Central Administrative Tribunal - Delhi
Mr. Shuman Mukherjee vs . Steel Authority Of India Ltd. on 16 May, 2013
Central Administrative Tribunal Principal Bench, New Delhi. MA-1229/2013 in OA-1520/2013 Reserved on: 13.05.2013. Pronounced on:16.05.2013. Honble Mr. G. George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) Mr. Shuman Mukherjee Vs. Steel Authority of India Ltd. Present : Sh. Rahul Gupta with Sh. Vijay Pandita and Sh. Shekhar Dasi, counsel for applicant. Sh. A.S. Chandhiok, Addl. Solicitor General with Sh. K.K. Rai, Senior Advocate, Sh. H.S. Phoolka, Sr. Advocate, Sh. Alakh Kumar, Sh. Sharat Kapoor and Sh. D.S. Mahendru, counsel for respondents. O R D E R
Mr. Shekhar Agarwal, Member (A) MA-1229/2013 in OA-1520/2013 This application has been filed by respondent No.1 (Steel Authority of India) in the OA for vacation of ad interim ex-parte stay order dated 07.05.2013.
2. The applicant (Mr. Shuman Mukherjee) had approached this Tribunal by filing OA-1520/2013 seeking quashing of the impugned order dated 01.05.2013 by which his appointment as Director (Commercial) in Steel Authority of India Limited was terminated and he was reverted to his substantive post of Executive Director, SAIL. One of the grounds taken in the OA was that as per prescribed guidelines of Public Enterprises Selection Board (PESB) decision confirmation of Board Level appointees has to be done within a period of one year and 30 days of his assuming charge on the post. Learned counsel for the applicant at the time of admission had argued that the termination order of the applicant had been issued in contravention of these PESB guidelines. After hearing the counsel for the applicant, we had issued notice to the respondents to file reply and directed that the matter be listed again for further consideration on 21.05.2013. As an interim relief to the applicant, the following order was also passed:-
The contention of the applicants counsel is that in view of the aforesaid directions/guidelines, when the applicant was appointed as Director (Commercial) which is Board level post on 22.12.2010, he should have been considered for confirmation before 22.1.2012 in a year on 22.12.2011. However, respondents have not taken any action in the matter within the stipulated time. By now, he has already deemed to have been confirmed and the Ministry is required to only issue necessary orders for confirmation. Instead they have conducted review of the performance of the Applicant on 26.2.2013 to terminate him from his appointment as Director (Commercial).
In the above facts and circumstances, we are of the prima facie view that the aforesaid impugned orders have been issued in violation of the rules and guidelines of the Respondents and they shall be stayed. Accordingly, we stay the aforesaid impugned orders dated 1.5.2013 till the next date of hearing.
3. On 10.05.2013 the respondents appeared before us and filed MA-1229/2013 in which they have prayed for vacation of the stay order granted in favour of the applicant in the OA. The miscellaneous applicants stated that the applicant of the OA had obtained the aforesaid stay by suppressing material facts. A copy of this MA was served on proxy counsel for the applicant in the OA, Sh. Rahul Singh, who was present in the Court. The date of the case was pre-poned and it was listed for hearing on MA on 13.05.2013. On the said date, we heard both the parties. The OA applicant filed reply to the MA-1229/2013, which was taken on record.
4. Facts of the case are that OA applicant joined SAIL as a Management Trainee on 14.11.1977. He gradually rose to the level of ED in the aforesaid organization. On 22.12.2010 he was appointed as Director (Commercial) on the recommendations of PESB as approved by the President of India. The appointment of the applicant was for a period of five years w.e.f. the date of assumption of charge or till the date of his superannuation or until further orders, whichever was earlier. The guidelines of PESB by which the applicant was covered lay down the following procedure for confirmation:-
PESB has been monitoring the Board structure of PSEs and writes to Administrative Ministries on the completion of the first year of tenure of a Board Level executive requesting for a proposal of confirmation. This proposal includes a Special Performance Report (SPR) in prescribed format devised by PESB, up to date ACRs and a report on the performance of the executive vis-`-vis MOU targets. The SPR of Director level executives is initiated by the CMD/MD/Chairman of the PSE and countersigned by the Secretary of the Ministry indicating his agreement/disagreement with the evaluation of the CMD/MD and is sent to PESB for CMD/MD/Chairman, the SPR is written by the Secretary of the Administrative Ministry and sent to the PESB along with the documents after completion of Ist year. Executives who score less than 37.5 marks on the SPR are called for a joint appraisal meeting with the Board in presence of Secretary of the Administrative Ministry. In case, the recommendation of non-confirmation is approved by the Competent Authority, the executive vacates the post. Further, PESB vide D.O. letter No.13/07/2010-PESB dated 13.5.2011 have also laid down the following guidelines:-
Now Ministries are required to send proposal to PESB only in case of non-confirmation on performance grounds i.e. in cases where the score on the SPR is less than 37.5 A CMD/MD/Functional Director would be deemed to be confirmed unless the Ministry/Department sends a proposal to the PESB, to the contrary, within 30 days after the expiry of one year.
