Central Administrative Tribunal - Allahabad
Vinit Kumar Giri S/O Late Sri K.N. Giri vs Sri Iv Ferdinand on 1 July, 2010
Reserved CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD Civil Misc. Contempt Application No. 47 of 2010 in Original Application No. 534 of 2006 Allahabad, this the _____day of ____________, 2010 Honble Mr. Justice S.C. Sharma, Member (J) Honble Mr. S.N. Shukla, Member (A) Vinit Kumar Giri S/o late Sri K.N. Giri, Permanent Address: R/o Village & Post Office Piarauta, Police Station Reoti, District Ballia, at present posted at 415, Air Force Station, Basant Nagar, New Delhi-110010. Petitioner By Advocate: Mr. Bashist Tiwari Vs. Sri IV Ferdinand, Deputy Director Personnel Civilians (DPC), Air Force Headquarters, Vayu Bhawan, New Delhi-110106 Opposite Party By Advocate: Mr. Saurabh Srivastava O R D E R
By Honble Mr. Justice S.C. Sharma, J.M. Instant contempt petition has been moved under Section 17 of the Administrative Tribunals Act, 1985 read with Section 12 of the Contempt of Courts Act, 1972 in order to punish the opposite party- Mr. IV Ferdinand, Deputy Director Personnel Civilians (DPC), Air Force Headquarters, Vayu Bhawan, New Delhi.
2. The facts of the case may be summarized as follows: -
The petitioner was appointed on 19.03.1987 as Lower Division Clerk, later on converted to Assistant Store Keeper in scale of Rs.950-1200/- in the year 1993. The applicant was promoted in the year 1997 as Store Keeper in scale of Rs.4000-6000/- and subsequently he was promoted as Store Superintendent in scale of Rs.5000-8000/-. It is stated that a D.P.C. was held for preparation of panel for promotion to the post of Store Superintendent in scale of Rs.5000-8000/- on 03.07.2003 but due to adverse remarks in the ACR, applicants name did not find place in the panel. On 19.08.2003 Air Headquarters, Vayu Bhawan, New Delhi sent a letter to the applicant to the effect that he was not found fit for promotion in the panel dated 03.07.2003. Consequently, O.A. No. 1216 of 2003 was instituted in order to challenge the order dated 19.08.2003. O.A. was decided on 07.09.2005 and the order dated 07.09.2005 passed by Air Headquarters was quashed, and a direction was given to the respondents to convene a Review D.P.C. for consideration of the case of the applicant within four months. In pursuance of the order of the Tribunal, case of the applicant for promotion was considered and the same was rejected vide order dated 08.12.2005 passed by the respondents and communicated to the applicant on 27.12.2005. The applicant again had to challenge the order dated 08.12.2005 in O.A. No. 534 of 2006 Vineet Kumar Giri vs. Union of India and others, and the O.A. was decided on 27.11.2009, and a direction was given to the respondents to convene a review DPC in order to consider the case of the applicant in reference to the panel dated 03.07.2003 in accordance with law by a reasoned and speaking order. In pursuance of the order passed in the O.A., the respondents conveyed the decision to the applicant on 22.01.2010, and again the claim of the applicant was rejected on the ground, which was mentioned in the earlier order dated 19.08.2003, which had been set aside by the Tribunal in O.A. No. 1216 of 2003. It has also been alleged by the petitioner that the applicant was not found fit for promotion in the order dated 19.08.2003 due to low grading in the ACR, and in the order dated 27.01.2010 the claim of the applicant was again rejected on the ground of low grading of the ACR. The respondents were not justified in taking into account the same ground for rejection of the case of the applicant, which has already been set aside and quashed in the Judgment by this Tribunal. It was no longer opened to the respondents in view of several Judgments of the Honble Apex Court to reject the case of the applicant again and again on the same grounds which were not found sufficient by the Tribunal. It has also been alleged that in view of several Judgments of the Honble Apex Court, no direction can be given to the respondents to grant promotion even if the case is justified in the eye of law. The only direction can be given for consideration of the case of the applicant for promotion. On two occasions, direction was given to the respondents in order to consider the case of the applicant for promotion but both the times case of the applicant was rejected on similar grounds, and hence the respondents committed willful disobedience of the Order of the Tribunal.
