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Ram Chandra Prasad Singh v. Union Of India

Central Administrative Tribunal

Nov 23, 1989

Judgment

Subsequent
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Structured Summary of the Tribunal's Opinion — Ram Chandra Prasad Singh

Factual and Procedural Background

The applicant, Ram Chandra Prasad Singh, was working as a Junior Auditor in the scale Rs. 1200-30-1560-EB-40-2040 and was due for promotion to Senior Auditor effective 1.4.1987. Seventy officials junior to him were promoted as Senior Auditors while he was not promoted because of an adverse entry recorded in his Annual Confidential Report (A.C.R.) for 1986 stating he was "punctual but not regular in attendance." A similar adverse entry is recorded for 1987. Because of these entries, he was also not permitted to cross the efficiency bar (EB) due on 1.11.1988 at the stage of Rs. 1560.

The applicant filed an application under Section 19 of the Administrative Tribunals Act, 1985 seeking expunction of the adverse entries, direction to promote him with effect from 1.4.1987 and to permit crossing of the EB from 1.11.1988 with consequential reliefs. The factual dispute mainly concerns whether the applicant's attendance during 1986 and 1987 was irregular as recorded in the A.C.R.s.

The record in the opinion sets out the leave spells claimed by the applicant in 1986 and 1987 and notes that all spells except 6.6.1987 to 22.6.1987 (17 days) were sanctioned by the competent authority; representations against the adverse entries were rejected and this Tribunal proceedings follow.

Legal Issues Presented

Whether the adverse entry in the applicant's A.C.R. for the year 1986 stating "punctual but not regular in attendance" was justified and can be sustained.
If the 1986 adverse entry is unjustified, whether the applicant should be promoted to Senior Auditor with effect from 1.4.1987 and be granted consequential reliefs.
Whether the adverse entry in the A.C.R. for 1987 and the consequential denial of crossing the EB with effect from 1.11.1988 should be expunged or otherwise remedied by the Tribunal at this stage.
Whether post-facto sanctioning of leave (or leave in anticipation of sanction) can legitimately be treated as irregular attendance for purposes of promotion and related service consequences.

Arguments of the Parties

Applicant's Arguments

The applicant represented that he also held the office of Honorary Secretary of the Controller of Defence Accounts Employees Cooperative House Construction Society Ltd., Patna (elections held in 1980, 1983 and 1986) and that while posted at Bagdogra in 1986–87 he was on leave for the society's business. The leave for those spells was sanctioned except for the period 6.6.1987–22.6.1987 (17 days).
He challenged the adverse entries for 1986 and 1987 and sought their expunction and consequential promotion and EB reliefs. He argued that sanctioned leave means the absence was authorized and thus cannot sustain an adverse remark of "not regular in attendance."
He made representations against the adverse entries, which were rejected, leading to the Tribunal application.

Respondents' Arguments

Promotion is by seniority-cum-fitness, and suitability criteria were laid down in Controller General of Defence Accounts confidential circular No. 0632.AN-F dated 4.12.1987; the Departmental Promotion Committee (DPC) considered confidential reports for 1984, 1985 and 1986 in December 1987 and promoted those found fit.
The applicant was declared unfit for promotion because his A.C.R. of 1986 contained an adverse remark for irregular attendance; he also had an adverse entry in 1987. The DPC convened on 30.9.1988 to consider crossing the EB effective 1.11.1988 but declared him not fit on account of A.C.R.s of 1986 and 1987.
The respondents admitted that all leave applied for by the applicant except 17 days (6.6.1987–22.6.1987) had been sanctioned; they contended that post-facto sanction of leave does not confer a right to promotion where adverse A.C.R. entries exist.
Reliance was placed on the Defence Accounts Department Office Manual Part-I (paras cited, including para 215 and paras 250–251) to argue that attendance should be declared irregular in certain circumstances (e.g., more than 30 days post-sanctioned leave without medical certificate) and that the Controller has discretion to treat absences as irregular; respondents argued that leniency in sanctioning leave did not negate the irregularity for promotion purposes.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Tribunal proceeded step-by-step, focusing first on the A.C.R.s for 1984, 1985 and 1986 (the zone of consideration for promotion effective 1.4.1987):

