BEFORE THE HON’BLE HIGH COURT OF DELHI AT NEW DELHI

WP(C) 10950/2019

In the matter of:

ALOK TRIPATHI …PETITIONER

VERSUS
COMPETITION COMMISSION OF INDIA AND OTHERS
…RESPONDENTS

COUNTER AFFIDAVIT ON BEHALF OF THE RESPONDENT NO. 1 TO

THE WRIT PETITION FILED BY THE PETITIONER UNDER ARTICLE
226 OF CONSTITUTION OF INDIA FOR QUASHING THE ORDER
DATED 28.05.2019 ISSUED BY RESPONDENT NO. 1/CCI REJECTING
THE THREE DIFFERENT REPRESENTATIONS DATED 18.02.2015,
18.04.2016 AND 18.04.2016 CONSIDERED AFRESH BY THE
RESPONDENT NO.1 IN ACCORDANCE WITH THE ORDER DATED
05.04.2018 IN W.P. (C) NO. 11893/2015 AND W.P. (C) 10099/2017

MOST RESPECTFULLY SHOWETH:

PRELIMINARY SUBMISSIONS

1. That the present Writ Petition has been filed by the Petitioner under Article

226 of the Constitution of India for issuance of Writ of Certiorari for

quashing the order dated 28.05.2019 issued by Respondent no. 1/CCI

rejecting the three different representations dated 18.02.2015, 18.04.2016

 and 18.04.2016 considered afresh by the Respondent no.1 in accordance

with the order dated 05.04.2018 in W.P. (C) 11893/2015 and W.P. (C)

10099/2017 filed by the Petitioner challenging the adverse remarks, grading,

seeking upgradation of his A.P.A.R.s for the period from 01.04.2013 to

05.12.2013, 01.04.2014 to 31.03.2015 and 01.04.2015 to 22.07.2015. That

the matter is listed for consideration by this Hon’ble Court on 03.04.2020.

2. That the Respondent no. 1 i.e. Competition Commission of India, is a

statutory body of the Government of India responsible for enforcing The

Competition Act, 2002 throughout India and to prevent activities that have

an appreciable adverse effect on competition in India.

3. That before proceeding any further, it is most respectfully submitted that the

present Petition challenges the administrative order passed by the

Respondent no. 1 which is beyond the jurisdiction of this Hon’ble Court.

The present Writ Petition deserves to be dismissed on this ground alone.

That Hon’ble Supreme Court in the matter titled as B.S. Grewal vs. Union

of India [WP(C) 7074/2008], the Court held that it cannot sit over as

appellate authority to the decision/ order passed by IO and RO in their

administrative capabilities. That the relevant portion of the aforementioned

matter has been reiterated herein for ease of reference:

 “21. Since both the IO and RO have given these adverse remarks against

the petitioner in their administrative capabilities we cannot sit over their

decision as appellate authority in the exercise of judicial review while

exercising the power of judicial review we can consider only the decision

making process not the merits of the decision. It can be challenged only on

the ground that it smacks of malafides or arbitrariness. We do not find any

irregularity and arbitrariness in the whole decision making procedure.”

4. It is most respectfully submitted that the present Petition is nothing but

abuse of process of law by repeating issues what they had already urged in

the Writ Petition bearing no. 11893/2015 and 10099/2017 wherein this

Hon’ble Court was pleased to order Respondent no. 1 to consider afresh the

representations dated 18.02.2015, 18.04.2016 and 18.04.2018 submitted by

the Petitioner herein.

5. It is further submitted that the present Writ Petition challenges the reasoned

order dated 28.05.2018 passed by the Respondent no.1 which was passed by

the answering Respondent while exercising its quasi- judicial powers based

upon established facts and circumstances. It is most respectfully submitted

that in the present case, the Court do not have the jurisdiction to overview

the decision of Respondent no. 1 on merits. That the jurisdiction of this

Hon’ble limited to whether the process followed was just and fair and was in
 accordance with the rules. That since similar issues have already been raised

and dispensed with by this Hon’ble Court while disposing off earlier writ

petitions bearing no. W.P. (C) 11893/2015 and W.P. (C) 10099/2017 filed

by the Petitioner, the present Petition needs no new consideration and is

liable to dismissed by this Hon’ble Court with appropriate directions. That

Hon’ble Apex Court in matter titled S.K. Soni versus Union of India has

dealt with similar facts and circumstances. That relevant portion of the order

passed by the Hon’ble Court in aforementioned matter has been reiterated

herein for ease of reference:

