Central Administrative Tribunal - Lucknow
Sanjay Kumar vs Union Of India on 10 August, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH
Original Application No. 332/00333/2020
Order reserved on : 14.07.2023
Order pronounced on: 10.08.2023
HON'BLE MR. JUSTICE ANIL KUMAR OJHA, MEMBER (J),
Sanjay Kumar, aged about 47 years, Son of Late Jairam, Resident
of 809, Sector-A, Gujaini, District Kanpur Nagar, presently posted as
Additional Controller of Accounts (Regional Training Centre) in the office
of Controller of Defence Accounts at Lucknow.
..Applicant
By Advocate: Shri Shireesh Kumar.
VERSUS
1. Union of India through the Secretary, Ministry of Defence,
Government of India, South Block, New Delhi- 110001.
2. The Controller General of Defence Accounts, Ulan Batar Road,
Palam, Delhi Cantt. New Delhi-110001.
3. The Member (Finance) Ordnance Factory Board 10A, Shaheed
Khudi Ram Bose Road, Kolkata 700001.
4. The Principal Controller of Accounts (Factory) 10A, Shaheed Khudi
Ram Bose Road, Kolkata 700001.
5. The Senior General Manager, Ordnance Factory, Kanpur.
6. The Controller (Finance and Accounts) Kanpur Group of Factories
at Kanpur.
.....Respondents
By Advocate: Ms. Prayagmati Gupta.
ORDER
Heard learned counsel for the applicant, learned counsel for the respondents and perused the records.
2. Applicant has prayed for the following relief(s):
"(i) to expunge the adverse remarks recorded in APAR of the applicant for the year 2018-19 and also set aside the order dated 29.09.2020 as contained in Annexures No. A-2 and A-16 respectively to this original application and declare the applicant entitled to all the consequential service benefits.
(ii) Any other order which is deemed just and proper in the nature and circumstances of the case be also passed in favour of the applicant in the interest of justice along with the cost of this original application."Page 1 of 10
3. Tersely put the case of the applicant is that applicant is an officer of Indian Defence Account Services (in short IDAS), who joined the services on 02.01.2006 as IDAS (Probationer). Owing to unblemished service record, applicant was accorded all service benefits.
On 18.04.2019, the applicant submitted his self-appraisal report on prescribed pro-forma. Respondent No. 2 issued an order annexing therewith a copy of the Annual Performance Assessment Report (in short APAR) for the year 2018-19. Through the APAR for the year 2018-19, applicant came to know that reporting officer without making an objective assessment of his work, conduct and performance has recorded adverse remarks in his APAR. The Review Authority-I in his remarks although differed with the remarks recorded by the reporting officer but without assigning any reason downgraded the numerical assessment of the applicant. Throughout the year 2018-19, applicant was never issued any memo, warning or reprimand. Respondents never pointed out that any improvement was required in work and performance of the applicant. For regulating the procedure of recording remarks in the APAR of an officer, the Government of India have issued office memorandums dated 14.05.2009 and 23.07.2009 wherein time limit has been provided for completion of APAR. In the case of applicant time limit fixed for completion of APAR has not been followed.
Office Memorandum dated 20.05.1972 provides for contents and manner of writing of the confidential reports. The applicant's APAR in the year 2018-19 has not been completed according to manual and rules. Government of India has issued another office memorandum dated 22.05.1975 laying down the duties of reviewing and endorsing officer. Reviewing and endorsing officers have not followed the guidelines, hence, the adverse remarking recorded in the applicant's APAR for the year 2018-19 deserves to be expunged.
Aggrieved with the adverse remarks in the APAR for the year 2018- 19, applicant submitted representation before respondent no. 2 which was rejected vide order dated 29.09.2020. Prior to this, applicant was an officer of outstanding category.
Hence, this O.A.
