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Madhya Pradesh High Court · body

2010 DIGILAW 434 (MP)

Raj veer Singh v. M. P. State Electricity Board

2010-04-15

S.C.SHARMA

body2010
Judgment ( 1. ) The petitioner before this Court who is working on the post of Junior Engineer in the services of the Madhya Pradesh State Electricity Board has filed this present writ petition being aggrieved by an order dated 27.1.2003 (Annexure P/1) by which his representation against the adverse ACR of the year 1999- 2000 has been turned down. The petitioner is also aggrieved by an order dated 27.1.2003 (Annexure P/2), by which his representation against the adverse ACR for the period with effect from 1.4.2000 to 11.12.2000 has been rejected. The petitioner is also aggrieved by rejection of his representation against the adverse ACR for the year 1998-99 communicated to him on 9.2.2004 (Annexure P/2- A). ( 2. ) The petitioner has stated before this Court that he was initially appointed as a Diploma Trainee on 15.11.1978 and was posted as Junior Engineer with effect from 15.11.1981. The petitioner has further stated that till 1988, his service record was very good and in June 1998 he was posted at Utila Distribution Centre which comes under control of the Executive Engineer (O and M) Gwalior. The petitioner has further stated that at the relevant point of time one Shri Raj Hans Seth was serving as an Executive Engineer and started pressurising the petitioner to do the certain illegal acts and to accommodation him and as the petitioner has not succumbed to the pressure of Shri Raj Hans Seth, the Executive Engineer, he started victimizing the petitioner. The petitioner has further stated that during the tenure of Shri Raj Hans Seth who was his competent authority for writing an adverse ACR, he was communicated with an adverse entry in the year 1998-99 vide communication dated 3.6.1999 and against the aforesaid adverse entry, a detailed and exhaustive representation was submitted by him on 22.7.1999. The petitioner has further stated that in the year 1999-2000 i.e. for the period with effect from 1.4.2000 to 11.12.2001, two adverse entries were communicated to him vide communcation dated 12.10.2000 and 14.9.2001 respectively and the petitioner has again submitted the representation on 22.12.2000 and 17.11.2001. The petitioners grievance is that by non-speaking orders, the representation have been turned down vide orders dated 27.1.2003 (Annexure P/l and P/2) and vide order dated 9.2.2004 (Annexure R/2-A). The petitioners grievance is that by non-speaking orders, the representation have been turned down vide orders dated 27.1.2003 (Annexure P/l and P/2) and vide order dated 9.2.2004 (Annexure R/2-A). The petitioner has also made an attempt before this Court to demonstrate that the adverse ACRs are not based upon any cogent material and he was never informed about his short comings by the department as required in the matter as per the executive instructions issued by the Madhya Pradesh State Electricity Board. The petitioner has also placed reliance over the executive instructions dated 7.8.1992 and his contention is that the adverse ACRs in question were not written in consonance with Clause 12 of the aforesaid instructions nor the representations have been decided within a period of 30 days as required under the executive instructions dated 7.8.1992. ( 3. ) The learned counsel for the petitioner has placed reliance upon a judgment delilvered by this Court in the case of Ramesh Kumar Rusia v. State ofM.P. and others, 2005 (3) MPLJ 313 , wherein, a representation against the adverse remarks was rejected by a non-speaking order. His contention is that in the present case also non-speaking orders have been passed and it has been simply observed that the representations are being rejected. He has prayed for quashing of the orders passed by competent authority rejecting his representations. ( 4. ) The learned counsel appearing for the respondent No. 1 to 3/Board has argued before this Court that the procedure as prescribed under the executive instructions dated 7.8.1992 has been followed while writing the ACRs of the petitioner and all the adverse ACRs were communicated to the petitioner in time, however, they have not decided the representations of the petitioner as required under the executive instructions dated 7.8.1992. He has also argued before this Court that during the pendency of the representations of the petitioner against the adverse ACRs, at no point of time any Departmental Promotion Committee took place nor those adverse ACRs have been looked into till the representations were decided for any other purpose. His contention is that merely because they have failed to decided the representations within a period of 30 days, it does not mean that the adverse ACRs shall be treated as expunged. His contention is that merely because they have failed to decided the representations within a period of 30 days, it does not mean that the adverse ACRs shall be treated as expunged. He has further argued before this Court that the CR review committee of the Board has considered the representations of the petitioner and the committee with due application of mind has turned down the representations of the petitioner. He has prayed for dismissed of the writ petition. ( 5. ) Heard learned counsel for the parties at length and perused the record. ( 6. ) In the present case, it is not in dispute that the three adverse CR were communicated to the petitioner and the petitioner has also submitted representations against the adverse ACRs. Two representations of the petitioner for the adverse ACR for the year 1999-2000 and for the period with effect from 1.4.2000 to 11.12.2000 have been turned down vide order dated 27.1.2003 (Annexure P/1 and P/2) and the third representation of the petitioner has been turned down vide order dated 9.2.2004 (Annexure P/2-A) for the year 1998- 99. The orders rejecting the representations of the petitioner are certainly non- speaking orders. ( 7. ) This Court, in order to find out whether there is any application of mind by the CR Review Committee in the matter or