Friday, October 11, 2013

bom No.265/2011

bom No.265/2011



Dated this Wednesday the 25th day of April, 2012


Shri Mahesh Kumar Agarwal
R/at 1/8 Railway Officers
Quarters, Nesbit Road,
Mazgaon, Mumbai 400 010.               ... Applicant

(By Advocate Shri S.V. Marne)


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)

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 ACRs 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 representation 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 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 deficiency 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”. It 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 sated 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
i. Attitude towards work-Dedication  Average
motivation, commitment to objectives
willingness to learn and systematse work.

ii. Decision making ability and judgment- Average
Insight and ability to weigh pros and
cons and take decisions.

iii. Initiative – Capacity and             Average
resourcefulness 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 representation 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 year, 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 adverse 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 2006-2007, 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 occasion 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 has 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 ARCs.
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)


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