Central Administrative Tribunal - Delhi
Brij Mohan Mittal vs Steel Authority Of India Ltd on 19 October, 2012
Central Administrative Tribunal Principal Bench New Delhi TA No.26/2011 Reserved on : 09.10.2012 Pronounced on : 19.10.2012 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Brij Mohan Mittal S/o Sh. Rameshwar Dass Mittal R/o 2404, Sector-16, Faridabad-121002 (Haryana). . Applicant. (By Advocate : Sh. Rajesh Gupta) versus Steel Authority of India Ltd. Through Chairman Ispat Bhavan, Lodi Road, New Delhi 110 003. . Respondents. (By Advocate : Sh. Suhaas Joshi) : O R D E R : Dr. Ramesh Chandra Panda, Member (A):
Shri Brij Mohan Mittal, an officer of the Steel Authority of India (SAIL), the applicant herein, joined Steel Authority of India Limited on 08.10.1991 as Senior Coordinator in the Non-Executive Grade of SL4/ML4. The next higher post in the channel of promotion being E-O in the executive grade, he joined E-O level on 30.06.2001 and on successfully completion of one year in the E-O grade, was promoted to the next higher grade i.e. E-1 on 11.07.2002 with effect from 30.06.2002. However, the applicant being aggrieved by the delay in his promotion to E-O grade, he has sought promotion from an earlier date for which he has filed WP(C) No.5257/2002 which is pending before the Honble High Court of Delhi. It is his submission that due the said Writ Petition the applicant is facing a spate of harassment at the hands of the respondents. Despite, having best performance, he was not immediately promoted to E-1 grade but was subsequently promoted with retrospective effect. It is the case of the applicant that he has been allotted special and important tasks in his E-1 grade posts which he completed in time and was eligible to be considered for promotion to the next higher grade i.e. E-2 after completing 3 years and 9 months of service in E-1 level. However, the applicant was not promoted to the E-2 grade w.e.f. 30.06.2006 but was promoted only on 30.06.2007. Feeling aggrieved by the said action and claiming his ante dating of promotion to the E-2 grade w.e.f. 30.06.2006, the applicant filed a Writ Petition (Civil) No.1321/2007 which, on transfer to this Tribunal, is registered as TA No.26/2011 where he has prayed for the following relief(s):-
(a) issue an appropriate writ directing the respondent to promote the petitioner in E-2 grade w.e.f. 30.6.2006 i.e. after 4 years (relaxable upto 3 months) from date of joining of his service in grade E1 i.e. 30.6.2002 with all consequential benefits;
(b) issue an appropriate writ with directing the respondent to produce all the original documents required for calculation of Credit points for the period of E-1 grade service of petitioner i.e.
-Self Appraisals submitted by the petitioner
-Performance Assessments on self appraisals of petitioner by the respondent/superiors;
(c) pass any other order(s) which this Honble Court may deem fit and proper in the facts and circumstances of the case.
2. The submission of Shri Rajesh Gupta, the applicants learned counsel is that the Personnel Manual of the SAIL contains the promotion policy for executives and his case falls in Cluster A i.e. promotion from Grade E-1 to E-2. Such promotion is appraisal based and subject to candidate acquiring 120 credit points on appraisal in four years of appraisal. Further, the policy envisages that promotion to E-2 grade could only be permitted upon completion of four years in E-1 grade (relaxable upto maximum of three months) and not later than after completion of five years service in E-1. The policy of executive performance appraisal system deals with self-appraisal and assessment by reporting and reviewing officers. Shri Rajesh Gupta contended that the applicant had 120 credit points to his credit, as he had duly filled the self-appraisal for four years and forwarded to his superior Reporting Officer, during his service in E-1 grade, who in turn had filled the respective appraisal forms. His submission was that on evaluation of his appraisal forms, the applicant must be having more than 120 points to his credit, and was entitled to promotion to E-2 grade upon completion of four years in E-1 Grade (relaxable upto three months), and he ought to have been promoted immediately to E-2 Grade on the next available date of promotion, which in the present case was 30.06.2006. Shri Gupta further submits that on 04.12.2006, respondent promoted 23 employees but the applicant was not promoted, though he had more than 120 credit points in his favour. Referring to the reply filed by the respondent, it was submitted that the applicant was not promoted along with 23 employees as he had not accumulated 120 credit points to his credit in four years appraisal, but this fact was refuted by the learned counsel terming the same as ex-facie false. The applicant was, however, promoted on 30.06.2007 from E-1 to E-2 grade on regular basis after completion of five years in E-1 grade, though he was entitled to be promoted from an earlier date on the basis of self-appraisal. In