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2016 DIGILAW 647 (CAL)

UTTAM SARKAR v. INDIAN OIL CORPORATION LIMITED

2016-08-17

NISHITA MHATRE, TAPABRATA CHAKRABORTY

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JUDGMENT : Tapabrata Chakraborty J. The writ petitioner has come up in appeal against an order dated 17th December, 2015 passed in WP 27941 (W) of 2015, which was preferred challenging, inter alia, the subjective performance rating of the petitioner pertaining to the period from 1987 to 2015, as assessed by the authorities of the Indian Oil Corporation Limited (hereinafter referred to as IOCL). 2. The appellant/writ petitioner appearing in person submits that scope for career progression of executives in Indian Oil Corporation Limited (hereinafter referred to as IOCL) depends on score in Annual Performance Appraisal and Departmental Promotion Committee proceedings. The career progression in Marketing Division of IOCL starts with first promotion as Assistant Manager. Prior to 2005-06 the procedure for performance evaluation was a paper-based system and subsequent thereto, it was changed to a web-based system. The overall performance appraisal evaluation/assessment is a combination of Key Result Areas (KRA) and Competency, Values and Potential (CVP). Since the year 1988, the petitioner's performance assessment had been conducted in a whimsical and arbitrary manner and as a consequence thereof, the petitioner had been deprived of promotion to the appropriate posts and the consequential monetary benefits. In support of such contention, the petitioner has drawn the attention of this Court to the averments made in paragraphs 6 to 12 of the writ petition. 3. The petitioner further submits that the countersigning authority for the year 2010-11 was called back after retirement in December, 2010 to evaluate CVP and his Annual Performance Appraisal Reports (APARs) had been downgraded arbitrarily in the Competency, Values and Potential systems. Challenging such down gradation the petitioner approached the appellate authority but such claim was rejected without disclosing appropriate reasons, as would be explicit from the orders dated 20th January, 2012 and 12th February, 2015. 4. According to the petitioner, it would be explicit from the records that the performance appraisal of the petitioner for 2005-06 to 2014-15 was rated 'outstanding' in KRA section at all the levels of the appraiser, the reviewer and the countersigning officer. However, the subjective parameters of CVP were evaluated in an arbitrary manner and as a consequence thereof, the overall rating was brought down to a preconceived level in a biased manner. 5. However, the subjective parameters of CVP were evaluated in an arbitrary manner and as a consequence thereof, the overall rating was brought down to a preconceived level in a biased manner. 5. According to the petitioner, the learned Single Judge having arrived at a finding to the effect that "the fact that the petitioner's appraisal/rating has been consistently downgraded for the last few years is a matter of some concern" ought not to have relegated the matter to the appellate authority for consideration. 6. Per contra, Mr. Chowdhury, learned senior advocate appearing for IOCL submits that the petitioner has sought to rake up issues pertaining to the years from 1988 onwards without filing any contemporaneous appeal and that such attempt on the part of the petitioner is untenable in law. 7. He further submits that the petitioner has not disclosed the fact that his grievance as regards rating, pertaining to the years 2012-13, was considered and upgraded by the appellate authority, as would be explicit from the order dated 16th December, 2013 appearing at page 149 of the stay application. However, the petitioner did not approach the appellate authority ventilating his alleged grievance as regards performance appraisal pertaining to the years 2009-10, 2011-12 and 2014-15. 8. Drawing the attention of this Court to the orders dated 20th January, 2012 and 12th February, 2015 passed by the appellate authority at pages 137 and 138 of the stay application, Mr. Chowdhury submits that there is no infirmity in the said orders warranting interference of this Court. The final performance assessment is done on overall performance basis on a comparative scale among a group of officers of same Grade at different level of appraisal authorities which is, inter alia, based on inter se comparison in order to ensure normal "Bell Curve" distribution of performance in IOCL. 9. He further submits that in respect of the years 2011-12 and 2013-14, the petitioner's rating was downgraded by the reviewing officer and in respect of the years 2009-10, 2010-11, 2012-13 and 2014-15 the petitioner's rating was downgraded by the countersigning officer by reason of percentage restriction. 10. According to Mr. Chowdhury, as an employee does not have any right to promotion, the reasons for not promoting him need not be communicated to him and such non-communication of reasons does not constitute any breach of the principles of natural justice. 11. 10. According to Mr. Chowdhury, as an employee does not have any right to promotion, the reasons for not promoting him need not be communicated to him and such non-communication of reasons does not constitute any breach of the principles of natural justice. 11. A comparison of the order dated 12th February, 2015 passed by the appellate authority (pg. 138 of the stay application) retaining the rating of the petitioner for the year 2013-14 as 'good' and the order dated 16th September, 2013 passed by the appellate authority (pg. 149 of the stay application) by which the petitioner's rating for the year 2012-13 was upgraded as 'very good' would reveal that the 3rd paragraph of the former order has been copied and pasted on the latter order. It would also be explicit from the order dated 20th January, 2012 passed by the appellate authority (pg. 137 of the stay application) that the petitioner's claim for review has been turned down only on the basis of a statement to the effect that "considering the inter se comparison and based on the materials available". 