Central Administrative Tribunal - Bangalore
R P Meena vs M/O Railways on 22 August, 2019
1 OA.No.170/00876/2017/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH: BANGALORE
ORIGINAL APPLICATION NO.170/00876/2017
DATED THIS THE 22nd DAY OF AUGUST, 2019
HON'BLE DR.K.B.SURESH, JUDICIAL MEMBER
HON'BLE SHRI C.V.SANKAR, ADMINISTRATIVE MEMBER
Shri R.P.Meena
S/o Sri S.L.Meena
Aged about 49 years
Deputy Chief Safety Officer/Traffic
S.W.Railway, Hubli and residing at
1428 H, Golf Link Officers' Colony
Hubballi - 580020. ....Applicant
(By Advocate Shri K.Shivakumar)
Vs.
1. Union of India
Rep. by Secretary
Railway Board
Rail Bhawan, Raisina Hills
New Delhi-110001.
2. General Manager
North Western Railway
Jawahar Circle, Jagatpura
Jaipur-302017.
3. Shri Rajendra Jain
CSTE, HQ Office
South Western Railway
Gadag Road, Hubballi
(Karnataka).
4. Shri Rajeev Sharma
AGM, East Coast Railway
HQ Office, East Coast Railway
Bhubaneswar (Odissa). ...Respondents
(By Advocate Sri N.S.Prasad)
ORDER
(PER HON'BLE SHRI C.V.SANKAR, MEMBER (ADMN) The case of the applicant is that he belongs to the Indian Railway Traffic Service(IRTS) of 1992 batch and he was appointed on 5.9.1994 after 2 OA.No.170/00876/2017/CAT/Bangalore Bench successful completion of his probation period and initially joined as ACM in Bhusawal Division of the Central Railway. He held various posts in Operating, Safety and Commercial department of Railways and presently holding the post of Dy.Chief Safety Officer/Traffic in SW Railway, Hubballi. Before joining in SW Railway, he was working as Sr.Divl.Commercial Manager in Jodhpur Division of North Western Railway. While working as such, he did commendable work in the commercial department to increase the railway revenues and to put a full stop to the activities of the touts and other illegalities which were illegally supported by the respondent No.3. He took much initiative to conduct inspections and made the staff to work for achieving the target. The paper cuttings in that regard are placed at Annexure-A1. Heavy fines were imposed on the defaulters. The action initiated on 2.4.13 is at Annexure-A2. Respondent No.3 was favouring the signal department contractors being S&T officer and did not allow the applicant to collect fine as imposed by him on 30/31.7.2013 for misusing railway premises. Same could only be realized on the very next day of relieving of respondent No.3 on 7.8.13(Annexure-A4) which prove the misdeeds of the respondent No.3. Free services by the respondent No.3 on catering were controlled as reflected in the letter/compliance report of CMI/Jodhpur dtd.30.5.2013(Annexure-A3). Besides the applicant took much initiative to prevent ticketless travel and imposed penalty on the ticketless travelers and defaulters thereby caused for the considerable increase in the revenue of Railways. The comparative statement on the number of penalty cases and penalty earnings during the period 2013-2014 are placed at Annexure-A6. Because of his efforts, the passenger earnings gone up by 20.88% and other coaching earnings gone up by 60.49% in that year comparing to the last year. This has gone to heavy minus after his managed transfer after Dec., 2013 onwards vis-a-vis to April 2013 to 18 th Dec 2013 which was his actual tenure as 3 OA.No.170/00876/2017/CAT/Bangalore Bench Sr.DCM/Jodhpur. The Chief Signal & Telecommunication Engineer, Western Railway who was the Divl.Railway Manager, Jodhpur(3 rd respondent) at that point of time graded him as 'Good' instead of appreciating his good work and made false entry of having communicated the displeasure to the applicant in the APAR. But in Part IV item 4 in the APAR, no such displeasure letter said to have been issued or was received as was confirmed from the reply received under RTI(Annexure-A7). He deliberately wrote 'No' for fitness for DRM/ADRM and rated 'Average to Good' in APAR with prejudice of mind(Annexure-A5). The so called displeasure dtd.22.7.13(Annexure-A8) was provided by the appellate authority under RTI. The said letter was issued by R3 to five officers including the applicant. Since no such letter was issued nor he received, he made another RTI application on 17.8.17(Annexure-A9) to provide the acknowledgement of the so called letter dtd.22.7.13. Thereafter two reminders have been sent and then the appellate authority provided the information stating that no such acknowledgement is available with the PS/DRM. The respondents did not provide the APARs of the 4 other officers deliberately. In fact the 3rd respondent did not make any entry of communication of displeasure in their APARs and thus prepared a forged and fabricated document in connivance with the PS/DRM/Jodhpur to spoil his APAR. The issues have been represented to the GM, North Western Railway/ Jaipur vide representation dtd.7.10.16(Annexure-A12). Further Memorial/Appeal was also made before the Member Traffic, Railway Board but the Dy.Secretary (Conf) to GM/NWR Sri Ajay Kumar Jain did not forward the appeal as per the letter dtd.16.9.98 and took plea of irrelevant clause which never govern the issue of APAR in question. Due to change of DRM in Jodhpur Division, the second part of APAR part 'B' was written by the next incumbent DRM Sri Rajeev Sharma (4 th respondent) on 27.11.2014. Though the data to fill up the required columns and 4 OA.No.170/00876/2017/CAT/Bangalore Bench to write the self appraisal in the APAR were sought, the same were not provided nor the request made by him to the GM, NW Rly., was considered to not to allow respondent No.4 to initiate the APAR for his bias attitude(Annexure- A13). The 4th respondent has recorded in the APAR as 'self appraisal not filled though APAR forms given in time' which is nothing but a malafide intention to write the APAR without seeing the objectives and targets achieved by the applicant. He too awarded the grading as 'Good' and declared as fit for the post of ADRM but left the column for DRM blank which is against the rules(Annexure-A14). He has written in part IV item 4 on women issue and team spirit which is all false. The Part II of the APAR was subsequently submitted with a prayer of delay condonation but the respondents did not grant natural justice(Annexure-A16). The strict work done by the applicant and controlling the illegalities was never supported by the 4 th respondent but instead he supported the Union people who were doing illegal demonstrations and 'Dharna' against the applicant. Same were apprised to the respondent No.4 to take DAR action against the Union people but he did not take any action. Instead of that he managed false complaints/FIR against the applicant, which could not be substantiated before the Lawful authorities. The bias and prejudice attitude of the DRM is proved from the Final Report(FR)(Annexure-A17) accepted by the Court as how the applicant was victimized and transferred in connivance with the trade union where the report has categorically stated that instead of taking action against the defaulters, the DRM indirectly supported them. In the 7th page of the APAR part 'B' (Annexure-A14), it has been recorded that the