3. The opposite party filed objection against the Petition and disputed the allegation made in the petition for contempt. It has further been alleged that applicant was assessed not yet fit for promotion to the post of concerned Superintendent in the year 2003-2004 due to over all grading in the ACR and also the average remarks. It is stated that the order dated 27.11.2009 passed in O.A. No. 534 of 2006 was complied with by the opposite party by convening a review DPC. The review DPC has assessed the pleadings as not yet fit in view of over all low grading in the ACR for the year 1997-1998 to 2001-2002 in terms of D.O.P.T. guidelines for non-selection post. This position has already been communicated to the applicant by passing a reasoned and speaking order dated 27.01.2010. It has further been alleged that on 07.09.2005 while disposing of the O.A. No. 1216 of 2003, the adverse remarks in the ACR of the applicant were expunged for the year 2001-2002. A review DPC was convened to consider the case of the applicant for the year 2003-2004 to 2005-2006 after expunging adverse remarks recorded in the ACR for the year 2001-2002. But even then the Review DPC assessed him Not yet fit for the year 2003-2004 to 2005-2006 in view of overall low grading in his ACRs of five years preceding the DPC years in terms of D.O.P.T. guidelines for non-selection post as contained in para-6.14 and 7 of the Department of Personnel and Trainings letter dated 10.04.1989. It has been provided in the DOPTs letter dated 10.04.1989 that the average may not be taken as adverse remarks in respect of an officer, at the same time, it cannot be regarded as complementary to the officer, as average performance should be regarded as routine and undistinguished. It is only performance that is above average and performance that is really noteworthy which should entitle an officer to recognition and suitable rewards in the matter of promotion. The DPC need not to make a comparative assessment of the records of officers and it should categorize the officers as Fit or Not yet fit for promotion on the basis of assessment of their record of service. In view of the Judgment of Honble Apex Court, evaluation made by an expert committee (meaning DPC) should not be easily interfered with by the Courts which do not have the necessary expertise to undertake the exercise that is necessary for such purpose, and the direction was given only for consideration and the matter of promotion of the applicant was considered and he was not found yet fit for promotion. It is stated that direction of the Tribunal was in the O.A. to consider the case of the applicant and convene a review DPC and order may be passed in the matter by a reasoned and speaking order. In pursuance of the direction of the Tribunal, a reasoned and speaking order was passed, and the same has been communicated to the applicant and it cannot be said that the disobedience has been committed of the order of the Tribunal. It is submitted that the contempt petition is liable to be dismissed, copy of the compliance report has also been annexed with the Affidavit of the opposite party.
4. We have heard Mr. Bashist Tiwari, Advocate for the petitioner and Mr. Saurabh Srivastava, Advocate for the opposite party, and perused the entire facts of the case.
