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2011 DIGILAW 505 (GAU)

Surendranath Das v. Assam State Electricity Board

2011-06-09

BIPLAB KUMAR SHARMA

body2011
JUDGMENT B.K. Sharma, J. 1. By means of this writ petition, the petitioner, who is presently serving as Deputy General Manager (Civil) under the respondents, has questioned the Annexure-A communication dated 8.12.2008, by which the purported adverse remarks in his Annual Confidential Report for the years 2006-2007 and 2007-2008 had been communicated. For a ready reference, the impugned communication dated 8.12.2008, containing the impugned adverse remarks is quoted below :- Sub :- Communication of adverse remarks. Sir, I am directed to communicate the adverse remarks recorded in your ACR's for the period 2006-07 & 2007-08 (w.e.f. 1.4.07 to 4.9.07) as below for information. For the year 2006-07 Section-C 2. It has seen that officer was not objective in dealing with the subject matters. A D.P. case was started against him for manipulation of tender papers etc. after approval by competent authority. 3. Doubtful in view of the action of the officer in placing orders with the firms for training when he was only asked to co-ordinate work of IT Cell. The manipulation of tender papers also clearly bring out officers lack of integrity and lack of trust. 4. No. Section-D 3. The officer cannot be trusted. Further, authority given to the officer is mis-utilized for his personal benefit. Your performance during the period 2006-07 has therefore been graded as "Below Average". For the year 2007-08 w.e.f. 1.4.07 to 4.9.07 Section-C 2. The officer cannot be trusted and should not be given any responsibility dealing with financial matter because of lack of integrity. 3. Doubtful. He should not be given any responsibility dealing with Finance. 2. When the petitioner was communicated with the adverse remarks by the aforesaid communication, he wanted to know the basis, on which the said remarks had been made by the 3 (three) authorities i.e. Recording, Reviewing and Accepting. When the request of the petitioner did not yield any result, he approached this Court by filing a writ petition registered and numbers as WP(C) No. 580/2009. The prayer of the writ petitioner was to furnish him the copies of the ACRs along with the name/designation of the 3 authorities i.e. the recording, reviewing and accepting enabling him to make appropriate representation to the competent authority. 3. During the pendency of the writ petition, when the petitioner was provided with opportunity to make inspection of the relevant documents pertaining the impugned ACRs, he had withdrawn the writ petition. 3. During the pendency of the writ petition, when the petitioner was provided with opportunity to make inspection of the relevant documents pertaining the impugned ACRs, he had withdrawn the writ petition. Thereafter, on perusal of the relevant records and getting the desired information, he filed the instant writ petition. 4. Apart from alleging that the impugned remarks are all vague, indefinite and devoid of any reason, the petitioner has also questioned the very procedure adopted towards recording the adverse remarks. It will be pertinent to mention here that the impugned adverse remarks have been recorded by the purported accepting authority all by himself discharging the role of all the 3 authorities i.e. recording, reviewing and accepting. Another aspect of the matter is that the accepting authority, which had recorded the adverse remarks, was no longer holding the post of Chairman, ASEB, in which capacity, he had recorded the adverse remarks in the ACRs. At the time of recording the adverse remarks, he had already demitted the office of the Chairmanship of the ASEB and had gone to the parent department/cadre, from where he was brought to the ASEB on deputation. Long 15 months after demitting the office of the Chairman of the ASEB, the said authority in the capacity of Principal Secretary to the Government of Assam in the Home & Political Department recorded the impugned adverse remarks of the petitioner. 5. In the counter affidavit filed by the respondents, it has been stated that in absence of recording and reviewing authorities, because of their retirement from service on attaining the age of superannuation, the service record of the petitioner was assessed by the accepting authority, who although had demitted the office of the Chairman of the ASEB, but was very much in service of the State Government and accordingly, could assess the service record of the petitioner. In this connection, the respondents have referred to office order dated 26.12.1997 laying down the procedure for writing confidential report. 