CENTRAL ADMINISTRATIVE TRIBUNAL
BOMBAY BENCH, MUMBAI.
ORIGINAL APPLICATION NO: 265/2011
Dated this __________ the ____day of
April, 2012
CORAM: HON'BLE
SMT. LEENA MEHENDALE, MEMBER (A)
Shri Mahesh Kumar Agarwal
R/at 1/8 Railway Officers
Quarters, Nesbit Road,
Mazgaon, Mumbai 400 010. ... Applicant
(By Advocate Shri S.V. Marne)
VERSUS
1. Union
of India, through
The
General Manager,
Central
Railway, HQ office,
Mumbai
CSTM, Mumbai 400 001.
2. The
Chief Operations Manager,
Central
Railway, HQ Office,
Mumbai
CSTM, Mumbai.
3. Mr.
Brijendra Kumar,
Sr.
DCM, West Central Railway,
DRM
Office, Jabalpur, M.P.
4. The
Chief Transport Planning
Manager,
Central Railway,
CSTM,
Mumbai. ... Respondents
(By Advocate Shri V.D. Vadhavkar)
O R D E R
This
OA is filed on 03.03.2011 with a prayer to expunge the entries of
"Average" against the 9 attributes in the ACR of the applicant for
the year 2006-07 and also for expunging the remark by accepting authority
"Not Fit For Promotion". A
further prayer is made to upgrade the remarks to that of "Very Good".
2. It
is stated in the OA that the adverse entries for the year 2006-07 were
communicated to him by letter dated 04.10.2007 at Annexure A-1. He represented against it on 14.11.2007,
Annexure A-7 and the same was rejected by a detailed order date 19.01.2008,
Annexure-A/2 by one Shri Vinay Mittal, COM.
One of the grounds for turning down the request to expunge the remark of
"Average" was that "it is not an adverse
remark". However, at the
time of holding of DPC for promotion to the post of Junior Administrative
Grade, the applicant was again communicated on 19.7.2010 (Annexure-A/8) the
said ACR for the year ending 31.3.2006, 07 and 2008 on the ground that the said
ACR is adverse to the applicant as the same is below the benchmark. The representaton made by the applicant
against the said ACR grading was also rejected by Respondent No.2 by order
dated 18.10.2010.
3. The
applicant has claimed that first of all, the Reporting Officer has written
"Average" against 9 of his attributes including General Assessment
without any supporting material facts and in disregard to the Rules. He also avers that the Reporting Officer had
kept the ACR pending for more than 3 months and when he wrote that the
report, he had already become biased and
revengeful because in the intervening period, the applicant who was also acting
as an Enquiry Officer in respect of yet another officer, did not obey the oral
wish expressed by the Report Officer of coming up with harsh report. The applicant claims that the Reporting
Officer was guided by by this fact and hence, with a biased approach, he has
given "Average" ACR.
4. He
further claims that Respondent No.4, who was the Reviewing Officer, has merely
agreed with the remarks of the Reporting Officer (Annexure-R/3). But, the Accepting Authority, namely,
Respondent No.2, has gone one step ahead and mentioned that the applicant was
"not fit for promotion". This
is against para 3.11 of the ACR Rules, as, it is obligatory on the part of the
Accepting Authority to clearly point out the material and factual deficnency on
the working of the applicant for which he was declared "Unfit". The applicant claims that there was no
communication to him that he was adjudged as "Unfit for promotion" by
the Accepting Authority.
5. The
respondents have prayed for the dismissal of the OA on the grounds that:
(a) The 1st communication of
"Average" dated 4.10.2007, the applicant's representation dated
14.11.2007 and the reply of the authorities dated 22.1.2008 is one set of
papers that has reached finality by the last communication dated 22.1.2008,
wherein it was informed that Average is not adverse". If aggrieved, the applicant should have
challenged it in 2008. The applicant
cannot agitate the rejection of his representation order dated 22.1.2008 in the
year 2011. It becomes time barred.
(b) The remark of the Accepting Authority, viz.,
"Not Fit for Promotion" (When written and when
communicated?).
(c) The remark "Average" being below benchmark, the DPC is entitled to
refuse promotion for the reason of "Average" ACR and hence, there is
no need to modify the decision of the DPC.
(d) The
representation of the applicant dated 23.7.2010 (Annexure-A/9), which was made
after he learnt about the DPC's view on his promotion, was rejected by the
competent authority by their letter No.CON/ COM/APAR-2010, dated 18.10.2010
(Annexure-A/3). This decision of the
administrative authority is final since it does not have to be a detailed
speaking order.
(e) The
respondents quoted the decision of the
Hon'ble Supreme Court in the case of Namboodri, wherein it is stated that the
Tribunal cannot sit over the decision of the administrative authorities who are
best judge of the performance of the applicant.
Speaking order in deciding such representation is not necessary.
6. I
find that Annexure A-1, dated 4.10.2007, which is the 1st
communication to him states as below:
"Sub: Annual Confidential Report for the year ending 31.03.2007.
-
- -
The following remarks have been
recorded in your Annual Confidential Report for the year ending 2006-07.
Sr. Item Remarks
No.
i.
Attitude towards work – Dedication Average
motivation, commitment to objectives
willingness to learn and systematse work.
ii.
Decision making ability and judgement - Average
Insight and ability to weigh pros and cons
and take decisions.
Iii. Initiative – Capacity and
resourcefulness Average
in planning and handling unforeseen
situations, willingness to take additional
responsibility and new areas of work.
iv.
Ability to guide, inspire and motivate Average
Capacity to guide, motivate, review
performance, obtain willing support
by own conduct and to inspire
confidence.
v.
Communication skill (written & Oral) Average
Ability to formulate and present facts,
conciseness and persuasiveness.
vi. Safety Consciousness Average
vii.
