Delhi High Court
Union Of India And Ors vs Tushar Ranjan Mohanty on 19 February, 2019
$~10.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 19.02.2019
+ W.P.(C) 10816/2016 & CM APPL. 11300/2018
UNION OF INDIA AND ORS ..... Petitioners
Through: Mr. R.V. Singha, Mr.A.S. Singha and
Mr. Amit Sinha, Advs.
versus
TUSHAR RANJAN MOHANTY ..... Respondent
Through: Respondent in person.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE A. K. CHAWLA
VIPIN SANGHI, J (ORAL)
1. The Union of India has filed this writ petition alongwith three other
petitioners, namely, Prof. TCA Anant (Petitioner No.2), Mr. Swapan Kumar
Das (Petitioner No.3) and Mr. A.K. Bhatia (Petitioner No.4) to assail the
order dated 27.11.2015 passed by the Central Industrial Tribunal, Principal
Bench, New Delhi ("Tribunal") in OA No. 1973/2014.
2. Vide the impugned order, the Tribunal allowed the said Original
Application preferred by the respondent-applicant, and held that the Annual
Performance Assessment Report (APAR) of the respondent was vitiated, on
account of lacunae set out in the body of the impugned order. The Tribunal
set aside the adverse APAR of the respondent as recorded by the Accepting
Authority. Petitioner No.2 herein acted as the Accepting Authority. The
Tribunal directed that the remarks recorded by the Reporting and the
Reviewing Authority shall continue to stand.
3. At the outset, we may observe that Mr. Sinha, learned counsel for the
petitioners, has filed this petition with Memo of Appearance on behalf of
Union of India. There is no Vakalatnama filed on behalf of the petitioner
Nos. 2 to 4. The said petitioners were impleaded as party respondents in
their personal capacity in the OA preferred by the respondent, since he made
allegations of personal malafides against the said officers in relation to the
matter of recording of his APAR. Even before the Tribunal, petitioner Nos.
2 to 4 herein, did not appear to defend themselves and did not file any
response. On our query, Mr. Sinha submits that since the petitioner Nos. 2 to
4 were the officers serving at the relevant point of time, Union of India is
entitled to defend their actions.
4. We are afraid that when a party/respondent is impleaded on the
ground of personal malafides, and they are impleaded in their personal
capacity, it is for them to personally defend the allegations made against
them, and the Union of India cannot defend the allegations of personal
malafides, since the Union of India would have no knowledge of such
allegations of personal malafides, and would not be in a position to meet to
same. The Union of India would be justified in defending their conduct as
legal within the framework of the rules and prescribed procedure but,
whether or not, the said conduct is laced with malafides, is an aspect which
the officers concerned must defend on their own.
5. The respondent preferred the OA to seek quashing and setting aside of
adverse comments and below benchmark grading in the APAR for the year
2011-12. He also sought direction that the petitioner Ministry i.e. Ministry
of Statistical and Programme Implementation, should upgrade his APAR for
the year 2011-12, and to grant 10 marks out of 10 to him. He also sought
suitable stricture against respondent Nos. 2 to 4 in the OA i.e. petitioner
Nos. 2 to 4 in the present petition.
6. The Tribunal while allowing the said OA has, in depth, examined the
position with regard to the preparation/recording/completion of APAR as
per the instructions of the DoP&T. The Tribunal framed the following issues
for its determination :
"1. What is scope and purpose of writing APARs?
2. Whether the remarks recorded by the respondents are hit by
time-line prescribed by DOP&T instructions?
3. Whether the remarks recorded in the APAR of the applicant
get vitiated by providing blank form of APAR belatedly to the
applicant?
4. Whether non-delivery of caution to the applicant to maintain
his conduct vitiates the proceedings altogether?
5. Whether the remarks recorded in the APAR of the applicant
are hit by mala fide?
6. What relief, if any, could be granted to the applicant?"
7. The findings returned by the Tribunal in the impugned order in
relation to issue Nos. 2 to 4 are, as follows :
"12. Insofar as second and third of the issues are concerned, it is
true that as per DOP&T OM on the subject, the blank APAR
Form should have been provided to the applicant by 31st March,
2012, if not earlier. However, we also take into account the
argument of the learned counsel for the respondents that the
form had been placed at the website of the department for the
purpose, and, therefore, if for any reason the form could not be
received, the applicant was duty bound to submit his self-
appraisal in time after downloading the blank APAR form from
the departmental website. In any case, it appears that the format
has been signed on 11.04.2012. The applicant has admittedly
submitted his self-appraisal on 15.05.2012, which is late by one
month. However, as it appears from the Chart, the recording of
remarks by reporting, review officers had been done within time.
