Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.38561 of 2023 In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950 *** Pradip Kumar Chakra Aged 58 years Son of Late Baidhar Chakra Audit Officer, ST & SC Development M & BCW Department Odisha Secretariat Bhubaneswar. ... Petitioner -VERSUS- State of Odisha Represented through its Principal Secretary to Government of Odisha Finance Department Bhubaneswar Khordha. … Opposite party. Counsel appeared for the parties: For the Petitioner : M/s. Bhabani Sankar Tripathy-1, Atul Tripathy and Amit Sahoo, Advocates For the Opposite party : M/s. Saswata Patnaik, Additional Government Advocate W.P.(C) No.38561 of 2023 Page 1 of 30 P R E S E N T: HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 16.08.2024 :: Date of Order : 16.08.2024 ORDER Questioning the propriety of order dated 01.11.2023 passed by the Principal Secretary to Government of Odisha in Finance Department, pursuant to direction contained in order dated 04.10.2023 passed in W.P.(C) No.30760 of 2023, the petitioner has come up before this Court craving to invoke extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India with a prayer to quash the adverse remarks made in the Performance Appraisal Report (“PAR”, in short) for the period from 01.08.2021 to 31.03.2022 and writ of mandamus to expunge adverse remarks as communicated by Letter dated 27.01.2023 (Annexure-9) read with Corrigendum dated 01.03.2023 (Annexure-10). Facts as stated in the writ petition: 2. As is necessary for the purpose of adjudication of this case, shorn off unnecessary detailed narration of facts, the relevant facts giving rise to prefer the present writ petition by the petitioner are discussed herein below. W.P.(C) No.38561 of 2023 Page 2 of 30 2.1. The petitioner, promoted to the post of Audit Officer in Group-B in the scale of pay of Rs.47,600/- to Rs.l,51,100/- in Level-11 of the Pay Matrix under the Odisha Revised Scale of Pay Rules, 2017 vide Notification No.7141, dated 25.03.2022, joined as Audit Officer, Scheduled Tribes & Scheduled Castes Development, Minorities & Backward Classes Welfare Department, being relieved from the Finance Department on 31.03.2022 in order to join the promotional post. 2.2. Notwithstanding such event in March, 2022, the petitioner was directed vide Finance Department Letter No.9326, dated 16.04.2022 to submit Draft Special Audit Report to the Finance Department for taking further action on the matter. Upon receipt of said Letter dated 16.04.2022, he complied the same through his Letter dated 21.04.2022 by enclosing therewith the progress report submitted by the Special Audit on 27.01.2022 in 25 numbers of half-margin memos in the Audit and requested the Additional Secretary to Government in Finance Department to enquire into the matter with respect to the said Audit in order to ascertain the conspiracy by some of the Officers for unearthing the true fact and reason for non-completion of the Special Audit in time. In the said letter he highlighted the manner in which the Audit was stopped W.P.(C) No.38561 of 2023 Page 3 of 30 and he was required to report to the Department without assigning any reason specially when the Special Audit was in full swing. Furthermore, he also sought for extension of 20 more working days in this respect. 2.3. Because of joining in the new promotional post in Scheduled Tribes & Scheduled Castes Development, Minorities & Backward Classes Welfare Department, there was delay in preparation of the Draft Special Audit Report; nonetheless, the petitioner has submitted interim report on implementation of the Saubhagya Scheme and the Deen Dayal Upadhyaya Gram Jyoti Yojana Scheme by his Letter dated 06.06.2022. 2.4. Notwithstanding proper facts with justified reasons communicated to the appropriate Authority concerned, adverse remarks on his PAR for the period from 01.08.2021 to 31.03.2022 has been communicated to him vide Confidential D.O. Letter No.3000—FIN-CON- CCR-0001-2023/F., dated 27.01.2023 by the Special Secretary to Government in Finance Department reflecting the overall grading as “Below Average”. 2.5. On receipt of the adverse remarks recorded in the PAR, he submitted representation on 10.03.2023 highlighting the grounds for consideration of expunction of the adverse remarks recorded in his PAR for the aforesaid period. But the opposite party has rejected the said W.P.(C) No.38561 of 2023 Page 4 of 30 representation and sustained the adverse remarks recorded in his PAR. The Special Secretary to Government of Odisha in Finance Department communicated vide Confidential DO Letter No.15929— FIN-CON-CCR-0001-2023/F., dated 30.05.2023, wherefrom no reason could be seen to have been assigned. 2.6. As further representations dated 29.05.2023 and 24.07.2023 were not attended to by the Authority, the petitioner laid challenge against the remark of “below average” as reflected in the PAR before this Court giving rise to W.P.(C) No.30760 of 2023 with the prayer for quashing the said impugned adverse entries made in the PAR for the period from 01.08.2021 to 31.03.2022 in Annexure-9 and 10 by holding these remarks as not only bad and illegal in law, but also contrary to the General Administration (SE) Department Guidelines dated 26.04.2006. Said writ petition came to be disposed of vide Order dated 04.10.2023 with the following observation:
Decision
“7. Considering the submissions made, the limited nature of grievance involved in the present writ petition, keeping in view the case of the petitioner, this Court disposes of the writ petition at the stage of admission by setting aside Annexure-12 with a direction to the Principal Secretary to Government of to Odisha, Finance Department-opposite party W.P.(C) No.38561 of 2023 Page 5 of 30 reconsider the representation of the petitioner dated 29.05.2023 and 24.07.2023 under Annexure-13 series in accordance with law within a period of two weeks from the date of production of certified copy of this order, keeping in view the fact that the identical remarks in respect of the similarly placed employees have already been expunged by the Government at Annexure-14. 8. With the aforesaid observation/direction, the writ petition is disposed of.” 2.7. The writ petitioner has again come up by way of filing the present writ petition laying challenge to the order dated 01.11.2023, whereby the Principal Secretary to Government-opposite party without assigning plausible reason, rather merely stating that the petitioner has not put forth any new facts/grounds so as to consider the grievance of the petitioner for expunction of adverse remarks, rejected the representations. Rival contentions and submissions: 3. With the aforesaid background facts, Sri Bhabani Shankar Tripathy, learned Advocate for the petitioner submitted that the remarks have been made vide Confidential D.O. Letter No.3000—FIN-CON-CCR-0001- 2023/F., dated 27.01.2023 by the Special Secretary to Government in Finance Department reflecting the overall grading as “Below Average” (Annexure-9) read with Corrigendum dated 01.03.2023 (Annexure-10) cannot W.P.(C) No.38561 of 2023 Page 6 of 30 withstand judicial scrutiny inasmuch as the propriety of such remark is in question herein. 3.1. Amplifying his argument he urged that the PAR itself being defective, the remarks “below average” contained therein is liable to be done away with. Though specific stance was taken before the opposite party, such objection, which goes to the root of the matter, has not been considered in its right earnest. 3.2. It is contended that the Reporting Authority, the Reviewing Authority and the Accepting Authority having not acted in the manner provided for in the Guidelines for recording PAR for Group ‘B’ Officers of State Government replacing the system of Confidential Character Rolls vide Memo No.1200/PRO, dated 26.04.2006. 3.3. It is submitted that there is no cavil as to dicta in Taylor Vrs. Taylor, (1875) 1 Ch.D. 426, as approved and followed till date, that if the rule requires something to be done in a particular manner, it should be done either in the same manner or not at all. The authorities in the Government are bound to follow the Guidelines dated 26.04.2006 and any deviation of such Guidelines would attract adverse consequences on the erring Authorities, as the said principle of law as enunciated by the Courts has application even to the administration actions. W.P.(C) No.38561 of 2023 Page 7 of 30 4. Smt. Saswata Patnaik, learned Additional Government Advocate, appearing for the opposite party, per contra, referring to counter affidavit submitted that the petitioner was assigned with Special Audit of the accounts of Odisha Power Transmission Corporation Limited, Bhubaneswar relating to the implementation of a Scheme called “DDUGJY”, sponsored by the Union Government. It was essential to complete the said audit in a time bound manner. The petitioner has failed to complete the assigned job within the specified time, which caused dislocation of Government plan and target. Therefore, such a factor is construed by the opposite party as irresponsible one on the part of the petitioner. 4.1. To justify remarks in PAR, as given by the Reporting Authority and confirmed by the Reviewing Authority having got due acceptance by the Accepting Authority, it is submitted by Smt. Saswata Patnaik, learned Additional Government Advocate, that on account of failure to accomplish the job assigned on the part of the petitioner, the Reporting Authority having awarded remark “Below Average”, the same was concurred by the Reviewing Authority as also the Accepting Authority. Therefore, it is strenuously argued that the present circumstance, where the appropriate authority considered the case of the petitioner threadbare taking into account all extenuating material available on record W.P.