5. It is an admitted fact of the parties that earlier an order was passed by the respondents in connection to the promotion of the applicant on dated 19.08.2003. A D.P.C. was convened for promotion of the employees who have been working as Storekeeper in the scale of Rs.4000-6000 for promotion as Superintendent Stores in the scale of Rs.5000-8000/-. In the D.P.C. convened on 19.08.2003, it was reported to the applicant that he was not found fit for promotion in the panel dated 03.07.2003. The Order dated 19.08.2003 was challenged by the applicant in O.A. No. 1216 of 2003 and the O.A. was decided on 07.09.2005. The Order passed by the Tribunal in O.A. is most relevant, which is reproduced below: -
For aforesaid reasons and case law the order dated 19.08.2003 of Air H.Qs, Vayu Bhawan, New Delhi is quashed in so far as it relates to the applicant. Respondent No. 2 i.e. Dy. Director (DPC), Air Headquarter, Vayu Bhawan, New Delhi is directed to arrange for Review meeting of DPC, which shall consider the case of the applicant in the light of aforesaid observations within a period of 4 months from the date of communication of a copy of this order. The decision of review DPC shall be further communicated to the applicant within one month thereafter. We, however, make no order as to costs. Under these circumstances, the Order dated 19.08.2003 was quashed and direction was given to consider the case of the applicant for promotion by convening a Review D.P.C. Para-13 of the Judgment is also relevant, which is quoted below: -
Be that as it may, it is amply established that the reporting officer who awarded advisory/adverse remarks to the applicant for the reporting year 2001-2002 was posted only for a period of 4 months. However, the DPC considered this assessment for the entire period of 12 months. In our considered view this is a major illegality which has affected the process of decision making of the DPC. Secondly, the respondents have not been able to establish or show any reliable material to suggest that the reporting officer before recording the advisory/adverse remarks had issued any communication of advice or caution for improvement of the applicant. This in our view is violation of cardinal principles of natural justice. The above order shows that although the adverse remarks recording in the ACR of the applicant for the year 2001-2002 was not quashed but it was specifically ordered that as the advisory/ adverse remarks were recorded by an officer who was posted only for a period of four months, and the DPC considered assessment for the entire period of 12 months. But by passing this order and expressing this view, the Tribunal mends of quashing the adverse remarks for the year 2001-2002. The respondents have also not disputed this fact that the adverse remarks were not quashed, and presuming that the adverse remarks for the year 2001-2002 were against the cardinal principle of natural justice hence, the respondents shall re-consider the case of promotion of the applicant having into account that the adverse remarks had been quashed. In accordance with the directions of the Tribunal, the respondents considered the case of the applicant by convening a review DPC and an order was passed on 27.12.2003, annexure A-3 communicated to the applicant vide letter dated 28.12.2005. Following has been mentioned in the letter dated 27.12.2005: -
. . . . . .in compliance with the direction dated 07 Sep 05 of Honble CAT Allahabad the adverse remarks recorded in the ACR for the year 2001-2002 in respect of Shri V.K. Giri, SK (PA No.36017) have been treated as expunged. Consequently, he was considered for promotion to the grade of Store Supdt. for the years 2003-04 to 2005-06 by the Review DPC. The DPC has assessed him on the basis of ACRs of five years preceding the DPC years and in view of the over all grading found him Not Yet Fit in terms of DPC guidelines for non-selection post as contained in para-6.1.4 and 7 of DOP&T OM NO. 22011/5/86-Estt. (D) dated 10 Apr 89.
It is intimated that adverse remarks in ACR for the year 2002-2003 have also been treated as expunged and not taken into account by the Review DPC. Hence it shows that case of the applicant was considered in pursuance of the direction of the Tribunal, treating the remark for the year 2003-2004 as expunged, but even then case of the applicant was not found fit. Firstly, we would like to state that when a direction was given by the Tribunal to consider the case of the applicant then it does not mean that merely a formal order be passed to the effect that the person has not been found fit. It is not the proper compliance of the Tribunal. Specific reasons must be mentioned that as to why the applicant was not considered fit for promotion when the adverse remarks of the applicant were expunged. Then the applicant had to file O.A. No. 534 of 2006, decided on 27.11.2009. The petition for contempt has been moved for disobedience of this order. The O.A. was disposed of with the following directions: -
In view of the observation made above, we find substance in the arguments advanced by the learned counsel for the applicant. Accordingly the O.A. is partly allowed moulding the relief of the applicant with following direction: -
Deputy Director (DPC), Air Head Quarters, Bayu Bhawan, New Delhi/respondent No. 3 is directed to convene a Review D.P.C. within a period of three months from the date of communication of this order, which shall consider the case of the applicant in reference to the panel dated 03.07.2003 for which the DPC after considering the ACRs of the applicant for the year 1997-98, 1998-99, 1999-2000, 2000-01 and 2001-02 assessed him as Not Yet Fit in accordance with law by a reasoned and speaking order and communicate the decision to the applicant within 2 weeks thereafter.