Now the question arises is as to what prejudice has been caused
to the applicant when both the reporting and reviewing officers
had given 7 and 7.8 to him. Moreover, we take into account that
even if the blank APR Form had not been received by the
applicant, since it was available on website, it could have been
downloaded and submitted by him within the prescribed time
limit. Had he done so, the ball would have rested in respondents'
court. However, if the version of the applicant were to be
accepted, even then he could have submitted the form within
time.
13. Having submitted the self-appraisal late, the applicant
cannot now turn around to say that the entire exercise has been
vitiated by providing the form late to him. As per the remarks of
the accepting authority having received almost one year late, we
note that there is no date given below the remarks of the
accepting authority. It appears from para 3 of the counter
affidavit that the APAR was disclosed to the applicant vide OM
dated 16.12.2013. For the sake of greater clarity, we reproduce
the relevant portion of the same, which reads as under:-
"3. The applicant has made representation on
24.1.2014 (copy enclosed at pages 263-523 of the
OA), whereas the APAR was disclosed to him vide
OM dated 16.12.2013 i.e., much after time line of 15
days of the permissible time limit. The applicant, who
has all along in his representation, has made out a
case of the remarks of Reporting and Accepting
Authority being vitiated one on account of the same
being made contrary to the time line as per the
DOPT's instructions, has himself submitted the
representation after the time limit."
14. From the above, it can be deduced that the accepting
authority had recorded his remarks sometimes between
29.11.2012 and 16.12.2013. We also take note of the argument of
the learned counsel for the respondents that the applicant had
himself submitted his appeal on 24.01.2014. We further find that
there is a representation dated 15.09.2014 on record at page 586
of the paper book. On the other hand, this OA has been filed on
28.05.2014.
15. On the basis of above, we note that the applicant has been
vigilant in exercise of his rights and, therefore, the balance of
convenience must weigh in his favour. In absence of any other
proof on record, we accept that the accepting authority had
recorded his remarks after the statutory period of one month.
At the same time, we also take into account that the remedies
available to the applicant have all been exhausted by him and,
hence, what prejudice may have been caused to the applicant at
this stage is indeterminate. Moreover, this Tribunal, not being
the appellate authority for the remarks, cannot go into the merits
of the remarks but it is only concerned with as to whether the
procedures have been followed correctly and whether any
prejudice has been caused to the applicant on that account.
16. In respect of issue no.4, we take note of the fact that
nowhere does the counter affidavit or the learned counsel for
the respondents specify that when the performance of the
applicant was found wanting, a caution was delivered to him or
he was advised to improve upon his conduct. Therefore, we take
it as an admitted fact that no warning of any kind had ever
been delivered to the applicant prior to downgrading his APAR
particularly by the accepting authority. This, to our mind,
appears to be clearly contrary to the principles of writing
APARs and commenting upon the performance of the employee
concerned. The Hon'ble Supreme Court in Dev Dutt versus
Union of India [2008 (8) SCC 725] has observed as under:-
"8. Learned counsel for the respondent relied on a
decision of this Court in Vijay Kumar vs. State of
Maharashtra & Ors., 1988 (Supp) SCC 674, in which
it was held that an un-communicated adverse report
should not form the foundation to deny the benefits to
a Government servant when similar benefits are
extended to his juniors. He also relied upon a
decision of this Court in State of Gujarat & Anr. vs.
Suryakant Chunilal Shah, 1999 (1) SCC 529, in
which it was held:
"Purpose of adverse entries is primarily to
forewarn the Government servant to mend
his ways and to improve his performance.
That is why, it is required to communicate
the adverse entries so that the Government
servant to whom the adverse entry is given,
may have either opportunity to explain his
conduct so as to show that the adverse entry
was wholly uncalled for, or to silently brood
over the matter and on being convinced that
his previous conduct justified such an entry,
to improve his performance".
On the strength of the above decisions learned
counsel for the respondent submitted that only an
adverse entry needs to be communicated to an
employee. We do not agree. In our opinion every
entry must be communicated to the employee
concerned, so that he may have an opportunity of
making a representation against it if he is
aggrieved."