4. Respondents by filing their counter affidavit have, inter-alia, stated therein that applicant an officer of 2005 batch of IDAS was serving in the office of Accounts Officer, Ordnance Factory, Kanpur in the grade of Page 2 of 10 Junior Administrative Grade (Selection Grade) of IDAS during the period of APAR under question for the year 2018-19. Further submitted that APAR of an officer is written by his Superior Officers. Objective of APAR is to guide him about his defects and shortcomings, which decides his future career advancement. That in terms of DoPT OM dated 14.05.2009, the APAR including overall grade and assessment of integrity was communicated to the applicant vide CGDA letter dated 31.01.2020. Subsequently the applicant submitted a final representation dated 03.06.2020 to the CGDA to re-assess his performance and consider for upgradation of the numerical grading. Comments of Reporting Officer and 1st Reviewing Officer on the representation were obtained under their communication dated 07.08.2020 and 25.07.2020 respectively. However, comments of 2nd Review Officer and the Accepting Authority were not called for as they had retired from service on superannuation on 31.01.2020 and 31.05.2020 respectively. Consequently, Competent Authority i.e. CGDA after considering all the above facts, was of the view that there is no reason to disagree with the four officers who assessed the APAR based on their direct supervision of the officer reported upon and the grading as given shall stay. Thus, keeping in view the decision of the Competent Authority, the representation dated 03.06.2020 of the applicant was rightly rejected and communicated to him vide CGDA order dated 29.09.2020.
5. Applicant by filing rejoinder affidavit reiterated the averments made in the Original application. It has been stated that the remarks in the APAR of the applicant have not been recorded as per the provisions of O.M. dated 14.05.2009 and the overall grade and assessment of integrity of the applicant has not been made as per the guidelines laid down through the office memorandums issued by GOI time to time. Further stated that perusal of the order dated 29.09.2020 itself shows that none of the submissions made by the applicant in his representations were taken into consideration by the competent authority while taking a decision on the representations submitted by the deponent and the order dated 29.09.2020 is not only non-speaking and unreasoned but merely reiterates the comments furnished by the authorities who had recorded adverse remarks in the APAR of the applicant and for this reason also, not only the adverse remarks in the character roll for the year 2018-19 but the order dated 29.09.2020 is also liable to be quashed.
Page 3 of 106. Submission of the learned counsel for the applicant is that entire service record of the applicant has been unblemished except for the year 2018-19 which has been impugned here. Respondents did not record any reason to justify the adverse remarks awarded to the applicant. There is no objective assessment of the work, conduct and performance of the applicant for the year 2018-19. Further submitted that entire process of the recording the remarks in the APAR is regulated by the OM issued by the Government of India from time to time. Respondents /competent authority did not follow those OMs while awarding adverse remarks to the applicant. Further submitted that the object of awarding the remarks in APAR of the Officer is reformative and not punitive. Senior Officers never advised exhorted or admonished the applicant for improvement in work, conduct and performance. The remarks have been awarded to the applicant beyond the prescribed time limit. Respondents want to spoil excellent service record of the applicant by awarding the adverse remarks. No reasons have been assigned in rejecting the representation preferred by the applicant against the adverse remarks. Hence, adverse remarks awarded to the applicant deserve to be expunged.
7. Per Contra, learned counsel for the respondents strongly opposed the aforesaid submissions and contented that entire exercise of awarding APAR to the applicant was completed by the respondents within time prescribed by the OMs. Representation has been rightly rejected by the respondents/competent authority. The entire exercise has been carried out as per Rules and OMs. Every effort has been made to objectively assess the applicant to ensure the better productivity and best performance of the applicant. OA deserves to be dismissed.
8. In State of U.P. v. Yamuna Shankar Misra, [(1997) 4 SCC 7], the Hon'ble Supreme Court has held as follows:
"The object of writing the confidential reports and making entries in them is to give an opportunity to a public servant to improve excellence. Article 51-A(j) enjoins upon every citizen the primary duty to constantly endeavor to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of performance of the subordinate officer, it should be founded upon facts and circumstances. Though sometimes, it may not be part of the record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within the knowledge of such officer. Before forming an opinion to make Page 4 of 10 adverse entries in confidential reports, the reporting/reviewing officers should share the information which is not a part of the record, with the officer concerned. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behavior, integrity or corrupt proclivity. If, despite giving such an opportunity, the officer fails to perform the duty or correct his conduct or improve himself, necessarily the same is to be recorded in the confidential report and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes a successful tool to manage the services with officers of integrity, honesty, efficiency and devotion. [para 7]"