(C) No.38561 of 2023 Page 8 of 30 to affirm the remarks in the PAR, the order dated 01.11.2023 does not warrant indulgence. Question fell for consideration in the present writ petition: 5. Only question which falls for consideration in this writ petition is whether the authorities involved in recording remarks and accepting the same have acted in conformity with the modalities contained in the Guidelines dated 26.04.2006. Analysis and discussion: 6. Perused the Record. Heard Sri Bhabani Sankar Tripathy, learned Counsel for the petitioner and Smt. Saswata Patnaik, learned Additional Government Advocate for the opposite party. On consent of counsel for both sides, as pleadings are completed, the matter is taken up and heard finally today. 7. For appreciating the rival contentions, the Letter in D.O. No.3000-FIN-CON-CCR-0001-2023/F, dated 27.01.2023 (Annexure-9) is reproduced hereunder: “Sub.: Communication of Adverse remarks. Review of annual PAR on your work for the period 2018-19 (01.08.2021 to 31.03.2022) reveals that following adverse remarks are recorded on your PAR. W.P.(C) No.38561 of 2023 Page 9 of 30 type of allegation amounts ‘The remarks of Sri Chakra, Ex-AAO, ‘faced a lot of hinderances from my officers’. In performance of his duties Sl. No.3 above, without supporting evidence is baseless. This to insubordination. Moreover, continuation of Special Audit in the Office of the OPTCL, Bhubaneswar after exhausting permitted period of working days (50 working days in terms of a party consisting of tow audit personnel) without obtaining prior approval of Government is unauthorized. The Audit party consumed 108 mandays instead of 100 mandays. Moreover, the Draft Special Audit Report has not yet been submitted by Sri Chkra, Ex-AAO, although he joined in the Hqrs. Office on 08.03.2022 & relieved to join as A.O. on promotion in ST&SC, M&BC Welfare Department on 31.03.2022 AN. In this connection, two reminders have been issued. This amounts to disobedience of Government Orders’. Your overall grading is ‘Below Average’. Government hopes you will try to improve. If you wish to make any representation against above adverse remarks, you may do so (in quadruplicate) within 45 days of receipt of this letter.” 7.1. The learned counsel for the petitioner has taken this Court to Annexure-17, relevant portion of which is reproduced hereunder: “Details of Transmission/Movement of PAR (To be filled in at the time of transmission by respective officer/staff) Transmitted by Transmitted to whom (Name, Designation & Address) W.P.(C) No.38561 of 2023 Page 10 of 30 Appraisee Reporting Authority Reviewing Authority Accepting Authority PRADIP KUMAR CHAKRA ASSISTANT AUDIT OFFICER, FINANCE DEPARTMENT GOVERNMENT OF ODISHA, ODISHA 1. SRI PRANANATH PRADHAN (INTERNAL AUDIT OFFICER-CUM- UNDER SECRETARY, FINANCE DEPARTMENT, GOVERNMENT OF ODISHA, ODISHA) (From-14-AUG-2021 To:23-MAR-2022) 2. SRI PRANANATH PRADHAN (INTERNAL AUDIT OFFICER-CUM- UNDER SECRETARY, FINANCE DEPARTMENT, GOVERNMENT OF ODISHA, ODISHA) (From:01-AUG-2021 To:23-MAR-2022) 3. SMT. SMITA ROUT (ADDITIONAL SECRETARY, FINANCE DEPARTMENT, GOVERNMENT OF ODISHA, ODISHA) (From:05-AUG-2021 To:31-MAR-2022) *** Remarks of Reviewing Authority SRI PRANANATH PRADHAN (INTERNAL AUDIT OFFICER- CUM-UNDER SECRETARY, FINANCE DEPARTMENT, GOVERNMENT OF ODISHSA, ODISHA) 1. Please indicate if you agree with the general assessment/adverse remarks/overall grading made by the Reporting Authority, and give your assessment. the general assessment/adverse Agree with remarks/overall grading made by the Reporting Authority. 2. Overall Grading Given by Reviewing Authority: Below Average. SRI PRANANATH PRADHAN (INTERNAL AUDIT OFFICER-CUM- W.P.(C) No.38561 of 2023 Page 11 of 30 UNDER SECRETARY, FINANCE DEPARTMENT, GOVERNMENT OF ODISHA, ODISHA) Submitted on-02-JUN-2022 Remarks of Accepting Authority SMT SMITA ROUT (ADDITIONAL SECRETARY, FINANCE DEPARTMENT, GOVERNMENT OF ODISHA, ODISHA) Overall Grading Given by Accepting Authority: SMT SMITA ROUT (ADDITIONAL SECRETARY, FINANCE DEPARTMENT, GOVERNMENT OF ODISHA, ODISHA) Adverse remark The remarks recorded by the Reporting/Reviewing Authority are accepted since Reviewing/Accepting their remarks within Authority have not recorded scheduled date as per para-7(III) of G.A. (S.E.) Deptt. PAR vide memo No.1200/PRO dt. guidelines 26.04.2006. issued REVIEWED Sd/- 12.01.2023 Special Secretary to Govt. Finance Department” 7.2. Sri Bhabani Sankar Tripathy, learned counsel for the petitioner submitted that the aforesaid document, i.e., details of transmission/movement of PAR depicts the state of affairs that all the authorities, namely the Reporting Authority, the Reviewing Authority and the W.P.