There will be no order as to costs. A direction was given in the Judgment for convening a review DPC in order to consider the case of the applicant for promotion and after considering the ACRs of the applicant for the year 1997-98, 1998-99, 1999-2000, 2000-01 and 2001-02, assessed him as Not Yet Fit in accordance with law by a reasoned and speaking order. The order dated 27.01.2010 was passed by the respondents and again order was passed that in the Review DPC the applicant was not found yet fit for promotion. Learned counsel for the respondents also filed the compliance report, and he argued that case of the applicant was considered by the Review DPC but the case of the applicant was not found fit for promotion.
6. In our considered view this is not a proper compliance of the Order of the Tribunal. Undisputedly, this is the position of law that no direction can be given by the Tribunal to promote the applicant or direction to the DPC to consider and promote the applicant. Only direction can be given by the Tribunal is to consider the case of the applicant for promotion and in the earlier O.A., the adverse remarks were expunged. When the adverse remarks were expunged, then there was no other obstacle in not promoting the applicant and it was the duty of the respondents to consider the case of the applicant for promotion treating the adverse remarks as expunged. Although no specific order was passed for substituting the adverse remarks of Average to that of Good or satisfactory but when the adverse remarks were expunged then it means the work and conduct of the applicant for reporting year was found Satisfactory or Good. The Tribunal has not passed any order specifically that whether they have substituted the adverse remarks with Good entry for Good remarks but when there was nothing adverse against the applicant and there was no material for the reporting officer for recording adverse remarks in the ACR of the applicant, then the adverse remarks ought to have been substituted by Good entry and the applicant ought to have been promoted. As per law of the Honble Apex Court and Honble High Court, the Tribunal has got the right to give a direction to the respondents to consider the case of the applicant for promotion instead of giving a direction for promotion. But the respondents considering over all intention of the Judgment of the Tribunal and treating the case of the applicant fit for promotion, ought to have given the promotion. In pursuance of the direction of the Tribunal, the respondents considered that their purpose was only to convene a review DPC and the matter of the applicant be put up in the review DPC and again order is to be passed that he is not found fit for promotion. It was not the purpose and intention behind the order. The purpose was to consider the entire material in favour of the applicant for promotion and promotion ought to have been given to him or specific reasons should have been mentioned. We have perused the order dated 27.01.2010 and we are of the opinion that no reason at all has been mentioned in rejecting the case of the applicant except mentioning that case of the applicant was not found yet fit for promotion. Same order was passed in the earlier order, which was challenged in the earlier O.A. It is not only the function of the Tribunal to set aside the order of the respondents and direct the respondents to consider the case of the employee concerned for promotion and again the respondents shall be instrumental in passing the same order, not yet found fit. The compliance of the order must be made in letter and spirit. The order as a whole must be considered in order to decipher the intention of the Tribunal and in case the respondents might have considered the entire Judgment of the Tribunal in order to draw inference about the intention of the Tribunal, in passing the order, then there was no reason for the respondents not to promote him from the date when he was due for promotion.