“We cannot lose sight of the fact that under Article 226 of the Constitution

of India, this Court does not sit as an appellate authority over the process of

selection but it has to examine it from the point of its limited jurisdiction

whether the process of selection was just and fair and was in accordance

with the rules. As already noticed, the recruitment rules read in conjunction

with the relevant guidelines clearly provide for a criteria which has been

uniformly applied by the selecting authority with reference to the service

records of the candidates falling within the zone of consideration. ”

6. At the very outset, it is most respectfully submitted that the Petitioner/

AlokTripathi was employed with Respondent no. 1 on the post of Joint

Director (FA) and had been associated with R1 since 2010.

7. That in order to assess the performance of an officer, the Respondent no. 1 is

required to prepare Annual Performance Assessment Report (hereinafter

referred to as APAR) of every officer as per prescribed procedure provided

by Department of Personnel and Training, Government of India. That the

APARs are premised on established facts in order to rightly assess the

grading of an officer. APARs are written for specific period mentioned for

the performance shown by the officer during that period. That APARs also

play a key role while consideration of an officer for confirmation,

promotion, deputation to ex-cadre posts, etc.

8. That as per Department of Personnel and Training (DoPT),the

Performance Appraisal Report is an important document. It provides the

basic and vital inputs for the further development of an officer. The

Reporting Officer and the Reviewing Officer should not shy away from

reporting shortcomings in performance, attitudes or overall personality of

the officer reported upon. The Reporting Officer and the Reviewing Officer

should not shy away from reporting shortcomings in performance, attitudes

or overall personality of the officer reported upon.

9. That the Petitioner had challenged the APAR from 01.04.2013 to 05.12.2013

vide WP(C) 11893/2015 on misconceived and baseless grounds. It is most

respectfully submitted that the APAR from 01.04.2013 to 05.12.2013 was

 duly reported and reviewed by the reporting officer and reviewing officer

respectively, exclusively and strictly on the basis of his performance during

the said period. It is pertinent to mention herein that a show cause notice

dated 20.09.2013 was served upon the Petitioner therein highlighting his

casual and irresponsible approach towards the duties embarked upon him

during that period.

That aggrieved by this the Petitioner approached the Respondent no.1 vide

Representation dated 18.02.2015 which was duly rejected by the answering

Respondent having no merit and substance. As a result of this the

aforementioned Writ Petition bearing no. 11897/2015 was filed by the

Petitioner before this Hon’ble Court.

10.That furthermore, the Petitioner again challenged the APARs from period

01.04.2014 to 31.03.2015 and 01.04.2015 to 22.07.2015 vide WP(C)

10099/2017 on ill construed and baseless grounds. As far as APAR from

period 01.04.2014 to 31.03.2015, the comments written by the Reporting

officer in Para 8 which has been challenged by the Petitioner are completely

misconstrued and wrongly interpreted. It is most respectfully submitted that

the comments of the reporting officer in Para 8 of the APAR are of nature of

advice and hence could not be considered as adverse remarks. That the
 aforementioned fact is confirmed by Para 9 of the same APAR, the contents

of which have been reiterated herein for ease of reference:

Suggestions for improvement and training areas (not to be construed as

adverse or deemed to be influencing the overall grade and is not to be

considered for promotions, selection, deputations, etc. Comments like

outstanding, very good, good and adequate should not be mentioned here).

That the Petitioner has been given a grading of 7.6. i.e. Very Good in the

said APAR. Therefore, the grading of APAR is consistent with subject Pen

Picture given therein.

11.That with respect to APAR from period 01.04.2015 to 22.07.2015, it is most

respectfully submitted that the reporting officer in a separate note attached

with Para 7 of the said APAR clearly narrated the incident by which the

integrity of the Petitioner was suspected as doubtful. That due opportunity

was provided to the Petitioner to present his side and was served with Memo

dated 01.05.2015 seeking his explanation with regard to the incident wherein

the Petitioner had allowed an Advocate during the course of deposition of

the opposite party in case no. 50/2013 and 76/2013 which had compromised

the purpose of investigation and deposition, and further was in complete

violation of the Standard Guidelines/ Instruction to be followed in Office of

Director General, CCI (Respondent No. 1).