9. In S. Ramachandra Raju v. State of Orissa [1994 Supp (3) SCC 424], the Hon'ble Supreme Court has held as follows:
"From 1973-74 the appellant started with a commendation of his performance to be ''satisfactory" to "fair" in the year 1990-91. It is not comprehensible that in the year 1987-88 whether he would suddenly drop down and become an average or below average teacher? When he was a responsible teacher and he had cordial relations :with the student community, and was taking pains to impart lessons to the students, it is not believable that he avoided to take classes and drops down "if not watched." When anterior to or subsequent to 1987- 88 he was a man of ability and of integrity, the same would become below average only for the academic year 1987-88 without discernible reasons. It would speak volumes on the objectivity of assessment by the reporting officer i.e. the Principal. This conduct is much to be desired. This case would establish as a stark reality that writing confidential reports bears onerous responsibility on the reporting officer to eschew his subjectivity and personal prejudices or proclivity or predilections and to make objective assessment. He should adopt fair, objective, dispassionate and constructive commends/comments in estimating or assessing the character, ability, integrity and responsibility displayed by the officer/employee concerned during the relevant period". [Para 11]
10. In S. T. Ramesh v. State of Karnataka and another, [2007 (9) SCC 436], the Hon'ble Supreme Court has held as follows:
"The confidential report is an important document as it provides the basic and vital inputs for assessing the performance of an officer and further achievements in his career. The performance appraisal through CRs should be used as a tool for human resource development and should not to be used as a fault finding process but a development one." [para 40]
11. In Sukhdeo v. Commissioner Amravati Division, Amravati and another [ 1996 (5) SCC 103], the Hon'ble Supreme Court has held as follows:
"It would be salutary that the controlling officer before writing adverse remarks would give prior sufficient opportunity in writing by informing him of the deficiency he noticed for improvement. In spite of the opportunity given if the officer/employee does not improve then it would be an obvious fact and would form material basis in support of the adverse remarks. It should also be mentioned that he had given prior opportunity in writing for improvement and yet the same was not availed of so that it would form part of the record. The power exercised by the controlling officer in the instant case is per se illegal. The appellant is entitled to reinstatement with all consequential benefits. The appeal Page 5 of 10 deserves to be allowed with exemplary costs quantified at Rs. 10,000 recoverable by the State from the officer who made the remarks." [para 6]
12. In M.A. Rajasekhar v. State of Karnataka and another [ 1996 (10) SCC 369], the Hon'ble Supreme Court has held as follows:
"The integrity of the appellant was not doubted and his work also in all respects was found satisfactory. Under those circumstances, the remark that he „does not act dispassionately when faces with dilemma‟ must be pointed out with reference to specific instances in which he did not perform that duty satisfactorily so that he would have an opportunity to correct himself of the mistake. He should be given an opportunity in the cases where he did not work objectively or satisfactorily. Admittedly, no such opportunity was given. Even when he acted in a dilemma and lacked objectivity, in such circumstances, he must be guided by the authority as to the manner in which he ought to have acted upon. Since this exercise has not been done by the respondents, the said adverse remark was not consistent with law."
13. Thus, the law on point is settled that authorities awarding remarks to the officer should adopt fair and objective approach. The performance appraisal through confidential reports should be used as a tool for human resource development and should not be used for fault finding process.
It is also settled that controlling authority before writing adverse remarks would give prior sufficient opportunity in writing by informing the deficiency. Despite opportunity being given, if the officer does not improve then it would be a material basis for awarding the adverse remarks.
14. In view of above settled legal position, the facts of the present case are being analyzed.
15. The relevant portions of the APAR for the year 2018-19 are extracted herein below for ready reference:
"Part-III- Appraisal TO BE FILLED IN BY THE REPORTING AUTHORITY "The assessment should rate the officer vis-à-vis his peers and not the general population Grade should be assigned on a scale of 1, 10 in whole numbers, with 1 referring to the lowest grade and 10 to the highest grade.
7. Assessment of work output (Weightage to this Section would be 40%) SNo. Description Reporting Reviewing Initial of Authority Authority Reviewing Authority 1 Accomplishment of planned 4 3 work/work allotted 2 Quality of output 4 3 3 Analytical ability 4 4 4 Accomplishment of exceptional 4 0 work/unforeseen tasks performed Overall Grading on 'Work 4.00 2.5 Output' Page 6 of 10
8. Assessment of Personal Attributes (Weightage to this Section would be 30%) SNo. Description Reporting Reviewing Initial of Authority Authority Reviewing Authority 1 Attitude to Work 4 4 2 Sense of responsibility 4 3 3 Maintenance of Discipline 4 4 4 Communication skills 4 4 5 Leadership qualities 4 2 6 Capacity to work in team 4 4 7 Capacity to meet deadlines 4 4 8 Inter-personal relation 3 2 Overall Grading on Personal 3.88 3.38 Attributes
