V.J. Xavier v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** ## **&** **THE HONOURABLE MR.JUSTICE BASANT BALAJI** **FRIDAY, THE 10[TH] DAY OF MARCH 2023 / 19TH PHALGUNA, 1944** **O.P. (CAT) NO.185 OF 2016** **(AGAINST THE ORDER IN O.A. NO.817/2012 DATED 14.08.2015 AND THE ORDER IN REVIEW APPLICATION NO.180/00019/2015 IN THE SAID O.A. DATED 13.11.2015 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH)** ## **PETITIONER/APPLICANT IN O.A.:** **V.J. XAVIER,** **AGED 62 YEARS, S/O. JOSEPH, RETIRED SKIPPER-IN-CHARGE, CENTRAL INSTITUTE OF FISHERIES NAUTICAL AND ENGINEERING TRAINING UNIT, CHENNAI, RESIDING AT VELIVIL HOUSE, BTS ROAD, DEVANKULANGARA, EDAPPALLY, KOCHI-24.** **BY ADV. SRI.T.A.RAJAN** ## **RESPONDENTS:** **1 UNION OF UNDIA REPRESENTED BY SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF AGRICULTURE, DEPARTMENT OF ANIMAL HUSBANDARY, DAIRYING AND FISHERIES, KRISHI BHAVAN, NEW DELHI-110 001.** **2 SECRETARY TO GOVERNMENT, MINISTRY OF AGRICULTURE, DEPARTMENT OF ANIMAL HUSBANDRY, DAIRYING AND FISHERIES, KRISHI BHAVAN, NEW DELHI-110 001.** **3 THE DIRECTOR, CENTRAL INSTITUTE OF FISHERIES NAUTICAL AND ENGINEERING TRAINING, FORESHORE ROAD, KOCHI-16.** -2- ## **O.P. (CAT) NO.185 OF 2016** **4 THE DEPUTY DIRECTOR, CENTRAL INSTITUTE OF FISHERIES NAUTICAL AND ENGINEERING TRAINING, UNIT NO.59, S.N.CHETTY STREET, ROYAPURAM, CHENNAI-13.** **BY SRI. T.V. VINU, CGC** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 10.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- ## **O.P. (CAT) NO.185 OF 2016** **S.V. BHATTI & BASANT BALAJI, JJ. --------------------------------------------------O.P.(CAT) No.185 of 2016 --------------------------------------------------Dated this the 10[th] day of March, 2023** ## **JUDGMENT** ## **BASANT BALAJI, J.** The applicant in O.A. No.817 of 2012 has filed this O.P. (CAT) aggrieved by the order dated 14.08.2015 and order dated 13.11.2015 in Review Application No.180/00019/2015 in O.A. No.817 of 2012. The applicant joined the service of the 3[rd] respondent on 06.06.1980 as a Fishing Second Hand in the Central Institute of Fisheries Nautical Engineering and Training. The said post was later re-designated as Bosun. Since there was a dearth to the post of Skippers, the applicant worked as Skipper in charge from May, 2006 to November, 2010. The Confidential Report of the applicant for the period from 01.04.2009 to 31.03.2010 had several adverse remarks against him. So he submitted a representation to the 3[rd] -4- ## **O.P. (CAT) NO.185 OF 2016** respondent requesting to expunge the adverse remarks in the Confidential Report. The 3[rd] respondent rejected the same and ordered to retain the adverse entries in the Annual Confidential Report. The applicant submitted an appeal to the 2[nd] respondent against the order of the 3[rd] respondent. Since no orders were passed by the 2[nd] respondent in the appeal, he approached the Tribunal with the application. The prayers sought before the Tribunal are as follows; I) Call for the records leading to Annexure A1 and Annexure A3 and set aside them. II) Declare that the adverse reports recorded in Annexure A1 Confidential Report are arbitrary, unjust and illegal. III) Direct the respondents 3 and 4 to expunge the adverse reports recorded in Annexure A1. IV) In alternative direct the 2[nd] respondent to consider and dispose of Annexure A4 appeal at the earliest. V) Award costs of and incidental to this application. VI) Grant such other relief, which this Honourable tribunal may deem fit and proper in the circumstances of the case. -5- ## **O.P. (CAT) NO.185 OF 2016** 2. The Tribunal dismissed the original application by order dated 14.08.2015. The applicant thereafter filed a review application, which was also dismissed on 13.11.2015. Aggrieved by these two orders, he has approached this Court. 