 Howbeit, the explanation of the Petitioner was not found to be satisfactory

having no reasonable ground for permitting the advocate to attend the

deposition of the opposite party in the aforementioned cases. As a result of

this, the matter was transferred to another officer for carrying our further

investigation.

That aggrieved by the APARs from period 01.04.2014 to 31.03.2015 and

01.04.2015 to 22.07.2015, the Petitioner approached the Respondent no.1

vide Representations dated 18.04.2016 and 18.04.2016 which were duly

rejected by the answering Respondent construed as meritless and baseless.

That aggrieved by this, the Petitioner filed another Writ Petition bearing no.

110099/2017 before this Hon’ble Court.

12. That this Hon’ble Court had considered the plea of the Petitioner and vide

order dated 05.04.2018, this Court was pleased to order Respondent no. 1 to

consider Petitioner’s representation afresh in light of the office

memorandum of 13.04.2010.

13.That in pursuance of order passed by this Hon’ble Court in the

aforementioned Writ Petitions, the appropriate authority of the answering

Respondent considered afresh the Representations dated 18.02.2015,

18.04.2016 and 18.02.2016. Thatthe issues and grievances put forth by the

Petitioner in his representations were deliberated in the special meeting of

 the Respondent Commission held on 04.05.2018. That after having detailed

deliberations in the meeting on the basis of relevant facts and records

available, the Answering Respondent found no substantial merit in the

representations of the Petitioner. As a result of this, a well- reasoned and

speaking order dated 28.05.2018 (which has been challenged by the

Petitioner herein) was issued on behalf of the Answering Respondent.

A copy of the minutes of meeting dated 04.05.2018 held by the Respondent

no. 1 has been annexed herewith as Annexure R- .

14.That the present Petition is nothing but abuse of process of law by repeating

issues what they had already urged in the Writ Petition bearing no.

11893/2015 and 10099/2017 and therefore liable to be dismissed by this

Hon’ble Court in the interest of justice.

PRELIMINARY OBJECTIONS

1. That the present Writ Petition challenges the reasoned order dated

28.05.2018 passed by the Respondent no.1 which was passed by the

answering Respondent while exercising its quasi- judicial powers based

upon established facts and circumstances. It is most respectfully

submitted that in the present case, the Court do not have the jurisdiction

to overview the decision of Respondent no. 1 on merits. That the

 jurisdiction of this Hon’ble limited to whether the process followed was

just and fair and was in accordance with the rules.That since similar

issues have already been raised and dispensed with by this Hon’ble Court

while disposing off earlier writ petitions bearing no. W.P. (C)

11893/2015 and W.P. (C) 10099/2017 filed by the Petitioner, the present

Petition needs no new consideration and is liable to dismissed by this

Hon’ble Court with appropriate directions. That the relevant judgments

pronounced by Hon’ble Supreme Court of India about the jurisdiction of

this Hon’ble Court have already been mentioned in preliminary

submissions and are not repeated herein for sake of brevity.

2. That furthermore, this Hon’ble Court cannot sit as an appellate authority

to decide upon the orders passed by authorities in their administrative

capabilities. That Hon’ble Supreme Court in the matter titled as B.S.

Grewal vs. Union of India [WP(C) 7074/2008], the Court held that it

cannot sit over as appellate authority to the decision/ order passed by IO

and RO in their administrative capabilities. That the relevant portion of

the aforementioned matter has been reiterated herein for ease of

reference:

“21. Since both the IO and RO have given these adverse remarks against

the petitioner in their administrative capabilities we cannot sit over their

 decision as appellate authority in the exercise of judicial review while

exercising the power of judicial review we can consider only the decision

making process not the merits of the decision. It can be challenged only

on the ground that it smacks of malafides or arbitrariness. We do not

find any irregularity and arbitrariness in the whole decision making

procedure.”

3. That the Petitioner has alleged that the concerned reporting and

reviewing officers (who are now deleted from the array of parties) who

had reported and reviewed the APARs of the Petitioner during the period

from 01.04.2013 to 05.12.2013, 01.04.2014 to 31.03.2015 and

01.04.2015 to 22.07.2015 had alleged special bias against the Petitioner

and had deliberately issued such APARs in order to harass the Petitioner.