9. Assessment of Functional Competency (Weightage to this Section would be 30%).
SNo. Description Reporting Reviewing Initial of
Authority Authority Reviewing
Authority
1 Knowledge of 5 5
Rules/Regulations/Procedures
in the area of function and
ability to apply them correctly
2 Strategic planning ability 4 4
3 Decision making ability 4 4
4 Coordination ability 4 4
Ability to motivate and develop 4 2
subordinates
Overall Grading on functional 4.20 3.8
Competence
10. Integrity
Certified
11. Pen picture by Reporting Officer. Please comment (in about 100 words) on the overall qualities of the officer including areas of strength and lower strength and his attitude towards weaker sections (SC/ST/OBC).
Shri Sanjay Kumar is an insincere officer having very casual, negligent, dismal approach & attitude towards discharging his official duties assigned to as evident from remarks mentioned in above various coloums. He lacks devotion to his duty as reporting officer & he failed to take timely action for processing of MTPAR of Shri S.C. Khurana, Sr. A.O. for the period from 01.04.2018 to 24.08.2018. He needs to improve himself so for official manner is concerned as adverse comments given against him by Hon'ble CGDA against his representation vide DO L.No. G/1/Personal/IDAS/SK, dt. 20.07.2018. Vide HQrs office L.No. AT/III/1167/Procedural Violation/KGF, dt. 01.08.2018. The remarks of Hon'ble CGDA on the ibid DO letter from the officer is self- explanatory regarding his habitual indisciplined behavior (Copy enclosed Annexure-A).
He is in the habit of personalizing so far official matter is concerned by making false allegation without any documentary proof against the officers as evident from PCA(Fys.), Kolkata L.No. 1158/AN-I/SK/PER, dt. 03.05.2018 as per directive he was asked to submit the reasons for non intimation /submission family details consequent on his first marriage. Vide same letter dt. 4.10.2018 that matrimonial suits, affidavit and divorce decree passed by the family court etc. in lieu of submitting requisite documents as per directive he started to allege harassment vide DO L. No. G/1/Personal/SK, dt. 18.06.2018 which was replied vide this office L.No. CFA/IDAS/06/Vol.XXIII/2018, dt. 19.06.2018 that requesting for fulfillment of document is not harassment.
He failed to discharge his duties as financial advisor to attend TPC cases as delegated in a time bound manner in accordance with HQrs Office Delhi L.No. AT/IX/9504/Fys./Cir, dt. 15.07.2016 hampering the production activity as documents received from AO, OFC clearly proves and concern from non attending in TPC meeting has been pointed out vide various Fy. Management letters. He was suitably advised vide DO L. No. CFA/101/Misc./III, dt. 24.07.2018 for making unwarranted correspondence with outside agency in the matter of GM, FGK case based on his assumption.
He is not a good team leader & his attitude towards colleagues and superior officers are not upto the mark. His attitude towards weaker section is very good.
12. If any other field, specify here:
No
13. Overall grading (on a scale of 1-10) 4.02 Page 7 of 10 Part-IV REMARKS OF THE REVIEWING AUTHORITY
1. Length of service under the Reviewing Authority Aug 2018 to Mar 2019
2. Do you agree with assessment made by the Reporting Officer with respect of the work output and the various attributes in Part-III? Do you agree with the assessment of the Reporting Officer in regards to exceptional contribution and/or shortfalls/constraints in respect of the officer reported upon?
(In case you do not agree or partially agree with any of the numerical assessment of attributes, please record your assessment in column provided for you in that section and initial your entries) Yes No Partially √
3. In case of difference of opinion, details and reasons for the same may be given.
Agree with the detailed comments/remarks given by Reporting Officer under para 2, 3, 4 and 5 of the Part III appraisal. The numerical assessment given by him, however, is considered higher given the output, quality of output, approach, attitude, commitment, involvement and sense of responsibility of the officer reported upon.
4. Pen picture by Reviewing Officer. Please comment (in about 100 words) on the overall qualities of the officer including arrears of strength and lower strength and his/her attitude towards weaker sections (SC/ST/OBC).
The officer is soft-spoken. He, however, lacks commitment and doesn't have a good sense of responsibility or involvement.
The Annual Accounts did not show the right inventory position. The inventory was not reconciled in spite of directions from higher offices. He did not resolve the hot simis issue. PPL account was shown highly inflated. He also didn't show any commitment towards working for a common database in spite of directions from MoD. The required details of deductions made from medical claims were not provided in spite of several JCM decisions.
