IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FIFTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION NO : 2710 of 2004 Between: V.K.K.Nadimpalli ..... PETITIONER AND Union of India, rep. by its Secretary, Ministry of Small Scale Industries, Udyog Bhavan, New Delhi & others. .....RESPONDENTS The Court made the following : HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU WRIT PETITION No. 2710 OF 2004 ORDER: (Per Hon’ble Sri Justice A. Gopal Reddy) Petitioner obtained a rule from this Court calling upon the respondents to show cause as to why a writ in the nature of certiorari would not be issued under Article 226 of Constitution of India after calling for the records pertaining to O.A.No.1541 of 2001, dated 11.10.2002 on the file of Central Administrative Tribunal, Hyderabad filed for expunging the adverse remarks made against him by the 3rd respondent through the endorsement No.D(SI)H/SISI/Hyderabad/DIR/CON.1/2000/ 6806 /6807, dated 29.5.2001 as confirmed by 2nd respondent through his letter No.7(10)/2001-Vig, dated 1.10.2001 and to quash the same as arbitrary and illegal. The petitioner in the capacity of Small Industries Promotion Officer during the financial year 2000-2001 worked in two different sections viz., from 1.4.2000 to 13.8.2000 under Assistant Director (Production Index) and from 14.8.2000 to 31.3.2001 under Assistant Director (Economic Investigation)-4th respondent herein. Vide proceedings, dated 29.5.2001 certain adverse remarks have been communicated to the petitioner, to which, he submitted an elaborate explanation and filed a representation on 7.6.2001 requesting the 2nd respondent to expunge the adverse remarks as communicated to him. The 2nd respondent rejected the said representation confirming the adverse entries recorded and communicated the same to the petitioner. Questioning the same, the petitioner filed O.A.No.1541 of 2001 before the Central Administrative Tribunal, Hyderabad contending that the adverse remarks so communicated to him are vague and have been made without application of mind and that the rules of writing Confidential Reports have not been maintained. The Assistant Director (PI) under whom the petitioner worked from 1.4.2000 to 13.8.2000 did not write his Annual Confidential Report and only one report has been written for the whole year by the Assistant Director (EI)-4th respondent herein under whom he worked from 14.8.2000 to 31.3.2001. It was also alleged that before writing the Annual Confidential Reports, the petitioner was not warned to rectify his mistakes and was not given a chance to improve his pattern of work. It was his case that the adverse remarks can be made only when they are accepted by the counter- signing authority but in his case, adverse entries had been communicated to him at the instance of the competent authority-2nd respondent which is violative of the instructions issued in that regard and therefore, the same are liable to be set aside. Before the Administrative Tribunal, the department filed a detailed counter and the learned Tribunal after extracting the adverse remarks made against the petitioner and considering the contentions advanced by both the parties, observed that it is not the case of the petitioner that the adverse remarks communicated to him are not accepted by the counter-signing authority, and that the authority concerned makes the assessment of subordinate officer on the basis of performance, efficiency, ability and character and when the report is made on such assessment, the Tribunal cannot interfere with that report/decision of the administration except in cases where there is a mala fide exercise of the power or arbitrariness. Observing that the petitioner was served with two memoranda specifying the lapses on his part in discharging of his official duties during the year 1999, which itself shows that he was given opportunity to improve and rectify the mistakes and only after giving such opportunity, the adverse remarks were made, the Tribunal held that the impugned adverse remarks do not suffer from any arbitrariness and accordingly dismissed the O.A. by order, dated 11.10.2002. Questioning the correctness of the said order, the present writ petition is filed alleging violation of principles of natural justice and contending that any specific instance or material has not been furnished in support of the adverse remarks so made. It is contended that as part of the duty, it is incumbent upon the petitioner to maintain a daily diary detailing the work undertaken by him and the same is liable to be monitored by the Reporting Officer as well as the counter-signing authority i.e. the 3rd respondent which fact had to be taken into consideration while making the adverse entries. The adverse remarks made against the petitioner in his Annual Confidential Report are indiscreet remarks because the Reporting Authority, counter-signing authority and competent authority did not keep in mind that what was written would affect the career of the petitioner and therefore, the same are liable to be