Principal Director of Audit & Anr v. Bharti Parveen & Ors

PRADEEP NANDRAJOG, J. (Oral)

¶1In March 2004 the respondent was working as Section Officer in the Review Section of Indian Audit & Accounts Department. Smt.Kamla, Audit Officer, was her Reporting Officer for the period 1.4.2004 to 22.8.2004 and Sh.Kuldeep Singh, Senior Audit Officer, was the reporting officer for the period from 23.8.2004 to 27.12.2004. Shri S.K. Gopalakrishnan, Deputy Director was the Reviewing Officer for said periods.

¶2It appears that the respondent No.1 was having problems with just about everybody in the office and for which a charge sheet was issued to her under rule 14 of CCS (CCA) Rules 1965 imputing her of the misconduct or misbehaviour. 3 articles of charge were alleged as under:- "ARTICLE-1

That the said Ms.Bharti Parveen holding the post of Section Officer (Audit) in the office of the Principal Director of Audit (Air Force and Navy), New Delhi used intemperate language and also made allegations against her superior officer. This is unbecoming of a government servant and violates Rule 3 (1) (iii) of the CCS (Conduct) Rule 1964.

ARTICLE-II

That the said Ms.Bharti Parveen holding the post of Section Officer (Audit) in the office of the Principal Director of Audit (Air Force and Navy), New Delhi made false and serious allegations against her superior officer. This is unbecoming of a government servant and which thereby violates Rule 3 (1) (iii) of the CCS (Conduct) Rule 1964.

ARTICLE-III

That the said Ms.Bharti Parveen holding the post of Section Officer (Audit) in the office of the Principal Director of Audit (Air Force and Navy), New Delhi was assigned an important task relating to PAC matter which was time bound. Ms.Bharti Parveen did not complete the work allotted to her diligently, displaying lack of devotion to duty which violates Rule 3 (1) (ii) of the CCS (Conduct) Rule 1964."

¶3When the enquiry was pending, on 23.12.2004 the respondent No.1 submitted a representation to the Controller and Auditor General of India in which she made an allegation against Sh.K.Gopalakrishnan stating that he was sexually harassing her. Her complaint was looked into and was found meritless. It was rejected.

¶4She lodged a private complaint in the Court of a learned Metropolitan Magistrate who took cognizance thereof and framed a charge against Sh.K.Gopalakrishnan for having committed an offence punishable under Section 354/506 IPC.

¶5The ACR of the respondent was recorded for the period 1.4.2004 till 31.12.2004. As there were two Reporting Officers the ACR was written in parts by Smt.Kamla and Sh.Kuldeep Singh and the same was reviewed by Sh.K.Gopalakrishnan. Adverse remarks were entered by the two officers to which the Reviewing Officer accorded concurrence.

¶6Aggrieved by the said adverse remarks entered in the ACR, the respondent No.1 filed a representation to the Director which was rejected.

¶7Aggrieved by the rejection of her representation to expunge the adverse remarks, the respondent No.1 filed OA No.2607/2005 before the Central Administrative Tribunal seeking directions against the petitioner to set aside and discard the ACRs and remove the same from the dossier of the respondent No.1 for all the purposes.

¶8Allowing the said application, vide its order dated

30.5.2005 the Tribunal set aside the adverse remarks recorded by the reviewing authority and remitted the matter back to be placed before the next higher authority for the purposes of deciding the representation of the respondent No.1. In so doing the Tribunal held that Shri K Gopalakrishnan could not act as the Reviewing Officer since he was a person against whom respondent No.1 was in litigation.

¶9The petitioners complied with the directions of the Tribunal and put forth the ACR of the respondent before the next higher authority, Mr.Deepak Anurag, the Principal Director (Air Force & Navy) for decision. The representation of the respondent No.1 pertaining to the adverse comments recorded in the ACR performa were placed before him. Vide order dated

03.08.2007, after granting personal hearing to respondent No.1, and considering the relevant official records, Mr. Deepak Anurag rejected the representation of respondent No.1 and maintained the ACR grading and retained the adverse remarks on the ACR form.

¶10The respondent filed another petition before the Tribunal registered as OA No.1720/2008 urging that during the period in question she was neither counseled nor her attention was drawn to any deficiency in work or her behaviour and thus with reference to the decision reported as 1997 (4) SCC 7 State of U.P. Vs. Yamuna Shankar Mishra the adverse remarks had to be expunged and ACR gradings corrected.

