K.P. Manoj v. Comptroller & Auditor General of India & Others

O.P(CAT) No. 122 of 2015 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM 'CR”** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941** ## **OP (CAT).No.122 OF 2015(Z)** **AGAINST THE ORDER IN OA 416/2012 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER:** **K.P.MANOJ AGED 50 YEARS** **S/O.LATE PRABHAKARAN, SENIOR ACCOUNTS OFFICER, O/O.THE ACCOUNTANT GENERAL (A ANS E) KERALA, ERNAKULAM BRANCH, ERNAKULAM, RESIDING AT AGS OFFICE STAFF QUARTERS, KALOOR, COCHIN 682 017.** **BY ADVS. SRI.M.A.SHAFIK SRI.K.M.ANTHRU SMT.SHAMEENA SALAHUDHEEN SRI.N.M.SIYAD** ## **RESPONDENTS:** - **1 THE COMPTROLLER & AUDITOR GENERAL OF INDIA 9, DEENDAYAL UPADHYAY MARG, NEW DELHI 110 124.** - **2 THE DEPUTY COMPTROLLER AUDITOR GENERAL OFFICE OF THE COMPTROLLER AND AUDITOR GNERAL OF INDIA, 9, DEENDAYAL UPADHAYAY MARG, NEW DELHI 110 124** - **3 THE ACCOUNTANT GENERAL AE KERALA, TRIVANDRUM 695 039.** - **4 THE SR. DEPUTY ACCOUNTANT GENERAL ADMN O/O THE ACCOUNTANT GENERAL (A&E) KERALA, TRIVANDRUM 695 039.** - **5 SRI.V.RAVEENDRAN PRINCIPAL ACCOUNANT GENERAL (A & E) ANDRA PRADESH,** O.P(CAT) No. 122 of 2015 2 ## **HYDERABAD 500 028.** **6 SRI.K.K.PONNAPPAN, ACCOUNTS OFFICER O/O.THE ACCOUNTANT GENERAL (A&E) KERALA, TRIVANDRUM 695 039.** **R1-6 BY SRI.K.I.MAYANKUTTY MATHER, SC, I.A. AND A.D.** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 02.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **“CR”** ## **K.VINOD CHANDRAN & P.V.KUNHIKRISHNAN, JJ** --------------------------------------------------------------------O.P(CAT) No. 122 of 2015 -------------------------------------------------------------------Dated this the 2[nd] day of March, 2020 ## **JUDGMENT** ## **P.V.Kunhikrishnan, J** The above Original Petition (CAT) is filed challenging the order dated 28.11.2014 in OA No.416 of 2012 on the file of the Central Administrative Tribunal, Ernakulam Bench(herein after mentioned as Tribunal). The petitioner herein is the applicant in the above Original Application and the respondents herein are the respondents therein. 2. The petitioner was working as Assistant Accounts Officer in the office of the Accountant General, Kerala, Ernakulam Branch. Aggrieved by down grading entries made by Reviewing Officer in his Annual Confidential Report (For short ACR) and the consequential denial of promotion as Accounts Officer, the petitioner approached the Tribunal. He has challenged the below bench mark ACRs, Annexure-A1 of 2007-2008 and Annexure-A6 of 2008-2009. In both these ACRs, though the Reporting Officers O.P(CAT) No. 122 of 2015 4 have given good remarks, the Reviewing Officers have down graded it to average. Hence, the petitioner challenged Exts A1 and A6 ACR for the period 2007-2008 and 2008-09. The petitioner also challenged Exts A2 to A5 and A7 to A9 and A22 orders and communications ensued as a sequence to adverse entries in the aforesaid ACRs. 3. After hearing both sides, as per order dated 4.7.2013 in OA No.416 of 2012 (Ext P4), the Tribunal allowed the Original Application and declared that the applicants grading in ACR of 2007-2008 and 2008-2009 shall be modified and read as 'Good'. Consequently, all the impugned orders in the Original Application were quashed and set aside in so far as they carry the average report . Respondents were directed to conduct review DPC. 4. Challenging Ext P4 order dated 4.7.2013, the respondents herein filed OP(CAT) No.3836 of 2013 before this court. This court admitted the Original Application confining the admission of the Original Petition to an examination of the limited aspects as to the ACR entry of “average”, for the year 2008-2009. That means, this court upheld the findings in Ext P4 regarding the O.P(CAT) No. 122 of 2015 5 ACR entry of the petitioner for the year 2007-2008 having been declared 'good' by the Tribunal. 