Within this stipulated period of one year thirty days, the officers would be deemed to have been confirmed and the Ministry shall issue necessary order for confirmation, if the Ministry fails to send a proposal to the contrary to the PESB.
5. As prescribed in the guidelines, SPR of the applicant was forwarded by the SAIL to the Ministry of Steel who convened a Joint Appraisal Meeting regarding the applicant on 23.02.2012. In that Meeting it was decided to review the performance of the applicant again after a year. Accordingly, the performance of the applicant was reviewed again in a Joint Appraisal Meeting of the PESB held on 26.02.2013 in which recommendation for non-confirmation and termination of the applicant was made to the President. The matter was then referred to the Appointments Committee of the Cabinet who accorded their approval on 30.04.2013. On 01.05.2013 this decision was communicated by Ministry of Steel to SAIL and on the same date SAIL passed the impugned order by which the applicant was terminated and reverted to the post of ED.
6. Learned Addl. Solicitor General Sh. A.S. Chandhiok argued on behalf of misc. applicants that the OA applicant had not come to the Tribunal with clean hands. He stated that OA applicant had suppressed the facts and misled the Tribunal by wrongful submissions. According to him, it was well within the knowledge of the applicant that he had scored less than 37.5 marks in his SPR for the period from April to December, 2011. As per the prescribed guidelines for Board Level Appointees scoring less than 37.5. marks a Joint Appraisal Meeting has to be convened at the level of PESB. For the applicants case this Meeting was held on 23.02.2012 in which the applicant himself had participated. Learned ASG produced documents to prove that the applicant joined SAIL as Director (Commercial) on 22.12.2010. His appraisal report for the period from April to December, 2011 was forwarded by SAIL on 06.01.2012 to Ministry of Steel. Ministry further forwarded this report to PESB on 18.01.2012 mentioning, inter alia, that the over all performance of the applicant has been assessed by Chairman at 34 marks and Secretary, Ministry of Steel at 36 marks both of which were below bench mark of 37.5 marks. The Ministry in the aforesaid letter requested the PESB to convene meeting at an early date on the proposal for confirmation or otherwise of the OA applicant. Thus, the proposal had been forwarded by the Ministry within the prescribed period of one year and 30 days.
7. Joint Appraisal Meeting was held on 23.02.2012 in which it was decided to give the applicant another chance and to hold a fresh review after one more year. The performance report for the next year was forwarded by SAIL on 15.01.2013 to the Ministry of Steel, who again forwarded the same to PESB for convening a Joint Appraisal Meeting on 30.01.2013. This Appraisal Meeting was held on 26.02.2013 in which again the applicant had participated. In this Meeting, it was decided to recommend to the President non-confirmation of the OA applicant and termination of his appointment as Director (Commercial). The said recommendation of the Appraisal Committee was approved by the Appointments Committee on 30.04.2013 and in pursuance of the same the impugned orders were issued.
