$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 9544/2018 & C.M.Nos.37135/2018, 16701/2019 Date of Decision:-
"01.05.2019 TUSHAR RANJAN MOHANTY ........ Petitioner
Through... Petitioner
-in-person. versus UNION OF INDIA AND ANR. ..... Respondent Through Mr.R.V.Sinha, CGSC and Mr.Arun Bhardwaj, CGSC. CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI HON'BLE MS. JUSTICE REKHA PALLI VIPIN SANGHI,J (ORAL) 1. The petitioner, who appears in person, assails the order dated 07.08.2018 passed in OA No.4218/2015 by the Principal Bench, Central Administrative Tribunal, New Delhi (hereinafter referred to as „Tribunal‟), whereby the said Original Application (O.A.) preferred by him was dismissed. The petitioner had filed the O.A. being aggrieved by the recording of his Annual Performance Appraisal Report (APAR) for the period 01.04.2012 to 31.07.2012. His representation against the same was rejected by the respondents, which rejection was also assailed by him before the Tribunal.
2. The case of the petitioner is that during the relevant period, the Reporting Authority had, after giving his remarks, awarded a final grading of 7 out of 10 to him in his APAR, which grading is W.P.(C) 9544/2018 Page 1 of 16 equivalent to „Very Good‟. The Reviewing Authority, in fact, upgraded his grading to 7.8, which is also equivalent to „Very Good‟, while obliterating some of the remarks made by the Reporting Officer. The Accepting Authority, while agreeing with the remarks of the Reporting Authority, went on to take note of the alleged misconduct on the petitioner‟s part and the censure awarded to him by the Disciplinary Authority, on 31.08.2013, pursuant to a minor penalty charge-sheet issued to him on account of alleged violation of Rule 3(1)(iii) of the CCS Conduct Rules, 1964. The Accepting Authority, therefore, downgraded the petitioner‟s overall grading to 5 out of 10, which is graded as „Good‟, which grading is below the benchmark for his consideration for promotion.
3. Being aggrieved by his below benchmark APAR, the petitioner made a representation to the respondent on 30.01.2014 which remained unanswered and he, therefore, preferred an O.A. before the Tribunal being O.A.No.2096/2014. On 14.10.2014, during the pendency of the OA, the petitioner‟s aforesaid representation was rejected, which rejection was quashed by the Tribunal, vide its order dated 20.08.2015, and the matter was remanded back to the Appellate Authority for re-consideration of the petitioner‟s representation. The order of the Tribunal was impugned before this Court by the petitioner in W.P.(C) No.9319/2005, wherein, vide its order dated 29.09.2015, this Court had directed the Appellate Authority to decide the petitioner‟s representation within one month, after giving him a personal hearing. On 10.11.2015, the Appellate Authority, i.e., the Hon‟ble Minister concerned, had, after granting a personal hearing to W.P.(C) 9544/2018 Page 2 of 16 the petitioner on 09.11.2015, rejected his representation by observing that no injustice had been done to him. This led to filing of the O.A. in which the impugned order came to be passed.
4. Mr.Mohanty, firstly draws our attention to the remarks and the grading given by the Reporting Authority, the Review Authority and the Accepting Authority, which read as under:-
"Reporting Officer remark:-
"“ Sh. Mohanty is an extremely intelligent and a dynamic officer. However, he is quite temperamental and works according to his own style which is a little inconvenient some times. He needs to take more interest and initiative and be more systematic in his work plan especially he has the potential to contribute more effectively. He is also expected to develop a greater team spirit rather than using coercive authority to seek their cooperation. A greater involvement in work planning and execution altogether, conscious efforts to take his team along can help in optimizing output.'' Final grading given by the Reporting Authority = 7.0 Reviewing Authority remarks:-
"" I agree with some remarks given in the pen picture by the Reporting Officer and not with some remarks given by the Reporting Officer. He is extremely intelligent and meticulous in his work. The quality of output of his work is very good. He tries to maintain a strict discipline in his Division. He is very sympathetic towards backward section of the society and deals with them accordingly."
