Central Administrative Tribunal - Delhi
Dr Md Mozaffar Uddin vs Employees State Insurance Corporation ... on 28 August, 2025
1
Item No. 58 (C-IV) O.A. No.3438/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.3438/2022
Reserved on: 19
19.08.2025
Pronounced on: 28.08.2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Dr. Md. Mozaffar Uddin,
Uddin
General Secretary, ESIC MOA,
R/o
o 225, street No.5 Jagatpur,
Delhi-110085
110085.
...Applicant
(By Advocate: Mr. V.K. Singh with Ms. Sonakshi Chinda )
Versus
1. Employee State Insurance Corporation
Corporation-
Panchdeep Bhawan, CIG Marg,
New Delhi--
--110002 through its
Director General (DG).
2. Dr. Deepak Kumar Sharma,
Sharma
Medical Commissioner (MC), ESIC
Panchdeep Bhawan, CIG
CI Marg,
New Delhi- 110002.
...Respondents
(By Advocate: Mr. Kunwar Jai Singh)
Singh
2
Item No. 58 (C-IV) O.A. No.3438/2022
ORDER
Hon'ble Mr. Manish Garg, Member (J) :
In the present case, the applicant seeks the following reliefs:
"a) To quash the order dated 20.09.2022 vide APAR/GDMO/M 71/Med.(DPC) order dated 08.09.2022 APAR/GDMO/M-71/Med.(DPC) vide no. A-33/14/2/2015-Med-IV A IV (DPC) and declare that the Applicant is entitle for the promotion from the date of 11.02.2014.
b) To declare declare that the applicant has been rightly promoted from IMO Gr-II Gr II to the post of IMO Gr Gr-I on dated 11.02.2014.
c) To direct the respondents to give the applicant further promotion to the post of Chief Medical Officer w.e.f.
11.02.2019 as per NRC (No Report Ce Certificate) dated 03.05.2017 and subsequent APARs of the Applicant.
d) To direct the Respondent to treat the order dated 03.05.2017 as legal and valid operational order passed by the competent authority in supersession of its order dated 24.02.2015 and declare the order dated 01.11.2021 illegal.
e) To direct the Respondent that no recovery or other consecutive benefit may be recovered or claimed from the Applicant till the disposal of the present O.A.
f) Allow the O.A with all the consequential reliefs reliefs.
g) Pass any other and further order, direction in favour of the applicant and against the respondent which this Hon'ble Tribunal may deems fit and proper under the facts and, circumstances of the case as well as in the interest of justice."
2. The brief brief facts of the case as narrated by the learned counsel for the applicant are as under: 3
Item No. 58 (C-IV) O.A. No.3438/2022 2.1. The present Original Application Application is being filed by the applicant aggrieved by the arbitrary arbitrary and illegal actions of the respondents espondents in recording and acting upon a flawed Annual Performance Appraisal Report (APAR) for the year 2012-2013, 2013, which not only tarnished his service record but also caused undue delays and setbacks in his career progression. The facts and legal grounds supporting this application are outlined as follows:
2.2. The APAR in question was recorded by Dr. P.K. Jain (reporting officer) and reviewed by Dr. Uma Verma (reviewing officer). Both officers entered adverse remarks in the integrity column as "Not beyond doubt" and gave low gradings--2.4 2.4 and 3.0 respectively. Crucially, this APAR was recorded without considering the Applicant's self-
appraisal,, which is a mandatory part of the APAR process. The competent authority, Dr. S.R. Chauhan (Medical Commissioner), upon examining the Applicant's representation ion dated 05.03.2014, categorically observed in his order dated 24.02.2015 (Annexure A A-5) that the APAR was finalized without the Applicant's self self-appraisal and that he had, in fact, submitted it to the MS office on 4 Item No. 58 (C-IV) O.A. No.3438/2022 27.04.2013, as corroborated by the peon book entry. Pursuant to this finding, the Department of Personnel and Training (DoPT) issued a Non-Reported Reported Certificate (NRC) dated ated 03.05.2017 (Annexure A-7).
A However, the DPC held in 2021 chose to disregard this certificate certificate. The Applicant was belatedly promoted promoted to IMO Grade Grade-II w.e.f. 11.02.2017 instead of 11.02.2014. It is submitted that tthe DPC had no jurisdiction to review or override the decision of the nullify the NRC, yet it unilaterally referred the matter for review - an act without legal basis.
2.3. Further, vide memorandum memorandum dated 01.11.2021, the respondents espondents arbitrarily declared the NRC as non non-
operational and once again relied upon the tainted APAR, thereby denying the Applicant promotion to the post of Chief Medical Officer (CMO), to which he was el eligible since 11.02.2019. Multiple representations made by the Applicant (dated 09.11.2021, 02.12.2021, and reminder dated 30.03.2022) were dismissed summarily by order dated 08.09.2022, without due consideration or application of mind.
