1. In this writ petition, the petitioner prays for quashing of Annexures-2 & 3, whereby he was informed about the adverse remarks recorded in his Annual Confidential Report (for short 'the ACR') for the year 1993 and Annexures-5 and 6 by which he was intimated about rejection of his representation made for expunction of the said adverse remarks. The further prayer of the petitioner is for a direction to the opp. parties to place him in the Selection Grade with effect from 01.12.1994 the date on which his juniors were placed in such grade and to grant him all consequential service benefits including the arrears of differential salary.
2. Bereft of unnecessary details, the facts and circumstances giving rise to the present writ petition are that the petitioner joined the services of Food Corporation of India on 27.06.1973 as Assistant Grade-3 (General) in the District Office, Balasore. During the year 1994, some of the juniors of the petitioner got promotion superseding him and were placed in Selection Grade with effect from 01.12.1994. The petitioner made a representation to the higher authorities for consideration of his case for promotion and placement in the selection grade with effect from 01.12.1994, i.e., the date on which his juniors were placed in the Selection Grade. In the year 1996, vide Annexures 2 & 3 the petitioner was informed about the adverse entries made in his ACR. The petitioner made a representation (Annexure-4) with detailed explanation to the Zonal Manager for expunction of the said adverse remarks in his ACR, 1993. The said representation was rejected and communicated to the petitioner vide letters dated 14.07.1999 and 24.07.1999 (Annexures- 5 and 6). Hence, this writ petition.
3. Mr. D.K.Mohapatra, learned counsel appearing on behalf of the petitioner vehemently argued that un-communicated adverse ACR cannot be utilized against the petitioner to deny him promotion/placement in the Selection Grade. The petitioner was denied placement in the Selection Grade before communication of the adverse entries made in the ACR for the year 1993. Rule 8 of Chapter 14 of Swamy's Manual of Disciplinary Proceeding for Central Government servants clearly speaks that adverse remarks should immediately be communicated to the person concerned. A combined reading of Rules 3, 4, 5, 6 and 7 reveals that the adverse remarks must be communicated immediately and the ACR must be written by the Reporting Officer on the basis of materials available and due care and caution should be taken while writing adverse ACR. But in petitioner's case, neither the adverse ACR was communicated immediately nor there was any adverse remarks by the Reporting Officer. The petitioner worked as Grade-3 Assistant from 1988 to 1995 and the ACR of the petitioner was excellent all through except for the year 1993. The representation of the petitioner for expunction of the adverse remarks from the ACR for the year 1993 has been rejected by the Deputy Manager, PBRS without assigning any reason therefor. As per rule, the confidential report must be countersigned by the counter signing officer to give effect to the adverse remarks, which has not been followed in the present case. An adverse remark in ACR report cannot be utilized against an employee unless it is duly countersigned by the competent authority.
4. Mr.S.Das, learned counsel appearing on behalf of the opp. parties vehemently argued that the promotion to the Selection Grade was being given by the Zonal Office, FCI, Calcutta after considering the seniority and confidential report. The performance of the petitioner for the year 1993 having not found to be satisfactory certain adverse remarks were made in the ACR for the said year. The same was communicated to the petitioner. Against the said adverse remarks, the petitioner represented to the higher authorities for expunction of the same vide representation dated 25.10.1996. After careful consideration of the same, the competent authority decided that the remarks recorded in the ACR for the year 1993 cannot be expunged and such fact was communicated to the petitioner vide memorandum dated 14.07.1999. The petitioner was imposed with the penalty of stoppage of two consecutive increments without cumulative effect. When the petitioner was posted at the District Office of FCI, Patna, he committed an act of gross irregularity and omission in handing over a cheque for Rs.99,852.90 in favour of M/s Shyam Sundar and Co. on 21.07.1987 towards the cost of certain electrical goods without receiving the materials. The said cheque was debited from FCI account on 22.07.1987. ACR in question was duly countersigned by the countersigning officer to give effect to the adverse remarks. Proper procedure has been followed in doing so. Food Corporation of India is guided by its own Rules and Regulations and Circulars are issued by the FCI Headquarters from time to time. According to the Corporation, Circular No.22 of 1992 dated 30.12.1992, which relates to introduction of Selection Grade in respect of Grade-III and IV employees of the Corporation with effect from 01.12.1987, 30% of the sanctioned posts in each cadre of the Grade is to be considered as Selection Grade Posts and placement is made on the basis of seniority subject to rejection of unfit employees by the Zonal Promotion Committee in the case of Grade-III employees and the Regional Promotion Committee in the case of Grade-IV employees. As per the clarification vide FCI HQ Letter No.EP-17-5/93 dated 17.12.1993, the same procedure was adopted in deciding cases for placement in the Selection Grade which is being followed in the case of promotion. The petitioner was considered for placement in the Selection Grade along with others with effect from 01.12.1994. For this purpose, according to the Rules, the ACRs for the last three preceding years were considered by the Zonal Promotion Committee held on 20.06.1996. Due to the adverse remarks in the ACR for the year 1993, the petitioner was declared 'unfit' for placement in the Selection Grade with effect from 01.12.1994. Similarly, case of the petitioner was rejected with effect from 01.12.1995 and 01.12.1996 because of the adverse entries in the ACR for the year 1993. Therefore, no illegality has been committed by the authorities by granting Selection Grade Scale of Pay to the employees junior to the petitioner. The general assessment of the Reporting Officer and views of the Reviewing Officer were recorded taking into consideration the performance/activities/behaviour of the delinquent towards his superiors during the relevant years. Promotion to the higher post and placement in Selection Grade are always made strictly on the basis of ACRs with due regard to seniority. Therefore, the writ petition is liable to be dismissed.