6. In the reply affidavit filed by the petitioner, it has been stated that the Respondent No.4 i.e. the Principal Secretary, Home & Political Department, whom the petitioner has arrayed as party-respondent by name, could not have initiated, reviewed and accepted the remarks in the ACRs of the petitioner for the relevant years, he having left the A.S.E.B. where he had served on deputation. According to the petitioner, the Respondent No.4 took recourse to the impugned action towards recording the adverse remarks in malafide exercise of power and the remarks impugned in this proceeding are not the product by any reasonable assessment of performance of the petitioner. 7. The petitioner has also indicated the respective dates of retirement of the recording and reviewing officers on attaining the age of superannuation, which are 28.2.2009 and 9.9.2008. On the other hand, the Respondent No.4, who had worked as Chairman of the A.S.E.B., demitted his office on 5.9.2007 and long 15 months thereafter, he had recorded the impugned adverse remarks in the ACRs of the petitioner pertaining to the years 2006-07 and 2007-08 (1.4.2007 to 4.9.2007). Those remarks were recorded for all the three authorities on a single day i.e. 27.1.2008. 8. Mr. Y.S. Mannan, learned counsel for the petitioner submits that the Respondent No.4 after demitting the office of the Chairman, A.S.E.B., could not have recorded the ACRs of the petitioner including the adverse remarks after 15 months thereafter and that too, in the capacity of Principal Secretary, Home & Political Department. He submits that on a bare perusal of the purported adverse remarks will go to show that the same is not the product of any bonafide exercise of scrutiny of the service record. Placing reliance on the decision of the Apex Court reported in (1) (2007) 9 SCC 436 : S. T. Ramesh Vs. State of Karnataka & Ann, (2) AIR 1999 SC 3273 : P.K. Shastri Vs. State of Madhya Pradesh & Ors., (3) (2008) 8 SCC 725 : Dev Dutt Vs. Union of India & Ors., (4) (2007) 15 SCC 273: T. N. Godavarman Thirumulpad Vs. Union of India & Ors. and (5) (1996) 5 SCC 103 : Sudhdeo Vs. Commissioner Amravati Division & Anr. Mr. Mannan, learned counsel for the petitioner submits that the very purpose of writing ACR and recording of adverse remarks is to provide opportunity to the officer concerned so that he can improve himself and not to destroy his career. 9. Mr. B.D. Das, learned senior counsel assisted by Mr. N. Goswami, learned counsel appearing for the A.S.E.B., on the other hand, submits that whatever has been done, the same was in terms of the office order dated 26.12.1997 laying down the procedure for writing confidential report. 9. Mr. B.D. Das, learned senior counsel assisted by Mr. N. Goswami, learned counsel appearing for the A.S.E.B., on the other hand, submits that whatever has been done, the same was in terms of the office order dated 26.12.1997 laying down the procedure for writing confidential report. Referring to clause 1(6) of the said office order dated 26.12.1997, he submits that since the recording and reviewing authorities had already retired from service on attaining the age of superannuation, as per the provisions of the said clause, the accepting authority had to write the ACRs of the petitioner for both the years and thus, there is no infirmity in doing so. He also submits that if the petitioner is aggrieved by the adverse remarks in his ACRs, it is open for him to make representation to the competent authority, for which due intimation was furnished to the petitioner. In this connection, he has referred to the Annexure-E and G letters dated 30.12.2008 and 29.1.2009, by which the Director (P) requested/advised the petitioner to submit defence statement on the adverse remarks recorded in the ACRs. 10. I have considered the submissions made by the learned counsel for the parties. I have also gone through the entire materials on record. 11. The decision on which Mr. Mannan, learned counsel for the petitioner has placed reliance are all on principles relating to recording and communicating the adverse remarks. In Sukhdeo (supra), the Apex Court reminded that when an officer makes the remarks, he must eschew making vague remarks causing jeopardy to the service of the subordinate officer. It was further emphasized that he must bestow careful attention to collect all correct and truthful information and give necessary particulars when he seeks to make adverse remarks against the subordinate officer whose career prospect and service were in jeopardy. Noticing and reiterating the principles relating to writing of ACRs, the Apex Court in that proceeding held that the Controlling Officer did not use due diligence in making the remarks and set aside the order of compulsory retirement passed against the petitioner on the basis of such remarks. 12. In P.K. Shastry (supra), the Apex Court held that the authority recording the adverse remarks in the ACRs must do so by way of a decision that must be taken objectively after careful consideration of all the materials before it. 13. 