Final grading given by the Reviewing Authority = 7.8 Accepting Authority remarks:-
"'' Shri T. R. Mohanty, DDG, worked as DDG in the R.P. Unit. The reporting officer has not agreed with Shri Mohanty‟s claim of exceptional contribution nor was he W.P.(C) 9544/2018 Page 3 of 16 aware of any initiative by him in the area of statistical auditing. He also notes that Shri Mohanty is quite temperamental and works according to his own style which is a little inconvenient at times. He points out that he is expected to develop a greater team spirit rather than coercive authority. I generally agree with the import and substance of the assessment made by the reporting officer. It should be noted that Shri Mohanty by appearing in CAT on 11/4/2012 violated the provisions 3(l)(iii) of CCS Conduct Rules and was issued a minor penalty charge sheet which led to the issuance of CENSURE by the Disciplinary Authority on 20/8/2013."
(emphasis supplied) Overall grade by the Accepting Authority = 5 The submission of Mr.Mohanty is that a perusal of the remarks 5. given by the Accepting Authority would show that he has mirrored the remarks of the Reporting Authority and, therefore, there was no reason to give the petitioner a grading of 5 out of 10, when the Reporting Officer had given him a grading of „7‟ in his APAR. He submits that the only discernible reason for the said grading is the additional factor noted by the Accepting Authority w.r.t. the minor penalty charge-sheet issued to him on account of his alleged violation of Rule 3(1)(iii) of the CCS Conducts Rules, which led to the issuance of a censure to him by the Disciplinary Authority on 20.08.2013. Mr.Mohanty points out that the said censure was quashed by the Tribunal vide its order dated 11.12.2013 in O.A.No.2837/2013, while the charge-sheet itself was quashed by the Tribunal vide its order dated 29.06.2015 in O.A.No.502/2013.
6. Mr.Mohanty submits that the respondents have accepted the decisions of the Tribunal in the aforesaid cases and, as a consequence, W.P.(C) 9544/2018 Page 4 of 16 not only the penalty of censure, but even the charge-sheet issued to him, do not survive. He, thus, submits that the evaluation made by the Accepting Authority cannot be sustained in so far as the down- grading of his APAR is concerned. He submits that even if the view of the Accepting Authority were to be accepted, inasmuch as he agreed with the views and grading of the Reporting Authority, he should be graded as 7 out of 10 i.e. „Very Good‟, which is above the benchmark for consideration for promotion.
7. Mr.Mohanty further points out that the Accepting Authority has not appended any date in relation to his assessment. He also points out that even though the penalty of censure had been quashed on 11.12.2013, the remarks of the Accepting Authority were only communicated to him on 14.12.2013. Thus, even before the petitioner‟s grading was communicated to him, the respondents were aware of the decision of the Tribunal rendered on 11.12.2013, yet they did not seek to amend the grading made by the Accepting Authority.
8. Mr.Mohanty submits that even the order passed by the Appellate Authority is completely non-speaking, and does not at all take into consideration the aforesaid aspect, namely, the quashing of both the censure and the charge-sheet by the Tribunal.
9. Mr.Mohanty submits that in respect of the period immediately preceding the period of the impugned APAR, i.e., 04.11.2011 to 31.03.2012, the same set of Reporting Officer, Reviewing Authority and Accepting Authority had written the APAR of the petitioner. A comparison of the remarks and gradings given to him during the said period shows that they are more or less identical to the remarks and W.P.(C) 9544/2018 Page 5 of 16 gradings given by the said authorities for the period in question i.e. 01.04.2012 to 31.07.2012. He submits that previously, he had assailed this below benchmark grading given to him by the Accepting Authority in his APAR for the period 04.11.2011 to 31.03.2012 before the Tribunal in a separate O.A. being O.A.No.1973/2014. The said O.A. of the petitioner was allowed by the Tribunal on 27.11.2015 and the writ petition preferred by the respondent, i.e., W.P.(C) No.10816/2016, stands dismissed by this Court on 19.02.2019. Consequently the downgrading of the APAR for the earlier period i.e. 04.11.2011 to 31.03.2012 by the same set of officers has already been set aside. Mr.Mohanty submits that the same lacuna, as was found by the Tribunal in O.A.No.1973/2014 in the matter of recording of his APAR for the earlier period, i.e., 01.04.2012 to 31.03.2012, exists in the recording of the present APAR, i.e., for the period 04.11.2011 to 31.07.2012. He contends that, on parity of reasoning, the present APAR is also liable to be quashed.