That as far as APAR for the period 01.04.2013 to 05.12.2013 is

concerned, it has been alleged that during the aforementioned period,

Shri S.L. Bunker (who has now been deleted from the array of parties)

was the reviewing authority wherein the Petitioner was graded as below

average and adverse remarks were issued against the Petitioner. The

Petitioner further alleged that Sh. R.N. Sahay (who has now been deleted

from the array of parties) also alleged personal bias against the Petitioner

under the influence of S.L. Bunker.

It was further alleged that Sh. S.L. Bunker was totally prejudiced against

the Petitioner, under the false impression that the Petitioner was one

among several officials who had raised the issue of corruption in

claiming higher amount for medical bills by Sh. S.L. Bunker in 2012

when he was Secretary, CCI. It is most respectfully submitted that the

allegations put forth by the Petitioner are nothing but a figment of his

imagination as he has failed to prove the same by strong evidence which

in no way proves malafide on part of Sh. S.L. Bunker, the concerned

reviewing authority.

That Hon’ble Supreme Court of India in the matter titled as Chandra

Prakash Singh and Ors. vs. Chairman, PurvanchalGramin Bank and

Ors. [(2008) 12 SCC 292] has clearly held that inference of malafide

should be drawn from facts pleaded and established but such factual

matrix cannot remain in the realm of insinuation, surmise or conjecture.

The relevant portion of the aforementioned judgment are reiterated herein

for ease of reference:

“34. Thus as a proposition of law, the burden of proving malafides is

very heavy on the person who alleges it. Mere allegation is not enough.

Party making such allegations is under the legal obligation to place

specific materials before the court to substantiate the said allegations…..

 35. In the present case, no specific and definite real danger of bias has

been made against respondent no.10 to indicate how he was in a position

to influence or manipulate the result of the written test conducted by the

Banking Institute, Mumbai. There are no specific pleadings nor any

proof thereof in the writ petition filed by the appellants. In such

circumstances, the Court is under no obligation to entertain the pleas of

mala fide or arbitrariness. In the backdrop of the facts and

circumstances of the present case and in the light of the settled law, we

agree with the reasoning recorded by the High Court that there are no

proper pleadings nor there is any other evidence brought on record by

the appellants to substantiate the sweeping, bald and unfounded

allegation of mala fide alleged against respondent No.10 - Sri

ZameerHasan.”

4. That further, with respect to APAR for the period 01.04.2014 to

31.03.2015 and 01.04.2015 to 22.07.2015, it has been alleged by the

Petitioner that both the APARs were reported with a delay of 4 to 6

months beyond the time allowed as per instructions and hence the same

were vitiated. The Petitioner also put forth office order dated 16.02.2009

issued by DoPT stating that time limits in reporting and putting remarks

in the ACRs of the officers shall be strictly adhered to, otherwise the
right to enter remarks in the ACRs beyond prescribed period stands

forfeited. It is most respectfully submitted that usually the APARs are

written within the prescribed period postulated for the reporting and

reviewing officers. However, due to official exigencies such as time

constraints and excessive work load, it is not possible to strictly adhere to

the prescribed time limits. It is further submitted that the OM No.

21011/2/2009-ESTT (A) dated 16.02.2009 has been superseded by OM

dated 21011/1/2005-ESTT (A) (Pt-II) dated 23.07.2009 which no more

forfeits the right of reporting and reviewing officers to put their remarks

in the APAR even after the schedule date. It is a well- known principle of

law that ignorance of law is no excuse (Ignorantiajuris non excusat). It

is inexcusable that the Petitioner was not aware of the latest order issued

by DoPT which has applicability similar to that of an Act of Parliament.

Furthermore, it has been held by Hon’ble Supreme Court of India in

matter titled as Prem Kumar Tripathi vs. Union of India and Ors.

[WP(C) 86 OF 2004] that period for communication of adverse remarks

is directory and unless there is an inordinate delay which is against the

spirit and object of the directory provision, the same cannot be rejected.

Therefore the said allegations are liable to be rejected by this Hon’ble

Court with appropriate orders and directions.

 A copy of the office order bearing no. OM 21011/1/2005-ESTT (A) (Pt-

II) dated 23.07.2009 has been annexed herewith as Annexure R-2.