5Item No. 58 (C-IV) O.A. No.3438/2022 2.4. Learned counsel for the applicant submitted that during g the pendency of this OA, the rrespondents filed forged documents in their counter affidavit affidavit--blank APAR forms and unverified registers (Annexures C C-3, C-4, and C-
6). Despite ite directions from this Tribunal to produce th the originall peon book that supported the applicant's claim, the respondents espondents reported that the book was "wiped out"
without any formal order or authority. The selective destruction of this crucial evidence while retaining fabricated registers raises serious concerns of perjury, fraud, and tampering with official records records--issues already raised by the Applicant under Section 340 CrPC (now Known as 379 BNSS).
BNSS) 2.5. Moreover, the APAR was signed by the reviewing officer, Dr. A.K. Vaid, on 28.09.2013--
28.09.2013--five months after his retirement on 31.03.2013, 31.03.2013, in clear violation of the established DoP&T DoP T guidelines, which bar reporting officers from entering remarks beyond 30th June and reviewing officers beyond 31st August of the reporting year. There is no record or o diary number provided by the rrespondents to 6 Item No. 58 (C-IV) O.A. No.3438/2022 show how the APAR was sent to or returned by Dr. Vaid post-retirement, retirement, making the process illegal and inoperative. 2.6. Learned counsel submitted that tthe illegal and mala fide actions of the respondents respondents have caused irreparable harm to the applicant's applicant's career. While he was eventually promoted to CMO on 21.11.2022, the delay in granting due promotions from 2014 to 2022 resulted in his juniors superseding him, causing permanent injury to his seniority and financial entitlements. This systematic denial of rightful advancement was not only arbitrary but clearly motivated by personal bias, as seen from the manner in which the APAR was manipulated.
2.7. Reliance is placed upon various judgments that reaffirm the binding nature of procedural procedural timelines and the invalidity of remarks entered beyond permissible dates. Learned counsel submitted that in i Raju Ahuja vs UOI (O.A. No. 195/2015, CAT Ahmedabad), the Tribunal held that reporting/reviewing officers lose their right to record entries after 30th June/31st August respectively. Similarly, in Rajnish Kumar vs UOI (O.A. No. 4346/2017, CAT Delhi), the 7 Item No. 58 (C-IV) O.A. No.3438/2022 Tribunal emphasized strict adherence to APAR schedules, treating delayed entries as invalid. In Gunjan Prasad vs GOI (O.A. No. 1233/2014), the the Tribunal held that where remarks are recorded beyond prescribed dates or by retired officers, the period must be treated as "No APAR". 2.8. Learned counsel argued that the aforesaid precedents squarely apply to the present case.
3. Opposing the grant of of relief, learned counsel for the respondents submitting that the applicant, while serving as IMO Grade-II, Grade II, failed to submit his self self-appraisal for the APAR year 2012-13 2012 13 within the prescribed time despite repeated reminders, and instead submitted it belate belatedly in October 2013, after the APAR had already been finalised. This delay was entirely attributable to his own negligence, disobedience, and insubordination, and under settled principles of service law, an employee cannot take advantage of his own fault. The APAR for the relevant year, therefore, carried adverse entries and below below-benchmark gradings, which were fairly recorded by the reporting and reviewing officers. The allegations llegations levelled by the applicant 8 Item No. 58 (C-IV) O.A. No.3438/2022 against his superiors of bias and political rival rivalry were neither proved in any inquiry nor substantiated by evidence, and hence cannot be relied upon. The competent authority considered his representation and by a speaking order dated 24.02.2015 expunged only one remark but otherwise upheld the overall grading grading of '3', which became final.
3.1. Learned counsel further argued that the "No Report Certificate" issued in May 2017 was invalid, being passed by an authority not competent in law, and was later declared inoperative by the Director General, who resto restored the earlier speaking order. Learned counsel further submitted that that on the basis of the valid APAR record, the Departmental Promotion Committee (DPC) in 2015 found the applicant unfit for promotion to IMO Grade Grade-I, which was a fair and reasoned decision decision made in accordance with rules and DoP&T guidelines. Later review and supplementary DPCs reassessed his case and granted promotion to IMO Grade I Grade-I from 01.04.2017 and subsequently to CMO from 01.04.2022, strictly on the basis of eligibility and qualifying qualifying service. Thus, learned 9 Item No. 58 (C-IV) O.A. No.3438/2022 counsel submitted that the applicant was never denied fair consideration, but his promotion was adjusted in accordance with law after the invalid NRC was set aside. 3.2. Learned counsel for the respondents further contended that the he reliance placed by the applicant on certain judicial precedents and DoP&T OMs is misplaced, as those pertain to cases where APARs had been submitted within time, whereas in the present case the delay was solely due to the applicant's own lapses. In such a situation, principles of equity apply, and the substantive assessment of the APAR and decisions of the competent authorities prevail over procedural technicalities. Learned counsel stressed that the applicant cannot be permitted to gain benefit from his own fault of delayed submission of APAR. Accordingly, all decisions in his case were reasonable, lawful, taken after due application of mind, and in accordance with rules.