The Tribunal noted that there were no adverse entries in the A.C.R.s for 1984 and 1985; the sole contested entry was in 1986 which read (as recorded in the opinion):
Col. 16. Regular and punctual in attendance — "Punctual but not regular in attendance."
The Tribunal observed that the remark explicitly records the applicant as "punctual" (suggesting he performed duties timely) and questioned how he could simultaneously be "not regular" without any explanatory reasons in the A.C.R. The A.C.R. contained no reasons for the adverse remark.
Respondents maintained the applicant had been absent without prior sanction between 1.1.1986 and 27.4.1986 and had remained at headquarters claiming to be engaged in society work; they therefore treated him as irregular in attendance. Respondents' counsel relied on para 215 of the Defence Accounts Department Office Manual Part-I, arguing attendance is to be declared irregular if more than 30 days of post-sanction leave without a medical certificate is availed in a calendar year.
The Tribunal found that, as a factual matter, leave for the period in question had been sanctioned by the competent authority (except for the 17 days in 1987), which means the absences could not be regarded in law as unauthorized. The opinion emphasized that sanctioned leave cannot be equated with absence without leave in law.
The Tribunal examined Rule/para 215 and paras 250–251 of the Manual and noted two relevant points:
- Rule 215 does not state that sanctioning leave post-facto automatically allows authorities to treat the employee as irregular in attendance; rather, it allows Controllers discretion to deal with genuine cases on merits even if criteria are not strictly met.
- Paras 250–251 show that while proceeding on leave in anticipation of sanction may render an employee liable to be treated as absent without leave, that rule is directory and discretionary — sanctioning authority may condone and grant leave post-facto instead of treating the absence as unauthorized or imposing disciplinary penalties.
The Tribunal found no disciplinary proceedings, reservation of penalty, or other adverse action had been taken by the competent authority; instead the competent authority had sanctioned the leave, indicating they found the absence justified. The Tribunal also noted medical certification (mentioned in para 215) was not required because the applicant was not ill.
On the principles of natural justice, the Tribunal held that it was not justified to record an adverse remark of "not regular in attendance" where the absence had been sanctioned; accordingly, the 1986 adverse remark required expunction.
Having expunged the 1986 adverse remark, the Tribunal observed there remained no adverse entry in the A.C.R.s of 1984, 1985 and 1986 and no other grounds were pointed out that could justify depriving the applicant of promotion; therefore the Tribunal directed consideration for promotion effective 1.4.1987 with consequential reliefs.
As to the 1987 A.C.R. and the applicant's plea to be allowed to cross the EB from 1.11.1988, the Tribunal noted that the leave for 6.6.1987 to 22.6.1987 (17 days) had not been sanctioned and the departmental authorities' decision on that pending matter could not be anticipated. Because further consequences depend on departmental action still pending, the Tribunal declined to interfere at this stage and did not consider the prayer for relief relating to the 1987 A.C.R. and crossing of the EB.

Holding and Implications

Core Holding: The Tribunal set aside the adverse remark recorded in the applicant's A.C.R. for the year 1986 ("punctual but not regular in attendance") and directed that the applicant be considered for promotion to Senior Auditor with effect from 1.4.1987 with all consequential reliefs.

Direct consequences ordered by the Tribunal:

The 1986 adverse remark in the A.C.R. is expunged.
The applicant is to be considered (and granted) promotion to Senior Auditor with effect from 1.4.1987 along with his juniors, with consequential service and monetary benefits.
The Tribunal refused to adjudicate the claim regarding expunction of the 1987 A.C.R. adverse entry and the denial of crossing the EB effective 1.11.1988 because a key factual matter (sanction of 17 days' leave for 6.6.1987–22.6.1987) remained pending with departmental authorities; the Tribunal will not pre-empt that pending administrative decision.
The respondents were directed to enforce compliance within one month of receipt of the copy of the judgment; no order as to costs was made.

No broader legal precedent was announced by the Tribunal beyond its application of the Defence Accounts Department Office Manual Part-I and the principles of natural justice to the facts. The decision's immediate effect is the expunction of the 1986 remark and the directed promotion; the Tribunal expressly declined to rule on the 1987 entry or EB issue pending departmental determination.

Show all summary ...