10. The petition is opposed very vehemently by Mr.Sinha as well as by Mr.Bhardwaj. One of the grievances of Mr.Sinha is that the petitioner has filed a very large number of O.A.s and writ petitions and it is not easy for the respondents to monitor and contest all of them. Another grievance is that the petitioner is in the habit of filing voluminous pleadings and documents.
11. In this regard, we are in no position to help the respondents. If the petitioner, or for that matter any litigant, has a legitimate cause of action, he is, indeed, entitled to ventilate the same. It is pointed out by the petitioner that in most of his proceedings against the W.P.(C) 9544/2018 Page 6 of 16 respondents, conducted either before the Tribunal or this Court, he has succeeded. We are of the view that each case has to be dealt with on its own merits, and merely because other petitions have been filed by the petitioner, which are either pending or have been disposed of, is no reason for the respondents‟ inability to monitor or deal with specific cases taken up by the Tribunal/Courts.
12. Mr.Sinha further submits that, even otherwise, there is no infirmity in the impugned order. He submits that when the Accepting Authority made his remarks in relation to the issuance of a minor penalty charge-sheet and infliction of the penalty of censure to the petitioner by the Disciplinary Authority on 20.08.2013, neither the penalty order, nor the charge-sheet had been quashed by any Court or Tribunal and, therefore, he was justified in making the said remarks and lowering the grading awarded to the petitioner. He further submits that the order passed by the Appellate Authority per se does not contain reasons, and that the same could be found in the file notings and, therefore, contends that there is no infirmity in the same. Mr.Bhardwaj has also advanced similar submissions on behalf of the respondents.
13. Having heard the petitioner in person and the learned counsel for the respondents, we are of the view that the impugned order cannot be sustained and that the same deserves to be set aside while the relief sought by the petitioner deserves to be granted.
14. As noted hereinabove, the basic grievance raised by the petitioner is regarding the grading of 5 out of 10 given to him by the Accepting Authority in his APAR, which is a „below benchmark‟ W.P.(C) 9544/2018 Page 7 of 16 grading and is not in tune with the grading given to him by the Reporting Authority, with whose remarks the Accepting Officer had agreed in toto. He has also vehemently contended that the previous APAR for the period 04.11.2011 to 31.03.2012, written contemporaneously by the same set of Reporting Authority, Reviewing Authority and Accepting Authority having been set aside, the present APAR also deserves to be set aside on the same ground. Before dealing with these contentions, we may note that the Reporting Authority, while recording that Mr.Mohanty was an extremely intelligent and dynamic officer, had also recorded certain comments about his temperament and style of working, but had still, based on his performance, graded him 7 out of 10 in his APAR, i.e., “Very Good”. The Reviewing Officer, while agreeing with the pen-picture of the Reporting Officer, had not agreed with the remarks given by him and had, therefore, upgraded the petitioner‟s grading to 7.8. The Accepting Authority had, while specifically agreeing with the import and substance of the assessment made by the Reporting Authority, as opposed to the assessment made by the Reviewing Officer, had further noted that the petitioner had been issued a minor penalty charge-sheet pursuant to which he had been issued a censure by the Disciplinary Authority on 20.08.2013 and had thereafter downgraded the petitioner‟s overall grading to 5 from 7.
