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2004 DIGILAW 502 (JHR)

Central Coalfields Ltd. v. Tribeni Prasad

2004-05-11

P.K.BALASUBRAMANYAN, TAPEN SEN

body2004
JUDGMENT Tapen Sen, J. 1. Both the aforementioned two Letters Patent Appeals are taken up together, but for convenience, we will deal with L.P.A. No. 541 of 1999(R) first. This letters patent appeal is directed against the judgment dated 1.11.1999 passed in C.W.J.C. No. 2228 of 1998(R) by a learned Single Judge of this Court, by which the writ petition filed by the respondent Shri Tribeni Prasad was allowed. 2. In the writ petition, the respondent herein had prayed for a direction upon the respondents for quashing the communication of "Inadequate" ratings for the periods 1994-95, 1995-96 and 1996-1997 which were communicated by confidential letter Nos. 2724 dated 08.08.1997, 2708 dated 29.07.1997 and 3114 dated 17.10.1997 as contained in Annexure 1, 1/a and 1/b therein. By reason of Annexure 1, the respondent was informed that his overall grading for the period April 1994 October 1994 and 27.10.1994 to 31.03.1995 was "Inadequate". Similary, by Annexure 1/a, the respondent was informed that his overall grading for the period 1995-96 was "Inadequate". By reason of the third impugned communication, the respondent was again informed that his overall grading for the period 1996-97 was also "Inadequate". 3. According to the respondent Tribeni Prasad, the A.C.Rs. were written without following the guidelines and accordingly he further prayed that necessary directions be issued upon the appellants to review the ratings in the A.C.Rs. strict in accordance with the Rules provided in the C.R. Rules and the guidelines of the C.I.L. Executive Evaluation Reports. The respondent further prayed for subsistence allowance to the respondent with effect from 07.11.1997, i.e., the date of deemed suspension at the rate of 50% of his salary and at the rate of 75% from 07.05.1998, i.e., the date on which he completed six months under suspension in terms of the Conduct, Discipline and Appeal Rules 1978. He also prayed for revocation of the order of suspension with immediate effect. 4. The case of the respondent as built up in the writ petition was that being in the Personnel Department of Coal India Limited, he earned the wrath of the appellants in the matter relating to genuine redressal of grievances of its workmen. He made a grievance that earlier also he had been superseded by his juniors and his genuine medical reimbursement to the tune of Rs. 6,000/- or more was withheld and he was frequently transferred from one area to another. He made a grievance that earlier also he had been superseded by his juniors and his genuine medical reimbursement to the tune of Rs. 6,000/- or more was withheld and he was frequently transferred from one area to another. Being aggrieved by these actions he had filed C.W.J.C. No. 2748 of 1994(R) which is the subject matter of L.P.A. No. 459 of 2001. 5. In retaliation, the appellants decided to punish him for filing the aforementioned case and as a result thereof they wrote the C.Rs. for the years 1994-95, 1995-96 and 1996-97 in great hurry and with the intention of depriving the petitioner for promotion. According to him, the aforementioned ratings for all the three years were made within a period of two months only contrary to the provisions of the C.R. Rules Clause 2.1 of the said C.R. Rules of Coal India Limited provides that while writing and reviewing the C.Rs. the guidelines be strictly followed and that before entering any adverse remarks, it is necessary that the officers are properly counseled. Clause 2.1 of the aforementioned C.R. Rules reads as follows :-- "2.1. Before writing any adverse remarks it should be ensured that the officer concerned has been appropriately counselled during the period under review to enable him to make the necessary improvement by the time his ACR is written and mention of the officer having been informed accordingly should be made in the C.R. In eases where it is not possible to inform the officer beforehand, the reason, therefore, has to be mentioned in the C.R.. failing which such adverse remarks will not be taken cognisance of." (Quoted verbatim from running page 38 of the writ petition). 6. failing which such adverse remarks will not be taken cognisance of." (Quoted verbatim from running page 38 of the writ petition). 6. The further case of the respondent was that the policy rules and guidelines of Executive Performance Appraisal, 1987, as published in the C.I.L. Executive Evaluation Report which was made applicable from the appraisal year 1991-92 stipulates, at Clause 2.1 therein, that the appraisal reports of executives should be written by the reporting authority in consultation with the appraisee by the end of the financial year and handed over to him at least 45 days before commencement of the financial year and a 4 monthly review will be made regarding the task performance on the basis of task assignment and acceptance document in which the task to be performed during a particular four months period will be indicated by the controlling officer. This procedure in the case of the respondent, was not at all followed and no counselling was made before writing the A.C.Rs. of the respective years. 