3. Heard Sri. T.A. Rajan, Counsel for the petitioner and Sri. T.V. Vinu, CGC. 4. Annexure A1 is the confidential report for the period from 01.04.2009 to 31.03.2010 in respect of the applicant. It contains certain remarks which are adverse to the applicant. For expunging the said remarks, he has filed a representation before the 3[rd] respondent. In the said representation, he has given a detailed explanation of each of the remarks made against him and prayed for expunging the remarks. But by a two line order, the representation was rejected on 17.02.2011, which reads as follows; “With reference to his representation dated 06.10.2010 against the adverse remarks made in his ACR for the year 2009-2010 Sri. V.J. Xavier, Bosun is informed that the Competent Authority, after careful -6- ## **O.P. (CAT) NO.185 OF 2016** examination of his representation has decided to retain adverse entries made in his ACR.” 5. The adverse remarks against the applicant are detailed below; |01|General intelligence and<br>keenness to learn.||He is intelligent but he has not<br>shown keenness to learn and do<br>not have inclination for learning<br>works.| |---|---|---|---| |02|Attention<br>to<br>record<br>management and routine<br>aspects of works such as<br>proper maintenance of basic<br>data, log sheets, guard files<br>recording, indexing and<br>weeding of files.||He is maintaining registers and log<br>books of the vessel. It was noticed,<br>he has not maintained consumable<br>stoke register record in proper.| |03|Technical Competence||He is competent as Bosun, but he<br>did not carry out his duties<br>effectively.| |04|Knowledge<br>of<br>subject<br>matters, office procedure,<br>rules and regulations and<br>instructions with particular<br>reference to the work<br>allotted<br>to<br>him<br>and<br>proficiency<br>in<br>their<br>application.||He does not know office<br>proceedings in respect of his<br>claims, overtime works, availing of<br>week end holidays, compensatory<br>off, and his projection of the issues<br>on regular basis effected the work.| |05|Presentation of the case or<br>data<br>quality<br>of<br>noting/drafting,||He has been submitting of notes,<br>letters for works related to him on<br>regular basis and he has practiced<br>of these works.| -7- ## **O.P. (CAT) NO.185 OF 2016** |06|Promptness in disposal of<br>work.||He is as usual in general way for<br>disposing of his duty jobs. He has<br>not been making required efforts to<br>clear side by other boats at the jetty<br>for M V Skipper II sailing and not<br>undertaken duty as required for<br>government need.| |---|---|---|---| |07|Initiative and originality.||He has not shown effective initiate<br>and originality and poor in initiative<br>and originality for the institute<br>need, carrying out works for the<br>office.| |08|Assessment on officers<br>performance of the task<br>assigned to him vis-a-vis<br>targets if any||He has not shown interest and<br>keenness to sail vessel regularly for<br>completing programme target. He<br>had shown his performance as<br>skipper in charge in a usual way<br>and<br>not<br>taken<br>proper<br>responsibilities as a skipper in<br>charge. He is unwilling to<br>communicate with Boats concerned<br>at Jetty and M V Skipper II staff for<br>clearing and arrangement of sailing<br>M V Skipper II| |09|Has the Officer shown any<br>organizing capacity as<br>supervisory ability.||He has not shown his active<br>willingness to move vessel M V<br>Skipper II for effective efficient<br>programme of M V Skipper II and<br>not<br>undertaken<br>effective<br>supervisory duty| |10|Willingness to undertake<br>greater responsibility||He is officiating as skipper.<br>However he defied supervisors<br>directions.| |11|Relationship with public||He is not coordinating and not<br>communicating with the people,<br>public for clearing of side by boats<br>concerned and others attached –| -8- ## **O.P. (CAT) NO.185 OF 2016** ||||related people at Jetty for M V<br>Skipper II operations.