4. In rejoinder to the arguments put forth by the learned counsel for the respondents, respondents, learned counsel for the applicant denied the claims and contentions made in the 10 Item No. 58 (C-IV) O.A. No.3438/2022 Counter Affidavit filed by the respondent and reiterated the submissions made in the Original Application. It is emphasized that the applicant applicant timely raised objections regarding arding irregularities in the APAR for the year 2012 2012-13, which was not reported in accordance with DoP&T guidelines. Learned counsel further stressed that tthe Departmental Promotion Committee (DPC) held in 2021 wrongly considered the flawed APARs and deferr deferred the applicant's pplicant's case without justification justification. Allegations of bias, procedural lapses, and malafide intent on the part of the Reporting Officer and other authorities have been reiterated, including instances of manipulation in official records like ke the peon peo book.
5. Having heard learned counsel for the respective parties and perused the pleadings available on record, we would draw the following analysis:
6. ANALYSIS :
6.1 The bone of contention in the present matter is that the applicant had submitted his APAR for the period 2012 2012- 2013 on 27.04.2013
27. 4.2013 and the said submitting of APAR was 11 Item No. 58 (C-IV) O.A. No.3438/2022 also confirmed by Dr. S. K Chauhan Chauhan, Medical Commissioner in his speaking order dated 24.
24.02.2015, wherein it has been recorded as under:
under:-
"His self appraisal was not considered by reporting and reviewing officers as they recorded the APARs without his self appraisal. Dr. Mozaffur Uddin has submitted the copy of peon book indicating that he has submitted APAR to M.S. Office. His contentions seem tenable."
6.2 The said observations observations run contrary to the stand taken by the respondents to the effect that :-
:-
2. That the Respondents, ESIC acknowledges that the "2.
applicant Md. Mozaffar Uddin joined ESIC on 11th February 2010 as an IMO Grade II in the General Duty Medical Officer (G.D.M.O.) Sub Cadre. During the Annual Performance Appraisal Report (APAR) Cycle for the year 2012 13, Dr. Md. Mozaffar Uddin, who was posted at 2012-13, ESIC Hospital Rohini, failed to submit his self appraisal form within the prescribed time limit despite multiple reminders, as a result his APAR was assessed by the reminders, reporting and reviewing officers without his self appraisal, and was accordingly split into two parts that is to say from April to October, 2012 and November, 2012 to March 2013. Your Lordships may consider that these events occurred due to unpunctuality, in subordination and voluntary disobedience in complying with the lawfully determine time span for submitting APAR. In this way under established law he is not entitled to receive any gain for his own wilful part.
part. He has webbed his right for reconsideration of any appraisal of his work for such period of April to October, 2012 and November to March, 2013.
3. That it is respectfully submitted that in both said parts of the APAR the applicant Dr. Md. Mozaffar Uddin received adverse remarks from his superiors. The over all grading in the first part was '3', and in the second part was '2.4'. The assessment highlighted concerns over his conduct and performance during the assessment year. Dr. Mozaffar 12 Item No. 58 (C-IV) O.A. No.3438/2022 Uddin submitted his his self Appraisal only on 19th October, 2013, after the APAR had already been finalised and sent to the head quarters. His such belated submission was forwarded for record but did not alter the assessments already made. It is pertinent to mention that the assessments by the superior officers are fair and assessments believable under Article 261 of the Constitution of India read with section 35 of the Indian Evidence Act 1872 and section 93 of Employees' State Insurance Act, 1948. Allegations made by the applicant agains against his superiors is neither proved in any inquiry by further superior nor by any competent authority or court as such are not believable. These unilateral self made allegations not so proved are falling with in the ambit of insubordination. The applicant has has not proved by any evidence before the competent authorities, the allegations made by him are any prejudice, unfairness or malafide in the actions of the superior, therefore the impugned orders in the O.A. are the fair and independent orders in exercise o of the executive jurisdiction and are not warranted to be interfered in the judicial review relying on the unproved, self made and unbelievable on the basis of record which are weeded out during the course of established procedure. It is pertinent to mention mention here that the period of weeding out in respect of Peon Book is 03 years and that can be confirmed by the Record Retention Schedule of ESIC. There is entry at page no.64 and at serial no. 60 of such weeding and there was no order against the weeding out b by any competent court or tribunal nor the applicant had given any representation to retain the Peon Book beyond the weeding out period. Other facts in favour of respondents and justice have been proved by the records of the ESIC. In view of this only the O O.A. is liable to be dismissed."