7. The Respondent further made a grievance that another procedure which was required to be followed was also violated. This, according to him, was that the reporting officer was required to complete the evaluation and send it to the first level reviewer by 15th of May of the successive appraisal year and the final review to be made by 30th of June of the successive year as per Clauses 4, 5.1, 5.2, 5.3 and 5.5 of the said guidelines. According to him the A.C.Rs. of three consecutive years was made at one point of time between be period July 1997 and October 1997 and this was the reason why he was superseded by so many juniors. The aforementioned guidelines was brought on record by Annexure 3 to writ petition. 8. It was the case of the respondent that the appellants become so biased against him for filing C.W.J.C. No, 2748 of 1994(R) that his name was deleted from the integrated seniority list of officers of Coal India as on 1/94 and therefore, his name did not appear, in the seniority list of E-1V grade of officers in which capacity he was working. 9. The respondent has attempted to make out a case that he was put under suspension because he was taken into custody by the Danapur Police on 7.11.1997. 9. The respondent has attempted to make out a case that he was put under suspension because he was taken into custody by the Danapur Police on 7.11.1997. He gave explanations between paragraphs 15 to 20 as to the reason for institution of a criminal case and submitted that after having been released from jail, he proceeded to join on 16.12.1997. He was asked to sign a separate attendance register meant: for people who are put under suspension. The extract of that register was Annexure 10 to the writ petition and it contained an endorsement which read that "he has been placed under suspension vide Order No. Dy. CPM(E)/DISC. Case.98.930-38 at 13.1.98 with effect from 7.1.97 of C.M.D./ Ranchi CCL." He received suspension allowance for the period 16.12.1997 to 2.1.1998, but the Executive Director (Vigilance)/D.I.G. of the Company sent a letter on 8.5.1998 to the Director (Personnel) advising him that allowing subsistence allowance from 16.7.1997 was not justified and even if it has been paid the same should be amended at once and the subsistence allowance during that period till 02.01.1998 with effect from the date of suspension can only be released after disposal of inquiry. If subsistence allowance had already been paid with effect from 16.7.1997 and not from 2.1.1998, then the same should be recovered. It was thereafter that the General Manager. Mines Rescue Station. Nai Sarai, Ramgarh deducted the subsistence allowance from 16.12.1997 to 1.1.1998 which had already been paid to him. On 13.1.1998 an order was issued (Annexure 13 to the writ petition) placing the petitioner under suspension with effect from 7.12.1997. Thereafter, when he filed a representation-requesting that he should be allowed to resume duties and that he should be paid subsistence allowance at the rate of 75% of the salary with effect from 7.5.1998, the Appellants issued a memorandum on 30.5.1998 by Annexure 14 appended to the writ petition and to his shock he found that the charge contained an allegation of fraud and cheating the unemployed youth in relation to giving them false assurances for employment and for concealing the facts relating to his arrest. 10. The writ petition however was mainly against the downgrading made and therefore, in this L;P.A. we have to assess as to whether the reasoning given by the learned Single Judge was proper or not. 11. 10. The writ petition however was mainly against the downgrading made and therefore, in this L;P.A. we have to assess as to whether the reasoning given by the learned Single Judge was proper or not. 11. It is true that as per the Rules/ guidelines referred to above, the C.Rs. of officers are to be submitted within 30 days of the end of the financial year and handed over to the appraisee 45 days before commencement of the financial year. This aspect was duly noted by the learned Single Judge at paragraph 6 of his judgment and it was also noticed that from a perusal of the copy of the policy, rules and guidelines, it was manifest the upon completion of the assessment year, the appraisee will be supplied with the E.E.R. Format by the Executive Establishment Department strictly by the end of January so that the Format could be made available with the appraisee latest