TMI Blog2003 (7) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-2001 and for setting aside the impugned order dated 28-6-2002. 2. The main grounds urged by the applicant in support of his case are as follows :- (a) that the adverse remarks should have been communicated within one month from the date when it was recorded; (b) that the representation made by the applicant should have been disposed of within 3 months from the date of such representation, in accordance with the instructions issued by the Department of Personnel and Training (DOPT for short). (c) that similar adverse remarks in respect of other two Judicial Members (JM for short), viz. S/Shri Mrs. Jyoti Balasundaram and Shri P.G. Chacko, were expunged. On the other hand without assigning any reasons, the applicant request was rejected, thereby showing discrimination; (d) that it appears that the President has recorded his assessment based on a mere hearsay evidence the source of which is not known to the applicant. (e) that the adverse entries is not based on any analysis of the discharge of the judicial or administrative functions of the applicant. At no point of time, the applicant was even communicated with any displeasure or shortcomings . ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned within a period of time or that the representation made against the adverse entries have to be disposed of within any time frame. It is the contention of the respondents that the reporting officer had initiated the ACR based on the available materials and records. This point has been repeatedly emphasised in the reply. It is also stated that the President, CEGAT, had no occasion to sit with the applicant as the applicant happens to be Member (Judicial) and unless a Larger Bench is constituted, there was no occasion for the President, CEGAT, to sit in a Division Bench along with the applicant. It is also stated that the personal conduct of the applicant in the Bench is totally different from the judicial disposal of the cases as evidenced from the orders. It is their contenting that no speaking order is necessary while considering the representation, as has been held in many Court cases. It is also the contention of the respondents that there is no need to make a roving enquiry of the members of the Bar etc., while arriving at a conclusion regarding the conduct of the applicant. 6. The applicant was represented by the learned Senior Counsel Mr. Habibullah Basha and the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Service Rules, 1987. According to the learned Senior Counsel the only provision is Rule 18 of the said Rules which states the condition of service of the Member in respect of matters for which no provision is made in these rules, shall be the same as may, for the time being, be applicable to other employees of the Government of India of a corresponding status . It was pointed out that this is a sweeping provision which has a number of riders. Admittedly there is no condition of service stipulating that ACR is required to be written for the Members of the CEGAT. Further there is no indication as to who is the person who holds a corresponding status so that the rules applicable to him may be made applicable to the Members. In the absence of any explicit rules on this subject it was stated by the learned Senior Counsel that initiating ACRs for the Members is uncalled for and not in accordance with any provisions of law/rules. 12. Further, in view of the fact that the ACR has now been initiated, the respondents are duty bound to observe the instructions issued by the Government of India in this regard. In this connection the learned Senior Counsel brought to our notice the detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the respondents gave an overall view of the working of the CEGAT. It was submitted that the President, CEGAT being a retired Justice, he belongs to the judicial wing the Tribunal, like the applicant who is also functioning as Member (J). Therefore, while constituting a Division Bench, there cannot be any occasion wherein both of them sit together. It is always the case that a Member (J) is paired with the Member (Technical) in the Bench and only in the event of a Larger Bench being constituted, there can be two judicial Members in the Bench and this situation never arose in the case of the applicant. Therefore the President, CEGAT, had never any occasion to sit along with the Member (Judicial) in a Bench and that cannot be a reason for the applicant to say that he could not have observed his functioning in the Bench. At the same time, it was pointed out that the President, CEGAT, had his own line of communication, wherein he receives the inputs from other Members, Members of the Bar and the departmental representatives, who represent the Government in the Tribunal. Thus, merely because the President, CEGAT, had no occasion to sit with the applicant in a Bench, it does not mean th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the notice of the applicant, so that he was aware of the situation. Moreover, it was pointed out that the action of the then President in transferring the appeal from the western region Bench to the Principal Bench was not viewed favourably by the Hon ble High Court, Mumbai - see the decision reported in 2001 (130) E.L.T. 48. Thus it was pointed out that merely because the case was transferred from one Bench to the other Bench, it cannot reflect on the conduct of the Members of the Bench. At the same time it cannot also reflect on the functioning of the then President, CEGAT. These are all decisions taken based on the peculiar circumstances of each case. 20. The learned Addl. Solicitor General relied on the following decisions in support of his case. These are :- 1995 (1) SCC 23 2000 (8) SCC 395 1992 Suppl. (l) SCC 222, 262 (para 65) 1997 (6) SCC 228 (para 8). 21. After having heard both sides in extenso, and after perusing the relevant file produced before us, we now proceed to discuss the merits of the case, as detailed below. 22. The exact entries in the ACR of the applicant for the period 1-4-2000 to 31-3-2001 is as follows :- (a) State of Hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on we find that the department had entertained certain doubts as to writing of the ACRs for Members/Vice-Chairman of the CEGAT. We do not know why and how this doubt had arisen. However, on consultation with the DOPT, a decision was taken to continue the practice of writing of the ACRs. To reproduce the notings in the file, it reads as follows :- To our question as to how the performance of Members, Vice-Chairman of CAT is being monitored, the DOPT has clarified at P 5 that there is no system of reviewing APARs (ANNUAL) Performance Assessment Report) of CAT Members and that Members/Vice-Chairman of CAT are selected by a Selection Committee under the Chairmanship of a sitting Judge of Supreme Court. A In the circumstances it is for consideration whether the system of writing ACR for Members/Vice-Chairman may be dispensed with. Sd/- H.M.Choudhury Director/Hqrs/Admn. 3-8-2001 JS/NCE A For orders on A above. AS(A) Since in ITAT, ACRs of Members and Vice-Chairmen are written we may please continue with the similar practice in CEGAT, SC etc. Sd/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of its being recorded. It also states that adverse entries in the ACRs, both on performance as also on basic qualifies, and potention, should be communicated along with a mention of good points also. Thus, it is every evident that while communicating the adverse remarks, the other remarks as entered by the reporting officer or the reviewing officer are also to be communicated. It is needless to point out that on both these scores the respondents have failed to adhere to this aspect of the matter. 28. As reproduced in the earlier part of this order, the remarks in the ACRs contain both good as well as adverse. But what was communicated to the applicant was only the adverse entries and not the good. This is fatal to the case on hand. In addition, the adverse entries were recorded on 21-5-2001, whereas, it was communicated only on 26-12-2001, which is almost six months later, than the date of entry, which is again contrary to the instructions. 29. As pointed out by the applicant, when he represented against the adverse entries in Jan. 2002 it was required to be disposed of within 3 months from the date of submission, as per the instructions on the subject. However the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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