5. That furthermore, with respect to APAR from period 01.04.2015 to

22.07.2015, it is most respectfully submitted that the reporting officer in

a separate note attached with Para 7 of the said APAR clearly narrated

the incident by which the integrity of the Petitioner was suspected as

doubtful. That due opportunity was provided to the Petitioner to present

his side and was served with Memo dated 01.05.2015 seeking his

explanation with regard to the incident wherein the Petitioner had

allowed an Advocate during the course of deposition of the opposite

party in case no. 50/2013 and 76/2013 which had compromised the

purpose of investigation and deposition, and further was in complete

violation of the Standard Guidelines/ Instruction to be followed in Office

of Director General, CCI (Respondent No. 1).

Howbeit, the explanation of the Petitioner was not found to be

satisfactory having no reasonable ground for permitting the advocate to

attend the deposition of the opposite party in the aforementioned cases.

As a result of this, the matter was transferred to another officer for

carrying our further investigation.

6. That with respect to the aforementioned incident upon which remarks and

confidential note were provided, the Petitioner has taken recourse to the

judgmentdated 22.04.2016 pronounced by this Hon’ble Court passed in

WP (C) No.11411/2015 titled as “Oriental Rubber Industries Vs.

Competition Commission of India and Anr.” Wherein this Court held that

an Advocate has a right to practice before DG, Competition Commission

of India.

It is most respectfully submitted that the aforementioned incident

occurred in 2015. However, the judgment was pronouncedsubsequently

in 2016. Therefore, the subsequent judicial pronouncement of this

Hon’ble Court (supra) does not absolve the petitioner of his misconduct.

7. Therefore, the allegations put forth by the Petitioner are not only

repetitive but also devoid of merits and therefore, the same is liable to be

dismissed by this Hon’ble Court in the interest of justice.

PARA- WISE REPLY

That each and every averments raised by the Petitioner are denied in

entirety except the ones which are specifically admitted tby the

answering Respondent herein.

1. That the contents of Para 1 of the Petition are matter of record and

needs no reply.

2. That the contents of Para 2 of the Petition are matter of record and

needs no reply.

3. That the contents of Para 3 of the Petition are matter of record and

needs no reply. However, it is submitted that by virtue of order of this

Hon’ble Court dated 17.09.2019, Respondent no. 2-4 were deleted

from the array of parties upon the request of the Petitioner. Therefore,

the Respondent no. 1 is the only contesting respondent in the present

petition.

4. That the contents of Para 4 of the Petition are matter of record and

needs no reply. However it is denied that the answering Respondent

rejected the three different representations dated 18.02.2015,

18.04.2016 and 18.04.2016 (with respect to A.P.A.R.s for the period

from 01.04.2013 to 05.12.2013, 01.04.2014 to 31.03.2015 and

01.04.2015 to 22.07.2015) in gross violation of the specific directions

of this Hon’ble Court in its common order/ judgment dated

05.04.2018. It is most respectfully submitted that the aforementioned

representations were considered afresh by the appropriate authority.

The issues/grievances, put forth by the Petitioner in his

 representations, were deliberated in the special meeting of the

Respondent Commission, being the appropriate authority, held on

04.05.2018. The Respondent Commission, in the light of relevant

facts & records and after having being detailed deliberations in the

meeting, found that there is no substantial merit in the representations

of the Petitioner. Accordingly, a well reasoned and speaking order

dated 28.05.2018 was issued on behalf of the answering Respondent.

The Petitioner herein has wrongfully challenged the reasoned order

passed by the answering Respondent which is nothing but abuse of

process of law. Therefore, the Petition is liable to be dismissed by this

Hon’ble Court.

5. That the contents of Para 5 of the Petition are replied as under. That

the averments made by the Petitioner are false and are not based on

actual factual matrix. In pursuance of Hon’ble Delhi High Court order

dated 05.04.2018, all three representations dated 18.02.2015,

18.04.2016 and 18.04.2016 submitted by the Petitioner were placed

before the Commission/ being the appropriate authority, against

grading/remarks given in the APARs for the period from 01.04.2013

to 05.12.2013, 01.04.2014 to 31.03.2015 and 01.04.2015 to

22.07.2015 for their consideration afresh. The Commission, after

 having been deliberated on each issue raised by the Petitioner and in

light of relevant facts/records/ passed a detailed and speaking order

dated 28.05.2018. The Petitioner herein has wrongfully challenged the

reasoned order passed by the answering Respondent which is nothing

but abuse of process of law. Therefore, the Petition is liable to be

dismissed by this Hon’ble Court.