17. It flows from extension of the principles of natural justice
that before an adverse APAR is recorded, the concerned
employee is required to be called and cautioned since the very
purpose of writing APAR is to bring about improvement in the
performance of the officer reported upon. This, as we have
already noted, is not found to have taken place in respect of the
applicant. The question may now arise as to whether the word
'caution' is confined only to the reporting authority or it shall
apply equally to the reviewing and accepting authorities as well.
To our mind, since both the reviewing and accepting
authorities are recording APAR of the officer reported upon
and the APAR having civil consequences for such officer, they
are in a position to observe the performance of the officer.
Therefore, it was all the more necessary to deliver caution to
the applicant to improve upon his conduct in whatever manner
he may deem fit. Of course, it goes without saying that this need
not be a recordable warning since it would amount to
punishment for which different procedures are to be followed.
In the instant case, as we have stated earlier, this has not
happened. We, therefore, let this issue rest at this point.
(emphasis supplied)
8. On the aspect of malafides, the Tribunal draws a comparison between
the remarks and grading assigned to the respondent by the Reporting
Officer; the Reviewing Authority and the Accepting Authority. The
tabulation set out in the impugned order in this regard, reads as follows :
Remarks of reporting Remarks of reviewing Remarks of accepting
officer with grading authority with authority with
grading grading
Sh. Mohanty is I agree with some In the period under
extremely dynamic remarks given by the report Shri T.R.
and knowledgeable. Reporting Officer in Mohanty DDG was
However, he is the Pen Picture but on compulsory wait
temperamental and not with some from 1.4.2011 till
works according to remarks given by the 04.11.2011, he
his own style which is Reporting Officer. worked as DDG in
little inconvenient at The officer is very RPU for little less
times. He needs to intelligent and quite than 5 months in the
take more interest and meticulous in his year. The reporting
initiative in his work work. The quality of officer has termed
especially as he is output of his work is Shri Mohanty's claim
quite intelligent and very good. He was to of exceptional
has a potential to maintain a strict contribution as
contribute more. He discipline in his exaggerated. He
is also expected to Division. He is very states that his
develop a greater sympathetic towards contribution to SYB
spirit rather than backward section of 2011, SYB 2012 and
following coercive the society and deals the BRICS
techniques to extract with them with care publication as
their cooperation. It and affection. insignificant. He
will help in optimizing Grading : 7.8. states that Mr.
overall output. Mohanty is
temperamental and
Grading: 7.0 - Very works according to
Good. his own style which is
a little inconvenient
at times. He also
would like him to
develop greater
learning spirit. I
agree with his
observations. Shri
Mohanty though
intelligent and quite
knowledgeable he
needs to be systematic
in his work and
develop the quality of
an effective leader.
Overall, I would rate
his work and
competency as
'Good" Grading: 5.
The Tribunal also tabulates the time line in which the procedures for
recording of the APAR in question were followed, or not followed. This
tabulation reads as follows:
Sl.No. Nature of Action Date by which Actual date on
to be completed which completed.
1 Distribution of blank 31st March, Not provided.
CR to the concerned 2012 (this may
employee for self- be completed
appraisal. even a week
earlier)
2 Submission of self- 15th April, Submitted on
appraisal to Reporting 2012 15.05.2012.
Officer to be reported
upon
3 Submission of report by 30th June, 30th August, 2012
reporting officer to 2012.
Review officer
4 Report to be completed 31st July, 2012 29th November,
by Reviewing Officer. 2012
5 Appraisal by accepting 31st August, No date
authority, wherever 2012 mentioned
provided.
9. The Tribunal also takes note of the earlier order passed by it in OA
No.52/2018 decided on 25.08.2015, wherein similar allegations of malafides
had been made by the respondent against the very same Officers. In that
decision, the allegations of malafides were held to be not substantiated. The
Tribunal then goes on to observe that in the facts of the present case, there
are two other factors which lead to an inference of malafides. These factors
are - the departure in showing the APAR to the respondent as per the
prescribed procedure, and no recordable warning was delivered to him. The
Tribunal goes on to observe that 'Whenever something is done out of course
and sufficient explanation is not forthcoming, it is an indication of
malafides. Therefore, in the instant case also, we find the malafides inferred
from the unbroken chain of incidents'.