7. The Administrative Tribunal in the country in pursuance of Section 19 of the Act used to dispose of the O.A. even at the admission stage if a representation is pending or if no representation has been made, then direct the applicant to file a representation and the same may be decided by the respondents by passing a reasoned and speaking order. In our opinion, this is not only a formality to dispose of the O.A. at the admission stage. There is some material idea behind providing a representation to the respondents. Idea is that in case the grievance of the employee concerned may be redressed, by the department concerned sympathetically in provision of the law, rules and fact, then their grievance may be adjudicated at their stage. It is not a formality for the respondents to reject the representation as a token of compliance of the Order of the Tribunal. It carries far- fetching effects and implications in case such order is being passed by the Tribunal. Moreover, this is also the intention of the Tribunal that litigation of the employees may be minimized and if the dispute of the employees may be resolved at the level of immediate superior officer then in order to maintain cardinal relation among the subordinate and high ups, the matter may be resolved. It is also essential in order to avoid bitterness among the employee. But it is being seen that the department adopted callous attitude towards the employee who dare to approach this Tribunal for redress of his grievance. They opt to harass the applicant by rejecting the representation. Same attitude appears to have been adopted by the respondents in the present case that in order to show proper compliance of the Tribunal regarding considering the case of the applicant for promotion, they convened a review DPC and rejected the case of the applicant by stating that still the case of the applicant is not yet fit for promotion. It is possible to give relief to the employees at their stage, then in order to maintain cardinal relation among the employees inter se then whatever is due of the employee, then it must be given to them.
8. In the present case, although there was no direction of the Tribunal for giving promotion to the applicant but the intention was that when adverse remarks have been expunged, then the case of the applicant shall be considered in correct perspective and promotion will be given to him. It appears from the conduct of the respondents and has rightly been argued by learned counsel for the applicant that the applicant shall continue to approach this Tribunal for indefinite period and the respondents shall continue to harp the same tune that still the applicant is not fit for promotion. Under these circumstances, this Judicial forum will be rendered armless and helpless because firstly no direction can be given to the respondents for giving promotion to the applicant and at the same time if a direction was given to consider the case of the applicant for promotion, and the respondents shall considered their duties fulfilled by saying that he is still not fit for promotion then the Tribunal shall remain a silent spectator to the act of the respondents. It is not so that the Tribunal has got no power to ensure compliance of its order. If it comes to the notice of the Tribunal that there is willful disobedience of the order of the Tribunal, then the opposite party/contemnor may be punished under the Contempt of Courts Act, 1971. Learned counsel for the petitioner cited a Judgment in the case of Prithawi Nath Ram vs. State of Jharkhand and others (2004) 7 SCC 261. We have considered the Judgment of the Honble Apex Court and we are of the opinion that the order right or wrong is to be obeyed and disobedience would render the parties concerned liable for contempt. He further cited the case of T.R. Dhananjaya vs. J. Vasudevan (1995) 5 Supreme Court Cases 619, wherein it is held that when the claim inter se had been adjudicated and the claim of the petitioner had become final and that of Dasegowda was negatived, it is no longer open to the Government to go behind the orders and truncate the effect of the orders passed by this Court by hovering over the rules to get round the result, to legitimate legal alibi to circumvent the orders passed by this Court. Under these circumstances, in the present case also the respondents tried to circumvent the order of the Tribunal so as to show the disobedience of the Order of the Tribunal. There appears deliberate disobedience of the Order of the Tribunal.
9. For the reasons mentioned above, we are of the opinion that the respondents prima facie appears guilty for disobedience of the orders of the Tribunal. It is not sufficient to allege that as the review DPC was convened in pursuance of the direction of the Tribunal and in the review DPC, the case of the applicant was not yet found fit for promotion and hence there is proper compliance of the Tribunal. But in view of the facts and circumstances of the case and Judgment of the Honble Supreme Court, it is not proper compliance. One cannot be permitted to approach this Tribunal again and again for the same cause. The respondents must consider the case of the applicant in the true perspective and in true spirit of the order of the Tribunal. Under these circumstances, only inference can be drawn that the respondents are prima facie guilty of disobedience of the order of the Tribunal and the respondents is guilty for contempt.
10. The compliance report submitted by the respondents is not the proper compliance of the order of the Tribunal and there appears deliberate disobedience of the order of the Tribunal and hence the opposite party is guilty for contempt of Court. Let the proceeding under Section 12 of the Contempt of Courts Act, 1971 be initiated against the opposite party. The opposite party shall appear in person before this Tribunal on ____________ and on that date charge shall be framed against him.
{S.N. Shukla} [Justice S.C. Sharma]
Member (A) Member (J)
/M.M/
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