set aside. A detailed counter affidavit has been filed by the department stating that during the period under report, the Assistant Director (EI)-4th respondent herein recorded that the petitioner did not show any improvement in his performance and continued to delay the issues which are very much time bound in nature, and that it was noticed that he was non-cooperative, insubordinate, exhibited lack of devotion in disposal of the official work. The Assistant Director (PI), under whom the petitioner worked for a small period, was already transferred to another state office during the financial year under report. Though the petitioner had worked under two different officers during the year 2000- 01, he was advised to give self-appraisal in only one set of Annual Confidential Report forms covering the whole period of the financial year since he had served the major period under the respondent No.4, to which the petitioner readily accepted the Annual Confidential Report forms covering the whole period of the financial year and submitted the same to the 4th respondent without raising objection for two sets of Annual Confidential Report forms covering two periods under whom he worked. The 4th respondent has reported about the performance of the petitioner which has been reviewed by the 3rd respondent and then it was sent to 2nd respondent i.e. the appointing authority for taking further action. Upon that, the appointing authority directed the 3rd respondent to communicate the adverse remarks to the petitioner advising him to submit his representation, if any, on the adverse remarks made in his Annual Confidential Reports for the year 2000-2001. Pursuant to that, the petitioner submitted his representation requesting for expunging the adverse remarks and only after considering the said representation, the authority decided to retain the adverse remarks in the Annual Confidential Reports of the year 2000-2001. Thus the required procedure has been complied with by the department and therefore, no procedural irregularity can be fastened on the department. The learned counsel for the petitioner reiterated the very same submissions which were not found favour with the Tribunal and contended that the Assistant Director (Economic Investigation)-4th respondent herein by his letter, dated 21.12.2000 nominated the petitioner as a representative of SISI, Hyderabad to attend the DIPC meeting of Nalgonda on 22.12.2000 certifying that the petitioner is well acquainted with the subject-matter and policy matters relating to promotional and developmental activities of small scale sector, which itself falsifies the adverse remarks made against the petitioner. The required material on which basis the adverse remarks so recorded has not been supplied for enabling the petitioner to submit suitable explanation and therefore, the action of the respondents is in violation of principles of natural justice and the impugned proceedings are liable to be set aside. We see no force in the submission made by the learned counsel for the petitioner for the simple reason that mere recommending the petitioner to participate in the DIPC meeting by the 4th respondent itself does not amount to wipe out the deficiencies already recorded by the department which form part of adverse remarks. The adverse entries recorded on the basis of the self-appraisal made by the petitioner under the signature have been reported upon by the 4th respondent and reviewed by the 3rd respondent as per the existing procedure. Further while submitting the representation requesting to expunge the adverse remarks the petitioner did not take the ground of non-supply of material by the department on which basis the adverse remarks were made. Furthermore the adverse remarks were made basing upon the performance of the petitioner while discharging the duties, which would not affect his integrity and reputation. Therefore, only in cases where the material gathered would affect the integrity and reputation of the petitioner and that form the basis for the adverse entries, such material has to be furnished. In the absence of the same, the contention of the learned counsel for the petitioner that the respondents have violated the principles of natural justice does not hold water. The Tribunal after considering the adverse entries made against the petitioner observed that no mala fides could be attributed to the 4th respondent under whom the petitioner had worked and in fact, he is the person who knows the performance of the petitioner and recorded the same specifying the lapses on the part of the petitioner while discharging the duties. The impugned order passed by the Tribunal confirming the adverse entries made against the petitioner by the respondents does not suffer from any perversity or appreciation of evidence warranting exercise of certiorari jurisdiction by this Court. The writ petition fails and is accordingly dismissed. No order as to costs. _________________ (A. GOPAL REDDY, J.) ____________________ (SAMUDRALA GOVINDARAJULU, J.) NOVEMBER 05, 2009 TSR