Research › Browse › Judgment

Patna High Court · body

1992 DIGILAW 145 (PAT)

Awadhesh Kumar Sinha v. State of Bihar

1992-04-20

AFTAB ALAM

body1992
JUDGMENT Aftab Alam, J. The petitioner, an employee of the State Government and holding the substantive post of Labour Superintendent, by this application under Articles 226 and 227 of the Constitution seeks following directions to the respondent authorities: (i) to consider his case for promotion to the post of Assistant Labour Commissioner (A.L.C. for short) with effect from 23.10.1984 when persons junior to the petitioner in the rank of Labour Superintendent were given promotion to the post of A.L.C. vide notification dated 23.10.1984 a copy whereof has been enclosed as Annexure 5 to this writ petition; (ii) to consider the case of the petitioner for promotion to the next higher rank of Deputy Labour Commissioner (D.L.C. for short) with effect from 31.12.1988 on which date some person allegedly junior to the petitioner was given promotion to the rank of D.L.C. vide notification dated 31.12.1988, a copy whereof has been enclosed as Annexure 15 to the writ petition (wrongly marked as Annexure 14) ; and (iii) to pay to the petitioner his salary in the scale of A.L.C. on which post the petitioner has been given an acting assignment from 17.5.1985. 2. The reason for withholding the petitioner's promotion to the post of A.L.C. is given in the counter-affidavit filed on behalf of the State. In para 4 of this counter affidavit, it is stated that the Promotion Committee in its meeting held on 18.11.1986, 26.12.1986 and 4.3.1987 did not find the petitioner suitable for promotion to the post of A.L.C. due to the fact that the confidential remarks• recorded in the character roll of the petitioner upto 1.4.1981 were not upto the mark. The proceedings of the Committee have been enclosed as Annexure 'A' to the counter-affidavit and it is curious to see the manner in which the case of this petitioner was considered by the Committee. From the proceedings of the Committee, it appears that in the remarks column against the name of this petitioner, it was stated that on the basis of his confidential remarks upto 1.4.1981, he was not found suitable for promotion but due to non-availability of confidential remarks for the years 1980-81 and 1981-82 let one post be kept reserved for him and let this case be again put up for consideration by the Committee after the remarks for those years were made available. This was the position on 4.3.1987 when the Promotion Committee considered the petitioner's case. 3. In the counter-affidavit affirmed on 11.4.1991 it was stated that: "the confidential remarks appertaining to the years 1980-81 and 1981-82 have since been received in this department. As soon as the meeting of the Promotion Committee is held the case of the petitioner for promotion to the post of Assistant Labour Commissioner will be placed before it for recommendation." (emphasis supplied). Again in para 21 of the counter-affidavit, it is stated as follows: "That with regard to the statement made in paragraph no. 15 of the writ application, it is stated that as already stated above, one post of Assistant Labour Commissioner has been kept reserved and the case of the petitioner will be considered by the Promotion Committee as soon as the confidential remarks for the period referred to above, are available. The petitioner has not been superceded by his juniors as one post of Assistant Labour Commissioner is still reserved for him." 4. This promise to soon consider the petitioner's case for promotion has not materialised though one year has passed from the date when this statement was made in the counter affidavit on 11.4.1991 and one does not know when the promise to consider the petitioner's case will materialise. 5. At this stage, I may also take a note of the recording of the confidential remarks and their communication to the petitioner for the past several years. From the statements made in the writ petition and the various affidavits filed on behalf of the petitioner as also the statements made in the counter affidavit the position that emerges in this regard is as follows: 1978-79 : Adverse confidential remarks in the character roll communicated to the petitioner for the first time in 1989 vide Annexure 10. 1979-80 : Adverse confidential remarks communicated to the petitioner on 24.4.1982. The petitioner claims to have given his representation against the adverse remarks on 19.7.1982 which according to him remains undisposed of till today. It is stated on behalf of the State that no such representation was received in the concerned office. The petitioner, however, has enclosed the covering letter of his superior officer who forwarded his representation to the concerned authorities. It is stated on behalf of the State that no such representation was received in the concerned office. The petitioner, however, has enclosed the covering letter of his superior officer who forwarded his representation to the concerned authorities. The covering letter dated 8.8.1982 has been brought on the record as Annexure 20 and in that view it is difficult to accept the respondents plea that no such representation was filed by the petitioner. For the years 1980-81, 1981-82, 1982-83, 1983-84 and 1984-85 no adverse remarks were ever communicated to the petitioner. For the years 1985-86 and 1986-87 adverse remarks were communicated on 12.5.1989 in respect of which the petitioner has filed his representation on 7.8.1989 which remains un-disposed of by the authorities. 