applicant had not completed 90 days under the reviewing authority which is false as he had worked under the reviewing authority(CCM Sri Deepak Chhabra) for more than 90 days. This less than 90 days has been calculated by deducting the 3 days LAP deliberately mentioned in the APAR part 'B' part I 5 OA.No.170/00876/2017/CAT/Bangalore Bench item 7 by the office of DRM (not by the applicant) which were not at all availed by him(Annexure-A18). The applicant was on duty on 11.12.2013 but availed CL for 12.12.13 & 13.12.13 but it has been shown as LAP in the APAR from 11.12.2013 to 13.12.2013 which clearly establishes the intention of bias attitude of the respondents as leave (CL instead of LAP) on the above said dates so that it could not be reviewed by Shri Deepak Chhabra who has graded outstanding in his APAR during 2014-15(Annexure-A22). The said leaves got sanctioned as per the directives of the office of 4 th respondent on phone on 30.12.2013 after issuance of his transfer order which was confirmed vide letter dtd.3.1.2014 with the covering letter dtd.19.1.17(Annexure-A19) by Dy.Secy(Conf) to GM/NWR which prove the sequence of the issue. Thus a forged entry has been made in connivance with respondent No.3 with mala fide intention to show that the applicant has not worked for 90 days under the reviewing authority namely Sri Deepak Chhabra who has retired and the respondents did not get the APAR reviewed in time despite repeated requests of the applicant. The APAR of the applicant has also been outstanding in 2012- 13(Annexure-A23). In the V & VI parts of the APAR (part A&B) also the reviewing/accepting authority has not recorded his remarks which are very much against the rules. The APAR was deliberately not put up before the reviewing authority and returned by the accepting authority in connivance with respondents No.3 & 4 who were biased and made forged/false entries in the APAR. There was no reason before the GM/NWR Sri R.C.Aggarwal to return the APARs without acceptance until or unless there was malafide intention. The applicant made representations on 8.9.14, 7.10.16 & 9.12.16 to the General Manager, NW Rly., Jaipur. The Asst.Secretary(Confidential), NW Railway on 27.12.2016 (Annexure-A25) has replied to the representation dtd.8.9.2014 stating that 'the competent authority has decided that he does not find any 6 OA.No.170/00876/2017/CAT/Bangalore Bench justification for changing the APAR rating', whereas no such representation dtd.8.9.2014 was made by the applicant. Hence, the decision vide Annexure- A25 may be treated as infructuous. He made further representations Memorial/Appeal to the Member(Traffic) Railway Board on 19.6.17 & 1.9.17 with further reminders also(Annexure-A26). The Dy.Secretary(Confidential) NW Rly., communicated on 6.10.2017(Annexure-A27) stating that the representation once finalized no further appeal would be allowed, which does not apply in case of APAR in question. The applicant submitted one more representation on 9.11.2017(Annexure-A28) to GM, NW Rly. and it was replied vide letter dtd.20.11.2017(Annexure-A29) stating that there is no mention of appeal/memorial in DoPT letter dtd.14.5.2009(Annexure-A31) despite the fact that letter dtd.16.9.1998(Annexure-A30) clearly mentioned the provision of memorial/appeal as per para 2e which has not been modified or deleted in the said DoPT memorandum. Therefore, the provision of appeal/memorial is applicable in the APAR in question. The applicant was not provided with the data to fill up the relevant columns in the APAR as sought by him vide his letter dtd.4.6.14. He was graded 'Very Good' in 2011-12, 'Outstanding' in 2012-13 but graded as 'Good' in 2013-14. How an officer graded as very good and outstanding in the earlier and subsequent years could be downgraded as merely 'good' in the span of hardly 9 months without any valid grounds needs to be examined in view of the facts and circumstances that establishes his strict working and action taken to stop the illegalities & irregularities which is on record in measurable indices, which the 3 rd & 4th respondents did not see deliberately and APAR was not got reviewed by Shri Deepak Chhabra then CCM NWR and returned by Shri R.C.Aggarwal, the then GM NW Railway without accepting it though were put up well before time. The confidential report should be recorded within one month of the expiry of the reporting period and 7 OA.No.170/00876/2017/CAT/Bangalore Bench delay in this regard should be taken up. If the authority retires or demits office, he may give the APAR within one month of his retirement or demitting the office. His APAR was not reviewed/accepted by the General Manager before his retirement rather returned deliberately and was not put up before the Chief Commercial Manager under whom he worked for 90 days. The casual leaves taken by him never comes in the calculation of 90 days in case of APAR. Hence, the APAR for both the periods ought to have been reviewed/accepted by the then CCM Shri Deepak Chhabra. The APAR cannot be treated as final at the level of Reporting Officer only when the applicant was working in a three tier system of reporting, reviewing and accepting authorities. In his case the APARs were returned by the General Manager without accepting and was not put up to the then CCM despite request with regard to leave and other issues. The respondents submit that the record of Jodhpur division does not support the contention of the applicant in their letter dtd.28.3.17 and they directed the applicant to approach the Hqrs. for leave issue vide letter dtd.3.1.14 and when CL was got sanctioned on 31.12.13 after issuance of his transfer order on 30.12.13, they took the plea that DRM was the competent authority to sanction CL and not CCM/FM. Hence, the double standard of the respondents prove as up to what extent they are prejudiced with the applicant and want to damage his career. The grading of Very Good is required for the promotion to the Sr.Administrative Grade and also for the posting as ADRM/DRM. To prevent him being elevated to the higher post with the prejudiced mind, his APAR has been written by the biased authority with the grading of 'Good'. Thus being aggrieved by the same, the applicant has filed the present OA seeking the following relief:
i. Quash and set aside the impugned order dtd.27.12.16(Annexure- A25) and gradings given merely at the level of reporting officers only in both the parts of the APAR by expunging the false and fabricated entry 8 OA.No.170/00876/2017/CAT/Bangalore Bench of communication of displeasure and LAP issues including the other poor/average entries in the APAR by upgrading them up to at least very good to excellent (VG to E) in the attributes and, overall grading to that of outstanding in both the parts with fitness for ADRM/DRM in the facts and circumstances and excellent work output of the applicant in the year 2013-14 and as the APAR of the applicant for 2014-15 was given outstanding by Shri Deepak Chhabra, then CCM/MWR which may kindly considered at par for giving the outstanding grading in the circumstances for the APAR 2013-14 as well.
