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Tripura High Court · body

2022 DIGILAW 287 (TRI)

Nandan Pal v. State of Tripura

2022-07-05

T.AMARNATH GOUD

body2022
JUDGMENT 1. Heard Mr. Somik Deb, learned senior counsel assisted by Mr. Abir Baran, learned counsel appearing for the petitioner. Also heard Mr. D. Bhattacharjee, learned G.A. assisted by Mr. P. Saha, learned counsel appearing for the respondents. 2. The principal grievance as canvassed in this writ petition is that the petitioner is serving as Panchayat Extension Officer. On 14.12.2017, a penalty of Censure was inflicted on to the petitioner. Assailing the said order dated 14.12.2017, the petitioner filed a writ petition, marked as WPC. No. 07 of 2018, before this Court and by an order dated 04.06.2018 the same was allowed, thereby quashing/setting aside the said order dated 14.12.2017. Under the RTI Act, the petitioner submitted an application dated 21.10.2019 and thereby, requesting for furnishing the copies of the ACRs of the years 2015-2016, 2016- 2017, 2017-2018 and 2018-2019. In response thereto, the SPIO issued a reply dated 11.11.2019 furnishing the copies of the said ACRs of the petitioner. 3. Being aggrieved by such downgrading of the ACRs, the petitioner submitted a representation dated 07.12.2019 to the Director of Panchayats, Panchayat Department, Government of Tripura, inter alia r3equesitn for expunging the downgraded entries, recorded therein. Even after submission of the said representation, neither any expunction has been made with regard to the grading, noted in the said ACRs, nor any reply whatsoever, has been furnished to the petitioner. Hence, the petitioner has preferred this present this petition. 4. Mr. S. Deb, learned senior counsel assisted by Mr. Abir Baran, learned counsel appearing for the petitioner has submitted that in contemplation of a departmental proceeding, by an order dated 03.03.2011, in exercise of the powers, conferred by Rule-10(1) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 [CCS & CCA Rules, for short], the Director of Panchayats, Government of Tripura had placed the petitioner under suspension, with immediate effect thereof. Thereafter, by a memorandum dated 16.09.2011, the Director Panchayat, Government of Tripura initiated a departmental proceeding against the petitioner, thereby framing the articles of charge and the imputations of misconduct or misbehaviour in respect of the said charge. 5. In connection with the departmental proceeding initiated, vide memorandum dated 16.09.2011, the disciplinary authority, appointed an inquiry officer, to enquire into the charges, levelled against the petitioner, pursuant whereto, witnesses were examined and their depositions were recorded. 5. In connection with the departmental proceeding initiated, vide memorandum dated 16.09.2011, the disciplinary authority, appointed an inquiry officer, to enquire into the charges, levelled against the petitioner, pursuant whereto, witnesses were examined and their depositions were recorded. After conclusion of the said proceeding, the Inquiry Officer passed an Inquiry report on 07.10.2017 stating that '....In view of the above perspective and basis of material presented and evidence made available, I find and hold that the prosecution has fail to prove the article of charge brought against the AO. Therefore, the charges levelled against are get shattered and found not guilty.' 6. Mr. Deb, learned senior counsel has contended that it would manifestly reveal that in both the impugned ACRs of 2017-2018 & 2018- 2019, even though the reporting officer had graded the petitioner as 'Outstanding' but while reviewing the same, the Director of Panchayats, Panchayat Department, Government of Tripura after accepting the same entries, had downgraded the petitioner as 'Very Good' thereby taking the umbrage of non-recording of views regarding the integrity and reliability of the petitioner and non-submission of the supporting documents with regard to the entries, by the reporting officer. He has further contended that even though the Director of Panchayat has downgraded the petitioner vide the impugned ACRs, due to non-recording of views regarding the integrity and reliability of the petitioner, and non-submission of the supporting documents with regard to the entries, recorded in the impugned ACRs but, such omission was attributable to the reporting officer and hence, the same cannot in any manner be used to prejudice the petitioner. 