T.C. Gupta vs Union of India Union of India Vs T.C. Gupta

Sunil Ambwani, Actg. C.J.

We have heard learned counsels appearing for the Union of India and Income Tax Department. Shri T.C. Gupta has appeared in person.

All the three writ petitions, arise out of an order passed by Central Administrative Tribunal, Jodhpur Bench, Jodhpur (for short, ''the Tribunal'') in O.A. Nos. 296/2010 and 315/2011, decided by common order dated 30.5.2012, and the orders passed by the Tribunal on review applications No. 11/Jodhpur/2012 & 12/Jodhpur/2012. The Tribunal, by its order dated 30.5.2012, allowed original application No. 315/2011 to the limited extent, and rejected original application No. 296/2010. It thereafter, rejected both the review applications.

Shri T.C. Gupta (the applicant) was recruited in the Income Tax Department as Direct Recruit Inspector of Income Tax in the year 1979. After undergoing selection as a departmental candidate, he qualified the departmental examination for the post of Income Tax Officer, and was promoted in the year 1990. In the year 2001, he was promoted as Assistant Commissioner of Income Tax (ACIT), and in the year 2006, he was promoted as Deputy Commissioner of Income Tax (DCIT). The dispute in the original applications, giving rise to these writ petitions, relate to the Annual Confidential Reports (for short, ''ACR'') and Annual Performance Appraisal Reports (for short, ''APAR'') for the year 2007-08. Whereas in original application No. 296/2010, the applicant prayed for quashing the order dated 25.7.2010 communicated vide letter dated 30.7.2010, and the order dated 6.8.2008, communicating the ACR for the year 2007-08, and for a prayer to upgrade the ACR, by expunging the assessed ''Good'', and for restraining the respondents from acting on the Secret Note, and also not to consider the same for any adverse action; to ignore the issues considered by the CCIT, while deciding the representation against the secret note, in original application No. 315/2011, the applicant had prayed for quashing the orders, by which he was assessed as ''Good'' for first eight months and ''Below Average'' for last four months. The applicant further prayed for setting aside the orders dated 23.7.2010 communicated on 30.7.2010, in respect of ACR for the periods from 1.4.2008 to 5.8.2008; from 6.8.2008 to 9.11.2008, and from 22.1.2010 to 28.1.2010, communicated vide letter dated 13.4.2010. He also prayed for quashing and setting aside the order dated 28.7.2010, communicated vide letter dated 4.8.2010, and communicated APAR from 10.11.2008 to 31.3.2009. He also prayed for upgrading the ACR/APAR for the Financial Year 2008-2009, by expunging the assessed ''Good'' and ''Below Average'' for the year 2008-2009, and not to take any despiteful action against the applicant.

The Tribunal considered the facts of the case, with reference to the Office Memorandum dated 16.2.2009 issued by Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training (for short, DOP & T), and the principles laid down in the judgment of the Supreme Court in Dev Dutt Vs. Union of India (UOI) and Others, , and held that the Tribunal cannot sit in appeal over the assessment recorded by the Reporting or the Reviewing Officers, in respect of any of the periods or broken periods of reporting in any ACRs of a government servant. The Tribunal can neither upgrade nor downgrade any grading, which has been awarded. There was no irregularity committed by the respondents, in respect of the rating of ''Good'' given by the Reporting Officer, Additional DIT (CIB), Jodhpur to the applicant in his ACR format. Even if the belated downgrading of his rating as ''Below Average'' by the Reviewing Officer on 20.10.2009 is discarded as being late, and being hit by the time period prescribed in the DOP & T Circular, his rating as ''Good'' would still stand. For the two earlier broken periods of the same year, the ACRs were recorded in time, as the applicant had filled up and supplied only one ACR format, in respect of the full year, instead of three ACR formats for the three broken periods.