ii. Direct the respondent No.1 to take stiff action against the respondents No.3 and 4 for not only playing mischief with the career to an upright IRTS Officer of Scheduled Tribe Community but also for preparing false and fabricated document by making even false entries on LAP issue even when the applicant was on duty 11.12.13 and directions for making adverse entry in their APARs may kindly be given to the respondents for having bias attitude towards a reserved community officer and prayed to pass strictures against the respondents for playing with the career of the applicant at each and every stage to damage his career.
2. The respondent No.4 has filed reply statement stating that the submission of the applicant that his representation against the APAR for the year 2013-14 was rejected vide order dtd.27.12.2016 at the instance of the 4 th respondent is incorrect as the 4th respondent acted in the matter only in official capacity and he had no bias against the applicant. The applicant has miserably failed to disclose any clear evidence against the 4 th respondent to have malice against him and thus failed to prove the same. Mere allegation without substantiation is of no relevance and bad in law. All the acts of the 4 th respondent were in official capacity according to the rules. Any submission that he acted with ill will against the applicant is devoid of substance and deserves to be rejected. Thus he has been unnecessarily impleaded. And hence he is not filing detailed reply because of the aforesaid reason which deserves to be considered and he adopts the reply filed by the official respondents.
3. The applicant has filed rejoinder to the reply filed by the respondent No.4 and submits that it was the 4 th respondent who had fetched all the conspiracies against the applicant who was dealing the illegalities prevailing in Jodhpur 9 OA.No.170/00876/2017/CAT/Bangalore Bench Division very strictly and was ensuring the union people to do their assigned duties as they were taking free salaries and were not even doing their duties. Therefore, they started illegal undue Dharna and demonstrations against the applicant. Even though the same were brought to the notice of the 4 th respondent, he did not take any action against the union people despite joint agenda passed by the officers association which was addressed to the respondent No.4(Annexure-A47). Thus due to malafide intention of the respondent No.4, he has been made party in person in the OA as well.
4. The applicant submits that the 4th respondent has misused his post and power against him who was working very hard to improve the system. However, the 4 th respondent not only provoked the union people but also supported them indirectly as detailed in the Final Report filed by the police and accepted by the Hon'ble Court in favour of the applicant as a false case which was not registered against the applicant(Annexure-A48). Hence, the 4 th respondent did the offence of breach of trust while doing his official duty as the Head of the Division. He failed to take any action against the union people even when they broke the chamber glass of the applicant. The Hon'ble Court had categorically established the misdeeds of the respondent No.4 who did all to get the applicant transferred out and he spoiled the APAR of the applicant by merely noting it 'Good'. The 4th respondent has no reply to file since he had gone up to the extent of writing LAP for 11.12.2013 when the applicant was on duty and on CL on 12.12.2013 to 13.12.2013 which he himself advised after transfer of the applicant on 30.12.2013. Accordingly the applicant approached the Head Quarters and got the CL for 12.12.2013 to 13.12.2013 sanctioned. Therefore the attitude of the respondent No.4 was not only malice but he made blatantly false entry of LAP for 11.12.2013 to 13.12.2013 in the APAR of the applicant so that it could not be reviewed by Shri Deepak Chhabra, the then CCM(Reviewing 10 OA.No.170/00876/2017/CAT/Bangalore Bench Authority) and thus damaged the applicant by taking shelter of official capacity though acted by misusing it malafidely.
5. The respondent No.4 has filed reply to the rejoinder and submits that the applicant has failed to substantiate his allegations by referring the documents issued by him and he failed to corroborate his allegation by referring to the documents related to the answering respondent clearly prove that the allegations of malafide are unfounded and baseless.
6. The applicant has filed rejoinder to the additional reply filed by the respondent No.4 reiterating the submission already made in the OA and rejoinder.
7. The respondent No.3 has filed reply statement stating that the submission of the applicant that his representation against the APAR for the year 2013-14 was rejected vide order dtd.27.12.2016 at the instance of the 3 rd respondent is incorrect as the 3rd respondent acted in the matter only in official capacity and he had no bias against the applicant. The applicant has miserably failed to disclose any clear evidence against the respondent to have malice against him and thus failed to prove the same. Mere allegation without substantiation is of no relevance and bad in law. All the acts of the 3 rd respondent were in official capacity according to the rules. Any submission that he acted with ill will against the applicant is devoid of substance and deserves to be rejected. Thus he has been unnecessarily impleaded. And he is not filing detailed reply because of the aforesaid reason which deserves to be considered and he adopts the reply filed by the official respondents.