6.3 The General Instructions of retention are also spelled out in terms of Clause 10 of the Record Retention Schedule of the ESIC, which reads as under:
"If a record is required in connection with the disposal of another record, the former will not be weeded out until after all the issues raised on the latter have been finally decided, even though the retention period marked on the former may have expired in the meantime. In fact, the retention period initially marked on such records should 13 Item No. 58 (C-IV) O.A. No.3438/2022 be consciously reviewed and, whe where necessary, revised suitably.
suitably."
6.4 In terms of the Government of India - Record Retention Schedule in respect of Records Common to all (2012), issued by the Department of Ministries/Departments (2012), Administrative Reforms & Public Grievances, Part-C (Vigilance), Entry 18 pertaining to court cases/arbitrations/inquiries/audits prescribes the period as:
"Three years after final clearance from ar arbitration, litigation, enquiry or audit, as the case may be, or till the prescribed retention period, whichever is later."
Further, under Clause 12 relating to the Departmental Promotion Committee (DPC), the period of retention is contemplated as:
"Consultation: C-3 "Consult 3 or one year after the DPC has been reconstituted, whichever is later."
6.5. In the present case, the applicant has been considered ered and given a promotion on 21 21.11.2022 but the promotion has not been given since the year 2014. The respondents s did not consider the e APAR for the period 2012 2012- 2013,, hence, the juniors superseded the applicant. Hence, the contention urged by the respondents that the record is 14 Item No. 58 (C-IV) O.A. No.3438/2022 not available for verifying whether the applicant had submitted the APAR in time does not ho hold much water. It was incumbent upon the respondents to retain the records. Any practice of weeding out records contrary to the prescribed instructions is highly deprecated. 6.6 In Civil Appeal No. 3913 of 2022 [arising out of SLP(C) [@Diary No. 17212 of 2020], K. No. 9214 of 2022] [@Diary Ragupathi v. The State of Uttar Pradesh Pradesh, decided on 12.05.2022,, the Hon'ble Supreme Court observed as under:
"....It will be relevant to note that the Annual Performance Assessment Report (for short "APAR") of the appellant during the period 201213 13 show his performance to be outstanding. Every other parameter in his APAR is shown as excellent. With regard to his integrity, it is mentioned that there is nothing against the appellant adversely reflecting his integrity. It is further stated in his APAR that he enjoys a good reputation and his integrity is good."
6.7 No. 2021 OF 2022 Union of India and In Civil Appeal No. Ors. Versus G.R. Meghwal decided on 23.09.2022, the Apex Court observed as under :-
:
"6.
6. In the present case, the learned Tribunal as well as the High Court have directed the department to review the case of the respondent by ignoring the below benchmark of "Good" in the year 2007-2008 2007 2008 mainly on the following grounds: (i) that in the earlier years, the very reporting grounds:-
officer/reviewing authority awarded "Very Good" for the years 2005-2006 2005 and 2006-2007 2007 and the very reporting officer/reviewing authority has given below benchmark "Good" for the year 2007-2008 2007 2008 and therefore the same is arbitrary and and there is no basis to award the below 15 Item No. 58 (C-IV) O.A. No.3438/2022 benchmark - "Good"; (ii) that before the below benchmark ACR "Good" for the year 2007-2008, 2007 2008, no opportunity was given to the respondent officer to improve himself and no deficiency was pointed out; and (iii) that no o opportunity was given to the respondent officer to make representation against the proposed below benchmark ACR of the year 2007 2008. While giving the aforesaid findings and while 2007-2008.
arriving at the aforesaid final conclusion, the Tribunal as well as the High Court have heavily relied upon the decisions of this Court in the case of Sukhdeo (supra); Dev Dutt (supra); Abhijit Ghosh Dastidar (supra) and Sukhdev Singh (supra). However, on considering the aforesaid decisions, it emerges that in the aforesaid cases, the adverse ACRs either were not communicated at all and/or on facts found to be inconsistent and suffering from lack of bona fides.
6.1 In the case of Dev Dutt (supra), this Court has held in paragraphs 36 and 37 as under:
under:-
"36. In the present case, we we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the annual confidential report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there there may be no rule/G.O. requiring communication of the entry, or even if there is a rule/G.O. prohibiting it, because the principle of non non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication communication. Article 14 will override all rules or government orders.
37. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the authority concerned, and the authority conce concerned must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model ememployer, and must 16 Item No. 58 (C-IV) O.A. No.3438/2022 act fairly towards its employees. Only then would good governance be possible."
6.2 In the instant case, the respondent was graded as "Very Good" in the ACRs for the years 2005 2005-06 and 2006-
07. However, in the year 2007 2007-08 he was graded only "Good" despite the fact that for all the three 10 years, the reporting and reviewing officer were same. In the case of Dev Dutt Vs. Union of India - [(2008) 8 SCC 725], it was observed that all entries in the ACR of a public servant must be communicated to him within the reasonable period so that he can make a representation for his upgradation despite there be no rule or government order to that effect. Pursuant to the judgment in Dev Dutta (supra), OMs dated 14.05.2009 and 13.04.2010 were issued by the appellant herein."
6.8 In Writ Petition (Civil) No. 1209 OF 2021 R.K. Jibanlata Devi VS High Court of Manipur through its Registrar General and others decided on 24.02.2023, the Apex Court observed as under:-
under:
"7. In view of the above and for the reasons stated above, the case of the petitioner for promotion to the post of Assistant Registrar as on 09.04.2021 is required to be considered afresh ignoring the uncommunicated ACRs for the years 2016-17 2016 and 2019-20 20 and her case is required to be considered considered afresh taking into consideration the ACRs for the years 2017-18 2017 & 2018-1919 for which the petitioner was having "Very Good" gradings.
8. In view of the above and for the reasons stated above, present petition is allowed. The DPC proceedings dated 09.04.2021 denying the promotion to the petitioner for the post of Assistant Registrar are hereby quashed and set aside. The case of the petitioner petitioner for promotion to the post of Assistant Registrar as on 09.04.2021 i.e., the date on which the juniors came to be promoted is directed to be considered afresh ignoring the uncommunicated ACRs for the years 2016-17 2016 17 and 2019 2019-20 and thereafter the DPC/competent authority to take a fresh decision in DPC/competent accordance with law and taking into consideration the 17 Item No. 58 (C-IV) O.A. No.3438/2022 ACRs of remaining years, i.e., 2017 2017-18 and 2018-19. Such an exercise be completed within a period of six weeks from today."
6.9 We are perplexed by such an e eventuality; thus, we would examine the case of the applicant in light of APAR available on record.
6.10 The situation stands aggravated by the respondents' act of weeding out the record evidencing timely submission of the APAR--namely, APAR namely, the Peon Book contai containing the endorsement on the premise of a three endorsement--on three-year retention. The Committee for Weeding Out met on 30.08.2023 and 31.08.2023 while the present OA, filed on 02.11.2022, was pending. The Committee was not informed of the pendency of this OA. An adverse inference, inference, therefore, was drawn in the case of the applicant. The respondents ought to have awaited the conclusion of the present proceedings before effecting the weeding out.
6.11 It is a matter of record that, if the impugned APAR for the year 2012-2013 2012 2013 is to be ignored for the purpose of promotion, the records would reveal that the APARs for the periods prior and subsequent thereto are as under: 18
Item No. 58 (C-IV) O.A. No.3438/2022 Sl. No. Year Grade Remark Page No. 1 2010-2011 7 Very good 1-10 2 2011-2012 7 Very good 11-19 3A 01.04.2012- 3 Benchmark 20-39 31.10.2012 3B 01.11.2012- 2.4. Benchmark 20-39 31.03.2013 4 2013-2014 6 Very good 40-49 5 2014-2015 7 Very good 50-59 6 2015-2016 7.5. Very good 60-68 7 2016-2017 7 Very good 69-74 8 2017-2018 8 Excellent 75-83
9. 01.04.2018- 7 Very good 84-94 10.08.2018 10A 01.04.2019- 8 Excellent 95-108 31.08.2019 10B 01.09.2019- 8 Excellent 95-108 31.03.2020
11.A 01.04.2020- 7.98 Very good 109-131 30.06.2020
11.B 01.07.2020- 7 Very good 109-131 31.03.2021 12A 01.04.2021- 7 Very good 132-158 31.10.2021 12B. 01.11.2021- 7.5 Very good 132-158 31.03.2022 13 01.04.2022- 7 Very good 159-169 31.03.2023 14 01.04.2023- 8 Excellent 170-181 31.03.2024 6.12. The fact of matter is as under: 19
Item No. 58 (C-IV) O.A. No.3438/2022
(i) The applicant is not at fault.