The Tribunal found that since the gradings recorded by both the Reporting Officer as well as Reviewing Officer, in respect of the two earlier broken periods, are also ''Good'' only, read with ''Good'' reporting in the third broken period ACR for the whole year 2008-09, discounting the belated downgrading by the Reviewing Officer on 20.10.2009, since the gradings are ''Good'' in respect of both the earlier broken periods, there having been filled up by the respective Reporting and Reviewing Officers beyond the time limit prescribed, would not make any difference whatsoever, in view of the rating of the applicant as ''Good'' in the third broken period ACR format being upheld, and to that extent, the two orders passed by the respondent No. 2 on 23.7.2010 were upheld. The order passed by the respondent No. 3 on 29.7.2010, was however struck down, since the comments of the Reviewing Officer had been recorded after the prescribed period of time.

The Tribunal found that the competent authority, namely the Chief Commissioner of Income Tax, Jodhpur, had accepted the contention of the applicant, and had already upgraded his ACR grading in respect of the year 2006-07. On the same date, he had rejected the representation of the applicant, and had declined to upgrade his ACR grading in respect of the year 2007-08, in view of the Secret Note regarding the points of ''integrity'' recorded by the Reporting Officer of the applicant. The respondents did not commit any wrong in following the procedure. From Part-III of the APAR of the year 2007-08, it was found that the applicant had himself admitted certain shortfalls in some key areas of the action plan, which he was supposed to fulfill. The Reporting Officer had, in Column-22 General Observations, recorded his comments as follows:-

"The officer is unduly egoistic with the scant regard for authority. Impatient to understand, appreciate or listen counter view point. Overall performance rated as good."

The Tribunal was of the view that the observations regarding his personal traits and performance do not show any preconceived bias in the mind of the Reporting Officer, since in the very next prior Column-21, the Reporting Officer had found the applicant to be suitable for Audit functions, and for a Secretariat posting.

The Tribunal held that the respondents have not committed any irregularity, and had fairly considered the representations of the applicant. They even upgraded his ACR for one year, but could not upgrade his ACR in respect of another year, where he himself had accepted the shortfall.

The review application No. 11/Jodhpur/2012 in O.A. No. 296/2010 and review application in O.A. No. 315/201112/Jodhpur/2012 filed by Shri T.C. Gupta, the applicant, were rejected on the ground that there was no error in appreciation of the evidence, or the arguments advanced, which may have been left out from consideration, which cannot be called as an error apparent on the face of record. The applicant had filed the review applications on the ground that the delay of four months in pronouncement of the order, after the orders were reserved, had resulted in the Bench not appreciating all the arguments advanced, or incorrectly appreciating the arguments advanced. The Tribunal held that it was quite possible that the delay in pronouncement of the order in the two original applications, due to transfer of the Member (A), may have occasioned any specific pleadings made by the applicant''s counsel during the case, not being reflected in the detailed twenty pages'' order, however, this did not amount to an error apparent on the face of the record, which could be corrected by the Bench. The prayers in the review applications actually amounted to a prayer for re-appreciation of the evidence and arguments advanced in the Court, which was beyond competence, or powers of the Tribunal. The review applications were consequently rejected.