8. Learned ASG on behalf of misc. applicants argued that PESB guidelines prescribe that Ministries are required to send proposals to PESB only in cases of non-confirmation on performance grounds. The guidelines further lay down that in case such a proposal is not sent within one year and 30 days of the officers assumption of charge then the officer will be deemed to have been confirmed and the Ministry shall issue necessary order for confirmation. However, in the instant case, the proposal was sent by the Ministry to PESB on 18.01.2012 which was within the period of one year and 30 days from the date of assumption of charge of the applicant as Director (Commercial). Learned ASG also argued that the applicant had himself participated in the Joint Appraisal Meeting convened by PESB and therefore was well aware of the fact that PESB guidelines had not been violated. Yet he suppressed these facts from the Tribunal and had taken the ground in his OA that he should be deemed to have been confirmed since proposal for his non-confirmation has not been moved on time. Learned ASG further argued that even the Second Appraisal of the officer was done on time and he was well aware of the same as he had participated in the Joint Appraisal Meeting held on 26.02.2013. However, the OA applicant had suppressed these material facts and had misled the Tribunal to secure interim stay order in his favour. Learned ASG also argued that Apex Court has laid down in various cases that a person who does not come to the Court with clean hands does not deserve any sympathy. He has cited the ruling of Honble Supreme Court in the case of Ramjas Foundation and Another Vs. Union of India and Others, (2010)4 SCC 38, in Para-21 of which it is laid down that:-
The principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have a bearing on adjudication of the issue(s) arising in the case. Learned ASG further argued that those seeking ex-parte relief are duty bound to state the whole truth before the Court. In this case, the OA applicant has suppressed material facts from the Court and as such his case needs to be dismissed as laid down by Honble Supreme Court in the case of Kishore Samrite Vs. State of Uttar Pradesh and Ors., (2013) 2 SCC 398, in paras 32.1 and 32.2 which read as follows:-
32.1 Courts have, over the centuries, frowned upon litigants who, with intent to deceive and mislead the courts, initiated proceedings without full disclosure of facts and came to the courts with unclean hands. Courts have held that such litigants are neither entitled to be heard on the merits of the case nor are entitled to any relief.
32.2 The people, who approach the court for relief on an ex parte statement, are under a contract with the court that they would state the whole case fully and fairly to the court and where the litigant has broken such faith, the discretion of the court cannot be exercised in favour of such a litigant.
9. In reply to this the OA applicants counsel had argued that there was no suppression of facts on his part. He stated that he had never hidden from the Court that he had participated in the Joint Appraisal Meeting held at the level of PESB. However, it was not in his knowledge as to when SAIL had forwarded his SPR to the Ministry and when the Ministry had forwarded their proposal to PESB for convening a Joint Appraisal Meeting as he had no access to the letters written by the Ministry to PESB. He further argued that to him only order of the ACC requiring another appraisal after a year was communicated as late as 11.12.2012. Similarly, it was not known to him as to when the second proposal of the Ministry to PESB for convening a Joint Appraisal Meeting was forwarded.
10. In our opinion, that PESB guidelines prescribe that proposal for non-confirmation on performance ground has to be forwarded by the concerned Ministry to PESB within one year and 30 days of the assumption of the charge of the officer whose confirmation is to be considered was well within the knowledge of the applicant. It was also within his knowledge that the guidelines also prescribe that in case of delay the officer would be deemed to have been confirmed and PESB will not proceed to hold a Joint Appraisal Meeting. Since PESB had convened a Joint Appraisal Meeting on 26.02.2012 in which the OA applicant himself participated, it should have been clear to him that there had been no violation of PESB guidelines and that proposal for his non-confirmation had come to PESB on time. Therefore, this fact should have been brought to our notice while arguing for admission of OA and grant of ex-parte interim order.
11. The next ground taken by the learned ASJ appearing on behalf of respondents was that the interim order has been obtained by the OA applicant by stating that since the proposal for his non-confirmation was not moved on time, he will be deemed to have been confirmed. He argued that the guidelines prescribed that even in cases of deemed confirmation order was required to be issued by the Ministry. Since no such order was issued it cannot be presumed that the officer has been confirmed. In this regard, he relied on the decision of Honble Supreme Court in the case of Head Master, Lawrence School Vs. Jayanthi Raghu and Another, (2012) 4 SCC 793 in which the following has been laid down:-
38.A confirmation, as is demonstrable from the language employed in the Rule, does not occur with efflux of time. As it is hedged by a condition, an affirmative or positive act is the requisite by the employer. In our considered opinion, an order of confirmation is required to be passed. He also relied on the decision of Honble Supreme Court in the case of High Court of M.P. through Registrar Vs. Satya Narayan Jhavar, (2001) 7 SCC 161, para-11 of which reads as under:-
11. The question of deemed confirmation in service Jurisprudence, which is dependent upon language of the relevant service rules, has been subject matter of consideration before this Court times without number in various decisions and there are three lines of cases on this point. One line of cases is where in the service rules or the letter of appointment a period of probation is specified and power to extend the same is also conferred upon the authority without prescribing any maximum period of probation and if the officer is continued beyond the prescribed or extended period, he cannot be deemed to be confirmed. In such cases there is no bar against termination at any point of time after expiry of the period of probation. Other line of cases is that where while there is a provision in the rules for initial probation and extension thereof, a maximum period for such extension is also provided beyond which it is not permissible to extend probation. The inference in such cases is that officer concerned is deemed to have been confirmed upon expiry of the maximum period of probation in case before its expiry order of termination has not been passed. The last line of cases is where though under the rules maximum period of probation is prescribed, but the same require a specific act on the part of the employer by issuing an order of confirmation and of passing a test for the purposes of confirmation. In such cases, even if the maximum period of probation has expired and neither any order of confirmation has been passed nor the person concerned has passed the requisite test, he cannot be deemed to have been confirmed merely because the said period has expired. OA applicants counsel, however, argued that both these rulings are not relevant as they were not based on the PESB guidelines applicable in the instant case. In this regard, the OA applicant has relied on a decision of Honble Supreme Court in the case of Kazia Mohammed Muzzammil Vs. State of Karnataka and Another, (2010) 8 SCC 155 in which it has been laid down that regarding deemed confirmation the Courts have to take a view with reference to the facts and relevant rules involved.