(C) No.38561 of 2023 Page 12 of 30 Accepting Authority, have dealt with the PAR of the petitioner in cavalier manner. He submitted that PAR is an important document upon which the foundation of the career of the petitioner depends and this document is vital document which entitles the petitioner for claiming promotion to the higher rank. 7.3. This Court was drawn attention to the following defects and deficiencies in the aforesaid document at Annexure- 17: i. ii. The Reporting Authority, namely Sri Prananath Pradhan, has also acted in the capacity of the Reviewing Authority. In the portion relating to “Remarks of Reviewing Authority”, the same authority acted both as the Reporting Authority as well as the Reviewing Authority and having given the report to himself Sri Prananath Pradhan has stated to have “agreed with the general assessment/adverse remarks/overall grading made by the Reporting Authority”. iii. A peculiar noting of the Reviewing Authority appears which states that the remarks recorded by the Reporting/Reviewing Authority are accepted since said Authority did not record remarks within scheduled date as per paragraph 7(III) of General W.P.(C) No.38561 of 2023 Page 13 of 30 Administration (S.E.) Department PAR Guidelines dated 26.04.2006. 7.4. It emerges from the above observation that the Reporting Authority having given the remarks to himself acted as the Reviewing Authority and since the said PAR was not submitted by Sri Prananath Pradhan within period stipulated in Paragraph 7(III) of the General Administration (S.E.) Department PAR Guidelines dated 26.04.2006, the Accepting Authority did not apply conscientious mind. It is unwholesome on the part of the Authority in Finance Department not to have considered the merit of PAR in proper perspective. It appears that the opposite party appears to have acted mechanically as if acceptance of PAR is result of casual exercise of power though specific stand of the petitioner has been reflected in the impugned Order dated 01.11.2023, which reveals the following fact: “*** Besides the prayer for sending the matter to the Accepting Authority for her assessment and views is not in conformity with the Guidelines laid down under Paragraph 15(i) (SE) Department Circular Memo No.1200/PRO, dated 26.04.2006 (PAR Guidelines).” of General Administration 7.5. Except for justifying the action of the Reporting Authority, who was also the Reviewing Authority, by demonstrating the factual aspect which led to award W.P.(C) No.38561 of 2023 Page 14 of 30 remark of “Below Average”, the counter affidavit filed by the Joint Secretary to the Government in Finance Department on behalf of the opposite party has not put forth a single line of explanation with respect to the contention of the petitioner at paragraph 18 and paragraph 20 of the writ petition which relates to contravention of the requirement of Guidelines dated 26.04.2006 and this Court’s view expressed in the Order dated 25.04.2023 passed in the case of Manoranjan Pratihari Vrs. State of Odisha, W.P.(C) No.20152 of 2021. On the query from the court during the course of hearing of the present matter, the learned Additional Government Advocate conceded such aspect. Therefore, it is treated that the opposite party has no reply to render but to accept the contention of the petitioner. 8. At this juncture it may be apposite to consider the terms contained in the Guidelines for recording PAR, dated 26.04.2006 (Annexure-18), relevant portion of which are extracted hereunder: “The current system of management of Confidential Character Rolls (CCRs) faces a number of problems. Long formats requiring/appraisal from different authorities, system of recording and communicating adverse remarks and monitoring of transmission of CCRs at various levels have, been identified as major weaknesses resulting in the CCRs affecting effective large pendencies promotions. performance appraisal timely and in W.P.(C) No.38561 of 2023 Page 15 of 30 reforms ranging introduce wide Considering these problems the Government has decided to the CCR management system. The main object of the reform measure is to improve the capacity of the administrative machinery to better measure performance of the civil servant. Accordingly, detail guidelines are issued as follows: in 1. The nomenclature of the report will be changed from Confidential Character Roll (CCR) to Performance Appraisal Report (“PAR”, in short). The PAR will be a Confidential document. 