5. After hearing both sides, this court as per Ext P5 judgment dated 13.11.2013 in OP(CAT)No.3836 of 2013, allowed the Original Application setting aside Ext P4 order of the Tribunal to the extent it relates to the petitioner's ACR of 2008-2009 and the findings and reasons in the Tribunal's order to that extent. This court remanded the matter to the Tribunal for fresh consideration in relation to the petitioner's ACR of 2008-2009. This court remanded the matter mainly for the reason that, the Tribunal does not appear to have adverted to the materials which are on record as regard the reasoning of the Reviewing Officer to dilute the grading given by the Reporting Officer. This court observed that only an assimilation of such materials, the Tribunal could conclude that those materials were insufficient to substantiate the dilution of the grading. 6. The relevant portion of the order of this court in Ext P5 is extracted here under. 6. In the light of the fact that the aforesaid materials were available before it, it O.P(CAT) No. 122 of 2015 6 was necessary that those materials ought to have been considered by the Tribunal to decide as to whether the decision of the Deputy Comptroller & Auditor General in Annexure-A7 deserved to be interfered with in exercise of jurisdiction under the Administrative Tribunals Act. Such consideration calls for expression of reasons as to why those materials are insufficient if the decision had to go in favour of the employee. We are of the view that those materials escaped appropriate consideration of the learned Tribunal. The impugned order dated 4.7.2013 of the Tribunal in O.A.No.416 of 2012 is liable to be set aside to the extent of interference made through it and the directions issued as regards the employee's ACR of 2008-2009. 7. Based on the directions in Ext P5, the Tribunal reconsidered the matter and dismissed the Original Application as per Ext P8 order. Challenging Ext P8 order, this OP(CAT) is filed by the petitioner. 8. Heard the counsel for the petitioner and the respondents. 9. After hearing both sides, we are of the opinion that, this is not a fit case in which interference of the order passed by the Tribunal is warranted. It is a settled position that, we cannot sit in appeal over the decision of the Departmental authorities O.P(CAT) No. 122 of 2015 7 regarding the entries in ACR. 10. The counsel for the petitioner submitted that, there is no justification for giving an entry of 'average' in the facts and circumstances of the case. The counsel for the petitioner contended that the reasons mentioned in Exts R4(e) & R7 are not justified and there was no laxity or delay on the part of the applicant in submitting internal audit report as stated by the Reviewing Officer. It is also stated by the counsel for the petitioner that, no explanations were called for, nor was the applicant directed to show cause for the delay occasioned; which is alleged as a dereliction of duty. It is also contended by the counsel for the petitioner that, before the entry of 'average' in the ACR, no notice was issued to the petitioner. The counsel for the respondent supported the findings of the Tribunal. 11. After Ext P5 remand order of this court, the duty of the Tribunal was limited to examine the legality and proportionality of the Annexure-A6 ACR for the year 2008-09 and the issues relating to it. Annexure-A6 is the copy of the ACR of the petitioner for the period from 1.4.2008 to 31.3.2009. O.P(CAT) No. 122 of 2015 8 Annexure-A6 was communicated to the petitioner as per Annexure-A5 memorandum. On receiving Annexure-A6 report, the petitioner submitted his objection to it as per representation dated 14.10.2010. As per Annexure-A7, the 2[nd] respondent considered all the contentions of the petitioner and rejected the same. The relevant portion of Annexure-A7 is extracted here under: I have considered the representation dated 14.10.2010 of Shri.K.P.Manoj, Assistant Accounts Officer of Office of the Accountant General (A&E), Kerala, Thiruvananthapuram against downgrading the final grading in the Annual Performance Appraisal Report (APAR) for the period 2008-09 from “Good” as awarded by Reporting Officer to “Average” by the Reviewing Officer. 