Central Administrative Tribunal - Mumbai
L M Pandurang vs M/O Mines on 5 April, 2019
© 1 OA No.52/2016 CENTRAL ADMINISTRATIVE TRIBUNAL | MUMBAI BENCH, MUMBAL ORIGINAL APPLICATION No.62 OF 2016 Dated this Friday, the 05" day of April, 2019 CORAM: DR. BHAGWAN SAHAI, MEMBER (ADMINISTRATIVE) RAVINDER KAUR, MEMBER (JUDICIAL) L.M.Pandurang, Age 44 years, Working as Sr. Manager (Production), Taloja Copper Project (TCL), -- Residing at B-1007, Arihant Anaya, Sector 35G, Kharghar, Navi Mumbai 410 210 . Applicant (By Advacate Shri Vicky Nagrani) VERSUS 1. Union of India, Through the Secretary, Ministry of Mines, North Block, New Delhi 110 001, 2. The Chairman cum Managing Director, Hindustan Copper Limited, Tamra Bhawan, 1, Ashutosh Chowdhury Avenue, Kolkata 700 019. .. Respondents (By Advocate Ms. Leena Patil, respondent No.2) Order reserved on 11.02.2019 Order delivered on 05.04.2019 ORDER
Per - Dr. Bhagwan Sahai, Member {Administrative} This OA has been filed on 02.02.2016 by Shri L.M.Pandurang, then working as Senior Manager {Production}, Taloja Copper Project (Hindustan Copper Limited). He has sought quashing and setting aside of order dated 15.16.2015 (Annex A-1, page Nos.il to
15) along with consequential benefits. He re RES 2 . OA No.62/2016 has also sought direction to the respondents to ignere Performance Appraisal Gradings o bd > fr hs t fs [2 fod tH Qi wo 6 given to him from 2010-2011 t allew him to make a representation against such gradings and after considering his representation, the respondents should conduct review DPC for his promotion to the post of Chief Manager as per the rules and Lf found $Fit to promete him on that post from O1.04 ie.
benefits such as seniority, etc.
2. _ Brief facts :-
2fa}. The applicant has stated that he was selected as Graduate Engineer training by the respondents vide order dated 08.04.1997 th (Annex A-2, page 16 to 21). He was then promoted to the post of Assistant Manager in 2002 and on his request, his 'cadre was changed and he was transferred as Assistant Manager (Commercial) at Bengaluru Office of Hindustan Copper Limited on 02.06.2003 in Commercial Marketing cadre {Annex A-3}.
2(b). On the basis of his seniority as Assistant Manager fCammercial}, he Was promoted as Manager on 31.01.2007 at the
-2013 with all consequential CG @ ts OA No.62/2016 Bengaluru Office itself. Then in 2010, the applicant was promoted as Senior Manager. On 09.09.2011, he was transferred from Bengaluru Office to Taloja Copper Project, district Thane, 2(a). He claims that instead of posting him im the. commercial cadre, he Was illegally posted to Industrial cadre, his juniors in A the commercial cadre have been considered 3 and promoted to the post of Chief Manager and he is due for promotion to the post of Chief Manager with effect from O1.04.2013, However, the DPC conducted in 2013, 2014 and 2015 .fer promotion to the post of Chief Manager, had 'not recommended him far that promotion. For this he was not communicated any reason, and thus he has been deprived of his promotion.
e{d}. As per Executive Promotion Policy and Rules, 2011 {Annex A-5, page 24 to 35), after completing three years of qualifying service, the executives shall be considered for promotion to the next higher grade. The applicant claims that he is eligible for promotion to the pest of Chief Manager (55 4 . OA No.62/2016 Grade) and when he came to know about promotion of his Juniors, he made a representation on 29.01.2015 requesting for holding of review DPC to consider him for promotion post of Chief Manager from 14.04.2013 (Annex A-6, page 36 and 37).
When he did not get a response, he filed a OA No.452/2015 which was disposed of on 20.08.2015 directing the respondent No.2 i.e. CMD, Hindustan Copper Limited, Kolkata to. consider the pending representation of the applicant ¥for promotion to the post of Chief Manager in accordance with law (Annex A-7, page 38 and 39}, @fa). In compliance with the direction of this Tribunal, the respondent No.2 issued fs lO.2 f3 © the impugned order on 16. 15 (Annex A~1)} reqecti ng the appli icant's case for promotion to the post of Chief Manager on the ground that Performance Appraisal Gradings earned by the applicant from 2010 to 2015 are either fair or poor and the three DPCs held against the prescribed a for' three year benchmark of 15 Average Appraisal Value {RAV} for eligibility for promotion, the 3 OA No. 62/2016 applicant had earned AAV of only 1.67.
