±***n! Representation 2009-10 No Report Certificate No Report Certificate dated. 1.9.2012 made by Shri 2010-11 Very Good Very Good Bandyopadhyay, Supdt. Against 2011-12 Average Average the gradings is pending before the Chief Commissioner, CE & ST, Kolkata_______ This is issued with the approval of the Commissioner, Central Excise, Kolkata- IV."
It was also categorically noted by the vigilance that no disciplinary proceedings, vigilance or suspension is pending against the applicant.
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11 o.a. 350/00127/2014 . iy We now refer to the guidance of the Hon'ble Apex Court to decide on the », // extent of judicial review in the matter of confidential reports / APARs. It has been :/ W he/d /n K.L Mishra v. State of M.P., 1989 Lab 1C 483 (MP-DB) that where there is allegation of patent illegality, arbitrariness or lack of authority in the process of recording the adverse remarks, the court's power of judicial review may be invoked as usual.
It has further been held in P.V. Nayar v. Union of India, (1992) 11LLJ 765 (Ker.) & D.D. Sharma v. State of Haryana, 1996 (5) SLR 498 (P&H) that if different officers have repeatedly assessed the performance of the petitioner as average,, it cannot be said that the action is arbitrary or mala fide.
It is hence important to examine whether such average entry in the APAR for the applicant for the year 2O1JU20/I;2 can?be,termed as adverse.
p-VV,VV \ The Hon'ble Apex CcfQpflhas^MIjnr^^ Js^Nigam v. Probhat Chandra Jain, (1996) 2 SCC ddvm|rading entry such as "outstanding" in a particular entry-inithe succeeding year, \s/1'iS$sW &i it could be considered^, as adverseyn/tlMcasei we reEalllthe APAR entries as noted in Annexure 'A-9\to\tb'^b^: and whibh^aSybeen'reproduced on page 5-6 of this order. ^ It is seen that from 2004-200'5sT5nwards1 the applicant has never been graded as "average" except in the year 2011-2012. In 2010-2011, which is a year immediately preceding 2011-2012, the applicant has been graded as "very good". Hence, clearly the down grading of APAR from "outstanding" to "average" in the consequent year indicates that this entry of "average" will be considered as adverse.
The Hon'ble Apex Court in Brij Mohan Chopra v. State of Punjab 1987 (2) SLR 54 (SC) has held that in considering action upon the adverse remarks, the authorities must act fairly and apply their minds. An adverse entry cannot be considered in isolation or by ignoring the extent of prejudicial qualitative content of the remark. The general principle is that although the entire service record of J 12 o.a. 350/00127/2014 // the employee is to be considered, the service. records of the immediately, :7 // preceding ten years should provide a just and reasonable guideline. k4' -
f It has been further held in D.K. Aggarwal v. High Court of Judicature, Allahabad AIR 1988 SC 1403 that no action can be taken on adverse entries which do not have any foundation and particularly an entry prior to the date of crossing of an efficiency bar or where the employee has been promoted subsequent to such entries.
In this case, the entries were based on the confidential notes of the reporting officer and APAR for 2011-2012. Such entries were also material for the applicant to receive his benefits of MACP.
Accordingly, the entire issue as to why the applicant was granted an '*' * ' s., "average" grading just prior to the'lfcireshold in grant of MACP Vv requires a closer re-exarpinatioh. l " X The Chief Mows:-
Q " Shri A.K. Das^the ^p0hiissioi1&r $(Retd.) categorically mentioned vide hi\ that the Supdt Used to harass the assesses ih4fh^name of in^esiig^tion;Jihat he himself started investigation withouhj^^ag^^alf^fTm^& wasjihifted out of the Range and Division following co^pl,amW fr§mf(fdasse^es; that he used to create panic by making allegatidn^gainsHh&^Jlow Supdts and senior officers; that all complaints lodged by KmTwgalnstthe officers as well as against the assesses were later found to be false on investigation; that he was in habit of writing objectionable language while communicating with superior officers; that he was found to be engaged in doing work other than allotted office work; that he had not attended the normal office work and his report work was very evasive and that he is a liar, incompetent, insincere and also acted in insubordinate manner."