8. The applicant has filed rejoinder to the reply filed by the respondent No.3 and submits that the 3 rd respondent has not filed reply to the OA. He not only misused his post and power in spoiling the APAR of the applicant but has prepared a false document of issuing a confidential letter to the applicant. He 11 OA.No.170/00876/2017/CAT/Bangalore Bench has not assessed the performance of the applicant but has acted in a manner to satisfy his ego and damaged the career of the applicant and gone to the extent of preparation of a false letter/forged document. His acts were not only biased but also curbed the illegalities of the defaulter staff being sheltered by him. A complaint was made against him to the Vigilance Branch(Annexure-A49) to prove his prejudice attitude towards the applicant. The APARs of other four officers may be called to whom the respondent No.3 has issued the same confidential letter and did not make any entry in their APAR. This itself is enough to prove his misdeeds towards the applicant.
9. The 3rd respondent has filed reply to the rejoinder and submits that the applicant has failed to substantiate his allegations by referring the documents issued by him and he failed to corroborate his allegation by referring to the documents related to the answering respondent clearly prove that the allegations of malafide are unfounded and baseless. Without there being anything on record, the applicant has made the submissions taking the plea of alleged confidential letter allegedly written by the 3 rd respondent to prove his malice. He has enclosed an incomplete letter dtd.18.12.2017(Annexure-A49) without enclosing therewith the annexures referred therein to sustain the challenge. He has referred Annexures-R1, R2, R3, R4, R5, R6, R7 & R8 in his representation dtd.18.12.2017 enclosed as Annexure-A49 but has not enclosed the documents which cannot be answered without going through them and placing them on record. In fact malice is to be proved by referring to the documents of the person concerned.
10. The respondents have filed reply statement wherein they submit that the applicant was working as Sr.Divl.Commercial Manager at Jodhpur as a branch head of commercial department and conducting and supervising ticket checking 12 OA.No.170/00876/2017/CAT/Bangalore Bench is only a minor part of working on this post. The work of Sr.DCM starts from planning to execution of commercial work related with public interface but the entire focus of the applicant was limited to the ticket checking activities and never took interest in other aspects of commercial working. He is in habit of raising fingers to other officers including his seniors. It is a bare lie that his efforts could make a full stop to the illegal activities. In fact no conclusion can be drawn by the media clippings enclosed by the applicant as Annexure-A1. Allegation levelled against the 3 rd respondent that he supported the illegal activities is baseless and without any proof and Annexure-A3 seems to be false and fabricated and the allegations levelled are denied. The applicant is a habitual complainant. It is there on record that since April 2014 to August 2016 he had made 28 complaints to NWR vigilance department, Railway Board and also Chief Vigilance Commission against various officers including Member, Railway Board, General Manager, NWR, PHODs, DRMs and subordinate staff etc. He had a long history of making baseless complaints. In the year 2001 when he was working at Central Railway, Railway Board vide letter dtd.3.7.2001(Annexure-R1) in reply to Central Railway's correspondence stated that it agreed to Central Railways' views that no cognizance may be taken against the complaints received from the applicant and for future purposes he will be considered as an unreliable complainant. While working in WCR at Jabalpur also he filed a case in CAT, Jabalpur Bench in OA.No.673/2001 which is dismissed vide order dtd.14.6.2004(Annexure-R2) and imposed a cost of Rs.5000/- for making false allegations against the respondents. His claim that the passenger earnings has gone up by 20.88% and other coaching earnings by 60.49% due to his strenuous efforts is only a false appreciation made by himself. The railway passenger earnings mainly grew because of increase in population, increase in number of trains, coaches, hike in fares and freight and 13 OA.No.170/00876/2017/CAT/Bangalore Bench the applicant is trying to take the credit by misleading the facts. Similarly, other coaching earnings get increased due to increase in number of trains and number of parcel coaches. He had deliberately not mentioned anything with regard to the goods earning which is the field where the role of Sr.DCM and his dedication and efforts are actually required. The applicant is trying to take the credit of the work done by the team of ticket checking organisation under the supervision and guidance of Assistant Commercial Manager. He focussed only on ticket checking to remain in the light of the media. Ticket checking is only a little part of commercial working whereas on the other side the main source of earnings pertains to Goods, Parcel and Luggage etc. which have been increased in comparison to earning of previous years of Jodhpur Division after his transfer as per the comparative chart(Annexure-R3). It is evident he did not take care of other parts of commercial department.