the rejoinder the applicant has controverted the stand taken by the respondents and reiterated that the applicant has accumulated more than 120 credit points in the period of 3 years and 9 months in E-1 grade during 2002-03 to 2005-06. Referring to paragraph 8 of the affidavit filed by respondent in April, 2009 where it has been stated that even after repeated reminders, the petitioner did not submit the self-appraisal forms for the year 2002-03 and 2003-04, Shri Gupta submitted that the applicant did furnish self-appraisal for the years 2002-03 and 2003-04. His allegation was that the applicants self-appraisal for these two years were removed from records on or before 29.04.2009 after a period of 5 to 6 years in order to harass him by granting him lower credit points. His further contention was that had the applicant been allotted 50 marks for each of those two years, he would have got more than 120 credit points for four years, which would have entitled him for promotion to E-2 grade w.e.f. 30.06.2006. On the other hand, the respondents have granted him only 60 credit points, which deprived him the promotion to E-2 grade w.e.f. 30.06.2006.
3. On our direction, the respondents have placed before us the assessment reports of the ACR. The applicant and his counsel were given the applicants complete dossier for perusal in the presence of counsel for the respondents in the court. After perusal of the same a written submission was filed. It was contended that there was no basis to award the applicant C grading since his self-appraisal forms have been deliberately taken out from the ACR folder. Further, his submission is that C grading in four years assessment having not been communicated to the applicant which has prejudiced him in not getting due promotion, the said ACR entries should be treated as adverse entry. Learned counsel, in this context had placed his reliance on the judgment of Honble Supreme Court in the matter of Dev Dutt versus Union of India, reported in 2008-8-SCC-725. He further reinforced his arguments after the close scrutiny of the records that the same would reflect tempering and arbitrary assessment in the records made by the respondents. The written submission furnished by the learned counsel for the applicant has indicated that for the year 2005-06 both Reporting and Reviewing officers have given favourable remarks to the applicant one has noted promotable and the other has recorded that the applicant has done work satisfactorily. For the year 2004-05 both officers have given favourable remarks to the applicant indicating his work as Good. In case of year 2003-04, reporting officer has given the comments in Part-C as Overall performance is below par and interest in work is lacking. In part-D, it was recommended to post the applicant in mines so that his networking/communication infrastructure knowledge can be used as the appraisee has worked in that area. In case of assessment year 2002-03, the reporting officer has recorded that the applicant possesses job knowledge but rarely uses the same. The punctuality and availability at site is poor and the applicant does not believe in team spirit and is indecisive. In case of 2001-02, the reporting officer has recorded that the applicant is a good performer under guidance and needs improvement. Highlighting the above notings in different years of his ACRs, it is submitted that some of the adverse comments are not as per the records and has given the example that he was attending the office regularly. Thus, such assessment reflects the arbitrary nature of the concerned authorities. Further, it has been reiterated that the self-appraisal forms (Part-A and Part-B) for the years 2002-03 and 2003-04 are not available in the records, and is allegation that the respondents have deliberately removed Part-A & Part-B of the self-appraisal duly filled in by the applicant for those two years.
4. It is further submitted that the applicant has moved one Miscellaneous Application under Section 340 of Cr.P.C. as the respondents in their reply have furnished deliberate falsehood. He has prayed for initiation of proceedings under Section 340 Cr.PC against Mrs. Neelam Sabharwal and/or other responsible officers of the respondents who have submitted a false affidavit. It is further highlighted that the applicant has represented against creation of such false material and has also filed Civil Suit which is presently pending in Tis Hazari Courts at Delhi. As the letter sent by the respondents in reply to Cr.M. No. 14709/2009 is fabricated and reflects false stand of the respondents, it has been prayed in the said M.A. that the Tribunal having the jurisdiction as that of High Court should initiate proceedings under Section 340 Cr.P.C. against the respondents as the Tribunal has been empowered to punish for contempt of the orders of the Tribunal under Section 17 of the Administrative Tribunals Act, 1985 and under Section 30 of the said Act, the Tribunal has power to punish for the offences committed under Section 193 of I.P.C.