His decision making ability is grossly limited. The procurement cases often got delayed due to his fixated attitude.
The attitude of the officer has not been commensurate to his position. He did never inform the factory management whenever away on leave or Ty. Duty. The officer has often been found missing from the meetings chaired by Sr. General Manager.
His relations with outside agencies/public were not healthy in view of poor performance, lack of co-operation and unnecessary observations and objections.
The officer is not seen as participant in the proceedings and a member of the team. He needs comprehensive counseling at a suitable high Level if he is to contribute to the well-being of the organization(s) he may work for.
His attitude towards SC/SC/Weaker sections is good.
5. Aptitude and Potential Please indicate three fields of work form amongst the following for possible specialization and career development of the officer. Please mark 1,2,3 in three appropriate boxes.
1 Personnel Administration 2 Financial Administration 3 Planning 4 Economic and Commercial Administration 2 5 Information Technology 6 Industrial Finance & Accounting 3 7 Human Resource Development/Training 8 Any other field (please specify) Attitudinal charges 1
6. Overall grading (on a scale of 1-10) 3.15 Agree with comments & gradings of Reviewing officer.
Page 8 of 10Part -V REMARKS OF THE ACCEPTING AUTHORITY
1. Do you agree with the remarks of Reporting/Reviewing Authority?
Yes √ No
2. In case of difference of opinion between the accepting authority and reporting/reviewing authority details and reasons for the same may be given.
No differences with Report/Reviewing (two officers i.e. Sr. G.M. & PC of A) officers.
3. Overall grading (on a scale of 1-10) 3.15
16. From the aforesaid extracts of the APAR of the applicant, it is evident that reporting officer awarded the marks as 4.02. However, while reviewing authority downgraded the marks as 3.15 and accepting authority also agreed with the same but no reason for downgrading was assigned by both authorities, which is against the law laid down by the Hon'ble Apex Court in the matter of Yamuna Shankar Mishra (supra).
Furthermore, in different columns different marks has been awarded but there is no objective assessment in the matter while granting the marks. No fact has been referred either by reporting authority / reviewing authority or accepting authority.
17. The relevant portion of the representation rejection order dated 29.09.2020 is reproduced herein below:
"5. ....the Competent Authority Shri Sanjiv Mittal, IDAS, CGDA has gone through the representation of the officer reported upon, the comments of the Reporting, 1st Reviewing, 2nd Reviewing and Accepting authorities as contained in the PAR and the comments of the Reporting and 1 st Reviewing Officers furnished on the representation; and is of the view that there is no reason to disagree with the four officers who assessed the PAR based on their direct supervision of the officer reported upon and the grading as given shall stay."
18. From the aforesaid extract, it is manifest that representation has been rejected only on the basis of reports submitted by reporting officer, reviewing officer and accepting officer. The facts narrated in the representation have not been discussed. Representation rejection order is a non-speaking and without reason, hence, it is prima facie against the principle of natural justice.
During arguments, it transpired that applicant was never awarded adverse entry in his whole career except the impugned one. Before awarding adverse remarks in the APAR neither reporting authority nor reviewing authority nor accepting authority advised any fact for improvement. No warning was given for lapses done by the applicant.
Page 9 of 1019. Hence, in view of above, the following findings are recorded:
(i) There is no objective assessment while recording the APAR of the applicant.
(ii) No reasons have been assigned while downgrading the marks by the reviewing authority.
(iii) In representation rejection order dated 29.09.2020 also nothing has been pondered over the averments made by the applicant. It is only based on comments of the reporting authority/1st reviewing authority/2nd reviewing authority and accepting authority as contained in the APAR.
20. Accordingly, in view of settled position of law by the Hon'ble Apex Court for awarding the remarks and various OMs, I am of the considered opinion that OA deserves to be allowed, hence, respondents / competent authority are directed as follows:
(i) Order dated 29.09.2020 is hereby quashed.
(ii) The adverse remarks given in the APAR of the applicant for
the year 2018-19 are also expunged.
(iii) Applicant shall be entitled to all the consequential service benefits.
(iv) The above exercise shall be completed within a period of eight weeks from the date of receipt of a certified copy of this order, under intimation to the applicant.
(v) No order as to costs.
OA is, accordingly, allowed in above terms.
Pending MAs, if any, also stand disposed of.
(Justice Anil Kumar Ojha)
Member (J)
JNS
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