6. That the contents of Para 6 of the Petition are matter of record and

needs no reply. It is most respectfully submitted that all the

issues/grievances of the Petitioner raised in his representations dated

18.02.2015, 18.04.2016 and 18.04.2016 have been considered by the

appropriate authority and reasoned order dated 18 .05. 2018 have been

passed.

7. That the contents of Para 7 of the Petition are matter of record and

needs no reply. However it is submitted that in the present Writ

Petition the Petitioner has raised repetitive issues what he had urged in

the Writ Petition bearing no. 11893/2015 and 10099/2017. It is further

submitted that the Petitioner has not brought any substantial issue

rather than raised issues which had already been placed and argued

before the Hon’ble Delhi High Court, while disposing off the

aforementioned writ petitions which is a clear abuse of process of law.

 Therefore, the writ petition is liable to be dismissed by this Hon’ble

Court.

8. That the contents of Para 8 of the Petition are matter of record and

needs no reply.

9. That the contents of Para 9 of the Petition are matter of record and

needs no reply. Howbeit, it is submitted that in order to assess the

performance of an officer, the Respondent no. 1 is required to prepare

Annual Performance Assessment Report (hereinafter referred to

as APAR) of every officer as per prescribed procedure provided by

Department of Personnel and Training, Government of India. That the

APARs are premised on established facts in order to rightly assess the

grading of an officer. APARs are written for specific period

mentioned for the performance shown by the officer during that

period. That APARs also play a key role while consideration of an

officer for confirmation, promotion, deputation to ex-cadre posts, etc.

It is further submitted that the earlier record of the Petitioner cannot

be premised upon to decide the authenticity of the APAR from the

period 01.04.2013 to 05.12.2013 reviewed by Shri S.L. Bunker which

has been challenged by the Petitioner in the present writ petition.

10.That the contents of Para 10 of the Petition are wrong and hence

denied. It is vehemently denied that the Petitioner was graded ‘below

average’ due to malafide reasons and in violation of the rules. It is

further submitted that the Petitioner has wrongfully alleged personal

bias and malafide against Sh. R.N. Sahay, the reporting officer under

the influence of Sh. S.L. Bunker. It is most respectfully submitted that

the allegations leveled by the Petitioner are vehemently denied for

want of knowledge and the Petitioner shall be put to strict proof for

the same.

11. That the contents of Para 11 of the Petition are matter of record and

needs no reply.

12.That the contents of Para 12 of the Petition are denied. It is most

respectfully submitted that merely because the Petitioner earned

outstanding Very Good grading in his APARs, pertaining to the

period(s) other than that corresponding to 01.04.2013 to 05.12.2013,

he cannot be heard to say that even if he indulges in unbecoming

behaviour and found to be causal and irresponsible in his conduct, he

cannot be downgraded in his grading and earn adverse remarks.

Therefore the averments alleged by the Petitioner are liable to be

rejected by this Hon’ble Court.

13. That the contents of Para 13 of the Petition are wrong and hence

denied. It is denied that Sh. R.N. Sahay (formerly Respondent no. 2)

was not fair and show malafide and bias against the Petitioner. The

averments made by the Petitioner are false fabricated and malicious.

The allegations levelled by the Petitioner are only figment of his

imagination rather than based on facts. It is false to allege the APARs

are vitiated by the mala fide conduct of Reporting Officer and

Reviewing Officer. It is further stated that the Petitioner was posted to

Investigation Division of the Respondent till 05.12.2013. His APAR

for the period was, thus, reported and reviewed upon by the officers

under whom he directly worked during the period. The A PARs were

written for the specific periods mentioned t herein on the basis of

performance shown by the Petitioner. It is also stated that merely

because the Petitioner earned outstanding Very Good grading in his

APARs, pertaining to the period(s) other than that corresponding to

01.04.2013 to 05.12.2013, he cannot be heard to say that even if he

indulges in unbecoming behaviour and found to be causal and

irresponsible in his conduct, he cannot be downgraded in his grading

and earn adverse remarks.