We also refer to the confidential note of Shri A.K. Das, the then Assistant Commissioner C.Ex. Division Dankuni dated 30.1:2012 which forms basis of the Chief Commissioner's analysis:-
13 o.a. 350/00127/2014 CONFIDENTIAL *:J/ To i/ y The Additional Commissioner, j Centra! Excise Commissionerate, Kolkata-lV, Kolkata Respected Sir, Sub: Note in APAR for the period 2011-2012 in respect of Shri B. Bandvopadhyav, Suodt. Ranae-IV. Dankuni Divn. It is to state and report that Shri B. Bandyopadhyay, Superintendent has worked in the Range-1 V, Dankuni Division from 1.4.2011 to 18.11.2011 and as i am to retire from service on superannuation on 30.1.2012, I am not in a position to write his APAR for the period 2011-12. However, I am hereby submitting my note for placing the same in the APAR of Shri Bandyopadhyay, Superintendent for the year 2011-12.
During the period what l found that he used to harass the assesses in the name of investigation. He hirpself started investigation without my approval. He was shifted obt^pf >theTf^a^ge -as well as Division following complaints from assessiesSVe used to cfepte^panic by making allegation against the fellow Su(T§mte0_0nr^Md^seni6fofficers. On investigation his complaints against the ofmefkjag th&isSfsses it was found all false, He is t'b $¥re hf&it^^^Mrnpg^g,bje^nhble language while communicating wittf supSmgSp^^SfLtMisiori^pApe/Commissionerate. He was found to 4& engage(0t^m^^d^)ther^ah allotted office work. He had not attepd&d the ho'fmMmse&riTent workianb his report work was very evasive, yhder I^^M)\yipf2/CONTAX:fDKN/11/176C dated 25.1.2012 upon ^nvest^atibj^Msti^<^^&^convpyed that he is a liar, incompetent, insin'cere^dnfralso acted i^ins^to/diphte manner. It is further mentioned that his honduct wa^report^d^pt;CpfnftissionerKol-iV from time to time in regard to vad^tis^drf0laih^%pdejb/ him against the assesses and officers. X. • Therefore, in my considered view I find his performance during the said period was just "Average'' only.
Dated: 30.1.2012 Yours faithfully, (A.K. Das) Assistant Commissioner C.Ex. Division-Dankuni"
The main allegations made are that:
(a) The applicant used to harass the assesses in the name of investigation;
(b)The applicant had started investigations without his approval.
■'*e> 14 o.a. 350/00127/2014 . //
(c)The applicant was shifted out of the range and Division following complaints from assesses.
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(d)The applicant was in the habit of creating panic by making false allegations, which subsequently turned out to be false. He was in the habit of writing objectionable comments.
(e)The applicant was engaged in works other than office works.
(f) That the applicant is a liar, incompetent, insincere and insubordinate. The applicant in his pleadings has pointed out that while he sought replies to . RTI application, it was clearly informed that no complaints against him has been received by the office of the Assistant Commissioner, C.Ex. Division-Dankuni. If so, the comments of the reporting,^aUtfibtitoare^not objective as they are not based on established facts(^efr^P^^on'bfep^ex Court in Biswanath ■ * Prasad Singh v. State ofBiha^(2^^^^0^O5r^\\^s been held that the entry in ACR/APAR Gonfidential^R^^tfSufs>reflect the result of an objective v ^ {.
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assessment. Fairness^ O justness ¥nd? objectivity' are th%"real criteria of making • % /•1 s.
such entries. ■ The Hon'ble Apex &urtv'hav@Wurih^iJheldnn^. Ramachandra Raju v. Sfafe of Orissa, JT 1994 (5) SC^SS^that^writing the confidential reports objectively and constructively and communication thereof at the earliest would pave way for amends by erring subordinate officer or to improve the efficiency in service.
In the instant case, as admitted by the respondents and particularly in the findings of the orders of the Chief Commissioner, no action for insubordination is on record and hence, if the reporting authority or his superiors were grossly unhappy with the official conduct of the applicant, they could have issued warnings to the applicant or initiated disciplinary proceedings against him, which is not the case on record.