10. The Tribunal observed that the signatures of the respondent are
missing below the remarks of the Accepting Authority, which shows that
either the procedure prescribed has not been complied with, or, that the
remarks were not accepted by the Accepting Authority within the stipulated
period of one month. The Tribunal also observed that it was only on
16.12.2013, that the remarks were formally communicated to the respondent
i.e. well beyond the period of one month. The conclusion drawn by the
Tribunal in the impugned order reads as follows :
"24. In conclusion, we hold that the purpose of recording APAR
is reformative one to bring about improvement in future conduct
of the employee concerned, but the allegation of mala fide is not
found to be substantiated against the respondent no.2. However,
we have found that the remarks were not recorded by the
accepting authority within a period of one month and the
requirement of APAR in the form of a Certificate by the officer
reported upon has also not been complied with. Further, we do
not find anywhere nor has it been asserted by the respondents
that the applicant had been advised to improve upon his future
conduct. Therefore, we have no option except to hold that the
requirement of APAR as laid down in law has not been complied
with. We have already referred to the decision of the Hon'ble
Supreme Court in Dev Dutt Versus Union of India (supra) which
makes recording of APAR subject to rules of principles of natural
justice and its reformative purpose."
11. The first submission of Mr. Sinha is that the respondent had preferred
his statutory remedy of an appeal against the recording of the APAR on
24.01.2014. Without waiting for a decision on the said appeal, he preferred
the OA on 28.05.2014 i.e. within a period of four months. He submits that
during pendency of the Original Application it was informed to the
respondent that the Minister-in-charge had disposed of his appeal on
14.10.2014. He submits that the APAR of the respondent, as recorded,
merged in the Appellate order, and the Appellate's order was not challenged
before the Tribunal. He submits that the filing of the Original Application
itself was pre-mature, and the Tribunal ought not to have entertained the
same.
12. On the other hand, Mr. Mohanty points out that the schedule
prescribed in the APAR form shows that the appeal/representation against
the recording of the APAR has to be disposed of by the Competent
Authority within one month from the date of the receipt of representation.
Thus, on the expiry of one month of making of the said
representation/appeal on 24.01.2014, the cause of action arose in favour of
the respondent and the respondent was justified in approaching the Tribunal
without any delay.
13. We find that the Tribunal has negated this argument of the petitioner-
Union of India by placing reliance on Section 20 of the Administrative
Tribunal Act, 1985, which provides that the period of six months provided
under Section 20(2)(b) is not mandatory in all cases, and power is vested in
the Tribunal to take up an OA even earlier, since the word used in the said
Section is "Ordinarily". It is clear that the representation/ appeal was
required to be disposed of within a period of one month of the same being
made, and since more than four months had elapsed from the time when the
respondent made representation on 24.01.2014, in our view, the approach of
the respondent to the Tribunal on 28.05.2014 cannot be labeled as pre-
mature.
14. Other aspect that may be noticed, and is relevant for this purpose, is
that the allegations of the applicant were those of malafides against the
private respondents. That being the position, the Appellate Authority may
have had limited role in the matter. As a matter of fact, the Appellate
Authority rejected the representation/appeal by observing that since he was
not the incumbent Minister at the relevant point of time, he cannot take a
view in the matter. This submission of Mr. Sinha is therefore, rejected.
15. Mr. Sinha has argued that the allegations of malafides against
petitioner nos. 2 to 4 were sketchy, and the Tribunal was not justified in
inferring malafides against them while passing the impugned order.
16. We called upon the respondent to draw our attention to the averments
made in the OA alleging personal malafides against petitioner nos. 2 to 4
herein. We find that there are no specific averments of personal malafides
made against petitioner nos. 2 to 4, and no incident has been pointed which
could have triggered the souring of the relationship between the respondent
and the said officers, which could lead to their acting with a bias, or
malafide, against the respondent. Thus, we agree with the submission of
Mr.Sinha that the inference of personal malafides drawn against petitioner
nos. 2 to 4 may not be justified, merely because their conduct in the matter
of recording APAR of the respondent was found to be irregular. To that
extent, we set aside the findings of the Tribunal.
17. The Tribunal, as noticed above, has in depth gone into the procedure
prescribed, and the procedure adopted in the case of the respondent in
recording his APAR and found that there has been serious breach of the
same by the Accepting Authority. Mr. Sinha has not been able to attack the
findings of the Tribunal on these aspects, which are a matter of record. That
being the position, the relief granted by the Tribunal to the respondent, in
our view, is completely justified and cannot be questioned. Accordingly,
while upholding relief granted to the respondent, we set aside the findings of
personal malafides returned by the Tribunal against petitioner no.2 Prof.
T.C.A. Anant.
18. Petition stands disposed of in the above terms.
VIPIN SANGHI, J
A. K. CHAWLA, J
FEBRUARY 19, 2019
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