Approach
to Customers Average
viii.
Human
Resource Development Average
ix. Cost and Expenditure Control
Average
The above remarks are being conveyed
to you, not to discourage you but to enable you to overcome your short-comings
and improve your performance."
7. Thus,
it is very clear that in 2007, he was neither told about the remarks of the
Accepting Authority, nor given a chance to represent against it. Any authority who is responsible to maintain
the custody of the ACRs is fully aware that all the adverse remarks, including
the remarks given by the Reviewing and the Accepting Authority are to be communicated. It is clear that the same was not done in
2007, thus, denying him a chance for making a timely representation. It is also clear that the remark of the
Accepting Authority is definitely an adverse remark, even though the
respondents may hold a view that the adverse remarks given by the Reporting
Officer were not adverse.
8. The
applicant has apparently taken the plea of bias that could have been shown by
the Reporting Officer against him and the said averment is not denied by
Respondent No.3 that the Reporting Officer, who has been impleaded by name in
the case, nor by the respondents. Even
though, in his representaton dated 14.11.2007, the applicant made an allegation
of bias shown by the Reporting Officer, the same has not been denied by the
Respondent No.3. In his comments dated
26.8.2010, to the department, the Reporting Officer did mention that average
performance were substantiated by documentary proof. However, nothing has been mentioned in the
ACR. The theory that the applicant had
shown indisciplined behaviour has been raised by Respondent No.3 as an
afterthought in his comments dated 26.8.2010, because nothing has been stated
in the ACR itself. The most important
fact is that the Reporting Officer has not given any oral or written warning to
the applicant during the entire period.
As per the rules regarding writing of ACR, adverse remarks are to be
made only if no appreciable improvement is seen despite giving memo or letters
in writing or warning or reprimand, etc.
It is argued by the applicant that when no such memo was given to him
throughout the yer, thereafter, his performance cannot be adjudged as adverse.
9. I
have gone through all the documents filed by both sides and considered the
arguments of both the learned counsel.
10.
The
crux of the matter is that a performance report which is below benchmark, must
be communicated in time. Here, the fact
about the average ranking given by the Reporting Officer was communicated along
with an observation that the same was communicated only for the purpose of
bringing improvement. If that be so,
then, it is not understood as to why the Respondent department felt it
necessary to once again communicate to him by letter dated 14.7.2010 and that
too, when DPC was due to consider all cases of promotion. Further, a perusal of Annexure-A/1, which is
a communication from Shri Vinay Mittal, COM, shows that only the average
remarks of the Reporting Officer in respect of the 9 attributes was
communicated along with an apparently advisory paragraph which stated:
"The above remarks are being conveyed to you, not to discourage you
but to enable you to overcome your short-comings and improve your
performance."
Annexure-A/5, shows that adverse
remarks were written by the Accepting Authority Shri R.N. Verma on
14.9.2007. It is an adverse remark
though only consequential to the remarks of the Reviewing Officer and should
have been communicated. As such, non
communication of the same in time in october, 2007, must be treated as
irrelevant for the purpose of DPC.
11.
The
prayer of the applicant has 4 parts, namely,
(a) to expunge the average remark against the 9
attributes quoted above.
(b) to expunge the remarks of the Accepting
Authority saying "Not Fit for Promotion".
(c) improve the overall grading to "Very
Good"
(d) Give consequential benefits commensurate with
the Grading of "Very Good".
12. However,
from Annexure-A/8, it is seen that on 19.7.2010, the applicant was informed
about 3 consecutive ACRs ending March, 2006, March, 2007 and March, 2008. Since, he was asked to represent, it can be
inferred that they had pointed out at some deficiencies. The applicant has not annexed the enclosures
that he has received along with Annexure-A/8 for those 3 years. Hence, I will be limiting my observation only
to his ACR for the year 2006-07, which he has impugned and his prayer also
pertains only to this ACR. While Shri
Vinay Mittal, COM, has been careful to give a detailed reply to his
representation on 19.1.2008 (Annexure-A/2), he has not answered anything about
the issue of bias raised by the applicant.
Even on the subsequent occassion in 2010, the applicant represented on
the ground of bias by the Reporting Officer and the same has once again been
ignored while answering his representation.
13. Furthermore,
the 2nd request of the applicant, definitely as merit as it was not
communicated at all in time, but, was communicated in 2010 only with a view to
stall the promotion of the applicant.
Hence, it must be said that the decision of the DPC of 2010 must be
reviewed to the extent that the report for the year 2006-07 must be ignored and
the report of the previous relevant year should be taken into
consideration.
14. In
view of the above, I agree with the applicant's prayer to the extent of part A
& B above. However, I cannot agree
with part 3, which is a prayer to improve his overall grading to Very
Good. It can be upgraded to Good. However, since even Good will fall below the
benchmark and considering that his representation was not fully considered on
the question of bias. I further direct
that the ACR for the year 2006-07 must be ignored and all promotions of the
applicant should be decided on the basis of other available ACRs.
15. As far as the consequential benefits are
concerned, they will depend upon the outcome of the DPC in which the ACRs other
than for the year
2006-07
will be taken into consideration. The
respondents should complete the necessary exercise, if any, within 3 months.
16. With
these directions, the OA is disposed of.
No order as to costs.
(Smt. Leena Mehendale)
Member
(A)
dm.+psp.
CENTRAL ADMINISTRATIVE
TRIBUNAL
BOMBAY BENCH : MUMBAI
---
Dated
: 20.04.2012.
To
The
Head of Department,
CAT,
Bombay Bench.
Sir,
I
have prepared the judgement in OA No. 2652011.
Kindly authorise any Member of CAT, Bombay Bench to pronounce the same
on my behalf.
(LEENA
MEHENDALE)
MEMBER (A)
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