2. *** 3. Report Period: (i) The PARs shall be recorded for each financial year or part thereof in the forms prescribed by the Government (Annexure-A). PARs for two or more years should not be recorded in one form. Separate forms should be used for each financial year or part thereof (Please also refer to 6 below). (ii) The minimum period for recording remarks in the PAR of an officer shall be four months in a year. The higher authority should not record her/his remarks about a subordinates work unless she/he has been it for a minimum period of four months. Explanation: (i) For computing the period of four months leave taken or training program attended W.P.(C) No.38561 of 2023 Page 16 of 30 for a continuous duration of less than thirty days shall be ignored. 4. Level of Assessment: There shall ordinarily be three levels of assessment (excluding self assessment) of the appraisee by the authorities designated by Government from time to time— the Reporting Authority, Reviewing Authority & Accepting Authority as given in the schedule of instruction. 5. Initiation of PAR recording process by Appraisee/ Reporting Authority/Reviewing Authority/Accepting Authority: (i) PAR will be initiated by the appraise [she/he may download the form from the website (www.orissa.gov.in/ga/ccr/ccr. htm) or may use photocopy] within one month of the conclusion of the financial year, or the change of Reporting Authority due to either the transfer of the appraisee or of the Reporting Authority. The appraise shall send PAR filling up self appraisal portion (Part I & Part II) to the Reporting Authority with a copy to the PAR branch of the concerned Administrative Department/Head of Department. (Please also refer to para 6 and 7). form (ii) In case of default by the appraisee, the PAR (with Part-I filled up and Part-II blank) will be sent to the Reporting Authority by concerned of PAR the branch of Department/Head Administrative W.P.(C) No.38561 of 2023 Page 17 of 30 Department. On the margin of Part III of PAR. remarks “Appraisee did not submit PAR on time” should be recorded. (iii) Reporting Authority after recording his remarks within the time prescribed, will send the PAR to the Reviewing Authority with a copy of the filled up PAR to the PAR branch of the concerned Administrative Department/Head of Department. (iv) to Department/Head time prescribed, PAR In case the Reporting Authority does not sent the PAR to the Reviewing Authority (with or within without self-assessment as the case may be) shall be sent the Reviewing Authority by PAR branch of the concerned Administrative of Department. Remarks on margin of Part III ‘Reporting Authority did not submit PAR on time’ will be recorded by the PAR branch of the concerned Administrative Department/Head of Department. The Reviewing Authority will record his remarks within one month without awaiting the remarks of the Reporting Authority. In case Reviewing Authority receives the Reporting Authority after having received a copy of the PAR from the PAR branch of the concerned Administrative Department/ Head of Department, and after having recorded his remarks on the PAR, the remarks of the Reporting Authority will be disregarded. The Reviewing Authority will filled-up PAR from the W.P.(C) No.38561 of 2023 Page 18 of 30 send the concerned copy of PAR received from the Reporting Authority to the PAR branch of the concerned Administrative Department/Head of Department. The of PAR concerned the branch of Department/Head Administrative Department will destroy concerned copy of PAR belatedly filled up by Reporting Authority. (v) On the specified receipt of PAR from Reporting time Authority, within Reviewing Authority will record his remarks within the time prescribed. He will send the Accepting Authority with a copy to the PAR branch of the concerned Administrative Department/ Head of Department.’ the PAR to (vi) In the case of Reviewing Authority not submitting PAR on time, the PAR branch of the concerned Administrative Department/ Head of Department will send the copy of (with or without assessment of appraisee the or Reporting Authority) PAR Accepting Authority. to (vii) Accepting Authority will record his remarks within the time prescribed and send it to the PAR branch of the concerned Administrative of Department. the Accepting case Authority receives the filled up PAR from the Reviewing Authority after having received the copy of PAR from PAR branch Department/Head In W.P.