by 28th February Self appraisal in the printed format duly filled in is to be handed over to the reporting officer by 30th April and the reporting officer is required to complete evaluation and send it to the First Level Reviewer by 15th of May. 12. It is true in the case of the respondent herein, his A.C.R. was not submitted within a period of 30 days of the end of the financial year and that the evaluation report for 1994-95 was communicated after two years on 8.8.1997. The learned Single Judge, in paragraph 7 takes this fact into consideration and also duly notices that it was not disputed that before communication of the impugned letters the petitioner was never informed about his performance nor any show cause notice was given to him nor was he advised by any communication that he should improve his work. The learned Single Judge also duly took note of the fact that the guidelines were not strictly followed and that prior to writing the averse remarks the petitioner was not properly. counselled. It was duly taken note of by the learned Single Judge that "Admittedly the C.K. was not submitted within 30 days of the end of the Financial Year, rather, the evaluation report in respect of the petitioner for the year 1994-95 has been communicated after two years i.e., on 8.8.97. counselled. It was duly taken note of by the learned Single Judge that "Admittedly the C.K. was not submitted within 30 days of the end of the Financial Year, rather, the evaluation report in respect of the petitioner for the year 1994-95 has been communicated after two years i.e., on 8.8.97. Similarly, evaluation report (E.R.) for the years, 1995-96 and 1996-97 was communicated on 29.7.97 and 27.10.97 respectively, within a period of two months 10 days which is against the provisions of C.R. rules applicable to the officers of Coal India Ltd. including the petitioner". 13. Having taken note of the aforementioned admitted facts, the learned Single Judge correctly weighed the merits of the case and the law in this regard and was right, therefore, in observing that the object of writing confidential reports and making entries in them is to give an opportunity to the public servant to improve his excellence. Before forming an opinion, the Reporting/Reviewing Officer should share the information with the officer concerned and this amounts to an opportunity given to the Officer to correct their errors. The learned Single Judge noticed a judgment of the Supreme Court and taking into consideration the non-observance of the aforementioned facts relating to compliance of the Rules/policy/guidelines, held that the manner and procedure adopted by the authorities in recording the A.C.R. of the respondent was illegal and therefore, could not be sustained in law. He therefore, allowed the writ petition and quashed the confidential communications. 14. However one relevant fact which does not appear to have been considered by the learned Single Judge was the statement made in paragraph 23 of the Counter Affidavit wherein the appellants had stated very specifically that the petitioner had himself not written his E.E.R. even after repeated reminders and that he was so casual that he wrote his E.E.R. for 1993-94 in the year 1997 as was evident from his letter dated 3.7.1997. In support of the aforementioned statement, the appellants have gone a step further in this L.P.A. and have given details and brought on record letters which go to show that inspite of the repeated efforts on the part of the Management made to the respondent to submit his E.E.R. in time, the respondent did so but much after the stipulated period and therefore, the very purpose of writing E.E.R. failed because no counselling could be carried out in the absence of such E.E.Rs. In this context therefore, it is relevant to quote paragraph 23 of the counter affidavit as also the further statements which the appellants have made in paragraph 4(23) at running page 14 of the instant L.P.A. :-- "23. That with reference to the statement made in paragraph 12 and 13 of the writ application I say and submit that the petitioner is any how trying to deviate from his own deficiency and lacuna as he has been rated based on his performance and not within any other motive. The rating of his performance has nothing to do with different dates as mentioned by the petitioner. The rating of his performance i.e. EER for 1994-1995, 1995-96 and 1996-97 has been done at different time and not within a particular time as contended by the petitioner. Moreover, the petitioner has himself not written in his E.E.R. even after repeated reminder and is baselessly charging the respondent. He has been so casual that he has written his EER for 1993-94 in the year 1997 as is evident from his letter dated 3.7.1997. It is also evident from this Office letter dated 19.1.96 addressed to Shri T. Prasad vide which he has been requested to submit his E.E.R. Format for the period 1992-93. 