not, has directed the learned counsel for the respondents to produce the minutes of the CR Review Committee and the minutes of the CR Review Committee also reflects that the representations of the petitioner have been dismissed in a mechnical manner. The minutes of the meeting dated 14.1.2004 reflects that the committee has considered the discussed the comments over the representations and after taking into account all points the committee had decided to maintain the adverse ACRs of the petitioner. The minutes do not disclose any reason nor there is any justification in respect of grounds raised by the petitioner. Similar order have been passed in respect of other representations against the other adverse ACRs and the fact remains other that by non-speaking order the CR Review Committee in its meeting which took place on 16.1.2003 had observed that the petitioner is not residing at headquarters and no other ground has been dealt with by the CR Review Committee. Similar order have been passed in respect of other representations against the other adverse ACRs and the fact remains other that by non-speaking order the CR Review Committee in its meeting which took place on 16.1.2003 had observed that the petitioner is not residing at headquarters and no other ground has been dealt with by the CR Review Committee. Resultantly, this Court is of the considered opinion that the respondents have rejected the representations of the petitioner by passing the non-speaking orders. ( 8. ) This Court in the case of Ramesh Kumar Rusia v. State ofM.P. and others, 2005 (3) MPLJ 313 in paragraphs 8 and 10 has held as under: "According to me, the reply of petitioner Annexure A/4 is having some merit. However, since these averments are factual averments and no application of mind has been given to it by the authority while rejecting the representation, according to me, the authority has acted in arbitrary manner. In the case of Vaidyanath Mahapatra v. State of Orissa, AIR 1989 SC 2218 , the apex Court has thrown sufficient light in this regard. It has been categorically held in this case that any representation against adverse entry should be considered on merit. In the case of Vaidyanath Mahapatra (supra) the representation was rejected by the authority on the ground of delay in making it. In the present case, though representation has been rejected but without application of mind and thus, it cannot be said that it was rejected in its own merit. The purpose for quoting the rejection order of representation is that mechanically and without application of mind the same was rejected. According to me, the authority was duty bound to decide the representation by passing a speaking order specially when the representation is exhaustive and also contains the reply of each and every point which is mentioned in Annexure A/1. On bare perusal of the representation, it appears that there is some merit in it but, while exercising jurisdiction under Article 226 of the Constitution of India, I cannot decide the representation because the averments made are factual in nature. Normally this Court should not go into the merit of the Annual Confidentail Report and to quash it. On bare perusal of the representation, it appears that there is some merit in it but, while exercising jurisdiction under Article 226 of the Constitution of India, I cannot decide the representation because the averments made are factual in nature. Normally this Court should not go into the merit of the Annual Confidentail Report and to quash it. It be seen that there is specific averments in the petition that except on one instance, the entire service career of the petitioner remained unblemished and only once he was erroneously suspended, however, immediately the suspension order was revoked. These facts ware not denied in the return. In the case of State ofM.P. v. Vishnu Datt Dubey, 1995 Suppl. (4) SCC 461, the Tribunal on the grounds of excellent career of the employee quashed the Adverse Confidential Report and the matter was travelled upto the apex Court and the apex Court held that normally the Tribunal is not supposed to go into the merit of the Annual Confidential Report and quash it on the ground that there was no factual basis for recording the same, but in the fact and circumstances of that case, the apex Court declined to interfere with the order of the Tribunal on that point. Since, in Annexure A/1 certain facts are narrated which are adverse to the petitioner and they have been refuted specifically by him in his representation, not only in detail, but clarifying each and every aspect of the matter, hence, it was the duty of the authority to decide the representation on its own merit by passing a speaking order. In this view of the matter, this is a fit case where the impugned orders Annexure A/2 dated 18.20/10/1994 and A/3 dated 24-1 -1995/19-1 -1995 are required.to be quashed and the same are hereby quashed. Industry Commissioner- respondent No. 2 is hereby directed to decide and reconsider the representation of the petitioner Annexure A/4 sympathetically. Since it has been pleaded by the petitioner that on account of hostile attitude of respondent No. 4, adverse ACR (Annexure A/1) was made, according to me, a personal hearing may be provided to the petitioner by the said authority." Keeping in view the aforesaid judgment delivered by this Court in the aforesaid case, it is evident that the respondents have dismissed the representations of the petitioner by passing the non-speaking orders. The order dated 27.1.2003, Annexure P/1 simply states that the representation of the petitioner has been rejected by the CR Review Committee, and therefore, keeping in view the totality of circumstances of the case, the impugned orders dated 27.1.2003, Annexures P/1 andP/2 and the order dated 9.2.2004, Annexure P/2-Aare hereby quashed. The matter is remanded back to the comptent authority to consider the representations of the petitioner afresh and to pass a speaking order in the matter within a period of 90 days from the date of receipt of a certified copy of this order. With the aforesaid, the writ petition stands disposed of.