11. The respondents submit that a confidential letter was served to the applicant and 4 other officers on 22.7.2013 for not doing their scheduled night inspections timely which was required to be carried out every month and which is an important function to ensure running of railways safely involving the safety aspect of the railway passengers. Applicant's contention that acknowledgement is not available in the office does not mean that it was not served to him. Moreover, the entry in the APAR is not related to this confidential note only but it is about the displeasure being regularly communicated to him during meetings and discussions for lack of efforts and delayed inspections. His contention that his representation dtd.7.10.2016 was rejected by the General Manager without speaking orders is incorrect as the General Manager has considered his representation and communicated his decision vide letters dtd.27.12.2016 & 27.1.2017(Annexure-R4 colly). On the contention that the memorial/appeal made to the Member Traffic, Railway Board has not been 14 OA.No.170/00876/2017/CAT/Bangalore Bench forwarded by the Dy.Secy(Conf), it is submitted that in terms of letter dtd.16.9.1998(Annexure-A30) action has been taken on the said appeal. Confidential letter was written to the concerned officers on 24.3.2014(Annexure-R6) to submit their APAR forms in duplicate. The target date was also mentioned therein for submission of duly filled APAR forms by SG/JAG officers. In response to the said letter, the applicant wrote a letter dtd.1.4.2014(Annexure-R7) to DRM/JU that he had worked as Sr.DCM/JU till 18.12.2013 whereas his incumbency in the APAR has been shown as 6.8.2013 to 2.1.2014. It was replied that since he was granted EL for a period from 19.12.2013 to 2.1.2014(15 days), the reporting period has been mentioned as 6.8.2013 to 2.1.2014. But an amended APAR mentioning the period as from 6.8.2013 to 18.12.2013 was sent to him vide letter dtd.22.4.2014(Annexure- R8). But the applicant did not respond to the same. Another reminder letter dtd.27.5.2014(Annexure-R9) was issued to him for submitting the APAR duly filled in the self-appraisal. Instead of submitting his APAR, the applicant wrote a confidential letter dtd.4.6.2014(Annexure-R10) asking various data stating that the same were required to fill in the APAR. At one end he keeps various paper cuttings and records to establish his case of good working by media reports and at the same time he was not keeping the data related to his own work which he knew would be essentially required for filling in the APARs which anyone is supposed to know and remember if he involves so much in the work and so efficient and dedicated towards his working but conversely he asked the reporting officer to submit the data so that he could fill in his APAR. Thus it is evident the applicant is casual in the working approach. However, DRM/JU vide letter dtd.18.6.2014(Annexure-R11) asked the then Sr.DCM/JU to provide the data required by the applicant vide his letter dtd.4.6.2014. Therefore, the data required by the applicant was sent vide registered letter dtd.13.8.2014 and as 15 OA.No.170/00876/2017/CAT/Bangalore Bench the applicant transferred from RCT, Jaipur, the same was sent to Assistant Secy.(Confidential) vide letter dtd.17.9.2014(Annexure-R12 colly). From April 2014 to 27.11.2014, the applicant did not put any effort to submit the APAR. Therefore, on 27.11.2014, the reporting officer had filled and advised the APAR without self-appraisal. The contention of the applicant that the same was filled with a malafide intention is untrue. There were several reasons of APAR grading given as Good and not Very Good or Outstanding. The applicant was directed several times not to stress upon the junior staff and put strain in their day to day working. The DRM, Jodhpur vide letter dtd.10.12.2013(Annexure- R13) advised the applicant accordingly. In that letter, the ADRM, Jodhpur (Addl.Divl.Rly. Manager) made a note stating the status of staff that they are demoralising(Annexure-R14). Therefore, the contention of the applicant that he was declared fit for the post of ADRM but left the column for DRM blank which is against the rule is having no basis as the same is required to be filled in when the officer to be reported upon has completed 15 years of service in Gr.A whereas the applicant's revised seniority is with the batch of year 2000. Therefore, the same was left blank.
12. The respondents further submit that the applicant is pressing upon to upgrade his APAR grading on the basis of his ticket checking exercise and the propaganda he made through media for the same. There are various correspondences which can be seen that the applicant was not acting as the Branch Officer of Commercial Department and not acting for the improvement of the department or development of commercial activities and commercial working as a whole rather disturbing the whole atmosphere causing a lot of problems related to industrial relations de-motivating the staff as a whole. A confidential letter dtd.8.3.2014(Annexure-R15) was issued by the DRM, Jodhpur to the Chief Commercial Manager, NWR, Jaipur summarising various 16 OA.No.170/00876/2017/CAT/Bangalore Bench such incidents. On the letter dtd.2.8.2016 of the applicant regarding his APAR, the GM has remarked in his note sheet that the applicant should be advised that his APAR has already been finalized as per extant rules(Annexure-R16). In the matter regarding sexual harassment of women employees at workplace and FIR has been examined by the committee and in its report dtd.72.2014(Annexure-R17) found the applicant guilty of misconduct with women employees and recommended that the applicant should be transferred out of zone immediately and stiff administrative action should be taken against him. On the complaint of the applicant dtd.16.1.2015 to CVC which was also examined by the NWR Vigilance dept., as well as the Rly.Board Vigilance Directorate, the Vigilance Directorate vide letter dtd.14.2.2017(Annexure-R18) has observed that it would be appropriate that suitable action needs to be taken against the applicant for his deliberate manipulation in the report of the committee to mislead the CVC as well as Railway administration. Regarding the issue of working under Shri Deepak Chhabra for 90 days required for accepting the APAR, has been dealt with efficaciously by the competent authority and it was decided that his working under Shri Deepak Chhabra was only for 88 days and hence Shri Deepak Chhabra cannot be Reviewing Authority in his case. While working under DRM, Jodhpur, he intently got Casual Leave sanctioned from Chief Commercial Manager/FM, NWR who was not his controlling officer apprehending that his APAR gradings to be given by DRM would be low. Regarding applicant's contention that he took 2 days' CL on 12.12.2013 and 13.12.2013 from Headquarters officer of NWR on 31.12.2013 and in view of the same, he had completed 90 days to qualify for review from Sri Deepak Chhabra as CL period is counted for minimum period of working, it is submitted that the applicant actually applied for 2 days LAP of date 12.12.2013 and 13.12.2013 with suffixing Saturday and Sunday from Jaipur through FAX on date 17 OA.No.170/00876/2017/CAT/Bangalore Bench 12.12.2013 to DRM, Jodhpur. Later on he manipulated and got CL sanctioned by CCM/FM on 31.12.2013 on which date he was on leave for which the CCM/FM was asked to explain by GM/NWR(Annexure-R20) and the CCM/FM has given explanation in his reply(Annexure-R21). As per DoPT's OM, the officer at both reporting and reviewing levels are required to have at least 3 months' experience of supervising the work and conduct of Gazetted Railway Servant reported upon, before they can record their assessment on the performance of the Gazetted Railway Servant(Annexure-R22). As far as the accepting of APAR is concerned, the reason lies with the applicant himself as he has deliberately delayed the process by not submitting his self-appraisal in time. He submitted number of representations against the entries in APARs and were considered by the competent authority. His representation dtd.8.9.2014 was replied vide letter dtd.27.12.2016 which the applicant has himself annexed as Annexure-A25 to OA, then how he can dispute that there was no such representation dtd.8.9.2014. The Memorial/Appeal addressed to Member Traffic, Rly., Board has also been considered and disposed of by referring DoPT's letter dtd.14.5.2009 and Railway Board letter dtd.18.8.2009. Another representation dtd.9.11.2017 submitted to the General Manager has been disposed of vide letter dtd.20.11.2017. Therefore, the applicant's contention that the action has not been taken in terms of letter dtd.16.9.1998 and 14.5.2009 is denied and hence the OA is liable to be dismissed.