5. Shri Subhash Joshi, learned counsel for the respondents, controverting the above grounds, would submit that the applicant did not submit his self-appraisal report for two years namely 2001-02, 2002-03 and 2003-04. The performance of the applicant was assessed and was found that he could secure only 60 credit points and did not meet the requirement of 120 credit points required for considering him to get promotion to E-2 grade. Referring to the Executive Performance Appraisal System dossiers of the applicant, Shri Joshi submits that the applicant has got C grading for all the four years and each C grading having 15 points, he has secured total 60 credit points as against the minimum requirement of 120 credit points for getting promotion. Submission of the learned counsel is that selection of E-1 grade officers for promotion to E-2 grade within four years is based on exemplary performance whereby the assessed grading should be 120 credit points or more. The performance of the applicant having been assessed far below 120 credit points, he could not be rated as exemplary/outstanding executive to be promoted. On the other hand, promotion of the E-1 grade officer is normaly due after 5 years of completion in the E-1 grade and the applicant having been found suitable by the DPC was promoted to E-2 grade w.e.f. 30.06.2007. Refuting the allegations made by the applicant that the respondents have removed the self-appraisal reports of the applicant from ACR dossier for the years 2002-03 and 2003-04, the respondents furnished the confidential reports for our perusal and referring to the same Shri Joshi submitted that the applicant was found not eligible having secured total 60 credit points in his four years period in E-1 grade. He also referred to the minutes of the meetings of the DPC held on 29.01.2007 to inform that along with the applicant 9 others were considered and only one was found to have secured 120 credit points. Therefore, his contention was that the applicant was found not eligible in terms of the provisions of the executive promotion policy. With regard to the allegations of removal of self-appraisal reports from the two years of ACRs and manipulation and filing false affidavit for which the applicant has moved application for initiating proceedings under Section 340 Cr.P.C., learned counsel for the respondents strongly opposed the same by stating that respondents have not furnished any false affidavit nor they have removed self-appraisal reports of the applicant. In view of the above contentions, Shri Joshi would urge dismissal of the TA.
6. Having heard the contentions of the rival parties, we have carefully gone through their pleadings and the records placed before us by the respondents. The controversies before us are:-
(i) Whether the applicant was entitled to get 120 credit points for the period from 2002-03 to 2005-06 and consequently he should have been promoted to E-2 grade w.e.f. 30.06.2006 or not?
(ii) Whether the self-appraisal report was furnished by the applicant for the years 2002-03 and 2003-04 or not and whether the allegation that the said self-appraisal of the applicant was removed by the respondents or not?
7. Before we proceed to examine the above two controversies, we may refer to the legal contention raised by the learned counsel for the applicant who has relied on the judgment of Honble Supreme Court in Dev Dutts case (supra) to highlight that the applicant has been prejudiced since the relevant ACRs being below benchmark the applicant should have been given copy of the said ACRs and called for his representation before deciding the matter of his promotion from E-1 to E-2 grade for the year 2006-07. We note that the applicant in this context has moved C.M. No. 3315/2008 before the Honble High Court of Delhi which was considered on 19.08.2008 wherein he has sought direction of the High Court to the respondents to supply a copy of his ACRs. The High Court in its order dated 19.08.2008 has passed the orders as follows:-
CM No. 3315/2008 in WP (C) No. 1321/2007 The petitioner has filed this application under Order 11 Rule 12 CPC seeking directions to the respondent for production of all the original documents required for calculation of credit points for the period of E-1 grade service of the petitioner i.e., self appraisal submitted by him and the performance assessments on self appraisals of petitioner by the respondent.
In substance the petitioner is seeking directions to the respondents to supply him the copy of his ACRs. The petitioner who has argued this application in person says that he has been denied promotion by the respondents because of his adverse ACRs. Mr. Phoolka, learned senior counsel appearing on behalf of the respondent has referred to a judgment of the Honble Supreme Court in Union of India vs. Nirmal Kr. Tiwari, 1995 LAB. I.C. 335, wherein it is held that an employee is not entitled to copies of ACRs which are not adverse to him. According to Mr. Phoolka none of the ACRs of the petitioner recorded by the respondent are adverse and, therefore, according to him, the copies of the ACRs asked for by him cannot be made available to the petitioner.