2. The petitioner has requested for restoration of the grading awarded by the Reporting Officer i.e, “Good” as final grading on the following grounds:- a. The Reviewing Officer has not cited any specific reasons for lowering the grade, other than mentioning petitioner's performance as “Average”. The Reviewing Officer was prejudicial and unfair in lowering the Grade, ignoring the assessment of the Reporting Officer. ## b. During the Reporting period, the O.P(CAT) No. 122 of 2015 9 petitioner has done all the work as assigned by the Internal Audit Officer to his satisfaction and the fact was acknowledged by the Reporting Officer. 3. After going through the APAR for the period 2008-09, the representation of the petitioner in the light of facts and comments of the Reporting and Reviewing Officers thereon, my observations are as follows:- a. Internal Audit Section functions as the eyes and ears of the Accountant General who is therefore, the best judge of its working. The Reviewing Officer was well aware of the performance of the petitioner. Hence, not being satisfied with the grading awarded by the Reporting Officer, the Reviewing Officer graded the petitioner as per his own assessment. Moreover, ample evidences have also been given by the Reviewing Officer to justify the grading awarded to the petitioner. For eg, in the Reporting Year 2008-09, four sections were audited by the petitioner. Against the target of 15 days for issue of the report, the time taken by petitioner was 116 days, 175 days, 150 days and 136 days respectively to submit the report to his superior. b. It is true that the remarks and grading awarded by the Reporting Officer reveal that he was satisfied with the working of the petitioner but it does not mean that the Reviewing Officer will also agree with Reporting Officer. In the capacity of the Reviewing Officer and being in direct supervision of Internal Audit Section, he can judge the performance of the officer reported upon at his own level. Therefore, the O.P(CAT) No. 122 of 2015 10 ## contention of the petitioner is not right. 4. In view of the above, I find no merit in the representation dated 14.10.2020 of Shri K.P.Manoj, Assistant Accounts Officer and therefore confirm the grading as awarded by the Reviewing Officer. 12. Reading of Annexure-A7 will show that, 2[nd] respondent considered all the aspects and the contention raised by the petitioner was specifically dealt with in the order in detail. The 2[nd] respondent also called for the remarks of the Reviewing Officer and the Reviewing Officer, which was submitted as per Annexure-R4(e) with explanation for down grading of the ACR. Thereafter Annexure-A7 is passed. The Tribunal considered Annexure-A7 in detail and found that there is nothing to interfere in it. The alleged malafide action of respondent No.5 was also considered by the authorities in detail and the Tribunal also discussed the same and found that, there is nothing to suspect any malafides on the part of the 5[th] respondent. It may be true that, in so far as the branch office is concerned, the petitioner was “Good” in work. But as he was a member of the internal audit section, he was working directly under the Accountant General. O.P(CAT) No. 122 of 2015 11 Hence, 5[th] respondent had better opportunity to assess the work and the achievement for target fixed for the petitioner. 13. Similarly, the Tribunal even went to the extent of examining, whether Annexure-A9 order promoting the immediate junior of the applicant is correct and the decision of DPC not to consider the applicant for promotion in view of the adverse entry, requires any interference. Paragraph 16 & 17 of Ext P8 order deals with the same. Actually it is beyond the scope of Ext P5 remand order of this court. According to us, the Tribunal considered all the aspects and concluded like this: 18. Taking into consideration of the facts, circumstances and records produced by both sides this Tribunal is of the view that the down grading of the ACR by the reviewing officer in Annexure A6 does not call for any interference. The consequent effects of such down grading also is bound to remain unassailable. Therefore, it goes without saying that the OA, in so far as the adverse entries in Annexure A6 is concerned, should only to be dismissed. 