13. The applicant has filed rejoinder reiterating the submission already made in the OA and submitted that the illegal activities created by respondents No.3 & 4 were curbed by the applicant and because of which not only ticket checking earnings but also other fields of commercial earnings had gone to its ever best figures(Annexure-A32). The contention of the respondents about habitual complainant or fine etc. have no connection with the OA and it is nothing but 18 OA.No.170/00876/2017/CAT/Bangalore Bench skin saving exercises of the respondents being no material facts available against the applicant. In fact the respondents have issued illegal charge memo to him during his probation itself hence true facts were brought to the notice of the respondents which have ultimately gone in his favour by the CAT, Jodhpur Bench and Hon'ble High Court of Rajasthan and the respondents have been declared 'notorious' who have victimized the applicant for the only reason he was strict and honest(Annexures-A33 & A34). If issue of acknowledgment is taken and also the confidential letter was said to be issued to 4 other officers, no such entry has been made by 3 rd respondent in their APARs which were not provided deliberately. His APAR was deliberately not accepted by the respondents and the provision of memorial/appeal was very much applicable in his case as per Railway Board order dtd.16.9.1998. The figures to fill up APAR were never supplied by the respondents which have been obtained now to disprove their plea of earning issues. In fact his representations were never considered by the respondents and neither the 3 rd respondent nor respondents provided the factual data to fill up the APAR and paper cuttings cannot be attached with the APAR as per extant rules. His APAR was deliberately reported by 3rd and 4th respondents so that it will neither go to reviewing authority nor will it be accepted by the accepting authority as it was returned without acceptance. More so when it was filled up ex-parte the question of returning the APARs without accepting it is remain unsolved as the APAR cannot be finalized at the level of just reporting officer when the applicant was working in the 3 tier level system. He cannot be degraded up to 'Good' when he was rated 'Outstanding' before 8-9 months.
14. The applicant submits that the letter dtd.10.12.2013 has been prepared by the 4th respondent in connivance with Shri A.K.Gupta the then ADRM/Jodhpur. The contention of the respondents that his seniority has been revised is false. His 19 OA.No.170/00876/2017/CAT/Bangalore Bench seniority is with his batch of 1992 exam and hence they did not fill up the column of DRM with deliberate intents. His APARs were deliberately not accepted by the accepting authority and returned it which is illegal. The Committee on sexual harassment had gone to inquire the complaints of two female employees as per letter dtd.12.12.2013(Annexure-A36) and there was no complaint of the third female employee as alleged which is proved from the RTI communication(Annexure-A38). Therefore, the committee prepared false and forged report to get the applicant transferred from the Sr.DCM post as he was dealing the defaulters with strictness to save the organisation. The complaints of the female employees were found false. The Final Report(FR) submitted by police and accepted by Hon'ble Court establish at last page that the applicant was honest, dedicated and strict officer and a false case was contemplated against him and hence it was dropped in his favour (Annexure- A39). The contention of the respondents on the issue of casual leave is false as the applicant got the leave sanctioned when he came to know on 30.12.2013 over phone that the DRM, Jodhpur has refused to entertain his leave from 12.12.2013 to 13.12.2013 after his transfer order. This was subsequently supported by the letter dtd.3.1.2014(Annexure-A40) which was supplied by the respondents vide letter dtd.19.1.2017(Annexure-A41). Accordingly, he sent an application for CL instead of LAP to the controlling authority after his transfer order that too as per the instructions of the respondents themselves(Annexure- A42). At one side they directed him to approach the Headquarters for leave issue etc. and when the leave was sanctioned, they took plea that DRM, Jodhpur was the competent authority vide letter dtd.28.3.2017(Annexure-A43). The application of CL was duly sanctioned by the CCM/FM of NWR, Jaipur and the false deposition of CCM/FM probably given under the pressure of the respondents. Thus they made forged entry of LAP w.e.f. 11.12.2013 to 20 OA.No.170/00876/2017/CAT/Bangalore Bench 13.12.2013 in the APAR of the applicant(Annexure-A44). Despite he was on duty on 11.12.2013, the respondents have shown it as LAP which was neither applied nor availed as there was no question as per RTI reply(Annexure-A45). If their contention is taken as granted for 12.12.2013 to 13.12.2013 then also they may be asked to answer as to under what circumstances they have shown the applicant on LAP for 11.12.2013 which was neither applied nor availed as per his service record(Annexure-A46) which speaks that he never availed LAP for the above said period. Thus he worked for more than 90 days under Sri Deepak Chhabra the then CCM/NWR who ought to have reviewed his APARs. But he retired without reviewing the APARs which were also returned by Sri R.C.Agarwal the accepting authority despite the applicant served for more than 9 months under him. The memorial was also not forwarded to the Member Traffic by the respondents which was in order as per the letter dtd.16.9.1998 and fully applicable in his case.