| |---|---|---|---| |12|Relationship with fellow<br>employees||Not so cordial with the ship staff of<br>the vessel M V Skipper II| |13|Amenability to discipline||He is not obeying office instructions| |14|Punctuality in attendance||He is not regular in duty since he<br>has been applying frequent leave<br>almost many occasions and it is<br>affected vessel operations.| |15|Integrity||He has been asked to prove his<br>integrity of claim vide office<br>communication<br>FM.18/04/2007<br>Accts.| |16|Has the office been<br>reprimanded for indifferent<br>work or for other cause<br>during the period under<br>report. If so please give<br>particulars||He had been warned many times<br>regarding leave duty and vessel<br>jobs related issued.| |17|Has the officers done any<br>outstanding or notable work<br>meriting commendation.||No.| |18|Overall assessment||Below average.| 6. The respondents filed a reply statement contending that the applicant was working at the 3[rd] respondent Institute Unit at Chennai as Mate. As per official exigency, the -9- ## **O.P. (CAT) NO.185 OF 2016** applicant was posted as Skipper in charge on board the Departmental Vessel. The applicant was in the habit of taking leave frequently, adversely affecting the vessel operations. The applicant needed to perform his work or duties more effectively. Despite repeated warnings, he was not regular in duty and had been frequently applying for leave on many occasions, severely affecting the vessel's operation. He has not performed his duties well and shows no interest or keenness to regularly sail the vessel to complete the target programmes. Taking into all these factors, the adverse remarks were entered in the Confidential Report. The representation submitted by the applicant was carefully gone into, and the competent authority was of the opinion that the adverse entries in the ACR are to be retained. It is not proved that the 2[nd] respondent has yet to consider the appeal. In fact, it was considered and disposed of by order dated 11.09.2013. The points raised by the applicant have been considered in detail, and a reasoned order has been passed as per Annexure -10- ## **O.P. (CAT) NO.185 OF 2016** A5. Hence, prayed for the dismissal of the original application. 7. The applicant has filed a rejoinder to the statement filed by the respondents. The applicant retired from service on superannuation on 31.10.2013. There were a number of leaves to his credit. He has availed only a portion of the said leave after making necessary applications for the same and sanctioning it by the competent authority. He never absented himself unauthorisedly. As the leaves are availed by the applicant after due sanctioning by the competent authority, the respondents are estopped from contending that the applicant is in the habit of taking leave frequently, and adversely affects the operation of the vessel. The adverse remarks were entered only for the year 01.04.2009 to 31.03.2010 for the periods prior to that, i.e., from 06.06.1980 onwards no adverse remarks, censures or any punishment were given to the applicant. 8. The contention raised by the counsel for the -11- ## **O.P. (CAT) NO.185 OF 2016** petitioner is that before entering the adverse remarks in the Confidential Report, the applicant was not given a memo or warning to improve the defects noted against him. If opportunity had been given to him to improve by way of advice or defects in his work, he would definitely have rectified it, and the adverse remarks could have been avoided in his Confidential Report. 9. Counsel for the respondents argues that from 22.07.2009 onwards, Annexures R1 to R10 was given to the applicant as memos and notes pointing out the defects in the work of the applicant to enable the petitioner to improve, but the applicant did not improve despite repeated reminders. Therefore, the applicant cannot contend that he was not put to notice of the defects against him before entering the same in the Confidential Report. The Tribunal has gone into the issue and noted the memos as well as the adverse remarks entered into the Confidential Report of the applicant and came to a definite conclusion that the adverse remarks in -12- ## **O.P. (CAT) NO.185 OF 2016** the Confidential Report cannot be expunged as he was adequately warned and opportunities were afforded to improve himself. 