In view of the above and having regard to the submissions made by the learned senior counsel for the respondent, this application appears to be misconceived and is therefore not maintainable. The petitioner cannot be supplied the copies of the ACRs unless the same are adverse. However, the respondent is directed to keep the original record relating to ACRs ready for perusal of the court at the time of the hearing of the main petition.
With these observations the instant application stands disposed of. In view of the conclusive decision taken in the matter by the Honble High Court of Delhi on 19.08.2008, which has not been challenged by the applicant before the appropriate judicial fora, the same has attained finality. It is not open for the applicants counsel, in the guise of arguing in the TA, to raise the said issue before us. Therefore, the applicability of Honble Apex Courts judgment in Dev Dutts case (supra) is not open to be adjudicated by us at present.
8. We may examine another issue raised by the learned counsel for the applicant. There has been prayer for the initiation of proceedings under Section 340 of Cr. PC against the concerned respondent for producing false affidavit before the Tribunal in the present TA. This has been considered by us. Of course separately we will be dealing with the issue whether the respondents have removed the self appraisal reports for two years from the applicants ACRs or whether the applicant has not furnished the self appraisal reports to the competent Reporting Officer? Pending the said controversy to be considered in the later part of the order, we have examined the issue whether the respondents would be called upon to explain as to why action should not be taken against them under Section 340 Cr. P.C. It has been stated by the applicant in his Criminal Miscellaneous Petition before the Honble High Court for initiation of proceedings under Section 340 Cr. P.C. against Mrs. Neelam Sabharwal and other responsible officer for submitting a false affidavit. It is stated that on 18.01.2010 respondents filed reply to the said Petition wherein a copy of the letter dated 24.09.2004 was also filed. It is contended by the counsel for the applicant that the said letter was not received by the petitioner and on the face of it seemed to be fabricated one. He also submits that the letter and the reply of the respondents run completely counter to its consistent stand taken earlier that petitioner did not accumulate 120 credit points in four years. The respondent did not mention that the applicant did not submit his appraisal report earlier but this stand was taken later which is ex facie false. He has also filed a Civil Suit which is presently pending in Tis Hazari Court at Delhi for creation of such false material that the applicant did not furnish self appraisal reports for two years. Against the said letter purported to have been addressed to the petitioner, being a fabricated letter, the same exemplifies the complete false stand of the respondents, the applicant had to move a Petition under Section 193 IPC and Section 340 Cr.PC before the Tribunal to take cognizance of the same. We do not intend to give any opinion with regard to the allegations made by the applicant in the Civil Suit pending before the Tis Hazari Court as already stated within that the applicant is agitating in the civil proceedings on the same issue as to whether the letter dated 29.04.2004 was a fabricated one or not? It would not be judicially appropriate for us to analyze the facts of that case and give any specific finding.
9. It is trite law that mere wrong statement or certain inaccuracy in a statement, which may be inadvertent or immaterial, may not justify institution of prosecution as is held by the Honble Apex Court in the case of N. Natrajan versus B.K. Subba Rao, reported in AIR 2003 (SC) 541. It has been stated therein that the court must be satisfied that there is a reasonable foundation for the charge and that prosecution of the offender is necessary in the interest of justice. Otherwise, time of the Court, which has to be usefully devoted for dispensation of justice, will be wasted on such enquiries. The purpose behind Section 199 IPC and the checks and balances provided under Section 195 and 340 Cr.PC will have to enter the judicial mind before attempting to have any decision to initiate proceedings under these Sections. It is also held by the Honble Supreme Court that proceedings under Section 340 Cr.P.C. should not be instituted as a matter of course even where certain statements which may look to be false. Further, as the genuineness of the document has been subject matter of a civil suit as has been stated by the learned counsel for the applicant, we are of the opinion that the action under Section 340 Cr.PC will not be attracted. In this regard, our views are supported by the judgment of the Honble High Court of Calcutta in the matter of Mayapur Sree Chaitanya Math versus Sachidananda Brahmachari, [1994 Cr.LJ 1692 (Cal.)]. Therefore, we are of the considered opinion that in the present TA, the applicants request to initiate proceedings under Section 340 Cr.PC is not maintainable at the present juncture and hence the said prayer is rejected.
