IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 3897 of 2010 (O&M) Date of decision: December 07, 2011 State of Haryana and others .. Appellants Vs. Satpal .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Amit Rana, DAG, Haryana for the appellants. Mr. Rakesh Nagpal, Advocate for the respondent. A.N. Jindal, J The plaintiff's suit for declaration that he is entitled to the ACP scale and other service benefits was dismissed by the trial court vide judgment dated 28.3.2007. However, the appellate court vide judgment dated 16.3.2010 accepted the appeal and granted the following relief to the plaintiff :- 1. He is entitled to get his annual increments released from 18.12.1992 to 10.6.1998 i.e. the period he remained out of service on account of termination and reinstatement by the Labour Court. 2. He is also entitled to one additional increment since the year 1992 when he completed 8 years of continuous service. 3. He is also entitled to first standard scale of `1200-2040 w.e.f. 1.2.1994 and to get his pay fixed w.e.f. 1.1.1996 in the pay scale of `1200-2040. 4. He is also entitled to second standard scale w.e.f. 17.3.2001 on completion of his 20 years of regular satisfactory service and to cross the efficiency bar w.e.f. 1.1.2002. 5. He is also entitled to be promoted as Radiator Repair w.e.f. 9/2002 i.e. from the date when his junior Dharam Pal was promoted. R.S.A. No. 3897 of 2010 -2- *** 6. He is also entitled to other arrears along with interest @ 9% per annum till its realization. The factual matrix of the case is that the plaintiff joined the service on 17.3.1981 as Assistant Radiator Repairer. He was removed from the service on 18.12.1992, but was taken back w.e.f. 10.6.1996 pursuant to the award passed by the Labour Court with continuity of service and 25% back wages. Since he had completed his eight years of service in the year 1992 and 20 years of regular satisfactory service on 7.1.2001, therefore, he is also entitled to claim benefits of the ACP scales. The award of the Labour Court had become final, consequently he claimed all the benefits as referred to above. The plea of the defendant is that the plaintiff was entitled to one additional increment on completing 8 years of satisfactory service in the year 1992, but at that time an enquiry was pending against him and his services had been terminated, therefore, he was not entitled to that benefit. The plaintiff was not entitled to first standard scale w.e.f. 1.2.1994 as he had not completed his 10 years service satisfactorily. As such, he being ineligible was not given the first standard scale of `1200-2040, as such, his pay was fixed at `3050/- payable from 1.1.1996. The first standard scale was not given to him as his four years of confidential reports were not good or satisfactory and the second ACP was also not given as he had not completed 20 years of service satisfactorily. It was also averred that due to his bad confidential reports w.e.f. 1992 to 1996, he was not allowed to cross the efficiency bar. It was admitted that Joginder Kaushik and Roshan Lal employees had been transferred and had been given promotions rightly but promotion could be given to the plaintiff only if his confidential reports were good and if no enquiry was pending against him under Rule 7 and on attaining the experience of three years but not only on the basis of the seniority and on completion of these requisite conditions, the seniority is considered and if senior employee does not fulfill the requisite condition, then junior employee could be promoted. From the pleadings of the parties, the trial court framed the following issues vide order dated 27.4.2004 :- R.S.A. No. 3897 of 2010 -3- *** 1. Whether plaintiff is entitled for a decree of declaration as prayed?OPP 2. Whether the plaintiff is further entitled for consequential relief of mandatory injunction?OPP 3. Whether plaintiff is also entitled for future interest at the rate of 18% per annum from the due date till its final realization?OPP 4. Whether suit of the plaintiff is not maintainable in the present form?OPD 5. Whether plaintiff has no cause of action to file the present suit?OPD 6. Whether plaintiff is estopped by his own act and conduct to file the present suit?OPD 7. Relief Both the parties led evidence. The trial court dismissed the suit, whereas, the appellate differed with the observations returned by the trial court and decreed the suit of the plaintiff. Arguments heard. Record perused. There is no denying a fact that the plaintiff joined the service on 17.3.1981 and his services were terminated on18.12.1992. It is also not disputed that the Labour Court had passed the award reinstating the plaintiff with continuity of service and 25% back wages. Thus, the Labour Court impliedly had allowed the increments for the year 1993-94 and arrears were directed to be paid as shown vide copy of the order Ex.P2 passed by the General Manager Haryana Roadways, Sirsa on 21.8.1996. In compliance of the award Ex.D1 passed by the Labour Court, the department had also taken him back in the service. The only controversy is regarding annual confidential reports which invited the department not to accord him benefits. Ex.D4, Ex.D5, Ex.D7, Ex.D8 and Ex.D9 are copies of the annual confidential reports recorded on the work and conduct of the plaintiff for the period