6. This highly inordinate delay in communicating the adverse remarks to the petitioner is admitted vide para 10 of the counter-affidavit. The delay is sought to be explained on the plea that the Labour Department (under which the petitioner is employed) was having some correspondences in that regard with the Department of Personnel & Administrative Reforms and hence the delay in communicating the adverse remarks in question to the petitioner. The excuse advanced for communicating the adverse remarks for the year 1978-79 after the lapse of a decade is to my mind wholly unjustified and even on the plea advanced no fault of the petitioner is involved in this matter. 7. It is further to be noted that the communication of the adverse remarks to the concerned person is not an empty formality. The Government itself has issued circulars and executive instructions in this regard from time to time and such circulars and guidelines have been enclosed in this writ petition marked as Annexures 1, 2, 3 and 18. In the circular dated 14.1.1977 a copy whereof has been enclosed as Annexure 2 to the writ petition, it is clearly envisaged that the substance of the adverse remarks should be communicated to the person concerned within three months from the date of receipt of such remarks. The person concerned is then entitled to make representation in respect of the communicated adverse remark within six weeks from the date of receipt of the communication to him and his representation should be disposed of by the authority within five months from the date of receipt thereof. The person concerned is then entitled to make representation in respect of the communicated adverse remark within six weeks from the date of receipt of the communication to him and his representation should be disposed of by the authority within five months from the date of receipt thereof. Annexure 18 lays down the purpose and object of communication of the adverse remarks and contemplates that its object is to give an opportunity arid occasion to the concerned person to improve his performance. 8. This question was also considered by the Supreme Court in the case of Gurdial Singh Fijji v. The State of Punjab and others, 1979 (2) S.C.C. 368 . In para 17 of this judgment the Supreme Court has held as follows: "17. The principle is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. Unfortunately, for one reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified. In these circumstances, it is difficult to support the non-issuance of the integrity certificate to the appellant. The chain of reason began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified. We cannot speculate, in the absence of a proper pleading whether the appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the non-issuance of an integrity certificate to him." 9. In view of the aforesaid, I see no justification in permitting the respondent authorities to deny the petitioner his promotion to the rank of Assistant Labour Commissioner on the basis of any adverse remarks in his character roll for the years 1978-79, 1979-80 and the subsequent years. In view of the aforesaid, I see no justification in permitting the respondent authorities to deny the petitioner his promotion to the rank of Assistant Labour Commissioner on the basis of any adverse remarks in his character roll for the years 1978-79, 1979-80 and the subsequent years. It is also to be noted that the date of promotion being 13.10.1984 any adverse remarks for the period subsequent to that would also be immaterial for that reason. I accordingly find and hold that the petitioner cannot be denied promotion to the rank of Assistant Labour Commissioner on the basis of any adverse remarks in his character roll for the period prior to 23.10.1984 for the reason that no such adverse entry was communicated to him within a reasonable time and he was not afforded an opportunity to make a representation in respect of the same. As the matter has been delayed considerably without any fault of the petitioner, I further deem it proper to direct the concerned authorities to consider the case of promotion of the petitioner to the post of Assistant Labour Commissioner with effect from 23.10.1984 without any further delay and within a period of three months from the date of receipt/production of this order. If a meeting of the Promotion Committee is required to be held for the purpose, the same must be held within this period and a final order must be issued within the aforesaid period. 10. In case the petitioner is given the promotion to the post of Assistant Labour Commissioner with effect from 23.10.1984, then his case must also be considered for the next promotion to the post of Deputy Labour Commissioner (either on a substantive basis or on acting charge basis) in accordance with law. 11. In the result, this application is allowed to the extent indicated above but in the facts and the circumstances of this case, there shall be no order as to costs.