Mr. S.R Sagar, Member (J):— Admittedly the applicatnt, Ram Chandra Prasad Singh, has been working in the scale of Junior Auditor of Rs. 1200-30-1560-EB-40-2040/- and was due for promotion in the higher functional grade of Senior Auditor in the scale of Rs. 1400-40-1600-EB-50-2300-EB-60-2600 with effect from 1.4.1987 The officials numbering 69 though junior to the applicant were promoted as Senior Auditors. The applicant was not promoted due to adverse entry in his Annual Confidential Report (A.C.R) of 1986. The adverse entry is not regular in attendance. In 1987 also the same adverse entry was repeated. D???e to the said adverse entrfec in his A.C.R.s of 1986 and 1987 the applicant was not allowed to cross bis EB in the said scale of Rs. 1200-2040/- at the stage of Rs. 1560/- on the due date of 1.11.1988

2. Being aggrieved, the applicant has moved this application under Section 19 of the Administrative Tribunals Act, 1985 for setting aside the aforesaid adverse entries with a direction to the respondents to promote him with effect from 1.4.1987 and to allow him to cross EB from the due date, viz., 1.11.1988 with all the consequential reliefs. The facts being almost admitted, the case of the applicant in short compass remains restricted to the question of his attendance in the office whether it was not regular in 1986 and 1987.

3. The applicant has alleged that besides his above said post, he was elected Honorary Secretary of the Controller of Defence Accounts Employees Cooperative House Construction Society Limited, Patna in the year 1980, 1983 and 1986; and that he is still holding that office. While posted at Bagdogra in 1986 and 1987, the applicant was on leave with the business of the said Society and that leave was sanctioned by the competent authority except the last spell of the leave of 1987 as detailed below:

Year 1986 —————— 3.5.1986 to 24.5.1986 10.6.1986 to 10.7.1986 1.8.1986 to 20.9.1986 Sanctioned 1.12.1986 to 31.12.1986 Year 1987 ——————— 1.1.1987 to 7.2.1987 10.3.1987 to 12.5.1987 9.8.1987 to 27.8.1987 Sanctioned 6.6.1987 to 22.6.1987 Notsanctioned

4. The applicant has alleged that representations against the above said adverse entries pertaining to the years 1986 and 1987 made on each count were rejected by the competent authority and, therefore, the applicant has moved this Tribunal for the above relief.

5. The respondents, while admitting the facts, have mainly contended that promotion is made on the basis of seniority-cum-fitness and that criteria for determining suitability for promotion is laid down in Controller General of Defence Accounts, New Delhi confidential circular No. 0632.AN-F dated 4.12.1987 (Annexure-K). The Departmental Promotion Committee, (DPC) was convened in December, 1987 and on the basis of the confidential reports pertaining to the years 1984 1985 and 1986 of the Auditors falling in the zone of consideration for promotion the officials found suitable were promoted. The applicant was declared unfit for promotion as there was adverse entry of his not having been regular in attendance in his A.C.R of 1986. In 1987 also the applicant earned the adverse entry for being not regular in attendance. As required by the provisions of Defence Accounts D??? Office M???l Part-I, DPC was convened on 30.9.1988 to consider the ??? EB with effect from 1.11.1988 but the DPC declared the applicant not ??? owing to his A.C Rs. of 1986 and 1987.

6. The respondents have, however, admitted that leave applied for by the applicant excluding 17 days, viz. 6.6.1987 to 22.6.1987 has been sanctioned by the competent authority but post sanctioned leave during 1987 does not confer any right on the applicant for promotion in view of adverse entries in his A.C.R of 1986. The application is, therefore, liable to be dismissed.

7. We have heard the arguments of the learned counsels for the parties at great length and have gone through the record.

8. Since the applicant was due for promotion on 1.4.1987 on the basis of the A.C.R s of 1984, 1985 and 1986, we first consider the position of the applicant with respect to the said A.C.R.S As regards the A.C.R.S for the years 1984 and 1985, the respondents have no objection as no adverse entry against the applicant was recorded in these A.C.R.S The respondents have mainly contended thatthe applicant's A.C.R of 1986 is to be treated as adverse for all purposes and as this entry was adverse, the DPC declared him unfit for promotion. The propriety of the entries in the A.C.R of 1986 should, therefore, be considered.

