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2005 DIGILAW 266 (CAL)

TARAPADA DAS v. UNION OF INDIA

2005-04-21

MOHAN M.SHANTANAGOUDAR

body2005
G. SHANTAPPA, J. ( 1 ) THE present OA has been filed by the applicant under Section 19 of the a. T. Act, 1985 seeking the following reliefs :"a) To direct the respondent to cancel, withdraw and/or rescind the impugned :- i) Memorandum dated 22. 1. 2002 and 14. 1. 2003, being Annexures 'a-4' and 'a-7' respectively hereof ; ii) Memorandums dated 20. 5. 2002 and 16. 4. 2003, being Annexures 'a-6' and 'a-9' respectively here'of; b) To direct the respondents to produce the entire records of the case before this Hon'ble Tribunal for adjudication of the points at issue ; c) And to pass such further or other order or orders and/or direction or directions as to this Hon'ble Tribunal may deem fit and proper. " ( 2 ) THE facts of the case in brief are that the applicant is working as assistant Director. On 14. 5. 1998, the applicant was transferred on reversion to the post of Data Processing Assistant Gr. A. Being aggrieved by the said order dated 14. 5. 1998, he approached this Tribunal in OA 613/1998. The said oa was disposed of vide order dated 21. 3. 2001. Against the said order of this tribunal dated 21. 3. 2001, he filed an RA 11/2001, the same was rejected on 23. 4. 2001. Being aggrieved by the said order, the applicant approached the high Court in W. P. C. T. No. 366/2001. The said writ petition is pending at the high Court. Due to ventilating the grievances before the Hon'ble Courts by the applicant, the authorities concerned became very much vindictive towards the applicant and they started issuing one after one adverse remarks against the applicant. Keeping in mind that the proceedings are pending before the courts, the fourth respondent, i. e. , the Director have issued memo dated 7. 9. 2000 intimating that 'he is not reliable'. The said remark was entered in the ACR for the year 1998-99. The applicant submitted his representation dated 30. 9. 2002 to expunge the adverse entries. The applicant did not receive any order from the respondents. Earlier to issuing the impugned order, there was no warning and/or show cause notice to the applicant. Hence the impugned ' order of adverse entries was illegal. Again for the year 2000-2001, the same kind of adverse entries were made against which the applicant has referred a representation dated 30. 1. Earlier to issuing the impugned order, there was no warning and/or show cause notice to the applicant. Hence the impugned ' order of adverse entries was illegal. Again for the year 2000-2001, the same kind of adverse entries were made against which the applicant has referred a representation dated 30. 1. 2002 to expunge the adverse remarks. The respondents have rejected his representation vide order dated 20. 5. 2002. Again the applicant was intimated vide memo dated 14. 1. 2003 that the same kind of adverse entries were made against him in the ACR for the year 2001-02, against which the applicant has referred a detailed representation dated 11. 2. 2003 to expunge the adverse remarks. The respondents have rejected his representation vide order dated 16. 4. 2003. Being aggrieved by the said order, applicant has filed the present OA challenging the orders dated 20. 5. 2002 and dated 16. 4. 2003. on the ground that the impugned action of the respondents is illegal without following the guidelines in respect of writing acrs. As the applicant belongs to Scheduled Caste community, the respondents are harassing and humiliating the applicant only to curtail the rights of the applicant, without following the guidelines in respect of issuance of adverse remarks. Hence the impugned orders are liable to be quashed and the adverse remarks in ACRs are directed to be expunged. ( 3 ) PER contra, the respondents have filed detailed reply denying the averments made by the applicant in OA. They have specifically denied that there was no mala fide against the applicant. The respondents have issued the orders on the basis of performance and assessment. The reporting officer has reported the adverse remarks and the accepting officer has accepted the same. The representations submitted by the applicant were properly considered and rejected. They have stated that the applicant was transferred as Assistant director on short-term adhoc basis on deputation on 29. 4. 2003. Earlier the applicant was working as Junior Investigator. He was sent on deputation twice. Firstly at Indian Tourism, Imphal during the period 1986-1991 and secondly at Indian Tourism, Calcutta during the period 1993-1998. The respondents have denied that the applicant has been performing his duties as an Assistant Director for more than 14 and half years. 4. 2003. Earlier the applicant was working as Junior Investigator. He was sent on deputation twice. Firstly at Indian Tourism, Imphal during the period 1986-1991 and secondly at Indian Tourism, Calcutta during the period 1993-1998. The respondents have denied that the applicant has been performing his duties as an Assistant Director for more than 14 and half years. The applicant has already been issued the order terminating his deputation period but the applicant has not accepted the order of termination and by virtue of pending court cases, the applicant is still continuing in the post of Assistant Director. The applicant has not given the benefit of ACP Scheme is also denied as baseless. The applicant is not entitled to the benefit of ACP as per the rules. The period of deputation was expired on 14. 