It is denied that Sh. S.L. Bunker was totally prejudiced against the

Petitioner, under the false impression that the Petitioner was one among

several officials who had raised the issue of corruption in claiming higher

amount for medical bills by Sh. S.L. Bunker in 2012 when he was

Secretary, CCI. It is most respectfully submitted that the allegations put

forth by the Petitioner are nothing but a figment of his imagination as he

has failed to prove the same by strong evidence which in no way proves

malafide on part of Sh. S.L. Bunker, the concerned reviewing authority.

That Hon’ble Supreme Court of India in the matter titled as Chandra

Prakash Singh and Ors. vs. Chairman, PurvanchalGramin Bank and

Ors. [(2008) 12 SCC 292] has clearly held that inference of malafide

should be drawn from facts pleaded and established but such factual

matrix cannot remain in the realm of insinuation, surmise or conjecture.

The relevant portion of the aforementioned judgment are reiterated herein

for ease of reference:

“34. Thus as a proposition of law, the burden of proving malafides is

very heavy on the person who alleges it. Mere allegation is not enough.

Party making such allegations is under the legal obligation to place

specific materials before the court to substantiate the said allegations…..

35. In the present case, no specific and definite real danger of bias

has been made against respondent no.10 to indicate how he was in a

position to influence or manipulate the result of the written test

conducted by the Banking Institute, Mumbai. There are no specific

pleadings nor any proof thereof in the writ petition filed by the

appellants. In such circumstances, the Court is under no obligation to

entertain the pleas of mala fide or arbitrariness. In the backdrop of

the facts and circumstances of the present case and in the light of the

settled law, we agree with the reasoning recorded by the High Court

that there are no proper pleadings nor there is any other evidence

brought on record by the appellants to substantiate the sweeping,

bald and unfounded allegation of mala fide alleged against

respondent No.10 - Sri Zameer Hasan.”

14. That the contents of Para 14 of the Petition are wrong and hence

denied. It is most respectfully submitted that the Annual Performance

Assessment Report from 01.04.2013 to 05.12.2013 was reported and

reviewed by the reporting officer and reviewing officer respectively

exclusively and strictly on the basis of his performance during the said

period. Further, it is denied that a Show Cause Notice dated

20.09.2013 was served upon the Petitioner highlighting his casual and

irresponsible approach towards the work assigned to him.

15. That the contents of Para 15 of the Petition are replied as under.

With regard to the delay in conveying the grade and adverse remarks

to the Petitioner, it is most respectfully submitted that the Reporting

Officer forwarded the APAR for the period from 01.04.2013 to

05.12.2013 to the Reviewing Officer on 29.09.2014. The said report

was received in the HR Division on 03.02.2015 after having been

reviewed upon by the Reviewing Officer. The APAR was, then,

accepted by the Accepting Authority and thus, attained finality on

06.02.2015. Thereafter, the said report was disclosed to the Petitioner

vide Office Memorandum dated 06.02.2015. That the said delay was

not malafide and intentional and cannot be seen as a conspiracy

against the Petitioner.

16. That the contents of Para no. 16 of the Petition are matter of

record and needs no reply.

17. That the contents of Para 17 of the Petition are matter of record

and needs no reply. It is however submitted that the delay caused in

conveying the adverse remark and grading to the Petitioner was

inadvertent. It is further submitted that the reason the said OM with

respect to the grading and adverse remarks dated 06.02.2015 was

received by the Petitioner on 08.02.2015 due to excessive work load

and there was no malafide in part of the Respondent.

18-19. That the averments made by the Petitioner in Para 18 and 19 of

the Petition are wrong and hence denied. it is stated that the Petitioner

was considered by Departmental Promotion Committee for promotion

in the grade of Director along with other officers. However, the DPC

decided to defer the case in respect of the Petitioner till finalisation of

his APAR for the period from 01.04.2013 to 05.12.13.

20. That the contents of Para 20 of the Petition are matter of record

and needs no reply.

21. The averments made by the Petitioner in Para 21 of the Petition

are incorrect and misleading. The representation dated 18.02.2015 of

the Petitioner was placed before the Commission, being the

appropriate authority, for its consideration. The Commission, in its

special meeting held on 16.03.2015, considered the representation in

the light of relevant records, placed before them, and found no

substantial merit in the case. It is noteworthy that the representation

dated 18.02.2015 of the Petitioner was considered by the Commission

only. Hence, the contention of the Petitioner that the Reporting

 Officer was also available during the meeting is false and is just to

mislead the Hon’ble Court.