10. It is not in dispute that the applicant joined the service of the 3[rd] respondent in 1980. Until 2009, precisely 01.04.2009, there were no adverse remarks or punishment given to the applicant. No documentary evidence were produced to show that memos were issued to him to improve his work. The only memos are from 22.07.2009 to 23.03.2010. A perusal of these memos and reports are primarily in respect of frequent availing of leave and non accepting of messing allowance. It does not point out the defects noted in the Confidential Report and asking him for an explanation or gives opportunity to him to rectify the defects. The ultimate goal of writing of Confidential Report is to optimise the achievement of the Government Servant. The first and foremost is to improve his performance in his present job and, second, to assess his potential, provide him with appropriate -13- ## **O.P. (CAT) NO.185 OF 2016** feedback, and allow him to correct his deficiencies and improve his performance. The memos or reports produced as Annexures R1 to R10 do not point out the deficiencies in his service so that it cannot be taken as an opportunity given to the applicant to rectify his defects which are noted in the Confidential Report. Moreover, from 1980 onwards till 2009, no adverse remarks were forthcoming through the reply statement filed by the respondents. It is only at the fag end of his career that such adverse remarks are entered in the Confidential Report. He retired on superannuation on 31.10.2013. Taking into consideration the entire facts and circumstances of the case, especially the fact that there were no adverse remarks against him from 1980 till 2009, we are of the considered opinion that the Tribunal was not justified in dismissing the O.A., stating that sufficient opportunities have been given to the applicant to rectify the defects. We have gone through the adverse remarks entered in the Confidential Report in Annexure A1 and Annexures R1 to R10 in no way -14- ## **O.P. (CAT) NO.185 OF 2016** can be said to be giving an opportunity to the applicant to rectify the defects in his service to improve in future. Hence, we hold that the applicant was not given sufficient opportunity before entering the adverse remarks in the Confidential Report. For these reasons, the order of the Tribunal needs interference and we do so. Though a review petition was filed before the Tribunal, the Tribunal did not consider it necessary to review the order on the ground that under Section 22(3)(f) of the Administrative Tribunals Act, 1985, the powers are very limited and relying on the judgment of the Apex Court in **State of West Bengal and others v. Kamal Sengupta and another** reported in **[(2008) 2 SCC (L&S) 735]** dismissed the review petition holding that the entire documents and Annexures produced by the parties have been perused. There are no error apparent on the face of the record. As stated above, we are of the considered opinion that the Tribunal was not justified in dismissing the original -15- ## **O.P. (CAT) NO.185 OF 2016** application and the review application. Hence, we set aside the order of the Tribunal in O.A. No.817 of 2012 dated 14.08.2015 and the order in the review application No.180/00019/2015 dated 13.11.2015 and allow the O.A. Sd/- **S.V. BHATTI JUDGE** Sd/- **BASANT BALAJI JUDGE** bpr -16- ## **O.P. (CAT) NO.185 OF 2016** ## **APPENDIX OF OP (CAT) 185/2016** ## **PETITIONER'S ANNEXURES** **EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION NO.817 OF 2012. ANNEXURE A1 TRUE COPY OF THE CONFIDENTIAL REPORT OF THE APPLICANT FOR THE PERIOD ENDING 1/4/2009 TO 31/3/2010. ANNEXURE A2 TRUE COPY OF THE REPRESENTATION OF THE APPLICANT DATED 6/10/2010 ANNEXURE A3 TRUE COPY OF ORDER NO.F 5-1/2010 APAR DATED 17/2/2011 OF THE 4TH RESPONDENT. EXHIBIT P2 TRUE COPY OF THE AMENDED ORIGINAL APPLICATION NO.817/20120** **ANNEXURE A1 TRUE COPY OF THE CONFIDENTIAL REPORT OF THE APPLICANT FOR THE PERIOD ENDING 01/04/2009 TO 31/03/2010. ANNEXURE A2 TRUE COPY OF THE REPRESENTATION OF THE APPLICANT DATED 06.10.2010. ANNEXURE A3 TRUE COPY OF THE ORDER NO.F5-1/2010 APAR DATED 17/02/2011 OF THE 4TH RESPONDENT. ANNEXURE A4 TRUE COPY OF THE APPEAL DATED 8/3/2011 TO THE 2ND RESPONDENT. ANNEXURE A5 TRUE COPY OF THE ORDER NO.3-23/2013-ADMN V. DATED 11/09/2013 OF THE 1ST RESPONDENT. EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT DATED 15/11/2012 IN OA NO.817/2012.