Learned counsel appearing for the Income Tax Department submitted that the order dated 30.5.2012 passed by the Tribunal, holding that the rating of the respondent No. 1 be taken as ''Good'' for the whole year 2008-09, discounting the belated downgrading by the Reviewing Officer for the third broken period from 10.11.2008 to 31.3.2009, is ex facie unjustified, arbitrary and contrary to law. The ACRs were written in three parts, by Reporting and Reviewing Officers in the year 2008-09. The applicant had worked under three different Reporting and Reviewing Officers for the year 2008-09, and despite that, he had submitted only one ACR format, whereas he was required to submit three ACR formats for the three broken periods. The Tribunal failed to consider that the ACR format was not even certified by the competent authority, and as soon as the facts about incorrect submission and misreporting came to the knowledge of the Reviewing Officer on 29.6.2009, the said Reviewing Officer immediately returned back the ACR Form to the Reporting Officer, due to which, the Reviewing officer could not review the ACR for the third broken period within the prescribed due date i.e., 31.8.2009. The Tribunal erred in making the impugned direction to discount the downgrading of ACR as ''Below Average'' by the Reviewing Officer for the third broken period, despite holding that there was nothing wrong in the noting, as made by the Reviewing Officer, and that, she was fully competent to record the note. The Tribunal did not appreciate that the time limit will apply only in respect of correctly submitted ACRs, and not the misreported and incorrect ACR formats submitted by the officer. It is submitted that the Tribunal did not appreciate that for the period from 1.4.2008 to 5.8.2008, and thereafter, from 6.8.2008 to 9.11.2008, the applicant had not furnished the requisite information in ACR Forms. The applicant was not under the administrative control of the Reviewing Officer for the whole year. There were three different Reporting and Reviewing Officers, for the period in question.

It is submitted that for the third broken period, the Reviewing Officer had very categorically noted that she did not agree with the remarks of the Reporting Officer, as he had not given due consideration to various letters written to the respondent, pointing out the lapses of willful insubordination, dereliction of duties, unauthorized absence from the headquarters, misreporting, indiscipline, etc., on his part.

It is submitted that direction given by the Tribunal should not be sustained, for the reason that the Tribunal itself held that it can neither upgrade, nor downgrade any grading. Despite the said finding, the Tribunal ordered for treating the rating for the third broken period as ''Good'', as contrary to the rating as ''Below Average''.

Shri T.C. Gupta appearing in person submits that the order of the Tribunal, so far it has granted the reliefs to the petitioner does not require any interference. He had duly submitted the ACR format, which was required to be submitted for the whole year from 1.4.2008 to 31.3.2009. The office memorandums, setting out the procedure for recording ACR, did not provide for submitting three different ACR formats for the broken periods, for the year under consideration. The applicant had not submitted any incorrect or wrong information in the ACR format for the whole year 2008-09. The Reviewing Officer was biased. She had no authority to review the ACR for the first two broken periods. She deliberately, and with purpose, returned back the ACR forms to the Reporting Officer, delaying the process beyond the period of due date i.e. 31.8.2009. The Tribunal therefore, rightly held that she had no right to review the ACRs for the first two broken periods, and her comments for the third broken period, were beyond the period prescribed in the office memorandum.

The writ-petitioner submitted that the Tribunal did not commit any error in holding that whereas his representation for the first two periods was allowed, it was arbitrarily rejected for the third period, by order dated 29.7.2010. The time limits were strictly applicable, for the purposes of considering the reports for promotions, and other service benefits. The time limits were applicable to ACRs in respect of full year from 1st April of the previous year to 31st March of the year, in respect of which reporting was made. These time limits, in any case, apply only to the third broken period of ACR, for which the applicant has filled in the details and particulars, for the full period of one year from 1.4.2008 to 31.3.2009. The Reviewing Officer had no authority to belatedly downgrade the assessment of the Reporting Officer from ''Good'' to ''Below Average'', and consequently, the assessment recorded by the Reporting Officer on 24.6.2009, as ''Good'', within the prescribed limit, should remain undisturbed.

We are of the view that it was in the context of the assessment of the performance of work that the Tribunal held that it cannot sit in appeal over the assessments recorded by the Reporting Officer, or the Reviewing Officer. The Tribunal could not upgrade, or downgrade any grading. The Tribunal however, was not denuded of the powers to consider the validity of the reporting, so far the time limits set by DOP & T Circular dated 16.2.2009.

The Tribunal thereafter, considering general observations recorded by the Reporting Officer in Column No. 22, did not find the observations regarding the personal traits and performance of the applicant in the APAR for the year 2007-08, to be tainted with any bias. Consequently, O.A. No. 315/2011, by which the downgrading of the ACR for the year 2008-09 was challenged, was allowed, and O.A. No. 296/2010 for upgrading the APAR of the applicant for the year 2007-08 was rejected.