1993-94 and 1994-95 which he has not submitted to his reporting Officer in time, Chief General Manager (P & A) vide his letter dated 15/16.7.1996 has intimated the petitioner to submit his E.E.R. for the period 1993-94, 1994- 95 and 1995-96 for further needful which he failed to submit in time. Dy. Chief Personnel Manager (E.E.) vide his Wireless Message dated 21.11.1996 had also requested the Controlling Officer of the petitioner to request him to submit within the stipulated period. Dy. Chief Personnel Manager (E.E.) vide his Wireless Message dated 21.11.1996 had also requested the Controlling Officer of the petitioner to request him to submit within the stipulated period. It is also evident from General Manager (Sayal) letter dated 28.1.1996 that the part E.E.R, for the period 1993-94 has been submitted by the petitioner in October, 1996, The General Manager (Sayal) who was then reporting Officer has further mentioned in the said later that delay in submission of E.E.R. was due to late submission by the petitioner. A Copy of the letter dated 3.7.1997, 19.1.1996 15/16.7.1996, 21.11.1996 and 28.1.1996 are hereunto annexed and marked as Annexure 4 series to this application. E.E.Rs. Mentioning therein his achievement for the aforesaid years too late and after the stipulated period mentioned in E.E.R. rule, the reporting/reviewing officer had to writ/review the E.E.Rs. beyond the stipulated period. Thus very purpose of writing E.E.R. failed because no counselling could be carried out through review conselling card during review year. As such, it was the petitioner who did not submit his E.E.R. in time for further review and there was no fault on the part of the management on this account as from time to time the petitioner was informed to submit his T.A.A.D. through E.E.R." (The bold and italicized portion quoted above is an addition to paragraph 23 of the counter affidavit which has been inserted in this L.P.A.) 15. Although the bold italicized portion quoted above was not a part of paragraph 23 of the counter affidavit and although the same has been inserted in this L.P.A., we nevertheless allow the same to be looked into by this Court because it is a mere extension and/or clarification of what the appellant had to say in paragraph 23 of their counter affidavit. We have also, therefore, looked into the documents brought on record vide Annexure 4 series herein, one of which, i.e., the letter dated 3.7.1997 was a part of the counter affidavit. These letter all go to show that they are frantic efforts on the part of the management informing the respondent that he was himself delaying the entire procedure. The appellants, therefore, were rendered helpless. These letter all go to show that they are frantic efforts on the part of the management informing the respondent that he was himself delaying the entire procedure. The appellants, therefore, were rendered helpless. Moreover, the guidelines are merely directory and merely because one part or the other are not strictly adhered to, the same cannot take away the right of the Management to writ the A.C.R. of its employee and that too, when the employee himself is responsible in "creating" the delay. 16. The basic argument of the appellants which they had wanted to say in paragraph 23 of the counter affidavit that the respondent himself had been very casual and had written his E.E.R. for the year 1993-94 in the year 1997 was, therefore, a relevant factor which ought to have been looked into. 17. This apart, we are also constrained to look into paragraph 26 of the counter affidavit which reads as belows :-- "26. That I further say and submit that the petitioner in the past has been served with letter dated 30.6.1990, 5.12.1995. 1.2.1996 20th Feb 1990 and June 14, 1997 which indicates the antecedent of the petitioner and also the performance of the petitioner in the past. Copies of the aforesaid letters dated 30.6.90, 5.12.95, 1.1.96, 20th February, 90 and June 14, 1997 are hereunto annexed and marked as Annexure F-1 to F-5 to this counter affidavit." 17. Upon perusal of Annexure F/1 to F/5 it is evident that even as early as on 20/22nd February 1990 the Respondents passed an office order stating that the respondent had been unauthorisedly absenting from his duty with effect from 30th September 1999 and as per paragraph 12.4 (iv). Chapter XXI of the Common Coal Cadre, an executive cadre employee who absents himself without leave for more than 8 calendar days or fails to report without sufficient reasons within 8 days of the posting of a notice or being otherwise duly notified, shall lose lien and be deemed to have left the services of the company on his own accord with effect from the date he was due to return to work. Accordingly, the appellants passed in an order that the