19. Accordingly the OA as regards to the issues arising in relation to the applicant's ACR of 2008-2009 is dismissed. It is made clear that, as confirmed by the Hon'ble High Court's judgment dated 13.11.2013 in OP(CAT) No.3836 of 2013, the findings of this Tribunal and the resultant order as regards the applicants ACR 2007-2008 remain the same. O.P(CAT) No. 122 of 2015 12 The OA is disposed of accordingly. No order as to costs. 14. According to us, there is nothing to interfere with the order of the Tribunal. The contention of the counsel for the petitioner that, before making adverse entry in ACR, notice should be given to the petitioner is unsustainable. If an adverse entry is made in the ACR, it should be communicated and if the officer concerned has got any grievance, that should be dealt with in accordance with law. But, it is not the Rule that, before making adverse entry, the petitioner should be heard in detail. In **Dev Dutt v. Union of India & others ((2008)8 SCC 725))** the Supreme Court only observed that the adverse entry/remarks in the ACR should be communicated to the officer concerned within a reasonable period, so that the employee concerned gets an opportunity of representation for improvement of his grading. In the above decision, it is also held that representation should be decided fairly and within a reasonable period. But, before making the entries/remarks, there is no rule that a notice is to be issued to the officer. It is for the authority to decide whether a dereliction of or defect in discharge of duty warrants a penalty and then O.P(CAT) No. 122 of 2015 13 again a minor or major penalty, in which even alone a show cause notice is required. If the authority merely takes note of a slackness in work or an uncalled for lethargy, it could reflect in the ACR for which no prior notice is required. It is not as if every defect noticed should be immediately informed to the employee; when the employee is aware of his duties and the need to be diligent in the discharge of such duties. In such circumstances, the notice before making adverse entry in the ACR is not necessary. 15. The scope of judicial review against the entry in ACR is very limited. In **Anil Mishra v. Union of India & others (2008)7 SCC 732,** the Supreme Court considered this point. Relevant portion of the above judgment is extracted here under: “We have perused the record and heard the learned counsel for the parties, and we see no reason to interfere with the orders of the High Court or the Tribunal. This is not a case where the adverse entry was not communicated to the appellant. It was not only communicated but the appellant made representation against the adverse entry, which was considered by the Chief Commissioner, who rejected the representation by a detailed speaking order of five pages. Further memorial to the Central Government has also been considered and O.P(CAT) No. 122 of 2015 14 dismissed. Thus three senior officers have considered the appellant's case and rejected the same. We cannot sit as an appellate authority over these orders. The scope of judicial review of administrative orders is limited as has been repeatedly held by this Court, vide _**Tata Cellular v. Union of India.”**_ 16. Reading of Ext P8 order will show that, the Tribunal considered all the aspects as directed by this court in Ext P5 remand order. Therefore, there is nothing to interfere in Ext P8 order. Hence, OP(CAT) No.122 of 2015 is dismissed. No costs. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- ## **P.V.KUNHIKRISHNAN, JUDGE** cmsxxx O.P(CAT) No. 122 of 2015 15 ## **APPENDIX** **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**P1: TRUE COPY OF THE ORGINAL APPLICATION**| |---|---| ||**NO.416/2012 FILED BEFORE THE C.A.T**| |**EXHIBIT P2**|**P2: TRUE COPY OF THE REPLY STATEMENT FILED**| ||**BY THE RESPONDENTS BEFORE THE CAT IN OA**| ||**NO.416/2012.**| |**EXHIBIT P3**|**P3: TRUE COPY OF THE REJOINDER STATEMENT**| ||**FILED BY THE PETITIONER BEFORE THE C.A.T IN**| ||**O.A. NO.416/2012.**| |**EXHIBIT P4**|**P4: TRUE COPY OF THE ORDER DATED 4/7/2013**| ||**OF THE C.A.T IN O.A. NO.416/2012.**| |**EXHIBIT P5**|**P5: TRUE COPY OF THE JUDGMENT DATED**| ||**13/11/2013 OF THIS HON'BLE COURT IN OP(CAT)**| ||**NO.3836/2013.**| |**EXHIBIT P6**|**P6: TRUE COPY OF THE ADDL. REJOINDER FILED**| ||**BY THE PETITIONER BEFORE THE CAT IN OA**| ||**NO.416/2012.