15. Thus what we find is that the Accepting Authority, except recording the factum of a minor penalty charge-sheet and censure issued to the petitioner, has not given any other reason for downgrading the petitioner‟s overall grading. He has agreed with the W.P.(C) 9544/2018 Page 8 of 16 pen picture of the petitioner, as recorded by the Reporting Authority. We, therefore, find merit in the submission of Mr.Mohanty that the only possible reason as to why his assessment was downgraded by the Accepting Authority to 5, from 7, was based only on the additional factor that the petitioner had been issued a minor penalty charge-sheet and, a consequential censure on 20.08.2013. Both the charge-sheet and the censure now stand quashed by the Tribunal‟s orders dated 11.12.2013 and 29.06.2015. In fact, we find that the Tribunal, while quashing the charge-sheet, had specifically observed that the petitioner would be entitled to all consequential benefits and, therefore, we deem it appropriate to refer to the concluding portion of the Tribunal‟s order dated 29.06.2015, which reads as under:-
"“xxx In our considered view, as observed earlier, the alleged misconduct on the part of the Applicant is too trivial and in the ordinary course, it would not have been considered as a misconduct at all. From the Respondent's file it is seen that the decision to hold minor penalty proceedings against the Applicant is not out of any genuine or sincere intention of the... RESPONDENTS
to maintain discipline. We are also of the view that the... RESPONDENTS
are misusing the provisions contained in Rule 16 of CCS (CCA) Rules, 1965 to initiate minor penalty proceedings as the said procedure does not provide for any detailed enquiry subjecting the prosecution witness to be cross examined and thus the truth is brought out. The only purpose discernible was that to keep the Applicant under the cloud of a departmental proceeding.
28. We, therefore, allow this OA and quash and set aside the sheet dated consequential benefits. The 10.09.2012 with all... RESPONDENTS
shall also pass appropriate orders in impugned minor penalty charge W.P.(C) 9544/2018 Page 9 of 16 compliance with the aforesaid directions, within a period of 2 months from the date of receipt of a copy of this order. No costs.” (emphasis supplied) 16. From a bare perusal of the Tribunal‟s aforesaid order, it becomes evident that the petitioner was indeed entitled to receive all consequential benefits arising from the quashing of the charge-sheet as the censure already stood quashed on 11.12.2013.
17. We have already noted that after the petitioner‟s representation against his APAR had been rejected by the Appellate Authority on 14.10.2014, this Court had, vide its order dated 29.09.2015, remanded the matter back to the Appellate Authority by directing that the petitioner‟s representation be reconsidered after giving him a personal hearing. Even though, the petitioner was given a personal hearing, his representation was once again rejected vide order dated 10.11.2015. The said rejection order reads as under:-
"“F.No.12011/11/2013-APAR(ISS) Government of India Ministry of Statics & Programme Implementation Sardar Patel Bhawan, Sansad Marg, New Delhi 110001 Dated 10th November, 2015 OFFICE MEMORANDUM Sub: Compliance of direction of Hon‟ble High Court of Delhi dated 29.09.2015 in W.P.No.9319/2015 in the matter of Shir T.R.Mohanty v. UOI & Ors.-Disposal of representation-regarding.
1. The APAR of Shir T.R.Mohanty for the period 01.04.2012 to 31.07.2012 (2012-2013) was disclosed to the officer reported upon vide OM. Of even number dated W.P.(C) 9544/2018 Page 10 of 16 14.12.2013.