5. 1998, the deputation cannot be extended beyond five years as per the DOP and T Rules. Pending of the litigation of the applicant is not the reason for issuing the adverse entries in the ACRs. The applicant has not made out a case for grant of relief and is liable to be dismissed. ( 4 ) APPLICANT has filed rejoinder. There is no clarification to the reply filed by the respondents. The averments made in the rejoinder are almost similar to the averments made in the original application. ( 5 ) I heard Shri S. K. Dutta, learned Counsel for the applicant and shri B. Debnath, learned Counsel for respondents and perused the pleadings on record including the rules in respect of writing adverse entries. ( 6 ) WHILE arguing the case, learned Counsel for the respondents have stated that they have not issued any memo and oral instructions regarding the shortcomings. That is also not required as per the Rules. There is no illegality while issuing the adverse entries. The adverse entries were issued only on the basis of assessment made by the Director. The impugned order dated 7. 9. 2000 (Annexure A-1) intimating to the applicant for recording of adverse entries for the year 1998-99 as "he is not reliable". The applicant has submitted his representation dated 30. 9. 2000. In his representation, his specific stand was that there was no opportunity provided to the applicant before passing the impugned order and there was no memo or oral directions for shortcoming in the service. The applicant has submitted his representation dated 30. 9. 2000. In his representation, his specific stand was that there was no opportunity provided to the applicant before passing the impugned order and there was no memo or oral directions for shortcoming in the service. Hence he has requested for expunge the adverse remarks entered in the ACRs of the applicant for the year 1998-99. The respondents have rejected the representation and confirmed the orders of the director vide order dated 27. 2. 2001. It was directed by the Under Secretary to the Government of India vide order dated 27. 2. 2001. ( 7 ) IN an another impugned order dated 22. 1. 2002, adverse entries recorded in the ACRs of the applicant for the year 2000-2001. Against which the applicant has submitted his representation dated 30. 1. 2002 similar to the earlier representation. The said representation was rejected by the Under secretary, Government of India vide order dated 14. 1. 2003. Again the applicant was intimated vide memo dated 14. 1. 2003 that the same kind of adverse entries were made against him for the year 2001-02, against which the applicant has submitted a detailed representation dated 11. 2. 2003 to expunge the adverse remarks. The respondents have rejected his representation vide order dated 16. 4. 2003. ( 8 ) THE short question that arises for my consideration is whether the impugned orders passed by the Director entering the adverse entries in the acrs for the relevant years are in accordance with the guidelines issued by the DOPandt ? ( 9 ) AS per mere perusal of the impugned orders, there was no prior notice to the applicant and there was no memo informing his shortcomings in the service. As per the relevant rules/procedures to write the adverse entries, there shall be an opportunity to the applicant before passing the impugned adverse entries. In the instant case, the Director has not issued any kind of memo, oral instructions informing the applicant the shortcomings in the service. The action of the respondents is illegal, icarefully examined the procedure followed by the Director before passing the impugned order regarding adverse entries. It is relevant to extract the procedure to be followed by the authorities :-"9. In the instant case, the Director has not issued any kind of memo, oral instructions informing the applicant the shortcomings in the service. The action of the respondents is illegal, icarefully examined the procedure followed by the Director before passing the impugned order regarding adverse entries. It is relevant to extract the procedure to be followed by the authorities :-"9. Report to be written within one month of the expiry of report period-The annual report should be recorded within one month of the expiry of the report period and delay in this regard on the part of the reporting officer should be adversely commented upon; if the officer to be reported upon delays submission of self-appraisal, this should be adversely commented upon by the reporting officer. [g. I. , D. P. and A. R. , O. M. No. 21011/1/77-Estt. , dated the 30th January, 1978] 15. Contents and manner of writing of confidential reports.-Officers writing the confidential reports should have carefully observed the work and conduct of those under their control, and have provided the required training and guidance where necessary. The annual confidential reports should be based upon the results of such observation as well as the periodical inspections. The form in which the confidential reports are recorded might vary from Department to Department and as between different levels of responsibility within a departmental hierachy, depending upon the nature of work and duties attached to various posts. However, an assessment of certain qualifies of general importance such as integrity, intelligence, keenness, industry, tact, attitude to superiors and subordinates, relations with fellow-employees, etc. , should invariably find place in the report. In addition to the detailed assessment of specific attributes, every confidential report should carry a general appreciation of the character, conduct and aptitudes and shortcomings of the officer reported upon. Reference to specific incidents may be made, if at all only by way of general nature, e. g. , inefficiency, di-latoriness, lack of initiative or judgement, etc. [c. S. , O. M. No. 51/5/72-Ests. (A), dated the 20th May, 1972, paras. 