5. It is not in dispute that there were some adverse remarks in the ACR of the petitioner for the year 1993 for which he was found unfit by the competent authority while considering his case on 20.06.1996 for placement in the Selection Grade. It is also not in dispute that by the time the case of the petitioner along with others was taken into consideration for placement in the Selection Grade, the said adverse remarks were not communicated to the petitioner.
Law is well settled that an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned. The apex Court in Gurdial Singh Fijji v. State of Punjab, AIR 1979 SC 1622, held as under:- "The principle is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified ." Admittedly, in the instant case, the Zonal Promotion Committee on 20.06.1996 declared the petitioner 'unfit' for placement in the Selection Grade with effect from 01.12.1994 because of the adverse remarks made in his ACR for the year 1993. But, unfortunately, by that time the petitioner was not communicated with the adverse remarks given in his ACR for the year 1993 and thus on this ground alone the decision of the Zonal Promotion Committee cannot be held to be legal.
6. The other aspect of the case is that the petitioner having been informed about the said adverse remarks for the year 1993 vide letter dated 11.10.1996 (Annexure-2) made a representation to the Zonal Manager, East FCI, Zonal Officer, Calcutta on 25.10.1996 (Annexure-4) for expunction of the same. The said representation was rejected by the Deputy Manager (PBRS) for Zonal Manager and communicated to the petitioner vide Memo dated 14.07.1999. The adverse remarks recorded in the ACR for the year 1993 are as under:-
"Overall assessment: The official is a leather in A/cs work. Mind & spirit to learn the same. Unable to finish an A/cs work single handedly. The Official is responsible but shrewed in nature.
In addition, he minds for self interest without caring the loss of F.C.I. Already punished departmentally and other cases are still pending. He is liability to F.C.I." In response to the above said communication, petitioner filed his representation in detail on 25.10.1996 for expunction of the adverse entries, but the Deputy Manager (PBRS) for Zonal Manager in a non-speaking memorandum rejected the said petition observing as follows:-
"Shri S.Kanungo, AG.II(N) submitted his representation dated 25.10.1996 for expunge of Adverse remarks. On careful examination of the representation of Shri S.Kanungo, it has been decided by the competent authority that the adverse remarks recorded in his ACR for the year 1993 can not be expunged." The above memorandum does not contain any reason as to why the submission/explanation made by the petitioner against each of the adverse remarks for expunction has not been accepted. By merely saying that the representation of the petitioner to expunge the adverse remarks was considered and the same cannot be expunged is not enough. No doubt, this is a material irregularity committed by the employer.
Law is well settled that every administrative decision must be hedged by reasons. (See Life Insurance Corporation of India & Anr. v. Consumer Education and Research Centre & Ors [1995] 5 SCC 482 The apex Court in S.N.Mukherjee-v-Union of India, AIR 1990 SC 1984, held that the recording of reasons by an administrative authority serves a salutary purpose namely; it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. The need for recording of reasons is greater in a case where the order is passed at the original stage.
Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same it becomes lifeless. [See Raj Kishore Jha V. State of Bihar (2003) 11 SCC 519].
Even in respect of administrative orders Lord Denning, M.R. in Breen V. Amalgamated Engg. Union (1971) 1 All ER 1148, observed: "The giving of reasons is one of the fundamentals of good administration."
In Alexander Machinery (Dudley) Ltd. V. Crabtree (1974) ICR 120 (NIRC) it was observed: "Failure to give reasons amounts to denial of justice".
In Vasant D. Bhavsar V. Bar Council of India (1999) 1 SCC 45, the apex Court held that an authority must pass a speaking and reasoned order indicating the material on which its conclusions are based.