(C) No.38561 of 2023 Page 19 of 30 the concerned of Administrative Department/Head of Department, and after having recorded his remarks, the provisions of foregoing clauses (iv) of Para 5 will mutatis mutandis apply. the then (viii) If as per the Schedule of Instruction, there are more than one Reporting Authority/ Reviewing Authority (called Co-Reporting/ Co-Reviewing Authorities), the appraisee will submit the PAR to the 1st Reporting Authority within time prescribed who will transmit the PAR after recording his remarks to 2nd Reporting Authority within 30 days of the receipt. The 2nd Reporting Authority will attach additional copy of only Part-III of PAR format following the 1st Reporting remarks and then write his remarks in the attached sheet within 30 days of receipt of PAR. Thereafter she/he will send the PAR to the Reviewing Authority. The same process shall be followed mutatis mutandis, if than one Reviewing there are more Authority except that normally remarks should be made within 15 days of the receipt of the PAR. remarks on (ix) When Reporting Authority/Reviewing Authority (any or all ) are not available to the ground of record suspension/long leave/retirement/ demitting office/death/invalidation/long term training/for not having seen the work of the appraisee for four months or more, W.P.(C) No.38561 of 2023 Page 20 of 30 the appraisee shall submit the PAR (with part I & II filled up) direct to the Reviewing Authority/ Accepting Authority with a copy to the concerned PAR branch of the Administrative Department/Head of the Department. *** 15. Disposal of Representation: (i) Upon receipt of representation only the author of the adverse remarks may be asked to substantiate or to furnish her/his comment on the representation. Those higher authorities who have merely agreed to the adverse remarks written by other authorities need not be called upon to substantiate. (ii) The Substantiation Report should cover specific facts, figures and instances which are relevant to the adverse remarks. (iii) Substantiation reports and comments on the representations are invited to facilitate disposal of representations and it is the duty of the author of the adverse remarks to furnish them unless he has adequately supported the adverse remarks in the PAR itself. (iv) Substantiation report may also be sought from authors of adverse remarks who may have retired recently from Govt. service if felt necessary. (v) The representation against adverse remarks should be normally disposed within 6 months W.P.(C) No.38561 of 2023 Page 21 of 30 in of receipt of such representation taking into consideration the PAR, facts stated representation and substantiation report if any. The order passed on the representation shall be informed suitably to the officer concerned. Copy of such communication disposing the representation should be placed in the PAR folder of the officer concerned. 16. Competent Authority: to deal with competent Authority the The representation against the adverse remarks will be Secretary of the concerned Department. In case Secretary of the Department is the author of the adverse remarks then Chief Secretary will be competent to deal with the representation. In case the adverse remarks are given by Chief Secretary/Very Senior Officer in charge of the Department/Minister the competent authority will be the Chief Minister. The order of the competent authority shall be final.” 8.1. Paragraph 15 of the Guidelines requires to call upon the concerned author of the adverse remarks to furnish substantiation report. Nothing is brought on record to suggest that the opposite party while dealing with the representation of the petitioner has followed the modality prescribed in paragraph 15 and paragraph 16 of the Guidelines. Nonetheless, it is illuminatingly manifest from the documents enclosed to the writ petition that the Guidelines for recording PAR has three levels of assessment (excluding self-assessment) and paragraph 4 W.P.(C) No.38561 of 2023 Page 22 of 30 ibid. empowers the Government to designate authorities, namely: i. Reporting Authority ii. Reviewing Authority iii. Accepting Authority 8.2. It is provided in paragraph 5 read with paragraph 6 of the said Guidelines that the Reporting Authority within time frame has to record his remarks and send the PAR to the Reviewing Authority and the Reviewing Authority within specified time is required to submit the PAR with his remarks to the Accepting Authority. Thus, it is clear from the contents of the Guidelines that each one of the Authorities mentioned above are required to apply their mind and record remarks. No circumstance is envisaged in the said Guidelines to authorise the Reviewing Authority to act as the Reporting Authority and vice versa. 8.3. From the documents referred to above, it is glaring on record that the Reviewing Authority has agreed with the general assessment/adverse remarks/overall grading made by the Reporting Authority. Nothing is culled out from said document that the Reviewing Authority has applied his mind while concurring with his own view while acting as the Reporting Authority. W.P.