2007 (4) TMI 409 - Tri - Indian Laws

Unjust Adverse Remarks in ACR Expunged by Tribunal, Fair Opportunity Denied

The Tribunal concluded that the adverse remarks in the applicant's Annual Confidential Report (ACR) for the year 2003-04 were baseless and unsustainable. ... CESTAT Member - Delay in passing order - Strictures against President, CESTAT and Department of Revenue - President, CESTAT Issues Involved:1. Authority to Enter Remarks in Annual Confidential Report (ACR)2. Validity of Adverse Remarks in ACR3. Procedural Fairness in Recording Adverse Remarks4. Impact of Judicial Observations on ACR5. Jurisdiction of the President of CESTAT to Write ACRsIssue-wise Detailed Analysis:1. Authority to Enter Remarks in Annual Confidential Report (ACR):The applicant contended that respondent No. 1 lacked the authority to communicate and reject the representation against the adverse remarks in his ACR. The applicant cited O.M. No. 51/5/72-Estt.(A) and Supreme Court judgments (State Bank of India & Ors. v. Kashinath Kher & Ors., and State of U.P. v. Yamuna Shanker Misra & Anr.) to argue that the Reviewing Officer must be superior to the Reporting Officer. Respondent No. 1, a Secretary to the Government of India, was not superior to respondent No. 2, a retired Chief Justice and presiding Head of a Judicial Tribunal. Thus, the decision communicated by respondent No. 1 was deemed unsustainable.2. Validity of Adverse Remarks in ACR:The applicant argued that the remarks by the Hon'ble Bombay High Court did not specifically attribute the delay in judgment delivery to him. The delay was a factual matter, and the adverse remarks could only be justified if the applicant was found responsible for the delay. The applicant promptly drafted the judgment once the file was received, and the delay was primarily due to the time taken by the Presiding Member to dispatch the file. The respondents' action was based on an erroneous interpretation of the High Court's observations.3. Procedural Fairness in Recording Adverse Remarks:The applicant contended that adverse remarks should be preceded by oral exhortations and justified only if such exhortations failed to elicit improvement, citing various judicial pronouncements (P.K. Shastri v. State of M.P. & Ors., S.P. Lal v. High Court of Judicature at Allahabad & Anr., and others). The applicant was not given a fair opportunity to explain the delay before the adverse remarks were recorded. The respondents' post-decisional opportunity to explain the delay was deemed unfair.4. Impact of Judicial Observations on ACR:The respondents argued that judicial observations must be reflected in the ACR of the concerned judicial officer. They cited Supreme Court judgments (Union of India & Ors. v. E.G. Nambudiri, and others) to support their stance. However, the applicant argued that the High Court's observations were general and did not single out the applicant. The Tribunal found that the delay was primarily due to the Presiding Member's actions, and the applicant was not responsible for the delay that led to the High Court's adverse comments.5. Jurisdiction of the President of CESTAT to Write ACRs:The applicant referenced a recent judgment by the Hon'ble Madras High Court (The Secretary (Revenue) to Government of India & Anr. v. Shri Syed Liaquath Peeran, Member (J)) which held that the President of CESTAT lacked the authority to write ACRs of its Members. The respondents argued that the judgment was not applicable to the present case and cited Rule 13 of the Income-Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963, which allowed for the same practice in CEGAT. The Tribunal, however, found that the Madras High Court's judgment was relevant and that the President of CESTAT did not have the authority to write the applicant's ACR.Conclusion:The Tribunal concluded that the adverse remarks in the applicant's ACR for the year 2003-04 were baseless and unsustainable. The respondents failed to provide a fair opportunity for the applicant to explain the delay and incorrectly attributed the delay to the applicant. The Tribunal directed the respondents to expunge the adverse remarks from the applicant's ACR within one month and suggested that the respondents take note of the Madras High Court's judgment for future actions.