¶11It may be noted that the adverse comments noted were pertaining to the quality of her work and performance and the lack of her ability to inspire and motivate the support staff. Her capacity as a resource person was adversely commented upon. Her capacity to maintain good relationship with the colleagues was also adversely commented upon. It was opined that she has no team spirit and cannot appreciate the point of view projected by the others. Grading awarded was average.

¶12Vide impugned order dated 22.04.2009 the Tribunal has expunged the adverse remarks as also the grading. The reason given by the Tribunal is that the Reporting Officer never took respondent No.1 into confidence and thus deprived her an opportunity to improve her work.

¶13It is unfortunate that the Tribunal has chosen to ignore the record produced before it. We note that in para 11 of the impugned order the Tribunal has recorded that notings from the official file were placed before it.

¶14What do we find from the said notings?

¶15Record shows that during the period in question 3 memos were issued to respondent No.1 on 17.08.2004,

24.08.2004 and 04.11.2004. In the said memos her attention was drawn to the sub-standard draft she has submitted upon the subject matter of the draft and she was required to explain her working; with respect to a draft which she had reviewed, the second work was found to be as deficient as the first and she was required to improve herself; she was required to explain why she did not turn up at the time she was required to do so and why did she not submit the report in time. The record further shows 8 notings on the file on different dates, recording that her working was deficient and that the explanation furnished by her was not satisfactory.

¶16Suffice would it be to state that the law on the subject, as stands enunciated in the various decisions of the Supreme Court being; (1996) 8 SCC 762 State Bank of India Vs. Kashinath Kher; (1996) 5 SCC 103 Sukhdeo Vs. Commr. Amravati Division; (1996) 2 SCC 363 U.P. Jal Nigam Vs. Prabhat Chandra Jain; 1994 Supp (3) SCC 424 S. Ramchandra Raju Vs. State of Orissa; 1991 Supp (1) SCC 600 Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress; AIR 1964 SC 600 Moti Ram Deka Vs. G.M., N.E.F. Rlys; and State of U.P Vs. Shanker Misra (supra), is that the object of writing confidential reports and making entries in the character roles is to give an opportunity to a public servant to improve excellence and efficiency of public service. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. Where an adverse remarks in the ACR are recorded, before forming such an opinion to be adverse the Reporting Officers writing confidential should share the information which is not a part

of the record with the officers concerned, have the information confronted by the officer and then make it part of the record. This sharing of information amounts to an opportunity given to the erring officer to correct the errors of the judgment, conduct, behaviour, integrity or corrupt proclivity. If, despite being given such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself, necessarily the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him.

¶17Needless to state the aforesaid principle incorporates the right of the officer concerned to have a constant appraisal, by the word of mouth or writing, from his superior qua his working so that he gets an opportunity to improve his conduct.

¶18We note that this right of the respondent has been accorded its due place evidenced by the fact that on as many as 8 times she was verbally cautioned with respect to what was found lacking in her working and on 3 occasions a memo requiring written explanation to be furnished was issued. All the 11 incidents pertained to her lack of devotion to duty and not being able to work as a team member.

¶19We are thus of the opinion that the decision of the Tribunal has to be set aside, needless to state neither the Tribunal nor this Court can exercise power to review the factual matrix of what has been found to be deficient in the working of respondent No.1.

¶20Before concluding we may note that no mala fides have been alleged against the two Reporting Officers.

¶21The writ petition is allowed. Impugned order dated

22.04.2009 passed by the Tribunal is set aside. OA No.1720/2008 filed by respondent No.1 is dismissed. The grade awarded to the respondent in the ACR for the year 2004-05 and the adverse entries therein are restored.

¶22No costs.

(PRADEEP NANDRAJOG)

JUDGE

(MOOL CHAND GARG)

JUDGE

JULY 27, 2010 mm

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 27th July, 2010 + W.P.(C) NO.12022/2009 PRINCIPAL DIRECTOR OF AUDIT & ANR. ..... Petitioners Through: Mr.K.K.Rai, Sr.Advocate with Mr.Gaurang Kanth, Advocate & Ms.Biji Rajesh, Advocate versus BHARTI PARVEEN & ORS. ..... Respondents Through: Mr.S.K.Gupta, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest?