IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 WP(C).No. 23658 of 2009(S) -------------------------- OA.212/2008 of CAT,ERNAKULAM BENCH .................... PETITIONER(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NEW DELHI. 2. SUPERINTENDENT OF CENTRAL EXCISE, KUNDARA RANGE I, KUNDARA, KOLLAM DISTRICT, KERALA. 3. DEPUTY COMMISSIONER, CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, KOLLAM DIVISION, KOLLAM. 4. JOINT COMMISSIONER (P&V), OFFICE OF THE COMMISSIOENR OF CENTRAL EXCISE AND CUSTOMS, ICE BHAVAN, PRESS CULB ROAD, THIRUVANANTHAPRUAM. 5. COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, CR BUILDINGS, IS PRESS ROAD, KOCHI 682 018. BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CB EX RESPONDENT(S): --------------- 1. K.G.LUKE, S/O.LAGTE SRI GEORGE LUKOSE, AGED 42 YEARS, INSPECTOR OF CENTRAL EXCISE, CENTRAL EXCISE DIVISIONAL OFFICE, TRIVANDRUM, RESIDING AT FLAT NO.23, AJ RESIDENCY, BAKERY JUNCTION, TRIVANDRUM. WPC.23658/09 2. PRABHAKARAN K., RETIRED SUPTT.OF CENTRAL EXCISE, ANITHA BHAVAN, NELLIKODE, VADASSERIKONAM P.O., VARKKALA, TRIVANDRUM. R1 BY ADV. SRI.M.R.HARIRAJ SRI.P.A.KUMARAN SRI.SURAJ.S SMT.VINEETHA B. SRI.NIRMAL V.NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2010, ALONG WITH WPC NO. 25583 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.23658/09 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF ORDER 25.5.2009 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH IN OA.212/08. EXT.P2: TRUE COPY OF ORIGINAL APPLICATION OA.212/08 FILED BY 1ST RESPONDENT. EXT.P3: TRUE COPY OF REPLY STATEMENT FILED BY PETITIONERS. EXT.P4: TRUE COPY OF REJOINDER FILED BY THE APPLICANT. EXT.P5: TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE PETITIONERS. EXT.P6: TRUE COPY OF MINISTRY'S LETTER F.NO.A 28018/5/94-AD III (A) DATED 4.10.1995. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN & P.S.GOPINATHAN, JJ. ------------------------------------------- W.P(C).Nos.23658 & 25583 OF 2009 ------------------------------------------- Dated this the 22nd day of February, 2010 JUDGMENT 1.The petitioner in W.P(C).25583/09 is an employee under the command of the Commissioner of Central Excise and Customs, Kochi. On 29.6.2006 he was communicated certain adverse remarks proposed to be included in his ACR. He made a representation against that. That was rejected on 5.11.2006. He filed an appeal on 24.4.2007 to the Commissioner of Central Excise against that decision. The Joint Commissioner took up that appeal and passed an order on 6.6.2007, rejecting it, stating that only one representation is allowed against an adverse remark. That action was set aside by the Central Administrative Tribunal, Ernakulam Bench by order dated 29.10.2007 in O.A.414/07 on the ground that when the appeal was preferred to the Commissioner, it was not within the authority of the Joint Commissioner to decide on it. The WPC.23658/09 & 25583/09 2 Commissioner was directed to consider the employee's appeal. That order was issued by the Tribunal overruling the contention of the department that there could only be one representation against a particular ACR entry. 2.Thereafter, the Commissioner passed an order on 8.1.2008. The petitioner filed O.A.212/08 before the Tribunal challenging that decision of the Commissioner. The Tribunal has extracted the Commissioner's decision in paragraph No.12 of its order. Adverting to that, we notice that the Commissioner, “with due reverence and respect to the Honourable CAT Bench” made certain observations on the basis of certain OMs and ultimately held that the only administrative remedy available to the employee is to make a representation to the Hon'ble President of India for explanation of adverse remarks and therefore, the Commissioner felt that he is left with no option but to reject the application dated 24.4.2007 without going WPC.23658/09 & 25583/09 3 into the merits of the case. The Tribunal has set aside that decision by its final order dated 25.5.2009 in O.A.212/08. 3.The department and the employee have filed these writ petitions challenging the aforesaid order. While the contention of the department is that the action taken by the Tribunal in setting aside the decision of the Commissioner is in direct conflict with the departmental OMs, the employee would contend that the Tribunal ought to have decided the sustainability or otherwise of the adverse remarks on merits, since, according to him, the adverse remarks are wholly baseless and wholly incongruous to the undisputed previous and subsequent conduct of the employee as recorded by different officials in his ACR. 4.We have heard learned counsel for the department as also the employee and have bestowed consideration to the different materials which have been placed on record. We notice that WPC.23658/09 & 25583/09 4 the ACR of the employee has different entires to his credit also. It could be a case where certain adverse remarks are made in a solitary instance. It could also be a case where he had been under the continued watch of the superiors and remarks are made only when it became exceptionally necessary to put it on record. When an adverse remark is made resulting in remark which tend to affect the future of an