2. The comments and grading of the Accepting Authority i.e. Secretary MoSPI- cum - Chief Statistician of India in the APAR for the said period are as below:-
"Do Reporting/Reviewing Authorities?. „No‟ agree with you the the remarks of Comments:-
""Shri T.R Mohanty, DDG, worked as DDG in the R.P. Unit. The reporting officer has not agreed with Shri Mohanty's claim of exceptional contribution nor was he aware of any initiative taken by him in the area of statistical auditing. He also notes that Shri Mohanty is quite temperamental and works according to his own style which is a little inconvenient at times. He points out that he is expected to develop a greater team spirit rather than coercive authority. I generally agree with the import and substance of the assessment made by the reporting officer. It should be noted that Shri Mohanty by appearing in CAT on 11/4/2012 violated the provisions 3 (1) (iii) of CCS Conduct rules and was issued a minor penalty charge sheet which led to the ISSUANCE of CENSURE by the Disciplinary Authority on 20.08.2013.” “I would rate his work as good” Grading: „5‟ 3. The officers‟ representation apropos the APAR was earlier disposed of vide this Ministry OM of even number dated 14.10.2014.
4. The officer filed WP No.9319/2015 in the Hon'ble High Court of Delhi. The Hon'ble Court vide its order dated 29.09.2015 inter alia directed as under:
"6. We are informed that a former General Chief of the Armed Forces is the concerned Minister in the present case. In our view, the concerned Minister during his career would have had many opportunities to record the ACRs and also would have faced such situations as W.P.(C) 9544/2018 Page 11 of 16 detailed in the order of the Tribunal.
"7. We have full faith that the Hon'ble Minister would act in a fair and just manner. We also have no hesitation in saying that the Hon'ble Minister would appraise himself based on record and not any hearsay information from any quarters. The Hon'ble Minister would consider the material in his right perspective, grant a personal hearing to the petitioner and thereafter decide the matter expeditiously and the petitioner is due for promotion in the month of February, 2016. We request the Minister to decide the matter within the period of one month from receipt of the order.
"8. With these directions, the writ petition and all pending applications are disposed of."
in accordance with law as submitted voluminous representation.
5. Shri T. R. Mohanty, DDG, the officer reported upon, had The substantive issues raised in the representation were examined on file in the office on the basis of the relevant official record, and the matter was placed through the channel of submission before the Competent Authority with the comments of the Accepting Authority i.e. Secretary MoSPI.
6. On the examination of the substantive issues raised being placed before Secretary MoSPI i.e. Accepting Authority on file, the Accepting Authority recorded on 03- 11-2015 as under:-
""1. Notes on preceding page refer.
"2. The earlier office examination on pages 1-8/ante, and the present office examination on pages 14-18/ante, make it quite evident that the representation of Shri T.R. Mohanty, DDG apropos his APAR for the period 01.04.2012 to 31.07.2012 (2012-13) is devoid of merit. I would like to deny the certain allegations of bias etc. made by the officer reported upon (Shri T.R. Mohanty), and affirm that my assessment of the officer's work in the W.P.(C) 9544/2018 Page 12 of 16 period in question was objective, as per the facts obtaining on date, and fair. I would like to stand by my assessment.
"3. Hon'ble Minister may kindly like to afford opportunity of personal hearing to the officer (Shri T.R. Mohanty), and decide the case based on the material on record."
7. Shri T.R.Mohanty, DDG was granted opportunity of personal hearing on 09.11.2015 at 10:30 a.m. vide OM of even No.dated 03.11.2015.
8. On the examination of the substantive issues raised being placed before Hon'ble Minister of State (IC) for Statistics and Programme Implementation i.e. Competent Authority on file, the Competent Authority, on perusing the file and the material on record, and after hearing the officer reported upon i.e. Shri T.R. Mohanty, dismissed the representation vide his minute dated 09-11-2015 as under:-
""1. Reference notes ante.
"2. I heard Shri T.R. Mohanty as per personal hearing sought by him. Based on material on record I am not convinced by his averments, I do not find any injustice being done to him."