12. In P.K. Shastry (supra), the Apex Court held that the authority recording the adverse remarks in the ACRs must do so by way of a decision that must be taken objectively after careful consideration of all the materials before it. 13. The decision in T.N. Godavarman (supra) has been pressed into service to emphasize that the authority, who writes the ACRs, must be of same service, although superior in rank. 14. In S.T. Ramesh (supra), while emphasizing that the confidential report should be used as a tool for human resource development and not for fault-finding process, the Apex Court also observed that 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. 15. In Dev Dutt (supra), the Apex Court held that when the adverse remarks are communicated to the officer, he must have a right to make representation against the same to the authority concerned and the said authority must decide the representation in a fair and reasonable manner. It was further heed that such representation must be decided by an authority higher than the one, who recorded the adverse remarks, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal Caesar to Caesar. In the said decision, the Apex Court emphasized on fairness and transparency in public administration and that, the State must be a model employer and must act fairly towards its employees. Only then, the good governance would be possible. 16. In the rejoinder affidavit filed by the petitioner, it has been stated that prior to and subsequent to the periods in question, the petitioner all along earned "very Good" remark. Thus, the whole emphasis of the petitioner is that the particular adverse remarks recorded in the ACRs pertaining to the years 2006-07 and 2007-08 (only part) is not founded on bonafide exercise of power. According to the petitioner, it is for this period only, the adverse remarks have been recorded in the ACRs and the same is not the result of bonafide exercise of power. 17. As in the instant case, in State of U.P. Vs. According to the petitioner, it is for this period only, the adverse remarks have been recorded in the ACRs and the same is not the result of bonafide exercise of power. 17. As in the instant case, in State of U.P. Vs. Yamuna Shanker Misra, reported in (1997) 4 SCC 7 , the Apex Court noticed that the respondent therein constantly maintained good record earlier and subsequent to the period for which the adverse remarks were recorded. It was also noticed that because of such good confidential report, the clouds over his conduct were cleared and he was given further promotion. As in the said case, in the instant case also, it is the specific case of the petitioner that barring the period in question for which the impugned adverse remarks, stated to have been recorded by the purported accepting authority, the petitioner had all along maintained a good confidential report with the remarks of overall assessment as "very good". 18. As observed in the aforesaid case, the object of writing confidential reports and making entries in the confidential rolls is to give opportunity to public servant improve achievement. Article 51(A)(J) of the Constitution of India enjoins upon every citizen a primary duty to constantly endeavour to improve achievement individually and collectively as a member of the group. In the said case, the Apex Court emphasized on the need of objectivity in writing ACRs. The same view has been expressed in Swatantar Singh Vs. State of Haryana, reported in (1997) 4 SCC 14 . 19. During the course of hearing, Mr. B.D. Das, learned counsel appearing for the respondents has produced the originals of the ACRs of the petitioner for the period from 2006-07 and 2007-08. On perusal of the said ACRs, what is seen is that the Respondent No.4, in his capacity as Principal Secretary, Home & Political Department, Government of Assam filled in all columns meant for the recording, reviewing and accepting authorities on the same day i.e. 27.11.2008. Thus, both the ACRs for the said periods were recorded single handedly by the Respondent No.4 on a single day and that too, taking the responsibility of filling up of columns which are specifically meant for the other two authorities i.e. the recording and reviewing authority. Thus, both the ACRs for the said periods were recorded single handedly by the Respondent No.4 on a single day and that too, taking the responsibility of filling up of columns which are specifically meant for the other two authorities i.e. the recording and reviewing authority. While recording the adverse remarks, no material particulars have been disclosed and yet, the Respondent No.4 has branded the petitioner as an officer not to be trusted and that, he should not be given any responsibility dealing with the finance. While marking such remarks, no specific instance has been given to establish such remarks. On the face of it, the remarks are vague, indefinite and are not informed of any reason. 20. The Respondent No.4 could not have recorded the said remarks single handedly for all the 3 authorities and that too, on a single day, which itself will go to show the lack of transparency and fairness and total non-application of mind. 21. The office order dated 26.12.1997 laying down the procedure for writing confidential reports, on which Mr. Das, learned counsel appearing for the respondents has placed reliance, speaks of the period of recording of the ACR, which is 1st January to 31st December. In the instant case, the ACRs have been recorded for the period from April to March and 2006-2007 and 1.4.2007 to 4.9.2007 (2007-2008). 