22. That the contents of Para 22 of the Petition are wrong and hence

denied. With regard to delay in finalisation of APARs, it is stated that

APARs are usually written within the prescribed period postulated for the

reporting and reviewing officers. But due to official exigencies such as

time constraints and excessive workload, it is always not possible to

strictly adhere to the prescribed time limits. The Respondent

substantively complied with the procedure laid down for assessing the

Petitioner's performance. It is pertinent to mention that the Petitioner had

already raised these issues in his earlier Writ Petition WP(C) No.

11893/2015 before the Hon’ble Delhi High Court and were taken into

consideration vide judgement dated 05.04.2018.

23.That the contents of Para 23 of the Petition are matter of record and

needs no reply.

24-25. That the contents of Para 24-25 of the Petition are replied as

under. It is most respectfully submitted that that APARs are usually

written within the prescribed period postulated for the reporting and

reviewing officers. But due to official exigencies such as time constraints

and excessive workload, it is always not possible to strictly adhere to the

prescribed time limits. The Respondent substantively complied with the

procedure laid down for assessing the Petitioner's performance.

26. That the contents of Para 26 of the Petition are denied, save and

except, those averments, which are matter of record. The allegations

leveled by the Petitioner against reporting and reviewing officer are

baseless, malicious and far from the truth. As far as APAR from period

01.04.2014 to 31.03.2015, the comments written by the Reporting officer

in Para 8 which has been challenged by the Petitioner are completely

misconstrued and wrongly interpreted. It is most respectfully submitted

that the comments of the reporting officer in Para 8 of the APAR are of

nature of advice and hence could not be considered as adverse remarks.

That the aforementioned fact is confirmed by Para 9 of the same APAR,

the contents of which have been reiterated herein for ease of reference:

Suggestions for improvement and training areas (not to be construed as

adverse or deemed to be influencing the overall grade and is not to be

considered for promotions, selection, deputations, etc. Comments like

outstanding, very good, good and adequate should not be mentioned

here).
That the Petitioner has been given a grading of 7.6. i.e. Very Good in the

said APAR. Therefore, the grading of APAR is consistent with subject

Pen Picture given therein.

That with respect to APAR from period 01.04.2015 to 22.07.2015, it is

most respectfully submitted that the reporting officer in a separate note

attached with Para 7 of the said APAR clearly narrated the incident by

which the integrity of the Petitioner was suspected as doubtful. That due

opportunity was provided to the Petitioner to present his side and was

served with Memo dated 01.05.2015 seeking his explanation with regard

to the incident wherein the Petitioner had allowed an Advocate during the

course of deposition of the opposite party in case no. 50/2013 and

76/2013 which had compromised the purpose of investigation and

deposition, and further was in complete violation of the Standard

Guidelines/ Instruction to be followed in Office of Director General, CCI

(Respondent No. 1).

Howbeit, the explanation of the Petitioner was not found to be

satisfactory having no reasonable ground for permitting the advocate to

attend the deposition of the opposite party in the aforementioned cases.

As a result of this, the matter was transferred to another officer for

carrying our further investigation.

27. That the contents of Para 27 of the Petition are matter of record and

needs no reply.

28. That the contents of Para 28 of the Petition are replied as under. That

in the APAR from period 01.04.2014 to 31.03.2015, the comments

written by the Reporting officer in Para 8 which has been challenged by

the Petitioner are completely misconstrued and wrongly interpreted. It is

most respectfully submitted that the comments of the reporting officer in

Para 8 of the APAR are in the nature of advice and hence could not be

considered as adverse remarks. That the aforementioned fact is confirmed

by Para 9 of the same APAR, the contents of which have been reiterated

herein for ease of reference:

Suggestions for improvement and training areas (not to be construed as

adverse or deemed to be influencing the overall grade and is not to be

considered for promotions, selection, deputations, etc. Comments like

outstanding, very good, good and adequate should not be mentioned

here).

He could be trained in procedural and legal compliance programme to

make him a better officer.

That the Petitioner has been given a grading of 7.6. i.e. Very Good in the

said APAR. Therefore, the grading of APAR is consistent with subject

Pen Picture given therein.

29. That the contents of Para 29 of the Petition are wrong and hence

denied. It is denied that the remarks in the APAR from 01.04.2014 to

31.03.2015 are speculative and hypothetical. It is further denied that the