9. The representation of Shri T.R. Mohanty, DDG apropos his APAR for to 31.07.2012 (2012-13) accordingly stands dismissed. the period 01.04.2012 10. This Authority. (emphasis supplied) issues with the approval of Competent 18. What emerges from the record is that when the aforesaid rejection order was passed by the Appellate Authority after grant of a personal hearing to the petitioner on 09.11.2015, not only the censure, but even the minor penalty charge-sheet issued to him stood quashed. These vital facts, however, find no mention in the order of the W.P.(C) 9544/2018 Page 13 of 16 Appellate Authority. We are dismayed to note that these facts, regarding issuance of a charge-sheet and censure, which formed the very basis for downgrading the petitioner‟s assessment by the Accepting Authority, are not even noticed in the Appellate Authority‟s order. The Appellate Authority sets out the remarks of the Accepting Authority which takes note of the minor penalty charge-sheet and penalty of censure, but not the fact that they stand quashed. The petitioner‟s representation has been rejected in a mechanical manner and, from a perusal of the order of rejection, we are unable to discern any reasons as to why the same has been paseeed. In our view, these subsequent developments ought to have been noticed and considered by the Appellate Authority while dealing with the petitioner‟s representation. Had these facts about–both the censure and the minor penalty charge-sheet having been already quashed, been considered by the Appellate Authority, the result could not have been the same. Unfortunately for the petitioner, the same was not done, leading once again to the rejection of his representation, compelling him to file a fresh O.A., which has been dismissed by the Tribunal vide the impugned order by observing that there was no serious legal infirmity in the order rejecting his representation.
19. In our view, it was essential for the Appellate Authority to take into account the subsequent quashing of the censure and minor penalty charge-sheet, which, in fact, washed away the very basis of downgrading of the petitioner‟s assessment from 7 to 5 by the Accepting Authority. We are, therefore, unfortunately unable to persuade ourselves to agree with the Tribunal that no injustice was W.P.(C) 9544/2018 Page 14 of 16 meted out to the petitioner. In fact, the injustice is writ large. Despite the very basis of the downgrading of his assessment having been set aside by the Tribunal, the grading of 5 awarded to him was still not corrected. We may also notice that when the below benchmark grading in question was communicated to the petitioner on 14.12.2013, the censure and charge-sheet issued to him already stood quashed and, therefore, at that stage itself, the respondents ought to have taken corrective steps. In any event, it was incumbent on the part of the Appellate Authority to consider these vital facts, which appear to either not have been brought to his notice, or seem to have escaped his notice and, therefore, we have no hesitation in holding that the order dated 10.11.2015 rejecting the petitioner‟s representation is unsustainable.
20. In our considered view, once the very basis of downgrading the petitioner‟s assessment no longer exists and the Accepting Authority had, after agreeing in toto with the remarks of the Reporting Officer, additionally recorded the factum of the censure and minor penalty charge-sheet issued to him, both having cease to exist, the grading of „7‟ awarded to the petitioner by the Reporting Authority has to be treated as final. We also find that although the grading of 7 given by the Reporting Authority was enhanced to 7.8 by the Reviewing Officer, but as the Accepting Authority had endorsed the assessment of the Reporting Authority and not that of the Reviewing Officer, the petitioner‟s final grading has to be the one which had been awarded to him by the Reporting Authority.
21. The petitioner has taken pains to point out as to how his APAR W.P.(C) 9544/2018 Page 15 of 16 was vitiated by mala fides and has also contended that the APAR is liable to be quashed on the same grounds as was done in the case of his APAR for the earlier period 04.11.2011 to 31.03.2012. We, however, do not deem it necessary to deal with these contentions in the light of our conclusions hereinabove.
22. For the aforesaid reasons, the impugned order passed by the Tribunal is quashed. The writ petition is allowed and the overall grading given to the petitioner in his APAR for the period 04.11.2011 to 31.03.2012 would be treated as 7 as awarded by the Reporting Authority. The petitioner would be entitled to all consequential benefits flowing from the aforesaid grading.
23. The petition stands disposed of alongwith pending applications. VIPIN SANGHI, J REKHA PALLI, J MAY01 2019 sr W.P.(C) 9544/2018 Page 16 of 16