ORDER
Shanker Raju, Member (J)
1. By virtue of the present OA, the applicant assails the Memorandum dated 19.7.2004 whereby the applicant has been conveyed the adverse remarks recorded in the ACR of the applicant for the period from 1.6.2003 to 31.5.2004 as well as the order passed by the respondents in representation dated 15.10.2004 whereby the request for expunction of remarks has been turned down.
2. Learned Counsel for applicant stated that the present adverse remarks recorded in the ACR of the applicant are actuated with malafide of respondent No. 4, i.e., the then Principal, who had taken over the charge in August 2003 and thereafter by issuing so many explanations without any basis with a purpose to create grounds to mar his ACR, the above culminated into adverse remarks, which are not founded on factual position.
3. On the other hand, learned Counsel for respondents vehemently opposed the contentions and stated that the remarks have been recorded on the basis of performance of the applicant, as he had been issued number of warnings, memos, explanations. The Tribunal in judicial review would not assume the role of the appellate authority to go into the correctness. Otherwise also, the remarks given in ACR do not suffer from any legal infirmity or procedural propriety.
4. Learned Counsel for respondents has also produced before us the ACR folder, as directed vide Tribunals order dated 24.7.2006.
5. On perusal of the ACR folder of the applicant for the period ending June 2004, I find that whereas in self-appraisal submitted on 15.4.2004, the reporting officer has graded the applicant in his overall performance as Average, but the reviewing authority without recording any reasons as to the disagreement graded the applicant below Average.
6. No doubt, the reviewing authority has a right to disagree with the grading or any remarks recorded by the reporting officer, yet before recording such remarks, it should be supported with reasons and in the event, the grading given by the reporting officer is downgraded further, a prior opportunity to show cause is to be given to the concerned.
7. The Apex Court in State of U.P. v. Narendra Nath Sinha 2002 (1) ATJ SC 118 ruled that downgrading by reviewing authority without following the principles of natural justice is an illegality.
8. In the light of above, leaving open the merits of the case and contentions raised by the applicant as to the remarks founded on no material and actuated with malice, this OA is partly allowed and adverse remarks communicated to the applicant and the order passed on representation are set aside. Matter is remitted back to the respondents to rewrite the ACR of the applicant for the above period through the reviewing authority, whosoever available in the equivalent post, after giving a due opportunity to represent to the applicant and after discussing all his contentions raised therein. The remarks shall be communicated thereafter. In that event, any opportunity provided under rules, law shall take its own course. This shall be done within a period of three months from the date of receipt of a copy of this order. No costs.