(C) No.38561 of 2023 Page 23 of 30 8.4. Having reviewed the remarks acting as the Reviewing Authority and accepted the self-same remarks given by him as the Reporting Authority, would not only be contrary to the Guidelines dated 26.04.2006, but also violative of principles of natural justice. 8.5. It is oft-quoted principle that if an appeal is from “Caesar to Caesar’s wife” the existence of alternative remedy would be a mirage and an exercise in futility. [Ram and Shyam Co. Vrs. State of Haryana, (1985) 3 SCC 267] 8.6. In the case of Tata Sponge Iron Ltd. Vrs. Commissioner of Sales Tax, Odisha, 2011 (II) ILR-CUT 949 it has been observed as follows: “18. Therefore, we are of the view that in order to maintain transparency, any officer who is involved in any manner or has acted with the process of audit and preparation of the audit report in respect of the dealer should not be the Assessing Officer of that dealer. Otherwise, there will be violation of cardinal principles of natural justice. Our view is fortified by the judgment of this Court in National Trading Co. Vrs. Asst. Commissioner of Sales Tax, Cuttack, (2001) 122 STC 212 (Ori) wherein this Court held as follows: ‘*** Although many contentions were raised in support of the writ petition, we need not examine them as the matter can be decided on the following: short point being that the reporting officer himself cannot be the assessing officer. It is said that justice W.P.(C) No.38561 of 2023 Page 24 of 30 should not only be done but should manifestly be seen to be done. Justice can never be seen to be done if a person acts as a Judge in his own cause or is himself interested in its outcome. This principle applies not only to judicial proceedings but also to quasi-judicial and administrative proceedings. In the case at hand, there is no dispute that the reporting officer himself took up the impugned assessment proceedings and completed the same. This he could not have done.” 8.7. In yet another case, being Subas & Company Vrs. Deputy Commissioner of Sales Tax, 2018 (I) ILR-CUT 493, this Court held as follows: “9. Lastly, in ABB India Ltd. Vrs. State of Odisha, (2015) 77 VST 124 (Ori) this Court has also made it clear that when a Deputy Commissioner involved in the audit process passes an assessment order based on that report the same clearly results in passing an order in violation of principles of natural justice.” 8.8. In the case of Orissa Oil Industries Ltd. Vrs. State of Odisha, STREV No.207 of 2008, vide Order dated 02.05.2022 this Court held as follows: “8. The issue is about likelihood of bias and not actual bias. As explained in J. Mohapatra & Company Vrs. State of Odisha, AIR 1984 SC 1572, the governing rule as explained in A.K. Kraipak Vrs. Union of India (1970) 1 SCR 457 is that no man should be a judge in his own cause. The only exception is the ‘doctrine of necessity’ which does not exist in the present W.P.(C) No.38561 of 2023 Page 25 of 30 case. Sri B.D. Pattnaik being part of a three-member Bench of the tribunal could easily have recused citing the reason that the interlocutory application in the same case had in fact been decided by him as Additional Commissioner of Sales Tax. In J. Mohapatra and Co. (supra), the Supreme Court explained as under: ‘10. *** Nemo judex in causa sua, that is, no man shall be a judge in his own cause, is a principle firmly established in law. Justice should not only be done but should manifestly be seen to be done. It is on this principle that the proceedings in courts of law are open to the public except in those cases where for special reason the law requires or authorizes a hearing in camera. Justice can never be seen to be done if a man acts as a judge in his own cause or is himself interested in its outcome. This principle applies not judicial proceedings but also to quasi-judicial and administrative proceedings. The position in law has been succinctly stated in Halsbury’s Laws of England, Fourth Edition, Volume I, Para 68, as follows: only to ‘Disqualification for financial interest— disqualifies There is a presumption that any direct financial in interest, however small, dispute from adjudicating. Membership of a company, association or other organization which is financially interested may operate as a bar to adjudicating, as may a bare liability to costs in the matter person a W.P.(C) No.38561 of 2023 Page 26 of 30 the decision where pecuniary loss.’ ***’. ***” itself will involve no 8.9. A co-ordinate Bench of this Court in Manoranjan Pratihari Vrs. State of Odisha and another in W.P.