respondent ceased to be an employee of the company with effect from 27.1.1990. Accordingly, the appellants passed in an order that the respondent ceased to be an employee of the company with effect from 27.1.1990. From Annexure F/1, another office order was passed upon the representation of the respondent against the aforementioned order wherein he was informed that taking into consideration his assurance that he would not resort to repetition of such misconduct in future, the Management took a lenient view and reinstated him with a clear condition that continuity of service will be decided after observing his conduct for two years. From Annexure F/2 which is a confidential letter dated 5.12.1995, the General Manager, Mines Rescue Station information the Director (Personnel) that the respondent, was very poor in his attendance to work and in August 1995 he had attended only 9 days, in September 1995 he had attended only 10 days, in October 1995 he had attended only 10 days, and in November 1995 he had attended only 15 days. From Annexure F/3, which is a letter dated 1.2.1996, the General Manager, Mines Rescue Station wrote to the Director (Personnel) wherein while referring to the aforementioned letter he stated that he had requested that the respondent should be transferred elsewhere from Ramgarh. He further drew attention of the Director (Personnel) that "The attendance of Shri Prasad was cross marked on the days he was remained absent and on joining duty he put his signatures in all places marked with cross. He did the work so hurriedly that even on Sunday and holidays which are not his working days, he put his signatures." (Quoted verbatim). Annexure F/5 is a letter dated June 14, 1997 from the SBI Home Finance Limited addressed to the Chief Personnel Manager informing him that the respondent was a serious defaulter who had taken a loan of Rs. 2,50,000/- on 2.12.1989 with E.M.I. for Rs. 1,937/- while he was posted at C.C.L., Sambalpur. It was further informed that the respondent managed his transfer and an amount of Rs. 1,58,976/-was overdue for payment as on that date. 18. These documents were on record in the counter affidavit and additional documents have been brought on record as has been stated above in support and in continuation of what the appellant had to say in paragraph 23 of the counter affidavit. 1,58,976/-was overdue for payment as on that date. 18. These documents were on record in the counter affidavit and additional documents have been brought on record as has been stated above in support and in continuation of what the appellant had to say in paragraph 23 of the counter affidavit. These were all very relevant factors to have been taken into consideration, but it does not appear that the learned Single Judge considered these aspects. 19. For the foregoing reasons, therefore, we are of the opinion that the judgment of the learned Single Judge having not taken into consideration the relevant factors which ought to have been considered and on the contrary, by having drawn an inference against the appellants only because the A.C.Rs., of the respondent were not written within a period of three months, was not proper. If the learned Single Judge had taken into consideration the statements made in paragraph 23 as also the statements made in paragraph 26 of the counter affidavit, there was no scope for him to find faults with the appellants. For the foregoing reasons, we are satisfied that the judgment of the learned Single Judge deserves to be set aside. We are also satisfied that so far as the claim of subsistence allowance is concerned, the deserved to be looked into only in accordance with law and not otherwise. For all the reasons stated above, we allow this appeal and set aside the judgment of the learned Single Judge and dismiss C.W.J.C. No. 2228 of 1998(R). So far as the other L.P.A. is concerned, namely. L.P.A. No 459 of 2001, we think it fit not to interfere with the order, passed by the learned Single Judge on 30.3.2001 in C.W.J.C. No. 2748 of 1994(R) because the operative portion of the said judgment will reveal that the case was remanded to the respondents to consider the case of the petitioner. However while remanding the matter, the learned Single Judge observed that while doing so, the appellants would not look into the earlier adverse remarks because they were set aside by another learned Single Judge on 1.1.1990 passed in C.W.J.C. No. 2228 of 1998(R) Since we have set aside that judgment of the learned Single Judge in the other L.P.A., we would only like to observe that such consideration will be strictly in accordance with law and as per procedure. In that view of the matter, L.P.A. No. 459 of 2001 is dismissed. There shall be no order as to costs. . Finally in the result, L.P.A. No. 541 of 1999 is allowed while L.P.A. No 459 of 2001 is dismissed. No Order as to costs.