22. As per the procedure laid down in the said office order, the recording officer after writing the particular column of the ACRs should submit the same to the reviewing authority by 15th January. Thereafter, the reviewing officer after grading the officer in the particular column shall submit the ACR to the accepting officer by 20th January. The accepting officer after assessment in the particular column of the ACRs in all respect shall send the same to the Personnel Manager/HOD by 31st January of the year following the year of the reporting for custody. 23. Admittedly, the aforesaid time schedule was not followed in the instant case. Mr. Das, learned counsel for the respondents submits that the said time schedule could not be followed as the petitioner did not submit his part of the ACR in time. 23. Admittedly, the aforesaid time schedule was not followed in the instant case. Mr. Das, learned counsel for the respondents submits that the said time schedule could not be followed as the petitioner did not submit his part of the ACR in time. Suffice is to say that whatever was the reasons for not submitting his part by the petitioner, but it was the duty of the 3 authorities to strictly adhere to the time schedule laid down in the office order towards recording the ACRs. 24. In clause 1(6) of the office order, it has been laid down that all the 3 authorities before transfer or going on retirement or resigning from service shall write/review or accept, as the case may be, the ACRs of his subordinates for the period upto the date of his handing over charge of the post and send the same to the next higher authority, as the case may be, under intimation to the Headquarter Office. If we go by this clause, it was incumbent on the part of the recording and reviewing authority to write ACR of the petitioner before they had gone on retirement on attaining the age of superannuation. 25. As per clause 2(2) (iv) of the said office order, in the event of retirement of both the reviewing and accepting officer, the remarks of the recording officer shall be final. Similarly, in the event of retirement of accepting officer, the remarks of the reviewing officer shall be final. Likewise, in the event of retirement of the reviewing officer, the accepting officer shall record, review and accept the ACRs. In this connection, Mr. Das, learned counsel appearing for the respondents has placed reliance on clause 2(2)(v) which provides that in the event of retirement of both the recording and reviewing officers, the accepting officer shall record, review and accept the ACRs. 26. The term "retirement" will have to be understood in the context of the expression finds mention in clause 1(6). The expressions are 'transfer', 'retirement 'and 'resigning from service'. In the instant case, the Respondent No.4 had gone on deputation to the AS.E.B. His parent cadre, as submitted by Mr. Das, learned counsel for the respondents, is the Assam-Meghalaya Joint Cadre. On his reversion to the parent cadre, he was posted as Principal Secretary, Home & Political Department, Government of Assam. In the instant case, the Respondent No.4 had gone on deputation to the AS.E.B. His parent cadre, as submitted by Mr. Das, learned counsel for the respondents, is the Assam-Meghalaya Joint Cadre. On his reversion to the parent cadre, he was posted as Principal Secretary, Home & Political Department, Government of Assam. Thus, he was released from the service of the A.S.E.B. and long 15 months thereafter, he could not have written the ACR of the petitioner and that too, by a stroke of pen on a single day exercising jurisdiction of all the authorities i.e. recording, reviewing and accepting. 27. As per the said office order dated 26.12.1997, in case of non-availability of all the 3 authorities, a certificate to that effect shall be kept in the ACR/Dossier for nonavailability of the ACRs of a particular period [clause 2(2)(vi)]. 28. For all the aforesaid reasons, the impugned Annexure-8 communication dated 8.12.2008 and the adverse remarks thereof stands interferred with and the writ petition is allowed. 29. Although Mr. Das, learned counsel for the respondents has submitted that the petitioner should have made a representation against the adverse remarks instead of rushing to the writ Court, but in absence of any higher authority than the Chairman of the respondent-Board, it would be a futile exercise to make a representation against the adverse remarks. It is in this context, the Apex Court in Devtt. Nath (supra) observed thus: "37. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the authority concerned, and the authority concerned must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible." 30. The writ petition is allowed leaving the parties to bear their own costs.