2(f). The applicant claims that the reason for rejecting his case is illegal and against the law laid down by the Apex Court in case of Sukhdev Singh Vs. Union of India, Civil Appeal No. 5892/2006 decided on 23.04.2013 holding that every entry in ACR ~ (poor, fair, average, good or very goad) must be communicated to him/her within a reasonable period and non~communication of entries in the ACRs/APAR of a public servant has civil consequences as it may affect his chance: for promotion or other benefits.
oy Therefore, this OA.
3. Contentions of the parties :~ it The applicant has contended that -
£ 3fa). the action of the respondents in rt promoting his juniors and not considering his case because of below benchmark AAV, which was not communicated to him, is Lilegal and arbitrary;
3{b). yrovisions of Recruitment Rules must be strictly implemented, the reason given in the impugned order hy the respondents fer his non-promotion that he was not found fit 6 OA No. 62/2016 For promotion due to adverse remarks in ACRs from 2010-2011 to 2014-2015 is not correct because he had not been communicated any adverse remarks in his ACRs which contained below benchmark gradings during that period. Therefore, the non communicated remarks of ACRS have to be ignored while considering him for promotion along with others;
3fa). the Apex Court decision in case of Dev Dutt Vs. Union of India and others, (2008) & SCC 725 and Abhijit Ghosh Dastidar Ys.
Union of India and others (2009) 16 scc 146 held that every entry in the ACR of a public servant must be communicated within a reasonable period or time as grading below the benchmark become adverse for that person. In view of non-communication of ACRs of the year 2010-2611 to 2614-2015 and not providing opportunity to him to make representation against them, the present OA should be allowed;
3faGj. the claim of the respondents that the applicant had not submitted any representation "before 29.01.2015 and that the representation of that date was not Y ~~ given through appropriate authorities is a wrong statement of the respondents;
3fe). Rotational Transfer Policy was applied against the applicant to isolate or remove him from the Marketing Department to harass him. He has also mentioned two cases 12.8. one of Sri D.Dey, Ex-DGM (Concentrator) claiming that he served for entire 29 years at Malanidkhand Copper Project, Malanjkhand O we Th (Madhya Pradesh) and only year at Khetri Copper Complex, Khetrinagar (Rajasthan). Bnother of Sri §.Bhaskar Rao, AGM (Chem) stating that he 'has: served his entire service at one place. But in those cases the Rotational Policy was not found suitable N, but it was applied only to the applicant to "remove him from Marketing Department; and 3(f£}. the respondents have got confused about communication of adverse entry in AcR / APAR with non-payment of Performance Related Pay (PRE) to the applicant. The claim of the respondents that non-receipt of PRP amounts by the applicant amounted to communication of adverse remarks in his bate St ilegal and irrational.
ip hy feo assessment OA No.62/2016 | g . OA No.62/2016 Hence, the OA be allowed.
In their reply and sur-re ejoinder, the % ct a i C2 ib rt a me ct j respondents have con 3(g). the respondent No.2 in the OA i.«.
CMD, Hindustan Copper Limited, Kolkata is strongly objecting to and resisting the present OA, but only upon preliminary hearing the Tribunal admitted this OA. The ¢ OA is not maintainabl ise the applicant rey) no D 3 & 7 has never agitated the issue of discrepancy ry in promotion before the appropriate forum.
The present applicant was ecrulited on 12.05.1997 as Graduate Engineer Training (Concentrator) in Khetri Copper Complex, Khetrinagar (Rajasthan). He remained at the Khetri Copper cComolex up fo 2003, when he ¥ WAS posted at Assistant Manager. (Commercial) at the Bengaluru Office;
of m8 tA ris 3th). based on reque the applicant, he was posted as Senior Manager (Project) at the Taloja Copper Protect vide order dated 25.08.2011. The representation dated 29.01.2015 claimed to have been made by the applicant was received neither by any key personnel of the Human Resource or Personnel 9 OA No.62/2016 Department. However, in pursuance to the exrders of the Tribunal in eariier OA, the respondent No.2 has passed the reasoned and speaking order dated 13.10.2015 {the impugned order);
3{i). the cadre of the applicant was not changed, only his designation was changed by maintaining his seniority as per the rules and depending upon the requirement of the company, the Compstent Authority can decide about which posts are to be manned by which persons in the cadre. Therefore, in posting him at Taloja Copper Project, there Was no illegality and the allegation of the applicant in this regard is unfounded;
3(j). as per para No.16.2 of the Executive Promotion Policy and Rules of HCL 2011, the executives shall be considered for' promotion on attaining the prescribed Averages Appraisal Value (AAV) in the present grade i.@. pre-promoted grade. This shall be arrived at by considering the appraisal gradings of all the years counted towards eligibility and an executive must secure for consideration for promotion to higher grade 10 OA No.62/2016 up to ES, AAV 15, which is corresponding to ot f he.
of b average good for all categories executives i.e. General, Scheduled Caste, Scheduled Tribes, etc;
3(k). as per the para 6 of the above rules, for promotion of Senior Manager (E4) Lo General Manager (B5}, the qualifying period of service is minimum three years in the lower grade. For determining suitability of a candidate for promotion, the DPC is required to consider qualification, service record, Annual Parformance Reports and clearance from Disciplinary and Vigilance angle, along with the qualifying period of service;
Sflj. the Bre held for the years 2013, 2014 and 2015 considered the appraisal grading of the applicant for relevant preceding threes years. Based on it the DPC held Eor all the 3 Ss i a] three years 2013, 2014 and 2015 evaluated ¥ the AAV of the applicant only as 1.67 as against the minimum required AAV of 15.
