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S.S. Chawla v/s Union of India, Through the Secretary, Ministry of Urban Development, New Delhi & Others

Company & Directors' Information:- URBAN DEVELOPMENT CORPORATION PRIVATE LIMITED [Active] CIN = U45400MH2011PTC300616

Company & Directors' Information:- URBAN DEVELOPMENT CORPORATION PRIVATE LIMITED [Active] CIN = U45400WB2011PTC166069

Company & Directors' Information:- L R CHAWLA AND COMPANY PRIVATE LIMITED [Active] CIN = U45200MH1974PTC017262

Company & Directors' Information:- URBAN NEW PRIVATE LIMITED [Active] CIN = U74999TG2020PTC140084

Company & Directors' Information:- R K URBAN DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U45400MH2011PTC223591

Company & Directors' Information:- AMP URBAN INDIA PRIVATE LIMITED [Active] CIN = U45400WB2011PTC164960

Company & Directors' Information:- A. B. URBAN DEVELOPMENT PRIVATE LIMITED [Strike Off] CIN = U70100MH2015PTC267677

    Original Application No. 263 of 2017

    Decided On, 03 December 2019

    At, Central Administrative Tribunal Guwahati Bench Guwahati


    For the Applicant: Kankan Das, Advocate. For the Respondents: A. Thakur, Advocate.

Judgment Text

N. Neihsial, Member (A).

1. The applicant has filed this O.A. under Section 19 of the Administrative Tribunals Act, 21985, with the following reliefs:-

“In view of the facts as mentioned in para 4 above, the applicant prays that this Hon’ble Tribunal may be pleased to:-

(a) Set aside the impugned order dated 04.06.2016 (Annexure-1) and 14.03.2017 (Annexure-Q) passed by the Respondent No.2.

(b) Declare downgraded grading o APAR for the period from 01.11.2014 to 31.03.2015 (annexure-D) malafide this unlawful and thereafter quash and set aside.

(c) Quash and set aside the below bench mark grading of APAR for the period from 01.04.2015 to 09.06.2015 (annexure-M).

(d) After quashing and setting aside the gradings of both APARs direct to Respondent No.2 to consider the APARs grading given by the ROI for the period of 01.04.2014 to 31.03.2015 to Applicant. (Annexure-D&M).

(e) Direct to Respondent No.2 to upgrade the grading APARs for the period from 01.11.2014 to 31.03.2015 and 01.04.2015 to 29.06.2015 from C (Good) to A (outstanding).

(f) After quashing and setting aside the grading of both APARs direct to Respondent No.2 pay the performance Related Pay based of respective grading of APARs.

(g) Direct the Respondents to grant interest @ 12% per annum till payment of Performance Related pay.

(h) Pass any such further order or direction as deemed fit proper I the facts and circumstances of the case”.

2. Learned counsel for the applicant prays for reliefs with legal provisions as under:-

5.1 Because the action of RO2/AA by way of downgrading the APAR for the period from 01.11.2014 to 31.03.2015 is in violation of Articles 14, 16 & 21 of the Constitution of India for denying the applicant equality before the law.

5.2 Because the copy of APAR, dated 26 October 2015 it was seen that the (Reporting Authority) ROI of the applicant had given overall grading A (Outstanding) with excellent marks in various attributes of the ACR for the period of 01.11.2014 to 31.03.2015. It is to submit that RO2/AA had also agreed that applicant is having knowledge of rules, regulations, procedures and its application, effectiveness in subordinate development and team building, job knowledge etc. Despite of RO2/AA had downgraded the APAR from 01.11.2014 to 31.03.2015 from A (Outstanding) to C (Good) grading was only to create obstacles and not allow a public servant to discharge his duties fearlessly by keeping interest of Corporation viz Respondent No.2 uppermost and not allow the public money to be embezzled by the fraudulent means by stealthily paying excess rates to the private contractor. Hence downgraded the APAR from A (outstanding) to C (Good) for the period from 01.11.2014 to 31.03.215 by the RO2/AA is not proper and liable to be set aside and quashed.