from 1985- 86 to 1989-90. During these years, he was assessed either as below average R.S.A. No. 3897 of 2010 -4- *** or average. No evidence has been led by the defendant in order to establish where the ACRs of this period were ever conveyed to the plaintiff. As per explanatory note No.2 to instruction No.3 of the Haryana Government Consolidated Instructions regarding confidential reports, the defendants were bound to convey the adverse entries to him. In the absence of violation of the instructions, the ACRs could not be taken into consideration for ignoring him the benefits. The Division Bench of this Court, in case Sube Singh vs. State of Haryana and others, 2001 (3) RSJ 313 observed as under :- “8. However, it is not shown if before down grading the annual assessment of the petitioner, he was informed and as such the down grading of the annual assessment reports without any notice or show cause notice to the petitioner being violative of principles of natural justice can not be accepted as legally correct and can not be used as material against the petitioner for refusing to allow his crossing of efficiency bar. The down grading chart, otherwise also, does not support the action of the respondents. Admittedly, the ACRs of the petitioner for the years 1985-86, 1988-89 and 1992-93 were not available as shown in the earlier chart and these could not have been down graded even in the absence of availability. These have been shown to be C-below average without any reason and is not justifiable. These reports being not available can not be used against the petitioner. Leaving aside these three ACRs, the rest of the ACRs would indicate that more than 70% of the reports are in favour of the petitioner being 'good', 'very good' and 'average'. Taking from any angle i.e. both the charts that the actual grading shown earlier and the ACR with down grading, on presumption of certain instructions, on the basis of service record of the petitioner, he could not have been denied his crossing of the efficiency bar.” R.S.A. No. 3897 of 2010 -5- *** Similarly, this court in case Tara Chand vs. State of Haryana and others, 2005 (3) RSJ 465 observed as under :- “9. It is well settled that un-communicated adverse remarks cannot constitute a basis for denial of promotion. The object of communicating adverse remarks is to grant an opportunity to an employee to make a representation to the authority concerned for expunging of remarks by explaining those entries in the ACRs. The other object is to grant him an opportunity to improve and come up to the expected level of efficiency. The non-communication of adverse remarks results into depriving an employee of both the benefits. Therefore, the respondents have committed an illegality by taking into consideration the un-communicated adverse remarks against the petitioner while considering his case for promotion to the post of Pumping Set Driver/Operator. The aforementioned legal position is supported by instructions dated 7.5.1974 issued by the Chief Secretary to Government of Haryana (Annexure P-6) which provides that the adverse remarks whenever recorded in the ACR should always be conveyed to the employee promptly. All concerned are required to ensure that adverse remarks are so conveyed and that no notice should be taken of adverse remarks if the same have not been communicated. In the present case, adverse remarks for the years 1984-85 and 1986-87 have not been conveyed and respondent No.2 while considering the case of the petitioner for promotion has taken those remarks into consideration. Therefore, the action of respondent No.2 for ignoring the petitioner for promotion on that basis is liable to be set aside.” Further more, there is no evidence on the record to indicate if the plaintiff was called upon to show cause before stopping his efficiency bar. Rajinder Kumar (DW1) had admitted that no such show cause notice was ever issued to the plaintiff before stopping his efficiency bar. He has R.S.A. No. 3897 of 2010 -6- *** also admitted that no order was passed for denying the increment to the plaintiff on his completion of eight years of service. He has further stated that ACRs from 1.4.1988-89 (Ex.D5) were not conveyed to the plaintiff. No doubt, he has stated that the ACR Ex.D6 was conveyed, but he has failed to prove any receipt with regard to acknowledgment of the said document by the plaintiff. It has also come in evidence that the plaintiff was senior to Dharam Pal defendant No.4. Dharam Pal appeared in the witness box as DW2 and had admitted that he joined the service on daily wage basis on 9.8.1982, whereas, the plaintiff had joined the service on 17.3.1981, therefore, the plaintiff certainly was entitled to be considered for promotion from the date his juniors have been promoted. On conspectus of the entire scenario as depicted by the defendants during evidence and the evidence led by the plaintiff, particularly in view of the order passed by the Labour Court on 6.6.1996 and the plaintiff was not conveyed with any adverse entries recorded against him by way of ACRs, he could not be deprived of the benefit of service. The trial court appears to have appreciated the evidence in the right perspective. No substantial question of law arises in this case for determination. Dismissed. December 07, 2011 (A.N. Jindal) deepak Judge