3. 3 and 5. 1. ] 19. Mention of warnings/reprimands in CRs-Questions have been raised from time to time regarding the stage at which a mention about warnings, admonitions, reprimands, etc. [c. S. , O. M. No. 51/5/72-Ests. (A), dated the 20th May, 1972, paras. 3. 3 and 5. 1. ] 19. Mention of warnings/reprimands in CRs-Questions have been raised from time to time regarding the stage at which a mention about warnings, admonitions, reprimands, etc. , administered in the course of normal day-to-day work by superior officers should be mentioned in the confidential report to the official to whom the warning, reprimand, etc. , has been administered. As there seems to be some doubt in this regard the position is clarified in the following paragraph :- 2. There may be occasions when a superior officer may find it necessary to criticize adversely the work of an officer working under him or he may call for an explanation for some act of omission or ' commission and taking all circumstances into consideration, it may be felt that while the matter is not serious enough to justify the imposition of the formal punishment of censure, it calls for some formal action such as the communication of a written warning/ displeasure/reprimand. Where such a warning/displeasure/reprimand is issued, it should be placed in the personal file of the officer concerned. At the end of the year, the reporting authority, while writing the confidential report of the officer, may decide not to make a reference in the confidential report to the warning/displeasure/ reprimand, if, in the opinion of that authority, the performance of the officer reported on after the issue of the warning or displeasure or reprimand, as the case may be, has improved and has been found satisfactory. If, however, the reporting authority comes to the conclusion that despite such warning/displeasure/reprimand, the officer has not improved, it may make appropriate mention of such warning/displeasure/reprimand, as the case may be, in the relevant column in Part III of the form of confidential report relating to assessment by the reporting officer and, in that case, a copy of the warning/displeasure/reprimand referred to in the confidential report should be placed in the CR Dossier as an annexure to the confidential report for the relevant period. The adverse remark should also be conveyed to the officer and his representation, if any, against the same disposed of, in accordance with the procedure laid down in the instruction issued in this regard. [g. I. , D. P. and A. R. , O. M. No. 21011/1/81-Estt. The adverse remark should also be conveyed to the officer and his representation, if any, against the same disposed of, in accordance with the procedure laid down in the instruction issued in this regard. [g. I. , D. P. and A. R. , O. M. No. 21011/1/81-Estt. (A), dated the 5th june, 1981. ] 20. Communication of adverse entries and how to be done-All adverse entries in the confidential report of Government servant, both on performance as well as on basic qualities and potential should be communicated along with a mention of good points within one month of their being recorded. This communication should be in writing and a record to that effect should be kept in the CR dossier of the Government servant concerned. [g. I. , D. P. and A. R. , O. M. No. 21011/1/177-Estt. , dated the 30th January, 1978. ]"the procedure followed by the respondents is also illegal and not in strict compliance of the directions given by C. A. T. , P. B. in the case of nanu Singh v. U. O. I. and Ors. reported in (2003)2 ATJ 281. It is held that the adverse remarks are informed, vague and indefinite without following guidelines. The direction was issued on the reference of the various decision of the Hon'ble Apex Court. ( 10 ) THE respondents were directed to procedure the original records, but they failed to produce the same, I have to draw adverse inference on the attitude of the respondents and consider that the statement of the applicant regarding not following the procedure before issuing the impugned orders as admitted by the respondents. ( 11 ) WHEN the Director has not followed the procedure, the impugned orders passing the adverse entries against the applicant are illegal and against law. The Under Secretary to the Government of India has also not assigned the reasons on the representations of the applicant and also regarding the procedure followed by the respondents. Hence both the orders passed by the Director as well as the Under Secretary to the government of India are not speaking orders and the same are liable to be quashed. Accordingly I quash the impugned orders dated 22. 1. 2002 (Annexure A-4), dated 20. 5. 2002 (Annexure A-6), dated 14. 1. 2003 (Annexure A-7) and dated 16. 4. 2003 (Annexuer A-9 ). I answer the issue framed above, accordingly. Accordingly I quash the impugned orders dated 22. 1. 2002 (Annexure A-4), dated 20. 5. 2002 (Annexure A-6), dated 14. 1. 2003 (Annexure A-7) and dated 16. 4. 2003 (Annexuer A-9 ). I answer the issue framed above, accordingly. ( 12 ) THE OA is allowed. I direct the respondents to treat the adverse remarks as expunged for the relevant periods. No costs.