5.3 Because representation dated 21.12.2015 against downgrading of APAR for the period from 01.11.2014 to 31.03.2015 from A (Outstanding) to C (Good) by RO2/AA of Respondent No.2. It is to submit that in self-appraisal report, applicant had clearly stated that all the targets which were fixed by the RO1 during the period when his APAR was drawn, were duly achieved by Applicant, therefore, there was no shortfall of any kind on the part of applicant. It is so to submit that the ROI had fully agreed with the targets, objectives which were achieved by then Applicant and in fact on an objective analysis of the performance of the applicant, the ROI graded him as “A’ (Outstanding). On the face of it, the RO2/AA without giving the weight–age to the grading as assessed by the ROI downgraded him, by rating applicant as ‘C’ (Good). The representation dated 21.12.2015 rejected by the respondent No.2 vide his letter dated 08.02.2016 (received on 18.04.2016). The rejection of representation is absolutely non-speaking decision in a mechanical manner. Issuing authority had failed to deal with and reply to the specific points raised by the applicant in his representation regarding downgrading of APAR for the period from 01.11.2014 to 31.03.2015. Hence liable to be set aside and quashed.

5.4 Because, applicant had also made his appeal dated 9.05.2016 to the Appellate Authority i.e. the Chairman-cum-Managing Director, against the rejection of applicant representation dated 21.12.2015 but despite of dispose of the Appeal by the General Manager (HRM) who is one rank below of the RO2 has also without application of mine just followed the stand taken by the representing authority rejected his appeal in mechanically manner vide their letter dated 04.06.2016. It also mention that Applicant representation and Appeal petition was disposed of by the same authority. General Manager which is not permissible in the eyes of law. Hence, liable to set aside and quashed.

5.5 Because the applicant had detected the financial irregularity of Rs.2.37 crore with the help of other officials of SBG Office while his posting was at Jaipur. The financial irregularity of Rs.2.37 crore was committed by the Respondent No.2 & 3 by giving undue financial benefit to private contractor. Further recovery of Rs.1.15 crores was also made by applicant from private contractor’s 12th Running Account bill. Therefore, Respondent No.2 & 3 did not like and they developed a strong bias against applicant and wanted to stifle his voice by downgrading his APARs for the period of 01.11.2014 to 31.3.2015 and 01.04.2015 to 29.06.2015, the manner of downgrading applicant APAR are not proper in the eye of law, hence liable to be set aside and quashed.

5.6 Because, applicant had made his detailed representation before Chief General Manager dated 08.12.2016 against writing of below bench mark for the period from 01.04.2015 to 09.06.2015 but the same was summarily rejected without application of mind by respondent No.2 vide its letter dated 20.12.2016 wherein respondent No.2 did not consider the nothings dated 16.06.2015 that Shri S.S. Chawla AMF has already been looking after all the work of this SBG, Office, Jaipur, made by the ROI, respondent No.4 and further also did not consider general remarks endorsed by ROI on APAR for the period on 01.04.2015 to 29.06.2015 that “he is sincere and intelligent”. Hence liable to be interfered with.

5.7 Because, when an entry is communicated to the public servant he should have a right to made a representation against the entry to the authority concerned and the authority concerned must decide the representation in a fair manner and within a reasonable period in this present case the applicant made a representation dated 08.12.2016 against writing of below bench mark APAR for the period from 01.04.2015 to 29.06.2015 but the same was rejected summarily without application of mind which is honest in the eye of law. Dissatisfied the result, the applicant further made appeal before the Chairman-cum-Managing Director (Appellate Authority) dated 05.01.2017 to the Respondents No.2 but without taking cognizance and put up to Appellate Authority, the appeal had also summarily rejected by the representing authority i.e. Chief General Manager (HRM) vide his letter dated 14.03.2017. It is also mention that the applicant representation 8.12.2016 and Appeal petition dated 5.1.2017 was disposed of by the same authority which not permissible in the eyes of law. Hence, both the orders dated 20.12.2016 and 4.3.2017 are likable to be set aside and quashed.