9. The adverse entry of 1986 is as follows:

“Item No. of Confidential Report Adverse Remarks ———————————————————— ———————————— Col. 16. Regular and punctual in attendance Punctual but not regular in attendance.”

10. The above remark shows that the applicant was punctual which means that he never committed any act of negligence in the discharge of his official duties well within time. Then the question arises as to how was he irregular in attendance. No reasons, even in short, have been given for assigning the adverse remark of irregularity in attendance. However, the respondents have contended that the applicant during the period 1.1.1986 and 27.4.1986 was absent from duty without prior sanction of leave. He remained at headquarters but claimed that he remained engaged in the society's work. The applicant was, therefore, considered to have been irregular in attendance.

11. The learned counsel for the respondents has drawn our attention to para 215 of Defence Accounts Department Office Mannual Part-I and has argued that attendance is required to be declared irregular if more than 30 days post sanctioned leave without medical certificate has been availed irrespective of the number of spells by any member of the staff during each calendaryear.

12. Admittedly the leave for the period in question has been sanctioned to the applicant by the competent authority. Thus it cannot be said that the absence of the applicant was unauthorised and in the eye of law the applicant cannot be said to have been absent during that period so as to suffer penalties consequent on absence from duty.

13. The learned counsel for the respondents has argued that the applicant availed post facto sanctioned leave and, therefore, he shall be treated as irregular in attendance. Rule 215 of the said Mannual does not mention that leave even if granted without imposing any penalty or without any reservations will enable the authorities to treat the employee as irregular in attendance. However, the matter has been left for the Controllers to deal with any genuine cases on merits, even if the criteria are not strictly fulfilled in such cases.

14. Our attention has been drawn to paras 250 and 251 of the said Mannual and it has been argued that on account of such lapses on the part of the applicant, he should have been dismissed from the service but showing generosity and taking lenient view the authorities have sanctioned the leave to the applicant for the period for which he remained absent.

15. We have gone through paras 250 and 251 of the said Mannual. It is correct that leave cannot be claimed as a right. In case, however, any employee proceeds on leave in anticipation of sanction, he renders himself liable to be treated as absent without leave. This rule is directory and does not say that in such case the employee shall necessarily be treated as absent without leave. It is only that he can be treated as absent without leave. So the discretion lies with the competent authority either to treat such an employee as absent without leave or condone his absence by sanctioning leave to him for such period.

16. Obviously no action in the shape of disciplinary proceedings or reserving any penalty has been taken by the competent authority against the applicant for availing leave in anticipation of sanction. Instead of it the competent authority finding the absence quite justified, sanctioned the leave to the applicant. As the applicant was not ill, medical certificate contemplated in para 215 of the said Mannual will not be necessary.

17. Principles of natural justice do not justify that the applicant should be given adverse remark of irregularity in attendance as he was never absent without leave. The adverse remarkin question, therefore, required to be expunged.

18. The adverse remark “not regular in attendance” recorded in the A.C.R of the applicant for the year 1986 is, therefore, set aside.

19. After the said adverse entry is expunged, there remains no adverse entry in any of the A.C.R.s of 1984, 1985 and 1986. No other ground has been pointed out to us on which the applicant could have been deprived of his promotion. On the principles of natural justice, we direct that the applicant be considered for promotion to the next higher grade of Senior Auditor along with his juniors with effect from 1.4.1987 with all consequential reliefs.

20. Now we come to the applicant's case for expunction of adverse entry in his A.C.R of 1987 andnot allowing him to cross EB with effect from 1.11.1988 Admittedly leave for 6.6.87 to 22.6.87 (17 days) has not yet been sanctioned and that the matter in respect thereof is pending decision with the departmental authorities. At this stage it cannot be anticipated as to what action will be taken by the departmental authorities. All other questions are dependant on the action to be taken by the departmental authorities. We do not, therefore, think it proper to interfere in the matter at this stage. The prayer for aforesaid reliefs claimed by the applicant is not, therefore, considered at present.

21. The application is disposed of accordingly with directions to the respondents to enforce compliance within one month of the receipt of the copy of the judgment. No order asto costs.

22. Orders accordingly.