15. The respondents have filed reply to the rejoinder filed by the applicant and submit that the applicant failed to submit self appraisal to provide data to the competent authority to re-appreciate it. Hence, any submission that he had achieved beyond targets or his work was excellent is without any substance. Further his averment that UPSC declared respondents as 'notorious' is absolutely wrong as UPSC had commented as such for applicant's subordinates and not for respondents and that any submission regarding his working during probation twenty years back in the year 1996 at Central Railway is of no relevance for the year in question i.e. 2013-14. Applicant is a responsible officer knowing well about his duties and thus achievement during the year in question. It is not to be explained or informed to him. He just to take the plea goes on asking for the data so as to evade his responsibility of not submitting the APAR. Despite knowing well that he has to initiate the APAR by 21 OA.No.170/00876/2017/CAT/Bangalore Bench submitting self appraisal, he failed to do so. He did so even after reminders to this effect. In the absence of any such data/remark in the self appraisal, it cannot be re-appreciated by the reporting officer. In case it would not have been done then also the applicant would have blamed the authorities to gain the advantage. As per DoPT OM dtd.30.01.1978, it is the duty of the reportee officer to give self-appraisal at the soonest possible and not later than seven days from the date of receipt of the form. In case he does not submit self- appraisal even within 15 days despite reminder from the reporting officer, report should be initiated by the reporting officer without self-appraisal. For this purpose, the reporting officer may obtain another blank ACR form from the concerned section/cell dealing with ACRs. The APAR has been filled as per directions of DoPT and it were correctly reported by the 3 rd and 4th respondents. No malice can be attributed in doing so. The applicant himself has not adhered to the time schedule prescribed by Railway Board and delayed the process and hence he is at blame for the cause. As such, in absence of reviewing/accepting authority the grading given by the reporting officer attained finality. He had already represented this aspect and his representation has already been considered and disposed of. Accordingly, he cannot be graded outstanding without there being any factual data for the purpose. The APAR was not accepted as GM retired on 30.11.2014. Accordingly, any plea with regard to his working during the period is devoid of substance and deserves to be rejected.
16. The respondents submit that as far his seniority is concerned as he was not promoted along with his batch of 1992 and that he challenged action in OA.No.43/2013 before CAT, Jaipur Bench which was dismissed, any plea of it is not sustainable. Even the submission with regard to complaint against him and enquiry by the committee on sexual harassment in view of its finding is no help to him. Merely because police authorities submitted FR did not absolve 22 OA.No.170/00876/2017/CAT/Bangalore Bench him of the guilt and he cannot be treated to be not guilty of sexual harassment of female employees on that basis. Regarding his working for 90 days under Shri Deepak Chhabra, the General Manager in reply to the representation of the applicant vide letter dtd.20.2.2017(Annexure-R23) submits that he worked only 88 days under Shri Deepak Chhabra. Applicant was never aggrieved of it in as much as no challenge to it has been made. Further he never protested against the same nor sought conversion of one kind of leave to another. Thus any submission that his APAR should have been reviewed by Sri Deepak Chhabra is not sustainable. Applicant has no reason to be aggrieved of the action/inaction of the respondents and he has no relief to be sought for.
17. The applicant has filed additional rejoinder to the additional reply of the respondents reiterating the submission already made in the OA and the rejoinder, enclosing therewith Annexures to support his contentions.
18. We have heard the Learned Counsel for both the parties and perused the materials placed on record in detail. The issue in this case is in a very small compass. The applicant had been graded as 'good' in the year 2013-14 which according to him is not reflecting the contribution he had made during the year. He also alleges that the 3rd respondent who is supposed to have communicated his displeasure on an aspect of work of the applicant, is in fact not telling the truth since no such letter is received by him. He also alleges that because of non sanction of certain leave due to him at the end of December 2013, an officer who was favourably disposed to him was not allowed to review his APAR as reviewing authority. The applicant would state that had this person been allowed to review his APAR, he would have graded him as 'outstanding' as was done in his APAR during 2014-15. Various representations he had made to the higher authorities have been of no avail and he therefore challenges Annexure- 23 OA.No.170/00876/2017/CAT/Bangalore Bench A25 order where the respondents have stated that they did not find any justification for changing APAR grading. The respondents would counter the same saying that based on the performance of the applicant, the grading had been given and some of the achievements claimed by the applicant were in fact due to the contribution of many others and the applicant's raising the point of bias cannot be accepted as there is no proof for the same. In fact, there was considerable delay in furnishing the APAR by the applicant duly filling in the self appraisal. The respondents would also submit that the applicant is pressing upon upgrading his APAR only basing upon his ticket checking exercise and the propaganda he had made through the media for the same. They cite various instances of his activities disturbing the functions of the lower staff leading to their demoralisation and difficulty in functioning better. Regarding the issue of the casual leave, they would categorically state that the point regarding the reviewing authority could not be accepted because the applicant had worked under him only for 88 days. The respondents would state that both the officers who report as well as review are required to have at least three months' experience of supervising the work and conduct of the gazetted Railway servant reported upon and therefore the applicant getting leave sanctioned by an officer who is not his controlling officer was only with the purpose of avoiding the APAR gradings being reduced. The applicant would also make certain allegations of making forged entry in the record and so on. On going through the detailed reply filed by the respondents and rejoinder filed by the applicant, it is apparent that there have been several correspondences relating to the issues and that the relationship between the applicant and the respondents have not been completely professional and unbiased. However, with respect to the grading in the APAR, an officer like the applicant cannot claim as a matter of right to be graded as outstanding since it depends on the performance of the 24 OA.No.170/00876/2017/CAT/Bangalore Bench individual in the relevant period and as could be seen from the APAR, some of the attributes have been graded as 'good' and many of the attributes have been graded as 'very good', but the final overall grading given by the reporting authority is only 'good' and the respondents have categorically stated that after going through his representation and record, they do not want to interfere with the same. It is also obvious that there are many other aspects to the grading of the officer and the reporting authority had considered the other aspects of his performance and on the face of it, it is obvious that it is their considered judgment with respect to the grading of the officer. They have also disposed of other representations as per the extant rules and therefore, we do not find any merit to interfere with the decision of the respondents.