7. The impugned ACRs of 2017-2018 and 2018-2019 were neither issued to the petitioner, nor prior to their issuance, the petitioner was confronted with the downgraded entries. Prior to the issuance of the impugned ACRs of the above mentioned years, if the petitioner was confronted regarding the downgraded entries, then he would have got opportunity to have his say in his defence. It is a settled legal principle that prior to recording of any adverse entry in the ACRs of the Government employee, an opportunity to represent there against has to be afforded to the said employee and in absence thereof, the said adverse entries cannot be acted upon to his prejudice. It is a settled legal principle that prior to recording of any adverse entry in the ACRs of the Government employee, an opportunity to represent there against has to be afforded to the said employee and in absence thereof, the said adverse entries cannot be acted upon to his prejudice. Applying this settled legal principle to the case in hand, non-grant of opportunity to represent against the adverse entries, is in violation of the cardinal principles of natural justice. 8. He has averred that on bare perusal of the ACRs of the petitioner the years as mentioned above, it would manifestly reveal that concurring with the 'Outstanding remarks recorded by the Reporting Officer, the Director of Panchayats, graded the petitioner as 'Outstanding'. On the contrary, by not concurring with the 'Outstanding' remarks, recorded by the Reporting Officer in the impugned ACRs, the Director of Panchayat, Panchayat Department, Government of Tripura has downgraded the petitioner as 'Very Good', which makes a simple revelation that the said downgrading cannot be sustained. The periods, whereby the petitioner has been downgraded by the respondent No.3, vide the impugned ACRs are proximate in point of time, when contrasted with the order of penalty, inflicted on the petitioner, assailing which, the petitioner presented a writ petition, before this Court and by an order dated 04.06.2018 the same was allowed, thereby quashing the said order dated 14.12.2017. 9. With a view to discharge the responsibility of a Reviewing Officer, in ensuring the objectivity of the Confidential Reports, where the Reviewing Officer is not sufficiently familiar with the works of a government employee reported upon, so as to be able to arrive at a proper and independent judgment of his won, it should be responsibility of the Reviewing Officer, to verify the correctness of the remarks of the Reporting Officer, after making such enquiries as he may consider necessary and he should also give an opportunity of hearing to the said employee, before recording his adverse remarks. 10. He has submitted that even though the overruling of the remarks of the Reporting Officer, by the Reviewing Authority/ Accepting Authority, shall be taken as the final remarks for the purpose of assessment, but he same must be made consciously, after due and proper application of mind. 10. He has submitted that even though the overruling of the remarks of the Reporting Officer, by the Reviewing Authority/ Accepting Authority, shall be taken as the final remarks for the purpose of assessment, but he same must be made consciously, after due and proper application of mind. In the present case, from a bare perusal of the downgrading of the petitioner as noted in the impugned ACRs of 2017- 2018 and 2018-2019 it would manifestly reveal that there was no such application of mind. He has further submitted that the Complete ACR including the overall grading & assessment of integrity shall be communicated to the concerned government employee for representation and prior thereto, only the adverse remarks in the ACR are required to be communicated for representation. But, in the case of the petitioner no such opportunity was afforded to the petitioner. In view of the same, the downgrading of the petitioner as noted in the impugned ACRs is liable to be set aside. He has further argued that in the case of the petitioner there has been a gross defiance of the settled principles of law and natural justice, and hence, the downgrading of the petitioner as noted in the ACRs are in gross violation of the Constitutional rights of the petitioner, granted under Articles-14, 16, 19 and 311 of the Constitution of India. 11. In view of the above submission, this Court is of the opinion that when an authority take a decision which may have civil consequences and affects the rights of a person, the principles of natural justice would at once come into play. Non-communication of entries in the annual confidential report of a public servant, whether he is in civil, judicial, police or any other service other than the military, certainly has civil consequences because it may affect his chance for promotion or get other benefits. 12. Accordingly, without expressing any opinion on merits, this Court thinks it necessary to remit the matter to the respondent No.3, the Reviewing Officer who shall place the entire materials before the Reporting Officer and on receipt of such information, the Reporting Officer shall evaluate the performance of the petitioner and the Reporting Officer before taking any decision in this regard, shall also give an opportunity to the petitioner to represent his case. The Reporting Officer shall decide the matter and then forward to the Reviewing Officer as expeditiously as possible by following the due process of law. 13. In that view of the matter, the present writ petition stands disposed of. As a sequel, all miscellaneous petitions stands closed.