5.8 Because on 26, October, 2015 vide office memo No.HRM/PMS/2014-15 is the APAR for the period of 01.11.2014 to 31.3.2015 was communicated to the applicant by the respondent No.2 in the meantime 1.4.2015 to 28.6.2015 was over and the 19, October 2016 the Respondent No.2 had communicated the APAR for the period of 01.04.2015 to 29.6.2015 to the Applicant, so it is cleared that the respondents has not communicated the APAR for the period of 01.04.2015 to 28.6.2015 within the reasonable period only observed the formalities. The applicant has served his past as an Asst. Manager (Finance) to the full satisfaction of his superior. The applicant has an unblemished service career and has rendered service to the Government with outmost sincerity, honesty and to the best of his ability and to the satisfaction of all concerned and accordingly applicant was presumed that there was nothing adverse against him till 26th October 2015, if the respondent communicated the APAR entry for the period of 01.11.2014 within reasonable period them applicant would know about the assessment of his work and conduct by his superior which would enable him to improve his work in the later period i.e. 1.4.2015 to 28.6.2015. The manner of communication of the APAR is not proper hence action of the respondent is liable to be set aside and quashed.

5.9 Because during the period of assessment of applicant was given the status of WHISTLEBLOWER by the then Chief Vigilance Officer of Respondent No.2 vide report dated 03.03.2015 and the applicant had been graded ‘A’ i.e. Outstanding for the period 01.04.2014 to 31.10.2014. By which is just prior to downgraded balance period of 01.11.2014 to 31.03.2015 of APAR. Thus there could have been such a steep fall in the performance of the applicant. Even if for a moment if it was presumed that the applicant should have been informed about his drawbacks and given an opportunity to improve upon before downgrading his APAR as per law. Hence liable to be interfered with.

5.10 Because the financial irregularity of RO2/AA, could not be singled out to downgrade the APAR of Applicant specifically when the then CVO of Respondent No.2 had given the status of whistleblower to Applicant. Hence action of the RO2/AA is liable tobe set aside and quashed.

5.11 Because when transfer order of applicant was issued by Respondent No.2 from Jaipur to Mizoram on 15.06.2015, the SBG, Finance Head (RO!), Respondent No.4 of SBG Office, Jaipur had endorsed his remarks on applicant’s application dated 416.06.2015 which are being reproduced below:

“Shri S.K. Vahist, DMF has already been relieved from this office during the month. Since Shri S.S. Chawla AMAF has already been looking after all the work of this SBG Office, Jaipur, hence, his application may please be considered favourably and his services are urgently required”.

3. The Respondent No.2, in the written statement at Para-6 contested that the O.A. is not maintainable because, the applicant has claimed to upgrade the APAR gradings and performance related pay for the period from 01.11.2014 to 31.03.2015 and 01.04.2015 to 29.06.2015 by considering the previous year’s APARs grading i.e. 01.04.2014 to 31.10.2014. They further submitted that Performance Related Pay (PRP) is given to employees of Respondent Company on the basis of their grading in respective Financial Year of APAR. They further submitted that all reliefs claimed regarding APAR for the period 01.11.2014 to 31.03.2015 are time barred as final order on applicant’s appeal has been duly passed by competent authority vide its letter dated 04.06.2016 and present O.A. is presented after one year of the said date of final order.

4. In the rejoinder, the applicant has basically repeated his allegations that the Respondent No.2 is protecting the Respondent No.3 (Reviewing Officer) to encourage for committing the financial irregularities in violation of Central Vigilance Commission Circular No.010/VGL/039/90109 dated 2nd June, 2010.