.•Ar? i5rr>» 15 o.a. 350/00127/2014 What we find from the plethora of complaints as well as the representation and pleadings of the applicant is that the applicant was an officer obsessed with / ¥ accurate assessment of revenue, perhaps to a fault.
Admittedly, his behaviour was eccentric and erratic as borne out from some of his written communications that the respondents have annexed to their reply. This, however, does not entitle the respondents to penalise him with an adverse entry in his annual APAR just before upgradation of the 3rd MACP benefits. The notings made by the reporting officer namely, that the applicant is mentally ill and that his self-appraisal refers to work beyond his official jurisdiction can hardly be described as objective and based on established facts. In fact, the Chief Commissioner has expunged the comment, "mentally ill" from his APAR.
What the reporting offica^hpjjlS tia^^dne^was to make a balanced assessment of the strength §n¥weakn|el^^pJ.the^appHGant concerned, which is ' | j //^k, not evident before us. jl^ cor|^^||^e^^ewin§^iuthority are even
- more confusing as the only relevant &mrfientfhl|&thatf he isjn the habit of harassing \% 5s | the assesses and makeV6rnplaints*agamst fellow officers./ are not borne out by facts or record. v VXw / In the Part III of t^Apprai¥a(^the^Rep6rtirig authority has uniformly recorded "3" in the grading laddefT~irre§pective of professional outputs or personal attributes. The reviewing authority has tinkered at the periphery, with minor charges in isolated parameters. Clearly, the reporting and reviewing authorities have failed to record their balanced and objective assessments and it is difficult to comprehend as to how functional competence and professional efficiency can be categorized uniformly. Surely, the official's analytical ability or knowledge of Rules etc. cannot be trivialized considering he has put in 30 years of service and crossed two levels of ACPS. Again, all his personal attributes have been painted in the same colour relegating each attribute to a deep shade of grey.
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y. 16 o.a. 350/00127/2014
Calculation wise, the overall score, going by the Reviewing authority's < grades, comes to '2.67' and not '3'. Hence, the superior authorities appear to / have pre decided to grade him within '3' irrespective of attributes or markings. It is also sad that the narrative part of the comments of the Reporting and Reviewing authorities lack linguistic accuracy. Such grades granted with little or no application of mind, and at the brink of the applicant's eligibility for 3rd MACP appears to reflect a reactive and retaliatory approach.
Accordingly, in our considered view the respondent authorities failed to provide balanced consideration with respect to the applicant while appraising him in his APAR 2011-2012. Such appraisals being founded on insinuations / allegations and subjective comments, cannot form the basis of an objective or balanced appraisal. i -c \ rv ■ k. Vt-J- V., r8f/ :4X The Hon'bie Apex C§urf had^SSTeiterate^thak fairness, justness and < |i objectivity are the real., crfferia ^Ti5|fe^pSn|^in a^rlisal. Unfortunately, in if i the instant case, therb is; no attributes in the applicant's appraisal. ''P "/ The respondent authpnitie"sv,|hould appre'ciate/1hat as he has otherwise \ r ?y y y1 been held to be an upright official,Jhe^ffic#sj?priqijct requires to be judged not on his eccentricity but his sincerity ofpOTpose in discharging official duties.
8. Hence, we are hereby direct the competent respondent authority, who is presumably the Chief Commissioner of Central Excise, to once again examine the entries of the applicant's APAR, the comments made by the Reporting and Reviewing Officer and if so considered necessary, accord a personal hearing to the applicant with particular reference to his representation preferred on 1.9.2012 and also such findings which has been accessed by the applicant through RTI so as to analyse whether objectivity was the foundation of the APAR entries of the applicant. It is worthwhile to note here that at no point of time the applicant's integrity has been called in question. •t <5* ^ 17 o.a. 350/00127/2014 I The whole exercise is to be completed within a period of six weeks from the date of receipt of a copy of this order. The order of the respondent authorities dated 11.2.2013 (Annexure A-7 to the O.A.) is hereby set aside.
9. The O.A. succeeds to the extent of the above directions. There will be no order on costs.
A' (Nandita Chatterjee) (Bidisha Banerjee) Administrative Member Judicial Member SR 1' //