(ii) The Annual Performance Appraisal Reports (APARs) reflect his performance as 12 instances of "Very Good"
and 4 instances of "Excellent." Every other parameter in his APARs is consistently graded either as "Very Good" or "Excellent." With regard to integrity, it is specifically recorded that there is nothing adverse against the applicant and it has been affirmed that he enjoys a good reput reputation and that his integrity is not doubtful.
(iii) Certain other relevant points are as under:
(a) Dr. A.K. Vaid was the reviewing officer in the year 2012-2013 2013 and had already retired on 31.03.2013. He could only write the APAR up to one month from the date ate of his retirement, but he put his remark after five months from the date of retirement i.e. on 28.09.2013.
(b) The applicant submitted his APAR for the period 2012-2013 2013 on 27.04.2013 and the same was confirmed through RTI (already filed by the applican applicant 20 Item No. 58 (C-IV) O.A. No.3438/2022 at page no. 49 of the O.A). The said receiving was also confirmed by Dr. S.R. Chauhan (Medical Commissioner) vide his detailed speaking order dated 24.02.2015, wherein he clearly mentioned as under:
"His self appraisal was not considered by the reporting and reviewing officers as they recorded the APARs without his self appraisal. Dr. Mozaffar Uddin has submitted the copy of peon book indicating that he has submitted APAR to M.S Office. His contentions seem tenable." Thereafter, a certificate was also iss issued in this regard by Shri Bhupender Kumar, Dy. Director (M.A.), after approval from the competent authority, on 03.05.2017.
(c) During the pendency of the case, an application under Section 340 of Cr.P.C. was filed and till date no reply has been filed by the respondents, who have chosen to argue the matter straightaway. The respondents have granted promotion to the applicant on 21.11.2022 to the post of Chief Medical Officer (CMO), but promotion had not been given since the year 2014 (the respondents not having considered the 21 Item No. 58 (C-IV) O.A. No.3438/2022 APAR for the period 2012-13 2012 13 and hence the present O.A). Moreover, his junior was promoted and became senior to the applicant due to the ruined APAR.
(d) The respondents have failed to prove how they had given the APAR to Dr. A.K. Vaid after his retirement.
Till date, the respondents have not submitted any document to show by which diary number and date they had given the APAR and by which diary number Dr. A.K. Vaid returned/submitted the APAR of the applicant after his retirement. What was the mode of sending the said APAR to Dr. A.K. Vaid? Similarly, the respondents have also failed to prove or submit any supporting document to show that the said APAR was sent to Dr. Uma Verma as well as Dr. P.K. Jain, under which diary number and date, date, and with which diary number and date they had returned the said APAR to the office. APAR is a very sensitive document and it cannot be given to any reporting or reviewing officer without diary. As per rules, when the reporting and reviewing officer returns returns the APAR after their remarks, it has to be received by the office along with the diary 22 Item No. 58 (C-IV) O.A. No.3438/2022 number. As such, the entire process of the respondents was illegal, arbitrary and against the law and procedure.
6.13. In Sachida Nand Singh And Anr vs State Of Bihar And Anr on 3 February, 1998 : AIR 1998 Supreme Court 1121, the Hon'ble Supreme Court held as under :-
"Can Can prosecution be maintained in respect of a forged document produced in court unless complaint has been filed by the court concerned in that behalf? In other words, the question involved in this appeal is, whether the prohibition contained in Section 1951(1)(b)(ii) of the Code of Criminal Procedure, 1973 (for (for short `the Code) would apply to such prosecution. The aforesaid question, ticklish it may appear to some extent, seemed to have received a quietus from this Court with the pronouncement in Patel Laliibhai Somabha vs. The State of Gujarat (AIR 1971 SC 1935) while considering the scope of its corresponding provision in the old Code of Criminal Procedure 1989. But a subsequent decision of this Court in Gopala Gopalakrishna Menon & anr. vs. D.Raja Reddy & anr., [1983(4)SCC 240] which struck a different note thereon seemed to have revived the issue and kept it buoying up in the legal stream.
XXXX The scope of the preliminary enquiry envisaged in Section 340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in Court or given in evidence in a proceeding in that that Court. In other words, the offence should have been committed during the time when the document was in custodia legis. It would be a strained thinking that any offence involving forgery of a document if committed far outside the precincts of the Court and and long before its production in the Court, could also be treated as on affecting administration 23 Item No. 58 (C-IV) O.A. No.3438/2022 of justice merely because that document later reached the Court records.
The three Judges Bench of this Court in Patel Laljibhai Somabhai's case (supra) has interpreted the corresponding Somabhai's section in the old Code, [Section [Section 195(1)(c) 195(1)(c)] in almost the same manner as indicated above. It is advantageous in this context to extract clause (c) of Section 195(1) of the old Code.