In Writ Petitions No. 1239/2013, the applicant has prayed for directions to set aside the orders dated 23.7.2010 communicating his ACR for all the three broken periods, and the order dated 29.7.2010 for APAR from 10.11.2008 to 31.3.2009, by expunging the assessed ''Good'' and ''Below Average'' for the year 2008-09; and in Writ Petition No. 6935/2013, the applicant has prayed for directions to quash the order on the review applications, by which the Tribunal rejected the review applications. The applicant was allowed to argue on the question of bias in recording the ACR and APAR. After narrating the facts, which have not been stated in any detail in the writ petitions, it is submitted that his assessments have been based upon certain preconceived bias, as the petitioner was not found to have cooperated with the Reviewing Officer, in shopping in the market. He has taken pains to explain that there was nothing wrong with his work, and that, due to extraneous considerations, the Reviewing Officer had harboured bias against him. She decategorized his entries, which affected his chances for promotions, as with such downgrading, his ACR fell below the benchmark. He was awarded ''Outstanding'' entries in the previous three years, and had in fact improved his work. It is wrong to state that he had absented from duties, inasmuch, as there was no instance given, in which he had absented without any authority.

We do not propose to go into pleadings and the arguments raised against the Reviewing Officer of harboring a bias against the applicant, inasmuch as, the concerned officer was not impleaded as a party in the Tribunal and in the writ petition, and that, the Tribunal did not find sufficient material on record to consider the plea of bias.

In The State of Gujarat and Another Vs. Suryakant Chunilal Shah, , the Supreme Court held, in paragraph 25, as follows:-

"25. Purpose of adverse entries is primarily to forewarn the government servant to mend his ways and to improve his performance. That is why, it is required to communicate the adverse entries so that the government servant to whom the adverse entry is given, may have either opportunity to explain his conduct so as to show that the adverse entry was wholly uncalled for, or to silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance."

In Dev Dutt Vs. Union of India (UOI) and Others, , t he Supreme Court held that every entry, relating to an employee, not merely a poor, or adverse entry, must be communicated, within a reasonable period. It makes no difference whether there is a benchmark or not. Even if there is no benchmark, non-communication of an entry made adversely, affect the employee''s chances of promotion. The communication of entries and giving opportunity to represent against them, is particularly important on higher posts, which are in a pyramidical structure, where often the principle of elimination is followed in selection for promotion.

