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2021 DIGILAW 278 (ORI)

Sailendra Kumar Dwivedi v. State Of Odisha

2021-06-25

BISWANATH RATH

body2021
JUDGMENT Biswanath Rath, J. - This Writ Petition involves the following relief :- 'In view of the facts mentioned in the foregoing paragraphs, the applicant prays for the following relief(s) i) The Hon'ble Tribunal be pleased to quash the adverse remarks communicated to the applicant on his PAR for the year 2016-17 as at Annexure-2 and the rejection of the representation as at Annexure-4 and on such basis the applicant be given all service and financial benefits including promotions etc. ; and ii) The Hon'ble Tribunal be pleased to pass such other order/orders as is deemed fit and proper under the facts and circumstances of the case.' 2. Short background involving the case is that initially Original Application No.1615 of 2018 was filed being aggrieved by the order of rejection of the representation of the Petitioner on being issued with alleged illegal adverse remark in his PAR thereby depriving the Petitioner from the next promotion. Facts reveal, the Petitioner challenged the adverse remark communicated to him by way of representation on 23.2.2018 for expunction of such adverse remark recorded in his Performance Appraisal Report (PAR) for the year 201617 (1.4.2016 to 31.3.2017). Upon receipt of such representation, it appears, for the nature of grievance, following the Guidelines for Recording and Maintenance of PARs of Group-A Officers of the Government, particularly keeping in view the provision at Clause-15(i) therein, the representation of the Petitioner was sent to the Author of the adverse remark asking him to substantiate or furnish his comment on the representation. It is on receipt of such representation, the Author of the adverse remark involved here on 28.3.2018 intimated his confirmation/Substantiation Report on the adverse remark, vide Annexure-D to the counter affidavit. Based on such report of the Author of the adverse remark, it appears, the representation of the Petitioner has been rejected resulting in filing of the Original Application. Subsequently on transfer of the same to this Court, this has been registered as WPC(OA). 3. Based on such report of the Author of the adverse remark, it appears, the representation of the Petitioner has been rejected resulting in filing of the Original Application. Subsequently on transfer of the same to this Court, this has been registered as WPC(OA). 3. Taking this Court to the plea involving the Writ Petition involved, the provision at Clauses-15(i) & (ii) of the Guidelines, further reading the contents in the document at Annexure-D available at Page-58 of the counter affidavit of the contesting Opposite Parties, Sri D.Mohapatra, learned counsel for the Petitioner submitted that once the provision makes it clear that the Substantiation Report should cover specific facts, figures and instances, which are relevant to the preparation of adverse remark involved here, it was incumbent on the part of the Author of the adverse remark involved herein to give his report strictly in terms of Sub-Clause (ii) of Clause-15, failing which such report is to be simply ignored. Taking this Court to the contents, again Sri Mohapatra, learned counsel, submitted that since the Author's submission remained contrary to Sub-Clause (ii) of Clause-15 of the Guidelines, the same should be interfered with and set aside. 4. Sri Praharaj, learned Additional Standing Counsel appearing for the Opposite Parties taking this Court to their stand in Paragraph-4 and the subsequent averments in the counter affidavit submitted that for the clear disclosure in Annexure-D responded by the Author of the adverse remark, the State Authority had no other option than to accept the same and reject the representation of the Petitioner. It is in the above premises, referring to Annexure-D to the counter affidavit, Sri Praharaj contended that there is no infirmity in the rejection of the representation of the Petitioner. 5. Considering the rival contentions of the Parties, this Court finds, there is no dispute to the fact up to the Petitioner's submitting representation against the adverse remark. There is also no dispute that following the provision at Sub-Clause (i) of Clause-15 of the Guidelines referred to herein above, the representation of the Petitioner was marked for a report to the Author of the adverse remark involved herein. Consequent upon remitting the matter to the Author of the adverse remark for his opinion in terms of Sub-Clause (ii) of Clause-15 of the Guidelines, it appears, the Author of the adverse remark has submitted his response, vide Annexure-D to the counter. Consequent upon remitting the matter to the Author of the adverse remark for his opinion in terms of Sub-Clause (ii) of Clause-15 of the Guidelines, it appears, the Author of the adverse remark has submitted his response, vide Annexure-D to the counter. It is at this stage, considering the grounds raised by the Petitioner, particularly involving Annexure-D remaining contrary to Sub-Clause (ii) of Clause-15, this Court likes to take note of the provision at SubClauses (i) & (ii) of Clause-15 of the Guidelines relied by both the Parties, which reads as hereunder :- '15. Disposal of