10. The main controversy is regarding promotion of the applicant to E-2 grade from E-1 grade on the basis of the total credit points which he would have got over a period of four years from 2002-03 to 2005-06. The arguments in favour of the applicant have been anchored on two specific contentions raised by the learned counsel. The first ground is that the applicant having given the self appraisal reports for the years 2002-03 and 2003-04 were not considered by the respondents but were removed to deprive him from his promotion. In this regard, our careful perusal of the ACR dossiers of the applicant convinces us that there was no self appraisal reports of the applicant and the reporting and reviewing officers have not even referred to the self appraisal reports. They have written their part of the ACRs and have assessed the applicants performance after waiting for a specific period as given in the Executive Performance Appraisal System (EPAS). More so, there is a slip attached to the ACR of the applicant for the year 2002-03, which reads thus:-
Even after repeated reminders the applicant Sh. B.M. Mittal has failed to submit his self appraisal. As such the appraisal is being sent without the self appraisal. The form had been given to Shri Mittal in the month of February/March, 2003.
11. It is appropriate for us to refer to the EPAS which forms part of the SAIL Personnel Manual appended by the applicant to the present TA. Section 1 of Volume-I of the said Manual deals with the Human Resource Policy. In the sub-section 1.2, the EPAS has been narrated as per which this appraisal system is used to assess the performance of the executives right upto E-7 grade with the objective to integrate the goals of the company and individual employee through a process of performance as an assessment linked to objectives. It also provides opportunities for the executives to ensure fulfillment of companys objective, being aware of tasks and targets and the responsibilities assigned to each of them. The objective of the said EPAS is to facilitate a process of executive development through performance planning, self review, performance analysis and to have communication between the appraisee and the appraiser. The said process involves self appraisal performance, review and planning, performance assessment, development plan and evaluation, and final grading. There are formats given for preparing a self assessment and subsequent performance assessment by Reporting and Reviewing Officers and Accepting Authority. Annexure-I of the said EPAS provides formats for the executives in E-1 to E-6 grades. The applicant being E-1 grade officer in SAIL, the Annexure-I is applicable to him. Part A & B are exclusively meant for self appraisal, performance review and planning in which the appraisee provides his performance under each of the Key Performance Area (KPA) i.e. from KPA-1 to KPA-8 and the format is signed by the appraisee and Reporting Officer. The Reporting Officer provides his comments thereon. For the years 2001-02, 2002-03 and 2003-04, the applicant did not furnish Part A & B dealing with the self appraisal, performance review and planning, which fact is evident from the records as the Reporting Officer and the Reviewing Officer have filled up part C, D and E of the said format of the applicant for each year. In case of Part E of the said format, final assessment is made by Reporting and Reviewing Officers and the Accepting Authority, namely, the Chairman/Member of PRC records his views and comments assigning one of the grades. The applicants self appraisal is available in other ACRs but for the said three years his self appraisal is not available. The recording made by the Reporting and Reviewing Officers for the year 2002-03 discloses that the Reporting Officer has seen and assessed the applicant on 25.05.2003 and the reviewing officer has done the same thereafter and the accepting authority, namely, the Chairman/Member of PRC has graded him for the said year as C. Thereafter the appropriate remarks and assessments have been done by the competent authorities. However, there has been a note the contents of which have already been reproduced in the foregoing paragraphs. In respect of the ACR for the year 2003-04, there is a letter to indicate that the applicant was informed by letter dated 29.04.2004 for submitting his duly filled in self appraisal form for the year with clear stipulation that the same should be returned to the Senior Deputy Director (CC&C) by 01.05.2004. Further, it is seen from the report that in case of the applicant, Part A & B have not been furnished by him. Therefore, the Competent Authority has recorded that the appraisee has not submitted his self appraisal even after repeated reminders verbal/written. Even for the said year, the self appraisal was not submitted and the same was brought to notice of HoD/Personnel Department. The said factum has been recorded in the bottom of the first page of part-C for the year. It would disclose that the Reporting Officer, after making such recording, has given his assessment qua the applicant as on 14.06.2004 which has been agreed to by the Reviewing Officer. The Chairman/Member of PRC has also accepted the same and awarded the applicant C grading. Further, the applicant has been awarded C grading in the ACRs for the years 2004-05 and 2005-06 for which he has even furnished his self appraisal. We are not convinced about the applicants ground that the so-called self appraisal reports submitted by him for the year 2002-03 and 2003-04 have been removed for the simple reason that even for the years for which the applicant has furnished his self appraisal reports ultimate grading that has been awarded to him is C and in the absence of the self appraisal reports, he has also been graded as C. We are, therefore, of the view that the applicants argument that he has been prejudiced due to the removal of the self appraisal reports for those two years is not convincing us. Hence, the same is rejected.
