1985 PLP (C (PLC(CS))

A.O. RAZIUR RAHMAN (MEMBER).‑‑ The facts relevant to this appeal are that the appellant, who was a District Population Officer under the Population Planning Division, was due to cross the efficiency bar on 1st December, 1978, but no orders were passed allowing him to cross the bar on that date, with the result that he was not allowed any increment after the stage of the efficiency bar. After about two years, that is, on 6‑10‑1980, he was placed under suspension by order of the competent authority. The suspension order was followed by a charge‑sheet on 4‑11‑1980. After he had replied to the charge‑sheet and the departmental inquiry had been held in the matter, the Population Planting Division, after examining the inquiry report, sent up a summary for the President, through the Establishment Division, on 5‑10‑1982, proposing the Appellant's removal from service. Prior to this order of the President, the appellant came before the Tribunal under section 4 of the Service Tribunal Act, 1973, on 2‑11‑1982. He did this on the ground that, on 2‑8‑1982, he had made a representation to the Secretary, Population Planning Division, praying for re‑instatement in service from the date of his suspension and for payment of his dues, including increments, and that he had failed to get a reply within the statutory period of 90 days. In his memorandum of appeal, he prayed for the following relief: ‑ (i) Re‑instatement in service, with effect from the expiry of the first three months' suspension period. (ii) Order allowing him to cross the efficiency bar, with effect from 1‑12‑1978. (iii) Payment of all the annual increments, as and when they fell due.

2. From the facts, as discussed in the memo. of appeal, the objections filed by the respondent and the arguments adduced on behalf of the parties, it appears that the appellant has mixed up two separate issues. He was prevented from crossing the efficiency bar in 1978 and he was placed under suspension, on specific charges, two years later, in 1980. One action is not connected with the other and each must, therefore, be dealt with separately on its own merits.

3. So far as the first issue is concerned, no case is made out in. favour of the appellant. Under F. R. 25, the competent authority is empowered to stop an employee's increment at the efficiency bar, if it finds his work and conduct to be unsatisfactory. In the instant case, the work and conduct of the appellant were considered by the competent authority to be unsatisfactory and, therefore, he was not allowed to cross efficiency bar. The appellant has not been able to adduce any arguments to convince us that the discretion of the authority, in this behalf, can, at all, be interfered with, if the authority exercises its power in a legal manner and without any mala fide. It is not for us to decide whether the relevant authority's judgment in the matter was correct or otherwise, according to our understanding of the matter. A decision to disallow an employee from crossing the efficiency bar is expected to be taken on the basis of the performance and conduct of the employee and, unless it is shown that such a decision was not taken on the basis of the said work and performance, it would be presumed that it was taken on that basis and would, therefore, be treated as legal and in accordance with the rules. For this reason, we do not find any merit in the appellant's contention that the order stopping him at the efficiency bar is an order calling for interference by us.

4. As regards the prayer for re‑instatement, with effect from the date on which the first suspension order expired, it is seen that this prayer is based on the argument that, under the rules, an employee can be placed under suspension for not more than three months at a time and that, in case it is proposed to extend the period of suspension, the orders of the competent authority have to be obtained before the expiry and conveyed to him immediately after the expiry of the said period. In the instant case, the suspension order was passed on 6‑10‑1980 but no order for extension of the said period was passed before the expiry of the said period. In fact, the first order for extension was passed on 11‑3‑1981, when it should have been passed before or on 6‑1‑1981. Subsequently also, orders extending the period of suspension were passed belatedly, on 14‑4‑1981, 10‑8‑1981, 21‑11‑1981, 18‑3‑1982, 21‑4‑1982, 18‑8‑1982 and 17‑1‑1983. There is no doubt that, under the Efficiency and Discipline Rules, continuance of suspension has to be with the approval of the authority, after every three months. In the present case, after the expiry of the first period of three months, there was delay every time in the obtaining of the authority's approval. This was, no doubt, irregular. But, in our opinion, it was not a material irregularity, capable of causing prejudice to the appellant. If it could be shown that failure of the department to obtain the approval of the authority to the continuance of the suspension resulted in or contributed to an adverse decision against the appellant, it could be held to be fatal to the continuance of the suspension. In the present case, it appears that a summary was sent up for the President, through the Establishment Division, on 15‑5‑1982, and, after the filing of the appeal, the President's order approving the proposal of removal from service has been received. If the appellant is of the view that the order of his removal from service has been vitiated by the irregular orders of extension of his suspension, he can represent the matter departmentally and come in appeal before us in the normal manner. But, he cannot, at this stage, claim to be re‑instated in service on the ground that the extension orders were passed or issued belatedly. The competent authority having agreed to the continuance of they suspension order, the delay, in the formal approval of the continuance of the suspension order and the issuance of the order in this behalf, is not an irregularity of such a nature as to call for re‑instatement with retrospective effect.

5. In the light of the foregoing, we are of the view that no case is made out for interference by us and that the appeal deserves to be dismissed. It is, therefore, ordered accordingly. No order as to cost. A. E. Order accordingly.