12. The order impugned in the instant appeal does not reveal that the learned Single Judge has considered the veracity of the orders dated 20th January, 2012 and 12th February, 2015 passed by the appellate authority. Instead the learned Single Judge was pleased to grant liberty to the petitioner to make a comprehensive representation before the competent appellate authority - in respect of the Grade he belongs - with regard to his last appraisal without interfering with the previous orders towards retention of performance rating of the petitioner dated 20th January, 2012 and 12th February, 2015. The authority to whom the claim has been relegated cannot appropriately consider such representation of the petitioner when the prior decision of the said authority pertaining to the petitioner's claim has not been touched by the learned Single Judge. There is also no observation in the impugned order to the effect that the appellate authority would be free to consider the petitioner's representation, if submitted, uninfluenced by the earlier orders of rejection. As such, it appears that the direction towards consideration would be nothing but an idle formality and would lead to repetition of the earlier orders of rejection. There is also no observation in the impugned order to the effect that the appellate authority would be free to consider the petitioner's representation, if submitted, uninfluenced by the earlier orders of rejection. As such, it appears that the direction towards consideration would be nothing but an idle formality and would lead to repetition of the earlier orders of rejection. Such error in the impugned order, unless interfered with, will earn immunity and will stultify the powers of the Court for interfering with the order of the appellate authority, when passed upon consideration of the petitioner's representation. 13. Mr. Chowdhury has argued that the petitioner's rating in the years 2011-12 and 2013-14 were downgraded by the reviewing officer and the ratings in the year 2009-10, 2010-11, 2012-13 and 2014-15 were downgraded by the counter signing officer "by reason of percentage restrictions". A perusal of the report in the form of an affidavit filed by the respondents before the learned Single Judge reveals that the respondents have sought to explain such "percentage restriction" by referring to a document in annexure R3 of the said affidavit (page 164 of the stay application). In the said document it has been stated that "the entire work force is rated by comparing the performance of those engaged in similar activity in the same grade and ranking them on the basis of their performance and creating three distinct groups, i.e., top, average and low performers. The percentage of the workforce who would fall in these three groups are pre decided by the company and typically when plotted take a shape of a bell curve as shown in fig below". It has also been stated in the said document that "to reduce rater bias and error IOCL has adopted a three level rater assessment system". Such explanation, however, does not find place in the orders of the appellate authority dated 20th January, 2012 and 12th February, 2015 by which the petitioner's rating for the appraisal years 2010-11 and 2013-14 respectively was denied to be upgraded. Furthermore, it has also not been explained as to how the subjective parameters pertaining to Competency, Values and Potential (CVP) can be considered in the backdrop of a pre-decision on the part of IOCL to restrict the percentage of workforce pertaining to the groups of top, average and low performers. Furthermore, it has also not been explained as to how the subjective parameters pertaining to Competency, Values and Potential (CVP) can be considered in the backdrop of a pre-decision on the part of IOCL to restrict the percentage of workforce pertaining to the groups of top, average and low performers. It appears to us that the system is ex facie fraught with inconsistencies and discrimination. 14. The avowed object of the bell curve system of appraisal is to identify non performers. A forced ranking system is imposed on the employees in order to achieve this end. It appears to us that the management is compelled to put good performers into the poor bracket just to fit the curve. Thus although the ratings of the appellant have been outstanding or very good he was downgraded only because of this method of appraisal which permits only a certain percentage of employees to be in each bracket of high performers, average performers and poor performers. It seems to us that this method of appraisal is riddled with flaws. The bell curve method of appraisal has been criticized and several organisations worldwide have discontinued this method of assessment. 15. The contention of Mr. Chowdhury to the effect that the employer is not under any obligation to communicate the reasons towards denial of promotion of an employee, is not acceptable to this Court. It is well settled that the right to be considered for promotion is a fundamental right and should involve effective, purposeful and meaningful consideration [See the judgments delivered in the case of Union of India v. Sangram Keshari Nayak, reported in 2007 (6) SCC 704 ]. Non-consideration of the case of a person for promotion will amount to infringement of Article 16 of the Constitution [See the judgment delivered in the case of H.P. State Electricity Board v. Shri K.R. Gulati, reported in 1998 (2) SCC 624 ]. In view of such settled proposition of law it is incumbent upon an employer to communicate the reasons towards denial of promotion to the petitioner. 16. The writ court would, at the first instance, ordinarily not do the thing or render the decision that the executive functionary ought to do in the circumstances. In view of such settled proposition of law it is incumbent upon an employer to communicate the reasons towards denial of promotion to the petitioner. 16. The writ court would, at the first instance, ordinarily not do the thing or render the decision that the executive functionary ought to do in the circumstances. Once the Court arrives at a finding or expresses its concern and doubts as regards the process adopted by the authorities in considering the claim of an employee it is incumbent upon the Court to quash the impugned orders of the appellate authority before relegating the matter for reconsideration to the administrative authority. 17. For the reasons discussed above, the orders passed by the appellate authority dated 20th January, 2012 and 12th February, 2015 and the order impugned in the instant appeal are set aside and the matter is remanded to the appellate authority for reconsideration of the appellant's claim in the light of the observations made in the judgment and to communicate the decision within a period of eight weeks from date. The appellant will be afforded a personal hearing before passing any order. The appellant will also be at liberty to produce relevant documents at the time of such personal hearing. 18. With the above observations and directions, the appeal and the connected applications are, accordingly, disposed of. There shall, however, be no order as to costs. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.