12. In our opinion, PESB guidelines prescribe that in case of non-confirmation of an officer on performance ground, the Ministry is required to send a proposal to PESB with 30 days after expiry of one year from the date on which the officer had assumed charge. The guidelines further lay down that if such a proposal is not received within the prescribed period the officer would be deemed to have been confirmed and the Ministry shall issue necessary orders for confirmation. However, in the instant case the officer had assumed charge of the post on 22.12.2010 and the Ministry had moved a proposal to PESB on 18.01.2012 as is evident from Annexure R-1/2 to the MA. Thus, the proposal was very much on time and therefore the question of deemed confirmation does not arise at all as this condition has not been triggered. It is note worthy that there is no time prescribed in the PESB guidelines for issuing termination order on the basis of non-confirmation. Time limit is laid down only for the Ministry to move a proposal to PESB.
13. During the course of arguments learned counsel for OA applicant stated that the respondents were duty bound to take decision on his confirmation after a period of one year as there is no provision for extension of his probation period. In the instant case no decision was taken by the respondents on the basis of first review as they had decided to hold another review after a year. Consequently, he is now being terminated on the basis of second review which took place two years after he had joined the said post and the impugned orders have been passed almost when he had completed 2 = years of service as Director (Commercial) and was close to his superannuation. He argued that in the PESB guidelines there is no provision for second review. As such orders passed on the basis of second review are not sustainable in law.
14. In reply learned ASG on behalf of misc. applicants argued that the OA applicant was all along in the picture. He willingly participated in both the review Meetings. In the first review, taking into account his long service with SAIL the respondents had decided to give him one more chance to improve his performance. He could have very well been terminated at that stage itself but the respondents had been generous enough to give him one more opportunity. The OA applicant had not protested at that time and had enjoyed another year on the post of Director (Commercial). Had he been aggrieved by the aforesaid act of the respondents he should have at that very stage protested and asked for either confirmation to be issued or his being relieved from the post. Now he cannot take the ground that keeping him on the post for another year without confirmation was against his interest.
15. In our opinion, it is true that PESB guidelines prescribe confirmation or otherwise of an officer after expiry of one year. However, they are silent about extension of probation period. Since these guidelines are only in the nature of executive instructions, the respondents cannot be faulted for obtaining the orders of the highest authority for giving another chance to the OA applicant to improve his performance and face another review. In any case, this act of the respondents was in favour of the applicant and after having enjoyed the benefit of the same, he cannot now take the plea that he is aggrieved by it. If it was so, he should have protested earlier since no order of confirmation had been issued in his favour.
16. Lastly, learned ASG on behalf of misc. applicants argued that the balance of convenience lies in favour of the misc. applicants as an interim order granted to the OA applicant will cause hindrance in the functioning of SAIL in Commercial matters which will make it difficult for it to maintain its status as a Maharatna.
17. As is clear from our interim order dated 07.05.2013, it was granted on the ground that the OA applicant had made out a prima facie case that his non-confirmation and termination was contrary to the PESB guidelines which provided for deemed confirmation. Since on the basis of analysis done above, we come to the conclusion that prima facie there has been no violation of guidelines by the respondents, we are not inclined to extend the interim relief granted to the OA applicant. We, therefore, allow this MA and hereby vacate the interim order granted on 07.05.2013. We, however, make it clear that we are not expressing any opinion on the merits of the O.A.
18. List the O.A. for our further consideration on 21.05.2013.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/vinita/