** -17- ## **O.P. (CAT) NO.185 OF 2016** |**ANNEXURE R1**|**PHOTOCOPY OF THE MEMORANDUM DATED**| |---|---| ||**22/07/2009.**| |**ANNEXURE R2**|**PHOTOCOPY OF THE MEMORANDUM DATED 5/8/09.**| |**ANNEXURE R3**|**PHOTOCOPY OF THE NOTE DATED 6/8/09.**| |**ANNEXURE R4**|**PHOTOCOPY OF THE NOTE DATED 30/10/09.**| |**ANNEXURE R5**|**PHOTOCOPY OF THE MEMORANDUM DATED**| ||**23/11/2009**| |**ANNEXURE R6**|**PHOTOCOPY OF THE REPORT DATED 7/1/10.**| |**ANNEXURE R7**|**PHOTOCOPY OF THE MEMORANDUM DATED 15/2/10.**| |**ANNEXURE R8**|**PHOTOCOPY OF THE OFFICE ORDER DATED**| ||**22/2/10 ISSUED TO THE APPLICANT.**| |**ANNEXURE R9**|**PHOTOCOPY OF THE NOTE DATED 23/3/10.**| |**ANNEXURE R10**|**PHOTOCOPY OF THE NOTE DATED 23/3/10.**| |**EXHIBIT P4**|**TRUE COPY OF THE REPLY STATEMENT DATED**| ||**04/02/2014 IN AMENDED OA 817/2012.**| |**ANNEXURE R1**|**PHOTOCOPY OF THE MEMORANDUM DATED**| ||**22/07/2009.**| |**ANNEXURE R2**|**PHOTO COPY OF THE MEMORANDUM DATED**| ||**05/08/2009.**| |**ANNEXURE R3**|**PHOTOCOPY OF THE NOTE DATED 06/08/2009.**| |**ANNEXURE R4**|**PHOTOCOPY OF THE NOTE DATED 30/10/2009.**| |**ANNEXURE R5**|**PHOTOCOPY OF THE MEMORANDUM DATED**| ||**23/11/2009.**| -18- **O.P. (CAT) NO.185 OF 2016** **ANNEXURE R6 PHOTOCOPY OF THE REPORT DATED 07/01/2010. ANNEXURE R7 PHOTOCOPY OF THE MEMORANDUM DATED 15/02/2010. ANNEXURE R8 PHOTOCOPY OF THE OFFICE ORDER DATED 22/02/2010 ISSUED TO THE APPLICANT. ANNEXURE R9 PHOTOCOPY OF THE NOTE DATED 23/03/2010. ANNEXURE R10 PHOTOCOPY OF THE NOTE DATED 23/03/2010. EXHIBIT P5 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT IN OA 817/2012. ANNEXURE A5 TRUE COPY OF THE NO.PF.296/ADM.VOL.II DATED 9/9/10. ANNEXURE A6 TRUE COPY OF THE NO.PF.296/ADM.VOL.II DATED 03/08/2010. ANNEXURE A7 TRUE COPY OF THE REPRESENTATION DATED 28/7/2009 SUBMITTED BY THE APPLICANT. ANNEXURE A8 TRUE COPY OF THE APPEAL DATED 10/8/09 SUBMITTED BY THE APPLICANT. ANNEXURE A9 TRUE COPY OF THE SUBMISSION DATED 3/8/09 SUBMITTED BY THE APPLICANT. ANNEXURE A10 TRUE COPY OF THE SUBMISSION DATED 6/8/09 SUBMITTED BY THE APPLICANT. ANNEXURE A11 TRUE COPY OF THE ORDER NO.F.NO.26-9/2009 OPN DATED 30/10/09. ANNEXURE A12 TRUE COPY OF THE DATED 9/11/09 SUBMITTED BY THE APPLICANT.** -19- ## **O.P. (CAT) NO.185 OF 2016** |**ANNEXURE A13**|**TRUE COPY OF THE APPEAL DATED 16/12/2009**| |---|---| ||**SUBMITTED BY THE APPLICANT.**| |**ANNEXURE A14**|**TRUE COPY OF THE SUBMISSION DATED**| ||**02/02/2010 SUBMITTED BY THE APPLICANT.**| |**ANNEXURE A15**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**03/03/2010 SUBMITTED BY THE APPLICANT.**| |**ANNEXURE A16**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**4/3/10 SUBMITTED BY THE APPLICANT.**| |**ANNEXURE A17**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**24/3/10 SUBMITTED BY THE APPLICANT**| |**ANNEXURE A18**|**TRUE COPY OF THE SUBMISSION DATED 23/10/09**| ||**SUBMITTED BY THE SRI.M.P.SASIDHARAN.**| |**ANNEXURE A19**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**15/4/10 SUBMITTED BY THE APPLICANT.**| |**EXHIBIT P6**|**TRUE COPY OF THE ORDER DATED 14/8/2015 IN**| ||**OA NO.817/2012.**| |**EXHIBIT P7**|**TRUE COPY OF THE REVIEW APPLICATION NO.19**| ||**OF 2015 FILED BY THE APPLICANT.**| |**ANNEXURE RA1**|**TRUE COPY OF THE ORDER DATED 14/08/2015 IN**| ||**OA NO.817/2012 AND AFFIDAVIT.**| |**EXHIBIT P8**|**TRUE COPY OF THE ORDER DATED 18/9/2015 IN**| ||**RA NO.180/00019/2015 IN OA 817/2012.**|