**| |**EXHIBIT P7**|**P7: TRUE COPY OF THE OBJECTION FILED BY THE**| ||**RESPONDENTS**| |**EXHIBIT P8**|**P8: TRUE COPY OF THE ORDER DATED 28/11/2014**| ||**OF THE CAT IN OA NO.416/2012.**| |**EXHIBIT P9**|**P9: TRUE COPY OF THE ORDER DATED 31/03/2014**| ||**OF THE CAT AHMEDABAD BENCH IN OA**| ||**NO.327/2013.**| |**ANNEXURE A1**|**TRUE COPY OF ANNUAL CONFIDENTIAL REPORT FOR**| ||**THE PERIOD FROM APRIL 2007 TO MARCH 2008**| ||**COMMUNICATED BY MEMORANDUM BEARING**| ||**NO.SR.DAG(A)/C.CELL/CR/KPM/07/-08/596 DATED**| ||**26-9-08 ISSUED BY THE 4TH RESPONDENT**| - **ANNEXURE A2 TRUE COPY OF MEMORANDUM BEARING NO.SR.GAD(A)/C.CELL/CR/KPM/07-08/484 DATED 23/07/09,ISSUED BY THE 4TH RESPONDENT.** - **ANNEXURE A3 TRUE COPY OF THE ORDER DATED 27/04/2010, ISSUED BY THE 2ND RESPONDENT.** - **ANNEXURE A4 TRUE COPY OF THE CORRIGENDUM TO A3 BEARING NO.1014-GE-II/324-2009 DATED 23/6/2010, ISSUED FROM THE OFFICE OF THE 2ND** O.P(CAT) No. 122 of 2015 16 ||**RESPONDENT.**| |---|---| |**ANNEXURE A5**|**TRUE COPY OF THE MEMORANDUM BEARING**| ||**NO.SR.DAG(A)/C.CELL/APAR/245 DATED**| ||**22/27/09/2010, ISSUED BY THE 4TH**| ||**RESPONDENT.**| |**ANNEXURE A6**|**TRUE COPY OF THE ANNUAL CONFIDENTIAL REPORT**| ||**FOR THE PERIOD FROM 01 APRIL 2008 TO 31ST**| ||**MARCH 2009.**| |**ANNEXURE A7**|**TRUE COPY OF THE ORDER NO.11/STAFF**| ||**DISC.II/39-2011 DATED 05 JULY 2011, ISSUED**| ||**BY THE 2ND RESPONDENT.**| |**ANNEXURE A8**|**TRUE COPY OF THE MEMORANDUM**| ||**NO.DAG(A)/C.CELL/CR.KPM/1231 DATED**| ||**15/3/2012 ISSUED BY THE 4TH RESPONDENT.**| |**ANNEXURE A9**|**TRUE COPY OF THE SECTIONAL ORDER NO.395**| ||**DATED 30/08/2010, ISSUED BY THE 3RD**| ||**RESPONDENT.**| |**ANNEXURE A22**|**TRUE COPY OF THE LETTER NO.SR.DAG**| ||**(A)/C.ELL/RTI-44/2011-12/130 DATED**| ||**03/06/2011, ISSUED BY THE 4TH RESPONDENT**| ||**SR.DAG(ADMN) & CENTRAL PUBLIC INFORMATION**| ||**OFFICER.**| |**ANNEXURE A10**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**28/10/2008, ADDRESSED TO THE 3RD**| ||**RESPONDENT.**| |**ANNEXURE A11**|**TRUE COPY OF THE DETAILED APPEAL DATED**| ||**14/11/2009,ADDRESSED TO THE 2ND RESPONDENT.**| |**ANNEXURE A12**|**TRUE COPY OF THE REMINDER DATED 30/01/2010**| ||**ADDRESSED TO THE 2ND RESPONDENT.**| |**ANNEXURE A13**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**30/01/2010, ADDRESSED TO THE 3RD**| ||**RESPONDENT, ACCOUNTANT GENERAL (A& E).**| |**ANNEXURE A14**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**15/07/2010 ADDRESSED TO THE 3RD RESPONDENT.**| |**ANNEXURE A15**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**31/07/2010 ADDRESSED TO THE 3RD RESPONDENT.**| |**ANNEXURE A16**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**12/02/2011 ADDRESSED TO THE 3RD RESPONDENT.**| |**ANNEXURE A17**|**TRUE COPY OF THE REPRESENTATION DATED**| O.P(CAT) No. 122 of 2015 17 - **14/10/2010 ADDRESSED TO THE 3RD RESPONDENT.** - **ANNEXURE A18 TRUE COPY OF THE REPRESENTATION DATED 4/5/2011 ADDRESSED TO THE 2ND RESPONDENT.** - **ANNEXURE A19 TRUE COPY OF THE ANNUAL PERFORMANCE APPRAISAL REPORT FOR THE YEAR 2009-10.** - **ANNEXURE A20 TRUE COPY OF THE LETTER BEARING NO.SR.GAD(A)/C.CELL/CR/BBM-3/10-11 DATED 19/05/2011, ISSUED BY THE 4TH RESPONDENT.** - **ANNEXURE A21 TRUE COPY OF THE RELEVANT PAGES OF THE CONSOLIDATED INSTRUCTIONS AS PUBLISHED UNDER THE HEAD 'DEPARTMENTAL PROMOTION COMMITTEE' IN SWAMY'S COMPILATION ON "SENIORITY AND PROMOTION".** - **ANNEXURE R4(A) TRUE COPY OF THE MEMORANDA 9/2/2011. ANNEXURE R4(B) TRUE COPY OF THE MEMORANDA 9/2/2011. ANNEXURE R4(C) TRUE COPY OF THE LETTER OF THE REPORTING OFFICER 18/12/2008.** - **ANNEXURE R4(D) TRUE COPY OF THE LETTER OF THE REVIEWING OFFICER 8/7/2009.** - **ANNEXURE R4(E) TRUE COPY OF THE LETTER OF THE REVIEWING OFFICER 28/4/2011.** - **ANNEXURE R4(F) TRUE COPY OF THE RELEVANT EXTRACT OF THE STATUTORY PROVISIONS.** - **ANNEXURE A23 TRUE COPY OF THE APR/ACT FOR THE PERIOD FROM 1/4/2012 TO 31/12/2012 (As AAO).** - **ANNEXURE A24 TRUE COPY OF THE APR/ACT FOR THE PERIOD FROM 1/1/2013 TO 31/3/2013 (REMAINING PERIOD) AS ACCOUNTS OFFICER.** **ANNEXURE A25 TRUE COPY OF A CERTIFICATE OF MERIT DATED 26/1/2014 ISSUED BY THE 3RD RESPONDENT.** RESPONDENTS EXTS NIL cms /TRUE COPY/ P.S.TO JUDGE O.P(CAT) No. 122 of 2015 18