5. The hearing of the parties was concluded on 30.9.2019. In addition to the hearing given to the parties, the respondents have also submitted written arguments on 23.10.2019. Apart from, the repeating facts of the case, they have brought out that the applicant in his appeal dated 05.01.2017 addressed to the Chairman-cum-Managing Director, has failed to being out/highlight any specific contribution/achievement for the further comments from assessing authorities. His representation dated 05.01.2017, was replied by the CGM (HRM) vide his letter dated 14.3.2017 stating that the assessment in the APAR by various assessing authorities was done, on the basis work, conduct and performance depicted by the employee concerned during the year under report. Previous years APARs are not considered by the assessing authorities while writing the current Financial Year APAR. The applicant was also informed that the APAR assessment for the period from 01.04.2015 to 29.06.2015, the grading, given by the Reporting Authority was maintained by the Reviewing and Accepting Authority and no procedural lapse is observed.

6. The applicant was recruited as Office Assistant in the office of Respondent No.2 on 25.6.1982. He is currently Assistant Manager, (Finance) at Regional Office, Guwahati as on the date of filling this O.A. The basic grievance of the applicant is that the APAR for the period 01.11.2014 to 31.3.2015 was graded as outstanding (A) by his Reporting Officer. This has been downgraded to ‘C’ that is “Good’ by the Respondent No.3, which has been accepted by the Accepting Authority also as ‘Good’. He attributed the downgrading of his APAR, by the Respondent No.3, for his pointing out the financial impropriety in decision making relating to awarding of contact. The applicant attributed that Respondent No.3, victimized him for his upright action by downgrading his APAR. His additional grievance is that the APAR for the period of 01.04.2015 to 29.6.2015 has been given only grade ‘C’ (good) by Reporting Officer, Reviewing Officer and Accepting Officer, due to influence of the Respondent No.3.

7. We have given hearings ot both the parties and carefully gone through the records and submissions made by the applicant as well as by the respondent authorities. His representation dated 21.122.2015 against the down grading of his APAR for the period 01.11.2014 to 31.3.2015 was considered and rejected by the authorities vide their communication No.HRM/PMS/APPRAISAL 14-15/2016 dated 08.02.2016. He made appeal before the Chairman-cum-Managing Director vide his representation dated 09/13.05.2016. This also has been disposed of by the respondent authority vide their letter dated 21.12.2015.

8. We have carefully considered the issue placed before us and grievances raised by the applicant. The issue is basically grading of the APAR. In the context of APAR system, it has to be appreciated that over a period of time, the Government of India has been making modification and improvement in the system and procedure, so as to minimize the chances of subjectivity and bias in the Reporting system. To minimize the scope of subjectivity and bias, a system has been evolved wherein the Reporting Officer can make assessment and grading only if he supervises the work of the Officer for the period of three months or more. Then his report and assessment has to be reviewed by a Superior Officer and considered again and accepted by the higher Superior Officer. This three level systems of assessment is to mini

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mize the subjectivity and bias in the reporting and gradings. Therefore, unless there are gross evidences in the report, an APAR, which has been finalized by the Accepting Authority is considered and taken as fair and objective. The system provides that the assessment and grading of the officer by the Reporting officer can be modified by the Reviewing Officer and further by the Accepting Officer either by upgrading or downgrading. As such, the claim of the applicant that the assessment and grading of the Reporting officer should have been accepted by the Reviewing and Accepting Officer is not maintainable. Therefore, the assessment and gradings given by Reviewing and Accepting officer modifying that of the Reporting Office cannot be particularly faulted under the not existing system of APAR and is not violative of any Rule or guideline. His appeal has also been considered/disposed of by an authority higher than those who are associated with his APAR. 9. As regards the APAR for the period from 1.4.2015 to 29.6.2015, all the 3 authorities that is namely; the Reporting officer, Reviewing Officer and Accepting Authority have given the same grading of ‘Good’ . Therefore, there is no need for further examination for this issue. Moreover, there are no specific evidences or conclusion from any agency which are in supportive of the allegations of the applicant against Respondent No.3 and that could have resulted into possible victimization of the applicant by the Respondent No.3. 10. Considering the above, we find that, the O.A. does not have any merit and liable to be dismissed. Accordingly, O.A. is dismissed. 11. No order as to costs.