employee coming on record, the particular remark should be stated with such specificity when it attributes personal conduct. Though we did not wish to state anything finally in that regard, we are not satisfied with the manner in which the impugned remark has been made. It does not disclose any particular incident on the basis of which, the inference adverse to the employee has been drawn. We also notice that even the Tribunal had drawn its inference regarding the year anterior to, as well as posterior to, the year of which the ACR dossiers were considered. The Tribunal has recorded that the report shows a comfortable position until there is a steep decline in WPC.23658/09 & 25583/09 5 the report for the year 2005-06. The said decline, in the view of the Tribunal, appears to be unnatural. The Tribunal, quite cautiously, states that the same is only a prima facie view and has directed the Commissioner to arrive at a judicious decision on the appeal. 5.With the aforesaid, we have two courses open. If we are to take the view that the remarks are vague and if the department insists that it did not want an opportunity to re- consider the matter, we may have to set aside the proceedings and sent it back to the Tribunal. The Tribunal would then be justified in adjudicating on the merits of the adverse entry as well for the reason that we are satisfied that the adverse remark, as of now, is vague and one merely stating that there is no co-relation between the words and deeds of the employee. Yet, de hors the views taken in 2005-06, there could or wouldn't be reasons to sustain the entry. It has to be put on record. Are they attributable to any physical or mental WPC.23658/09 & 25583/09 6 issues relatable to the employee? Are they attributable to any particular situation in the office environment? Is it the contribution of any persons who are also working in the office? Is it attributable to any reason which could turn the accusing finger towards other officials, including superiors? The Tribunal should not be called upon to answer these questions without the department having an opportunity for a proper second look into the matter. 6.Therefore, we would view the situation quite differently. As already noticed, the Tribunal had decided the first original application viz., O.A.414/07 on 29.10.2007 overruling the arguments and objections, and directing consideration of the employee's appeal by the Commissioner. Even if that decision is being criticized by the department as rendered contradicting the relevant departmental O.Ms., we are of the firm view that the Tribunal had decided a particular issue and the said final order, including the direction to consider the WPC.23658/09 & 25583/09 7 employee's appeal, binds both sides, inter partis, notwithstanding anything contained in any OM. This is the manner in which the order of the Tribunal, an authority constituted under the Administrative Tribunals Act, 1985 stands in the hierarchy. The judicial power of the Tribunal and the hierarchical status of that institution is that its decisions and orders override decisions, orders and actions of all departments, institutions and authorities whose decisions are subjected to judicial review before the Tribunal. The Tribunal is superior to the Commissioner of Excise and the Joint Commissioner of Excise and they are bound to act in terms of the directions of the Tribunal. Having let the earlier order of the Tribunal to be final, they cannot turn round at a later point of time, criticizing it as contradictory to any particular point, be of fact or of law. Therefore, even at that point of time, the Commissioner was bound to decide on the employee's appeal on its merits. This means that the relevant facts and factors ought to have been considered by the Commissioner as the WPC.23658/09 & 25583/09 8 head of the establishment, to decide as to whether the employee in question should continue under the cloud of the adverse entry in the ACR, complained of. For this reason, we have to sustain the impugned order of the Tribunal dated 25.5.2009 in O.A.212/08. 7.Though extremely persuasive was the submissions of the learned counsel for the employee, we are not inclined to make an order of remit to the Tribunal as of now, as we are satisfied that the Tribunal has issued the order which take care of the interests of both the parties. The exercise of power by the Tribunal cannot be treated as excessive in as much as we do not find that the interest of either side has been adversely affected by the impugned order. We, however, make it clear that the observations and findings in the judgment are rendered inter partis by reason of the earlier binding order between them and the statement of law relating to the availability of an appeal against rejection of a representation WPC.23658/09 & 25583/09 9 on a question of adverse remarks is not decided as a question of law and will not, therefore, result in any precedent for the department. Let the departmental decision follow at the earliest, at any rate, within a period of two months. All disputes on merits are left open. The writ petitions are ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.S.GOPINATHAN, Judge. kkb.8/03.