"No Court shall take cognizance cognizance-
of any offence described in section 463 or punishable under section 471 471, section 475 or section 476 of the same Coda, when each offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding except on the complain in writing of such Court, or of some other Court rt to which such Court is subordinate.
(underline supplied) The issue involved in Patel Laljibhai Somabhai's Somabhai 's case related to the applicability of that sub sub-
section to a case where forged document was produced in a suit by a party thereto, and subsequently a prosecution was launched against him for offences under Section 467 and 471 of IPC through a p private complain. The ratio of the decision therein is the following:
"The offences about which the court alone, to the exclusion of the aggrieve private parties, is clothed with the right to complain may, therefore, be appropriately considered to be only tthose offences committed by a party to a proceeding in that court, the commission of which has a reasonable close nexus with the proceedings in the court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider der by reference principally to its records the expediency of prosecuting the delinquent party. It, therefore, appears to us to be more appropriate to adopt the strict construction of confining the prohibition contained in s. 195(c) only to hose cases in which hich the offences specified therein committed by a party t the proceeding in the character as such party."24
Item No. 58 (C-IV) O.A. No.3438/2022 After stating so their Lordships proceeded to observe that the legislature could not have intended to extend the prohibition in the sub-section sub section to offences committed by a party to the proceedings prior to his becoming such a party. According to their Lordships, any construction to the contrary would unreasonably restrict the right of a person which was recognized in Section 190 of the Code. The aforesaid legal position was followed by this Court in Raghunath & ors. vs. State of U.P & ors, 1973(1)SCC
564. Mohan Lal & ors. vs. The State of Rajasthan & ors., 1974(3) SCC 628, and Legal Remembrance of Govt, of 1974(3) West Bengal vs. Haridas Mundra Mundra, 1976(2) SCR 933.
But in Gopalakrishna Menon & ors. vs. D. Raja Reddy & ors. (supra) Desai. J.and R.N.Misra, J.(as he than was) h ave found that a persecution initiated on the basis of a private complaint, in the absence of any complaint from the appropriate civil court (before which the alleged forged receipt was produced) was whether offences under section 461 and 471 of IPC are also offences described in Section 463 of IPC falling within the ambit of Section 195(1)(b)(ii) of the Code.
Of course in the end of that decision it was mentioned that prosecution on the basis of a private complaint, in the absence of a complaint from appropriate civil court, is not sustainable. Learned Judge made reference to the decisions in Patel Laljibhai Somabhai (cited supra) and Goswami vs. High Court of M.P., 1979(1) SCC 373, and observed that the ratio in those decisions support the view taken b y them. The forgery alleged in Goswami's case took place during the period when the documen document in question was in the custody of the court and in such a case t he bar under Section 195(1)(b)(ii) would certainly apply. But, with great respect, we are unable to agree that the ratio in Laljibhai Somabhai Somabhai would support the conclusion reached in Gopalakrishna Menon's case (supra).
Shri K.B. Sinha learned senor counsel contended that the position which held the field pursuant to Patel Laljibhai Somabhai's case decision has since been changed with Somabhai's the enactment of the new Code because of absence of the words ("by a party to any proceeding in an y court") in Section 195(1)(b)(ii) of the Code. On the other hand learned counsel for the respondents contended that the only object for deletion of those words was to advance the 25 Item No. 58 (C-IV) O.A. No.3438/2022 protection of the section to other persons as well who might not have been parties to the litigation. A scrutiny scrutiny of the sub clause in juxtaposition with the corresponding provision in old Code dissuades us from attaching any significance to the deletion of the words ("by a party to any proceeding in any court") except to the extent that the deletion was intended tto stretch the advantage to non-parties non parties to the proceedings as well. The Law Commission in its 41st Report has observed in paragraph 15.93 as follows:
"15.39 The purpose of the section is to b ar private prosecutions where the course of justice is sought to be perverted leaving to the court itself to uphold its dignity and prestige. On principle there is no reason why the safeguard in clause (c) should not apply to offences committed by witnesses also. Witnesses need as much protection against vexatious prosecutions cutions as parties and the court should have as much control over the acts of witnesses that enter as a component of a judicial proceeding, as over the acts of parties. If, therefore, the provisions of clause (c) are extended to witnesses, the extension would uld be in conformity with the broad principle which forms the basis of S. 195."
The above reasons of the Law Commission which eventually led to the parliamentary exercise in deleting the words referred to earlier would unmistakably point to the legislative object in doing so.