The apex Court in Union of India & Ors. v. E.G. Nambudiri, AIR 1991 SC 1216, held that there is no dispute that there is no rule or administrative order for recording reasons in rejecting a representation. In the absence of any statutory rule or statutory instructions requiring the competent authority to record reasons in rejecting a representation made by a Government servant against the adverse entries the competent authority is not under any obligation to record reasons. But the competent authority has no licence to act arbitrarily, he must act in a fair and just manner. He is required to consider the questions raised by the Government servant and examine the same, in the light of the comments made by the officer awarding the adverse entries and the officer countersigning the same. If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons. In the absence of any statutory or administrative provision requiring the competent authority to record reasons or to communicate reasons, no exception can be taken to the order rejecting representation merely on the ground of absence of reasons. No order of an administrative authority communicating its decision is rendered illegal on the ground of absence of reasons ex facie and it is not open to the court to interfere with such orders merely on the ground of absence of any reasons. However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same. In governmental functioning before any order is issued the matter is generally considered at various levels and the reasons and opinions are contained in the notes on the file. The reasons contained in the file enable the competent authority to formulate its opinion. If the order as communicated to the government servant rejecting the representation does not contain any reasons, the order cannot be held to be bad in law. If such an order is challenged in a court of law it is always open to the competent authority to place the reasons before the court which may have led to the rejection of the representation. It is always open to an administrative authority to produce evidence aliunde before the court to justify its action.
7. Admittedly, in the instant case, no material was produced before this Court on behalf of the OP-Corporation to show that any reason has been recorded by the competent authority before rejecting the representation of the petitioner filed pursuant to the communication made to the petitioner regarding adverse remarks in the ACR for the year 1993. Since Annexures-5 and 6 by which the representation of the petitioner to expunge the adverse remarks was rejected do not disclose any reason and the OP- Corporation has failed to place any evidence showing reason for rejecting representation of the petitioner, we asked learned counsel for the opposite parties to produce the original record. The same was produced on 14.05.2010. Perusal of record reveals that the Senior Regional Manager vide his letter dated 17.06.1999 intimated Sri C.R. Biswal, Secretary to Government that Sri K.G. Das, AM (A/c), the then Reporting Officer recommended expunction of adverse remarks given in the ACR of the petitioner. However, Sri C.P. Gond, Deputy Manager (General) has maintained the stand justifying the adverse comments. Sri C.P. Gond, vide his letter dated 31.05.1999 addressed to the Senior General Manager, Food Corporation of India, Vani Vihar intimated that the remarks of the Reporting Officer and the Reviewing Officer should be treated as such in the ACR of 1993. In the said letter, he further observed that during the period of report, the petitioner was very arrogant in behavior and his performance was also not in desired manner and he was always avoiding to attend the work allotted to him in spite of personal instruction given to him from time to time. He was also found to be in the habit of criticizing superior officers during the period of report when the allotted work did not suit him.
Adverse remarks given in ACR 1993 does not contain all the above allegations. Law is well settled that validity of an order is to be judged by reasons so mentioned therein and it cannot be supplemented by fresh reasons. (See Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner, New Delhi & Ors., AIR 1978 SC 851) Therefore, the new reasonings given by Sri C.P. Gond, Deputy Manager (General) to justify the adverse remarks made in the year 1993 is not legally sustainable. Sri C.R. Biswal vide his letter dated 25.06.1999 intimated the Zonal Manager (East) that as a countersigning officer he had signed the report. It was very difficult to know the functioning of AG-II (M) level officers in the district offices. The comments of the Reporting Officer and the Reviewing Officer have been endorsed by him. Since he had no material in hands to rebut the stands taken by the Reporting Officer and the Reviewing Officer, he endorsed their views.
Thus, the representation of the petitioner under Annexure-4 explaining each and every adverse remark entered in the ACR 1993 has not at all been dealt with by the opp.parties while rejecting the petitioner's representation. Merely by saying that the remarks of the Reporting Officer and Reviewing Officer should be treated as such in the ACR 1993 with some new reasoning and without considering the petitioner's representation cannot justify the action of the opposite parties in rejecting the representation of the petitioner.
7. In the facts situation, we are of the considered view that the opposite parties are not justified to deny promotion to the petitioner in the
Selection Grade from the date his juniors were promoted. We, therefore, direct the opposite parties to place the petitioner in the Selection Grade w.e.f. 01.12.1994 when his juniors were placed in such grade and to grant him all consequential service benefits including arrears of differential salary.
9. With above direction, the writ petition is disposed of. Writ petition disposed of.