Uranium Corporation Of India vs. Rajnish Kumar Rai

Serial No. 02 Regular List

HIGH COURT OF MEGHALAYA AT SHILLONG

WP(C) No. 495 of 2021

Date of order: 06.05.2022

Uranium Corporation of India vs. Rajnish Kumar Rai, IPS & 5 Ors. & 3 Ors.

Coram:

Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice Hon'ble Mr. Justice W. Diengdoh, Judge

<u>Appea</u>	Appearance:
For the Petitioners		:<br>Ms. M. Diwan, ASG with
		Mr. Paul Roy Paske, Adv.
	E.	Mr. A. Phukan, Adv.
For the Respondents		:<br>Mr. R. Sharma, Adv.
		Mr. B.P. Borah, Adv.
		Dr. N. Mozika, Sr. Adv. with
		Ms. S. Rumthao, Adv.
i)	Whether approved for	Yes/No
	reporting in Law journals etc.:
	COL	OF ALL OHN
ii)	Whether approved for publication<br>Yes/No
	in press:

JUDGMENT: (per the Hon'ble, the Chief Justice) (Oral)

The short issue involved in this case pertains to the propriety of the respondent employee approaching the Central Administrative Tribunal for a second time when an order passed in the first set of proceedings was being worked out.

2. The respondent complained of the delay in receipt of his annual performance appraisal report for the period August 31, 2014 to March 31, 2015 before the CAT by way OA No. 1 of 2017. An interim application

in such proceedings was disposed of by an order dated March 22, 2017,

the operative part whereof provided as follows:

"With regard to the submissions that the respondents have not complied with All India-Service Performance Report Rules, 2007, in the interest of speedy justice, this court directs the respondents, specifically respondent nos. 2 & 3 to supply the copy of the APAR in question to the petitioner forthwith and at least not later than 15 days from the date of receipt of this order. The petitioner will have all the opportunity to represent against the above within the time frame as laid down in the above rules and the time available to the petitioner for filing representation will be counted from the date of supply of the APAR of the relevant period. MA stands disposed of accordingly."

3. Though it appears that the initial petition, OA No. 1 of 2017, was

virtually disposed of by the relevant order dated March 22, 2017, only the interim application was disposed of and the petition apparently still remains pending. However, nothing turns on such aspect of the matter.

4. It is the admitted position that pursuant to the order dated March 22, 2017, the respondent's APAR for the relevant period was forwarded to him under cover of a letter dated April 13, 2017. It is also not in dispute that by a detailed representation of April 29, 2017, the respondent requested the adverse remarks in the APAR to be removed.

5. Before the petitioning employer could respond to the said representation of April 29, 2017, the respondent approached the Tribunal afresh by way of a second petition which was numbered as OA No. 129

of 2017. Such petition was filed on May 17, 2017.

6. The second petition filed by the respondent came to be allowed

by the judgment and order impugned herein dated February 27, 2020.

The operative part of the order is found at paragraphs 16 and 17 thereof:

"16. Keeping in view of the above, we are of the considered view that the APAR for the period which was initiated much later, remained incomplete in certain aspects for considerable period and not giving an opportunity to the applicant for making representation is found to be defective, illegal and not sustainable. As such, said APAR does not deserve to be form of the service record of the applicant. Accordingly, it is hereby ordered that the APAR of the applicant for the period 31.08.2014 to 31.03.2015 as communicated vide letter No. 10/8(29)/2016-PSU/C-44 dated 13.04.2017 shall not form a part of the service record of the applicant. The said letter dated 13.04.2017, however is not set aside and quashed as it was only in compliance of the order dated 22.03.2017 passed in M.A. No. 043/00039/2017 in O.A. No. 043/00001/2017.

17. Accordingly, O.A. stands allowed. There shall be no order as to costs."

18. The principal issue that the petitioners raise is that once the Tribunal had required the employer to furnish the APAR to the employee for the employee to make a representation thereagainst, if the employee was so advised, the employee could not have been rushed back to the Tribunal with a fresh set of proceedings without affording reasonable time to the employer to deal with the employee's detailed representation. Indeed, there can be little room for doubt that when a previous order of the Tribunal charted out a course of action, unless something extraordinary intervened, the course of action had to be followed before the Tribunal could be approached again.

19. It is true that the respondent herein did not have a copy of his APAR for the relevant period at the time that he initially approached the Tribunal. It was open at such stage for the respondent to canvass before the Tribunal that merely by virtue of the delay in the preparation of the APAR for the relevant period or the lack of communication thereof, no adverse remarks in the relevant APAR could have been taken into account for the future career prospects of the respondent. However, the respondent only sought and obtained a direction for the expeditious supply of the relevant APAR and it is evident that the respondent acted on the basis of the order dated March 22, 2017 by receiving the APAR and making a representation against the same by his letter of April 29, 2017 insofar as there were adverse remarks contained against him in the report. Having adopted such course of action, it was not open to the respondent to approach the Tribunal unless there was inordinate delay on the part of the employer in informing the employee of the result of the employer's consideration of the representation.

20. It is the matter of principle that has to be appreciated. It is possible that certain adverse remarks may be erroneously or otherwise wrongly entered. It is equally possible that upon a proper representation in such regard being received from the concerned employee, the employer would correct the mistakes and, if necessary, wipe out the adverse remarks from the relevant appraisal report and give a clean chit to the employee. Merely because the employee is not satisfied with his appraisal as contained in the report, the employee may not challenge the same without making a representation thereagainst and affording a reasonable time to the employer to consider the representation and communicate the result thereof to the concerned employee.

21. In such view of the matter, the impugned judgment and order of the Tribunal of February 27, 2020 passed in OA No. 129 of 2017 cannot be sustained. For obvious reasons, the merits of the matter as dealt with in the impugned judgement have not been referred to, so that neither side is prejudiced as a consequence.

22. The petitioners will now ensure that a speaking response to the respondent's representation of April 29, 2017 is reached to the respondent at his usual address by May 17, 2022. It will, thereafter, be open to the respondent to deal with the relevant communication in accordance with law, including challenging the same before an appropriate forum. In the event the respondent seeks to challenge the employer's decision as may be contained in the response to his representation, such challenge will be

considered afresh and without reference to the judgment and order impugned herein or being in any manner influenced thereby.

12. It is made clear that if, as a result of the respondent's challenge to the forthcoming response to his representation succeeding, the respondent is found entitled to promotion at an earlier date, there will be no impediment to the appropriate relief being granted to the respondent in accordance with law.

13. In the event the petitioners' response to the respondent's representation of April 29, 2017 is not reached to the respondent by May 17, 2022 in terms of this order, the order of the Tribunal passed on February 27, 2020 will revive.

14. WP(C) No. 495 of 2021 is disposed of without any order as to costs. No observation in this order will prejudice either set of parties in course of any future proceedings.

(W. Diengdoh) (Sanjib Banerjee) Judge Chief Justice

Meghalaya 06.05.2022 "Sylvana PS"