19. The OA is dismissed. No costs.
(C.V.SANKAR) (DR.K.B.SURESH)
MEMBER (A) MEMBER (J)
/ps/
Annexures referred to by the applicant in OA.No.170/00876/2017 Annexure-A1: Paper clips of commendable work by applicant Annexure-A2: Letter dtd.2.4.13 - Initiative by applicant Annexure-A3: Letter dtd.30.5.13 by CMI/Jodhpur Annexure-A4: Inspection Note dtd.30/31.7.13 and fine realization Annexure-A5: APAR Part 'A' Annexure-A6: Ticket checking figures Annexure-A7: RTI application dtd.5.5.17 Annexure-A8: Letter dtd.19.7.17 with letter dtd.14.7.17 and 22.7.17 Annexure-A9: RTI application dtd.17.8.17 Annexure-A10: Reminders, reply under RTI with letter dtd.22.11.17 by PS/DRM Annexure-A11: Letter dtd.7.12.13 by safety branch with covering letter Annexure-A12: Representation dtd.7.10.16 25 OA.No.170/00876/2017/CAT/Bangalore Bench Annexure-A13: Representation dtd.21.4.14 and 4.6.14 for data Annexure-A14: APAR Ex-parte by respondent No.3 with wrong LAP Annexure-A15: Paper clips Annexure-A16: Letter dtd.20.8.16 with part 'B' of APAR for 2013-14 Annexure-A17: FR with Court order and other letters against Union Annexure-A18: Leave record for 2013 Annexure-A19: Letter dtd.19.1.17 with application/letter dtd.19.1.17, 3.1.14 and CL sanctioned letter dtd.31.12.13 Annexure-A20: Letter dtd.19.7.17 in RTI with detail of no Leave applied for 11.12.13 Annexure-A21: Representation dtd.7.10.16, 9.10.16, 9.12.16 and others collectively Annexure-A22: APAR for 2014-15 Annexure-A23: APAR for 2012-13 Annexure-A24: Posting order dtd.7.3.13 and others Annexure-A25: Rejection of representation by respondents vide letter dtd.27.12.16 Annexure-A26: Memorial/Appeal dtd.19.6.17 and others Annexure-A27: Letter dtd.6.10.17 Annexure-A28: Representation/Notice dtd.9.11.17 Annexure-A29: Letter dtd.20.11.17 Annexure-A30: Letter dtd.16.9.98 of Railway Board for Appeal provision Annexure-A31: DOPT letter dtd.14.5.2009 Annexures with reply statement:
Annexure-R1: Copy of Railway Board's letter dtd.3.7.2001 Annexure-R2: Copy of order dtd.14.6.2004 passed by Hon'ble CAT, Jabalpur in OA.No.673/2001 Annexure-R3: Copy of statements regarding earnings Annexure-R4(Colly): Copy of letter dtd.27.12.2016 & 27.01.2017 Annexure-R5: Copy of file noting Annexure-R6: Copy of letter dtd.24.3.2014 Annexure-R7: Copy of letter dtd.1.4.2014 Annexure-R8: Copy of letter dtd.22.4.2014 Annexure-R9: Copy of letter dtd.27.5.2014 Annexure-R10: Copy of letter dtd.4.6.2014 Annexure-R11: Copy of letter dtd.18.6.2014 Annexure-R12: (Colly): Copy of letter dtd.13.8.2014 & 17.9.2014 Annexure-R13: Copy of letter dtd.10.12.2013 Annexure-R14: Copy of note dtd.10.12.2013 Annexure-R15: Copy of letter dtd.8.3.2014 Annexure-R16: Copy of Note Sheet Annexure-R17: Copy of the report dtd.7.2.2014 Annexure-R18: Copy of letter dtd.14.2.2017 issued by Secretary Vigilance, Railway Board Annexure-R19: Copy of office order dtd.19.9.2013 Annexure-R20 (Colly): Copy of Note Sheet Annexure-R21: Copy of note containing reply/explanation Annexure-R22: Copy of DoPT's OM Annexures with rejoinder:
Annexure-A32: Copy of the data provided by the ASC, NWR for the earning during the tenure of the applicant to that of 2012-13 Annexure-A33: Copy of Hon'ble CAT order dtd.31.5.2004
26 OA.No.170/00876/2017/CAT/Bangalore Bench Annexure-A34: Copy of order of Hon'ble High Court Bench Jodhpur (Rajasthan) Annexure-A35: Copy of letter dtd.27.4.2018 detailed the opinion of learned ASG Annexure-A36: Copy of letter dtd.12.12.2013 mentioning name of two female employees Annexure-A37: Copy of letter dtd.21.2.2014 mentioning inquiry report of two female employees only Annexure-A38: RTI application dtd.5.5.2014 and appellate order dtd.22.7.2014 with file noting of page 4 Annexure-A39: Copy of F.R. and Order of Hon'ble Court Annexure-A40: Copy of letter dtd.19.1.2017 Annexure-A41: Copy of letter dtd.3.1.2014 Annexure-A42: Copy of CL application dtd.31.12.2013 duly sanctioned by CCM/FM Annexure-A43: Copy of letter dtd.28.3.2017 Annexure-A44: Copy of Front Page of APAR 7.8.2013 to 18.12.2013 Annexure-A45: Copy of RTI reply dtd.18.7.2017 on LAP dtd.11.12.2013 Annexure-A46: Copy of Service Record for leave of the applicant Annexures with reply to the rejoinder:
Annexure-R23: Letter dtd.20.2.2017 Annexures with rejoinder to the reply filed by R4:
Annexure-A47: Copy of letters dtd.25.9.2018, 26.11.2013, 27.11.2013, 17.12.2013, 18.12.2013 Annexure-A48: Copy of FR with Hon'ble Courts order Annexures with reply filed by R3:
-NIL-
Annexures with rejoinder to the reply filed by R3:
Annexure-A49: Copy of letter dtd.18.12.2017 Annexures with reply filed by R4:
-NIL-
Annexures with rejoinder to the reply filed by R4:
Annexure-A47: Copy of English version last page of F.R. and letters mentioned therein Annexure-A48: Copy of Leave details/Service Record Annexure-A49: Copy of Non-speaking order of respondent No.2 on file noting Annexure-A50: Copy of Transfer orders of the applicant *****
27 OA.No.170/00876/2017/CAT/Bangalore Bench