In the present case, Shri T.C. Gupta, the applicant had earned outstanding ACR assessments for the periods 2003-04, 2004-05 and 2005-06. For the year 2006-07, his entries were downgraded, as he was assessed ''Good'' for the years 2006-07 and 2007-08. These entries were below the benchmark of ''Very Good'', which closed his rights for consideration for promotion. The grievance raised by the applicant that the downgraded entries for the years 2006-07 and 2007-08, were not communicated to him, was not accepted by the Tribunal. It would be seen from the facts of the case that it was after his promotion as DCIT in the year 2006, that his ACRs were downgraded. For the year 2006-07, he was assessed only as ''Good''. His APAR for the year 2007-08, the Chief Commissioner of Income Tax, vide his order dated 23.7.2010 agreed to upgrade the overall assessment of the performance of the applicant for the year 2006-07 from ''Good'' to ''Very Good''. He however, rejected the representation of the applicant in regard to his ACR for the year 2007-08 vide impugned order dated 25.7.2010, which was communicated to him on 30.7.2010. The Tribunal has set aside the order dated 25.7.2010 rejecting the representation on the ground that the Reporting Officer had categorized the applicant as sincere and industrious, and since he had achieved the targets of budget collection, out of arrear payment out of arrear demand and out of current demand, and had also disposed of 100% of the audit objections in respect of the year 2006-07. The representation for 2007-08, however, was not allowed on the ground that his Reporting Officer Shri U.S. Raina, for the year 2007-08, had recorded three page Secret Note dated 5.8.2008, which was communicated to the applicant on 30.7.2010, in response to his representation. The applicant''s reply to the Secret Note dated 23.7.2010 was considered by the competent authority. 22. We do not find that the Tribunal has committed any error of law in rejecting the O.A. No. 296/2010 against the rejection of the representation of the applicant in respect of his ACR for the year 2007-08. The Office Memorandum of the DOP & T, Government of India dated 16.2.2009, providing for time limits, was not applicable for the year 2007-08. The applicant had himself admitted certain shortfall in some key areas of the action plan, which he was supposed to fulfill. The observation of the Reporting Officer that ''The officer is unduly egoistic with the scant regard for authority. Impatient to understand, appreciate or listen counter view point, was taken into consideration by the competent authority, deciding the representation. The allegations of preconceived bias in the mind of the Reporting Officer, were ruled out, since the Reporting Officer had found the applicant, in the previous column No. 21, to be suitable for Audit Functions and for Secretariat posting. It is submitted by learned counsel appearing for the Department that in the year 2008-09, the competent authority illegally and arbitrarily interfered, and allowed the O.A. No. 315/2011 for the period from 1.4.2008 to 31.3.2009, for which the Reviewing Officer had downgraded the assessment of the Reporting Officer from ''Good'' to be that of ''Below Average''. The Tribunal correctly appreciated the facts of the case, and recorded the findings that the applicant was not required to fill up three different sets of appraisal forms for the three different periods of the Reporting Officer. For the first two periods, the Reporting Officer had assessed him to be ''Good''. The entry for the last broken period, downgrading the officer to ''Below Average'', was not justified, both on the grounds that the Reporting Officer had, for the first two broken periods, recorded the assessment to be ''Good'', and that, for the third period, there was no material to downgrade the entry to ''Below Average''. The Reviewing Officer had reviewed the third period, much after the period prescribed in Office Memorandum issued by the DOP & T, Government of India dated 16.2.2009.

We do not find any substance in the submissions made by learned counsel appearing for the Department that the applicant had submitted incorrect and wrong information in the ACR Format for the whole year, or that as soon as the misreporting came to the knowledge of the Reviewing Officer on 29.6.2009, he had immediately returned back the ACR Form to the Reporting Officer, due to which ACR for the three broken periods from 10.11.2008 to 31.3.2009, could not be reviewed. We also do not find any substance in the contention of learned counsel appearing for the Department that the time limit will apply only in respect of the correctly submitted ACR, and not the misreported ACRs. As observed above, there was no requirement for filling up ACRs for different periods for the same reporting year. The reasons for disagreement of the remarks of the Reviewing Officer with the remarks of the Reporting Officer, were not supported by sufficient material. She could not have imported her experience of the working and conduct of the applicant, during the relevant period, based upon her personal knowledge. There was absolutely nothing on record to justify the downgrading of the entry for the third part of the year 2008-09.

We also do not find any substance in the contention of the applicant that the entries were deliberately and with malafide intentions, downgraded for the years 2006-07 and 2007-08. The officer, against whom, the malafides were alleged, was not impleaded in the Tribunal. She had also not been impleaded in the High Court to allow her an opportunity to reply to the allegations. Further, there is no material placed on record, on which the applicant can successfully challenged the orders of downgrading his entries from ''Outstanding'', in the years 2003-04, 2004-05, 2005-06, to ''Good'' in the years 2006-07 and 2007-08.

We heard the applicant appearing in person at length for his satisfaction. He submits that he had completed his targets, despite lack of requisite facilities. He made certain allegations, and the circumstances, in which he could not cooperate with the Reviewing Officer, while she was on an official visit. We do not propose to take cognizance of these events, as these facts were not pleaded in detail, nor the officer against whom the allegations have been made, has got an opportunity to reply to them.

For the aforesaid reasons, all the three writ petitions are dismissed.

A copy of this order will be placed in the connected files.