Vijay Kant Patel vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 802 Del

JUDGMENT

S.B. Sinha, C.J.

1. This writ petition is directed against a judgment and order dated 20.05.1999 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as 'the Tribunal) in O.A. No. 1911 of 1998 whereby and whereunder the application filed by the petitioner was dismissed.

2. At all material times, the petitioner was serving as an 'Assistant Director (Technical)' in the Intelligence Bureau. He filed the original application questioning his Annual Confidential Report (in short, 'ACR') for the period April. 1995 to March, 1996, which is to the following terms:-

"Memorandum

The following remarks have been recorded in your ACR for the period April '95 to March '96.

(i) Your knowledge of work and analytical ability are adequate: you communicate effectively you show good judgment in presentation of cases; you are fairly resourceful, responsible, motivated and professionally competent and your overall performance has been rated as good.

(ii) However, it has been observed that there are often strains in your relations with colleagues and subordinates and some of the latter apparently suffer from low morale and that there is scope for improvement on your part in the sphere of inter-personnel relations.

2. These remarks are communicated to enable you to overcome the shortcoming in future. It is hoped that you will take these remarks in the right spirit and show improvement in your performance. If you wish to make any representation in this regard, the same may be addressed to the competent authority through proper channel within one month from the receipt of this memo. Two spare copies of this memo are enclosed. These copies may please be returned after acknowledging the receipt of this memo thereon.

3. It may be noted that as per Government instructions on the subject, only one representation against adverse remarks is allowed within one month from the date of communication of such remarks and no memorial or appeal rejection of the representation is allowed six months after rejection. It has also been clarified by the DP&T vide their U.O. note No. 2021/91(5) that no appeal rejection of a representation by the competent authority lies to an authority within the department.

Sd/-

(Anjan Ghosh) Joint Director Sri V.K. Patel Asstt. Director (Tech) SIB Srinagar."

3. The contention of the petitioner is that the said ACR was recorded without giving him any prior warning or advice to correct himself and he had also not given any opportunity of hearing in this behalf. It is not in dispute that as against the said purported adverse remarks, the petitioner made a representation, which was rejected. His appeal to the President of India was also rejected, vide an order dated 16.02.1998, by the Competent Authority.

4. The learned Tribunal in its judgment dated 20.05.1999 held:-

"... There would have been no occasion for the communication from the Reporting Officer if the applicant had not been duly warned about his conduct. Since the letter in point of time, was issued by the Reporting Officer, during his reporting period, therefore, the contention that the applicant was given no opportunity to improve his conduct and that he was not warned to improve, cannot be sustained."

5. Mr. Trivedi, the learned counsel appearing on behalf of the petitioner, inter alia submitted that the petitioner has been denied promotion only because of the said ACR.

6. In view of the aforementioned ACR, the learned counsel would contend that only a verbal warning was given to the petitioner, but in terms of the guidelines issued from time to time by the Government of India, it was obligatory on the part of the respondent to give him a prior advice and warning.

7. The ACR is to be read as a whole. No mala fide had been attributed as against the Reporting or Reviewing Officer by the petitioner. It is not in dispute that an oral warning was given to the petitioner and the overall performance has been graded as 'Good' and he has been described as good in presentation of cases, fairly resourceful, responsible, motivated and professionally competent officer. It was further recorded that the Reporting Officer had been very fair and objective in recording remarks. Thus, there cannot be any doubt that the Reporting Officer had acted very fairly and objectively in reporting the remarks of the petitioner. The remarks, therefore, in our opinion, should be construed to be corrective in nature, instead of adverse in nature.

8. It is also not in dispute that the petitioner preferred internal remedies also and the concerned authorities must have considered the same in their proper perspective. If the petitioner had not been promoted, he should have questioned the same before the Tribunal, but having regard to the fact that the ACR cannot be said to be overall adverse, we are of the opinion that no case has been out for interference with the impugned judgment.

9. Mr. Trivedi has relied upon a decision of the Apex Court in M.A. Rajasekhar v. State of Karnataka and Anr. Therein adverse remarks to the effect that the concerned employee "does not act dispassionately when faced with dilemma" without giving specific instances of working unsatisfactorily and without according any opportunity to correct himself was held as illegal. Such is not the position here. So far as the overall performance of the petitioner is concerned, the same has been held to be 'Good'.

10. For the reasons aforementioned, we do not find any merit in this writ petition, which is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no orders as to costs.