The same issue came up before a Full Bench of the Punjab and Haryana High Court, particularly in the light of change made in Section 195(1)(b)(ii) of the Code vis-a-vis the corresponding provision in the old Code. In Harbans Singh and others vs. State of Punjab - [AIR 1987 Punjab & Haryana 19], the Full Bench observed that deletion of those words would not help to take a wider view as the restrictive view is more in consonance with the scheme of the Code. We have notice that Karnataka High Court in Govindaraju vs. State of Karnataka [1995 Crl.L.J.1491] and the Bombay High Court in Alka Bhagwant Jadhav vs. State of Maharashtra [ILR 1986 (Bombay) 64] have also adopted the same view.
The sequitur of the above discussion is that the bar contained in Section 195(1)(b)(ii) of the Code is not 26 Item No. 58 (C-IV) O.A. No.3438/2022 applicable to case where forgery of the document was committed before the document was produced in a Court. Accordingly, we dismiss this appeal." 6.14. At the stage of final hearing, learned counsel for the applicant pressed the Miscellaneous Application (M.A.) filed along with the rejoinder under Section 340 Cr.P.C. read with Section 195 of the I.P.C., seeking prosecution of the respondent on account of false stateme statements, suppression, and concealment. As per prevailing practice, even though an M.A. is filed with the rejoinder or bears only a diary number, we proceed to hear it in order to determine whether issuance of notice is warranted. However, such an M.A. may also be considered at the stage of final hearing of the Original Application (O.A.). In view of the same, we take up this M.A. for consideration and direct the Registry to assign it a regular number accordingly. 6.14.1 The gist of the contentions raised in the M.A. is that the respondent has deliberately concealed material facts, submitted false and vague averments, and tampered with official records--specifically records specifically the Diary Register and the Peon Book--
--in in order to mislead the Tribunal regarding the timely submission submission of the Applicant's APAR. It is alleged that 27 Item No. 58 (C-IV) O.A. No.3438/2022 the respondent has falsely shown the date of submission as 19.10.2023 instead of the actual date, i.e., 27.04.2013. Several inconsistencies in the records have been pointed out, including the absence of depart departmental details, manipulation of dates, and selective alterations. Such actions are alleged to amount to misconduct and procedural impropriety, meriting appropriate action in the interest of justice.
6.14.2 We have to arrive at a just decision on whether a preliminary inquiry is warranted in the factual circumstances of the present case. It has already been noted that the relevant records have been weeded out by the respondents. As a result, there are no substantial documents presently available that would jjustify the initiation of an inquiry into the alleged forgery. Furthermore, the alleged forgery does not pertain to documents that were produced before the Tribunal. Further, we are of the view that the the difficulties, if any, arising from the loss of evidence evidence and the consequences of the passage of time cannot be prejudiced against the applicant. In addition, the theory of preponderance of 28 Item No. 58 (C-IV) O.A. No.3438/2022 probability also leans in favor of the applicant, thereby supporting his contention regarding the non non-production of relevant nt documents by the responde respondents. In view of the above, we are of the view that corrective measures shall be considered by the respondents on the m merits of the applicant's case. Accordingly, we reject the present M.A.
7. CONCLUSION :
7.1. In view of the above analysis and discussions, we quash and set aside the decision of the respondents to deny promotion to the applicant from 11.02.2014 on the basis of the impugned APAR for the year 2012 2012-2013. The DPC proceedings denying his promotion to the post of IMO Grade-II w.e.f. 11.02.2014 and thereafter to the post of Chief Medical Officer (CMO) w.e.f. 11.02.2019 are hereby quashed and set aside. The case of the applicant for promotion as of the date on which his juniors were promoted is directed to be reconsidered afresh, ignoring the tainted APAR of 2012-2013, 2012 2013, and taking into account the remaining valid APARs. The DPC/competent authority shall undertake this exercise and pass fresh orders strictly in 29 Item No. 58 (C-IV) O.A. No.3438/2022 accordance with law within a period of six weeks from the date of receipt of a certified copy of this order. In the event the applicant is otherwise found fit and eligible under the applicable Recruitment Rules, he shall be accorded promotion and seniority from the date of his immediate junior on a notional notional basis. The applicant shall be entitled to actual arrears limited to three years preceding the date of filing of the present Original Application, in terms of the law laid down in UOI vs. Tarseem Singh Singh, (2008) 8 SCC
648. 7.2. Costs of Rs. 10,000/-
10,000/ shalll also be payable to the applicant nt on account of the respondent failure to retain the relevant records during the pendency of the present Original Application.
7.3. The O.A. is accordingly allowed in the aforesaid terms. Pending M.A.s, M.A.s if any, shall stand disposed of. No costs.
(Dr. Anand S. Khati) (Manish Garg) Member (A) Member (J) /as/