12. We may now advert to the other principal controversy that the applicant should have secured 120 credit points for the period from 2002-03 to 2005-06 for getting promoted to E-2 grade w.e.f. 30.01.2006. It is not in dispute that for getting promotion from E-1 to E-2 grade within four years (relaxable by three months) the officers from E-1 grade are to secure 120 credit points. This is the total credit level to show outstanding performance. It is also an admitted fact that the applicant was considered on 29.01.2007 by the DPC for his promotion from E-1 to E-2 grade w.e.f. 31.06.2006. We have perused the minutes of the said meeting held on 29.01.2007 and note that the applicant along with nine other officers of E-1 grade has been considered. The applicant has secured in each of the ACRs for four years C grading, and credit points allotted to C grading being 15, he has been properly assessed to have secured 60 credit points only. It is seen that out of ten E-1 grade officers considered, only one was found to have secured exactly 120 credit points on the basis of the ratings given by the assessing officers and the said officer has accordingly been recommended for promotion. The applicant was found not eligible as he secured 60 credit points only. It is pertinent to mention here that the applicant was also considered along with seven others for the regular promotion by the DPC in its meeting and he was promoted to E-2 grade on 30.06.2007. It is also worth mentioning here that the promotion of executives within Cluster A (E1 to E2) envisages certain methodologies as per Para 6.3 which are reproduced as follows:-
a) The DPC will consider and effect the promotion of Executives in E-1 scale collecting 120 credit points or more from appraisal reports for the immediately preceding four years will be promoted to E-2 scale on the next available date of promotion subject to the condition that no such executive will be promoted to E-2 scale prior to completion of four years in E-1 scale relaxable by a maximum period of three months.
b). All other executives in E-1 scale who are promotable under the system, will be promoted not later than completion of five years in E-1 scale irrespective of total credit points collected.
13. The above methodology clearly stipulates that E-1 grade officers securing the required 120 credit points or more would get promotion within four years (relaxable by three months). Although it is not specifically mentioned in the said policy, yet it is clearly indicated that the outstanding officers securing 120 credit points with proven ability get promoted a year in advance whereas normally all other eligible officers get promoted to E-2 grade on completion of five years of regular service in E-1 grade. The applicant was not found to be an officer of outstanding nature within the said period of four years as he secured 60 credit points only.
14. In our considered opinion, there is no procedural flaw committed by the respondent-SAIL while assessing the applicant and finding him suitable in the second DPC meeting but finding him not eligible in the first DPC meeting. Therefore, the contenton of the applicants counsel that the applicant should have been given 120 credit points is not borne out from the records placed before us. Hence, the said contention of the applicant is not tenable.
15. Considering the totality of facts and circumstances of the case, we are of the considered opinion that normally promotion from E-1 grade to E-2 grade takes place after completion of five years of regular service in E-1 grade. However, the promotion to E-2 grade on completion of four years in E-1 grade (relaxable by three months) is available only to those officers who are excellent, outstanding and have secured minimum 120 credit points because of their higher abilities in the assessment reports of immediately preceding four years. The applicant has been granted the normal promotion w.e.f. 30.06.2007 and has not been found eligible to be promoted by the DPC w.e.f. 30.06.2006 as he secured only 60 credit points against the minimum requirement of 120 credit points. Therefore, the decision taken in this regard by the DPC as well as by the Competent Authority is procedurally maintainable and legally sustainable.
16. In the result, the applicant does not convinces us to interfere in the matter as he fails, in his endeavour, to establish his case. Therefore, this Transfer Application is dismissed being devoid of merits. We do not pass any order as to costs.
(Dr. Ramesh Chandra Panda) (Syed Rafat Alam)
Member (A) Chairman
/naresh/