This is because his Appraisal Gradings from INO the years 2010-2012 ta 2Z014-.
cansistentiy been either poor or fair.
C15 had to.
D it | OA No.62/2016 Therefore, the applicant was considered for promotion by all the three DPCs, but he could not secure the benchmark Average Appraisal Value of 15. and could not be promoted;
Sim). Performance Related Pay fPRE} is jinked with the performance appraisal and based on evaluation score in the appraisal gradings, the PRE is paid ta an individual executive. As per the rules, no PRP was paid to the applicant as his appraisal gradings for the year 2010-2011 to 2013-2014 Was poor. Therefore, the applicant was fully aware of non-payment of PRP to him and his Appraisal Gradings. In spite of this and several counselings session held for him, he failed to achieve the expected result and improvement in his performance;
3in). since tne applic nt is again agitating on the same issue which was dealt with earlier by the Tribunal in. the OA No.453/2015, .pleading to be a victim of secial background pleading that he is being
-harassed Just because he belongs ro 3 Scheduled Caste Community cannot be 12 -- OA No.62/2016 entertained, Therefore, this OA should he dismissed; and | 3fo}. Since the applicant did not submit his representation through proper channel, it remained unattended but subsequently as per the directions of the Tribunal, it has been decided with reasons. in view of this ed.
% facts, the OA should be dismis €. Analysis and conclusions ~ We have perused the OA memo and its annexes, rejoinder of the applicant, reply and sur~rejoinder filed by the respondents, various case Laws cited by the parties and considered the arguments advanced by both of them on 11.02.2019, 4a). On examination of the contentions of the parties and tha case retord, it is clear that the Appraisal Grading of the applicant during the relevant period for consideration for promotion to the post of Chief Manager by the DPC in 2013, 2014 and 2015 was only fair or poor and Average Appraisal Value as evaluated by the three BPCs was only on 1.67 as against the minimum required AAV of 1 a6 that is correct, it is fda for promotion. Wh © 13 , OA No.62/2016 also a fact that th & poor or fair grading earned by the apolicant during those years were not communicated to him by the respondents.
ed 4(b). In this regard, the contentions of the respondents that non-payment of PRP on time to the applicant was in fach communication os of his poor grading is not fully acceptable. Even if, he was not paid PRP, as per the settled position in law by the Apex Court in the cases of Sukhdev Singh, Dev Dutt and Abhijit Ghosh Dastidar [supral, it is necessary to communicate remarks / entries tn all the ACRs / APARsS of he concerned ct employee within a reasonable period of time which may afford the concerned employee an 4 opportunity of making representation, if ANY, for consideration of and decision thereon by the concerned authorities (the respondents in the present cases}.
4fe). Since the poor / fair appraisal gradings earned by the applicant during the years 2010-2021 to 2014-2015 were not communicated to him, aithough he was considered for promotion by the three DPrCs, 4 OA No.62/2016 it has deprived him of the aforesaid opportunity of making representations against them:
(4(dj. it seems that the representation of the applicant was not made by him through proper channel but in the impugned order dated 15.10.2015 and the position as contended Dy the respondents in the preceding paragraphs has been explained bringing out as to why during the three DPCs held in 2013, 2014 and 2015, the applicant was not Found suitable for promotion.
4f(e). However, as stated above, in fairness to the applicant, in our opinion it will be ft necessary tor the respondents to afford him an opportunity - for making a fresh representation on those gradings as sought by him in the present OA, which should then be considered by the respondents, appropriate reasoned decision be taken thereon and communicated to the applicant.
4(F). On such consideration of his representation, if the appraisal gradings of the applicant for the year 2010-2011 to 2014-2015 get upgraded / improved to the -
© ~~ instructions on the subject. In view of these conclusions, | the OA deserves to he allowed.
5. Decisions -
The OA is allowed in terms of the observations recorded above in paragraph No.4 above. The parties to bear their Qwr ~ costs.
® (Ravinder Kaiir) ~ ' (Dr. Bhagwan Sahaiy Member (Judicial) ° Member (Administrative) kmg* | N 15 OA No.62/2016 minimum required standard of 15 AAV for promotion to the post of Chief Manager, the respondents should hold a review DPC for those three years to consider his case hb afresh for promotion te the post of Chie?
tb Manager as per the applicable law, rules and Fy oN gt \ x.
vie