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Judgment
Per Hon’ble Mr. Pankaj Kumar, Member-Administrative
In this case relating to Annual Performance Appraisal Report (APAR), the applicant has sought following reliefs:
“(a)To quash and set-aside the order dated 29.04.2022, contained in Annexure No. 1, passed by Chairman & CEO, Railway Board, New Delhi (respondent no. 1), by means of which he has down-graded the APAR of the applicant for the year 01.04.2020 to 28.02.2021 as 04 instead of 06, with all consequential benefits.
(b)To issue an order, direction and command to the respondents not to give effect the order dated 29.04.2022 as passed by the respondent no.1 contained in Annexure no. 1 with all consequential benefits of service.
(c)Issue such other order/direction which may be deemed just and proper in the circumstances of the case.
(d)Allow the OA with cost against the respondents in view of the facts and circumstances, legal provisions and Grounds raised in the Application.”
The facts of the case are that the applicant, while working on the post of Chief Engineer under the respondents, was awarded the overall grading of 4 in his APAR for the period 01.04.2020 to 28.02.2021 by the reporting authority which was agreed to by the reviewing authority as well. The accepting authority upgraded the overall grading from 4 to 6. Not satisfied, the applicant represented to respondent no. 1 on 20.12.2021. However, respondent no. 1 decided the applicant’s overall grading for the said period as 4 as given by the reporting and the reviewing authorities. Aggrieved, the applicant has preferred this OA.
The contention of the applicant is that no memorandum of warning or counselling or admonishing or cautioning was ever issued to him regarding his work and conduct and that no show cause notice was issued to him; yet his overall grading has been reduced to 4 from 6 vide the impugned order.
Per contra, the respondents state that the reporting authority had recorded in the APAR that there is no exceptional contribution, that the applicant’s attitude towards work is negative and his relations with others are strained and that recorded warning was issued to him on 29.01.2021 and confidential letter dated 09.10.2020 was also issued. They further state that while the reviewing authority agreed with the reporting authority’s assessment, the accepting authority found the assessment of reporting and reviewing authorities too conservative and stringent and increased the applicant’s overall grading to 6. They contend that the competent authority, i.e., respondent no. 1 has considered and decided the applicant’s representation dated 20.12.2021 as per provisions of office memoranda (OM) dated 13.04.2010 and 14.05.2019 issued by the Department of Personnel & Training (DoPT). They further contend that there is no provision for issuing show cause notice to the officer making representation against APAR in the Railway Board’s letter dated 09.06.2017.
We have heard both the parties.
It is a settled principle of administrative law that any order having civil consequences must conform to the principles of natural justice. The rule of audi alteram partem mandates that no person shall be condemned unheard.
It is not in dispute that the applicant’s performance during the period 01.04.2020 to 28.02.2021 was graded as 4 by the reporting authority which was agreed to by the reviewing authority and which was upgraded to 6 by accepting authority and that the applicant represented on 20.12.2021 to respondent no. 1 against the overall grading so recorded.
It is evident that when the representation dated 20.12.2021 reached respondent no. 1, the applicant’s overall grading stood as 6 as recorded by the accepting authority. In our view, it was open for respondent no. 1 to either upgrade the overall grading or reject the representation based on the material before him; however, if respondent no. 1 was of the opinion that the applicant’s performance did not merit overall grading of 6 and it needed to be downgraded, the principle of audi alteram partem required him to afford an opportunity to represent against the contemplated downgradation before finalizing the applicant’s overall grading. In not doing so, the respondents have deprived the applicant of reasonable opportunity to put forth his case against the downgradation of his overall grading. The net result is that the impugned order dated 29.04.2022 is unsustainable in law and is liable to be set aside.
In view of the foregoing, this OA is allowed and the impugned order dated 29.04.2022 is quashed and set aside.
It shall be open for the respondents/competent authority to afford an opportunity to the applicant to represent against the proposed downgradation of his overall grading in the APAR for the period during 01.04.2020 to 28.02.2021 and consider his representation and take a decision in the matter by way of a reasoned and speaking order.
Associated MAs also stand disposed of.
Parties shall bear their own costs.