Representation (i) Upon receipt of representation only the author of the adverse remarks may be asked to substantiate or to furnish her/his comment on the representation. Those higher authorities who have merely agreed to the adverse remarks written by other authorities need not be called upon to substantiate. (ii) The Substantiation Report should cover specific facts, figures and instances which are relevant to the adverse remarks.' Reading the aforesaid provisions, this Court finds, there is right forwarding of the representation of the Petitioner to the Author of the adverse remark involved herein and asking him to substantiate or to furnish his comment on the representation but looking to the requirement under Sub-Clause (ii) of Clause-15 taken note herein, this Court finds, while considering such representation, in the event the Author of the adverse remark submits a substantiation report, his report should cover specific facts, figures and instances, which are relevant to the adverse remark. 6. Considering the specific contentions of the Parties, this Court also takes note of the contents of Annexure-D to the counter, the subject matter of challenge to the present case, which reads as follows :- ' Confidential DO No.25/RD Date:28.03.2018 Bishnupada Sethi, IAS Commissioner-cum-Secretary Sub.:-C.C.R./PAR-Representation against adverse remarks of Shri Sailendra Kumar Dwivedi, OAS(SAG)-Substantiation requested. Dear Mrs. Manorama, I have gone through the copy of representation dt.12.03.2018 of the above mentioned Officer and the copy of the performance and appraisal report for the year 2016-17. This submissions made by Shri Dwivedi in Para-3 of the representation regarding his achievement are not acceptable. All the achievements were possible because of the team work and dedication of a no. of Officers including the Director, Fisheries. As the Joint Secretary in-charge of the section, his responsibility was to put up the proposals in file for taking orders/decision. This submissions made by Shri Dwivedi in Para-3 of the representation regarding his achievement are not acceptable. All the achievements were possible because of the team work and dedication of a no. of Officers including the Director, Fisheries. As the Joint Secretary in-charge of the section, his responsibility was to put up the proposals in file for taking orders/decision. The assessments made about him are based on facts and feedback received from various officials. I have also mentioned his positive qualities like (i) sound in IT knowledge and (ii) literary skills. There was no bias while writing his appraisal report by the undersigned. The Chief Secretary, as Reviewing Authority, has also agreed to my assessment. This is for your information and necessary action. Yours sincerely Sd./-Bishnupada Sethi Manorama Dei Deputy Secretary to Government, G.A. & P.G.(S.E.) Department, Bhubaneswar' Reading through the Substantiation Report of the Author of the adverse remark taken note herein above and in consideration of Sub-Clause (ii) of Clause-15 of the Guidelines indicated herein above, this Court finds, the Substantiation Report not only has head and tail but also is not in conformity with the requirement of Sub-Clause (ii) of Clause-15 of the Guidelines, as it did not cover specific facts, figures and instances, which led to have such adverse remark. For the opinion of this Court, such reports have no value. It is on this ground only, this Court finds, Annexure-D to the counter since not in terms of the Guidelines is thus not sustainable. Further if the first part of the Substantiation Report is seen for the good recommendations therein in favour of the Petitioner, the second part appears to be absurd. Besides this Court's opinion is that such report should be strictly by the contents in the PAR format and also in terms of the Guidelines available. For the rejection of the order impugned herein based on such illegal report, the impugned order of rejection of the representation, vide Annexure-4 must also go, which is accordingly interfered with and set aside. Besides this Court's opinion is that such report should be strictly by the contents in the PAR format and also in terms of the Guidelines available. For the rejection of the order impugned herein based on such illegal report, the impugned order of rejection of the representation, vide Annexure-4 must also go, which is accordingly interfered with and set aside. For there being requirement of a proper Substantiation Report strictly in terms of Sub-Clause (ii) of Clause-15 of the Guidelines, the matter is remitted to the Competent Authority to ask the Author of the adverse remark to submit a fresh view on the representation of the Petitioner involving the adverse remark of the Petitioner for the year 2016-17 (1.4.2016 to 31.3.2017) but however strictly in terms of the Guidelines indicated herein above which exercise may be concluded within a period of one month from the date of communication of this judgment. Dependent on the fresh report of the Author of the adverse remark, a fresh decision on the representation of the Petitioner will be taken by completing the entire exercise again within fifteen days from the date of receipt of the Substantiation Report. 7. The Writ Petition succeeds. Under the circumstance, no cost.