(C) No.20152 of 2021 vide order dated 25.04.2023 in an identical fact-situation where the Reporting Authority, the Reviewing Authority and the Accepting Authority were one and the same person, observed that, “6. Having heard the learned counsels for the parties and upon a careful consideration of the background facts as well as the materials placed before this Court and the pleadings of the parties, this Court is of the considered view that the main allegation against the Petitioner having been admitted by the Opposite Parties’ counter affidavit in para-16 to the effect that one authority has acted as Reporting, Reviewing as well as Accepting Authority, the impugned order rejecting the representation of the Petitioner under Annexure-4 is unsustainable in law. Moreover, on a perusal of the impugned order dated 28.12.2020 under Annexure-4, this Court is of the considered view that the same does not reflect any reasons as to why the ground raised has been rejected. The same appear to make the rejection order rejecting the representation of the Petitioner. Further, this Court also is of the considered view that such type of order is very purpose of providing an opportunity to the Petitioner to represent any adverse in his PAR/CCR. In such view of the matter, this Court deems it proper to set aside the order under Annexure-4 dated 28.12.2020. Further, the W.P.(C) No.38561 of 2023 Page 27 of 30 matter is remanded back to the Opposite party No.1 to reconsider the matter afresh in accordance with the rules and the law governing the plea. The Opposite Party No.1 shall do well to reconsider the matter and pass a fresh reasoned and speaking the date of order within six weeks communication of this Court after reviewing the service records of the Petitioner. A decision so taken be communicated to the Petitioner within two weeks thereafter. from 7. With the aforesaid observations/ directions, the writ application stands disposed of.” 8.10. For the reasons stated above and decisions referred to supra the acceptance of PAR by the Additional Secretary, Finance Department, Government of Odisha submitted by the Internal Audit Officer-cum-Under Secretary, Finance Department on 02.06.2022 (acting both as the Reporting Authority as also the Reviewing Authority) cannot be held to be tenable in the eye of law. The said Reviewing Authority having placed the remarks before the Additional Secretary, Finance Department, Government of Odisha on 02.06.2022, it is un- understandable as to the circumstance under which the Special Secretary to Government, Finance Department got occasion to have reviewed the adverse remark on 12.01.2023. There is no reply/explanation by the opposite party in this regard either in the counter W.P.(C) No.38561 of 2023 Page 28 of 30 affidavit or was advanced during the course of arguments today. Conclusion and directions: 9. In the above conspectus of factual and legal perspective, having heard counsel for the respective parties this Court finds sufficient force in the contention of Sri Bhabani Sankar Tripathy, learned Advocate that the PAR has been mechanically accepted by the Accepting Authority and the opposite party has not considered such an aspect in its right perspective. 9.1. The approach of the opposite party cannot be countenanced in view of the discussions made above. The Reporting Authority and the Reviewing Authority could not be one and the same person in view of the Guidelines dated 26.04.2006. Being thus vulnerable, the Order dated 01.11.2023 passed by the Principal Secretary to Government in Finance Department deserves intervention of this Court and is liable to be set aside. 9.2. This Court, accordingly, sets aside the Order dated 01.11.2023 of the Principal Secretary to Government of Odisha in Finance Department and remits the matter to the said Authority to take a fresh decision by taking note of the discussions made in the foregoing paragraphs and pass reasoned and speaking order within a period of Page 29 of 30 W.P.(C) No.38561 of 2023 eight (8) weeks from the date of communication of copy of this Order by the petitioner. Needless to observe that the said Authority, while taking decision as directed above, may also take into consideration the service record of the petitioner and also the contents of representations of the petitioner. Decision taken by the opposite party be communicated to the petitioner within a period of two weeks thereafter. 9.3. With the aforesaid observation and direction, the writ petition stands disposed of. (MURAHARI SRI RAMAN) JUDGE High Court of Orissa, Cuttack The 16th August, 2024//LAXMIKANT/SUCHITRA Signature Not Verified Digitally Signed Signed by: SUCHITRA BEHERA Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Aug-2024 19:01:04 W.P.(C) No.38561 of 2023 Page 30 of 30