IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 27TH MARCH 2008 / 7TH CHAITHRA 1930 WP(C).No. 6850 of 2008(M) ------------------------------------- PETITIONER: ------------------- SALIM BABU P.K., AGED 39 YEARS, SUB DIVISIONAL ENGINEER (OPERATIONS), O/O. THE GENERAL MANAGER, TELECOM DISTRICT, BHARAT SANCHAR NIGAM LIMITED, ALAPPUZHA (RESIDING AT KANJIRATHIL, CHERAVALLY,KAYAMKULAM). BY ADV. SRI.K.A.MANZOOR ALI. RESPONDENTS: ------------------------ 1. UNION OF INDIA, REP. BY ITS SECRETARY TO DEPARTMENT OF TELECOMMUNICATIONS, NEW DELHI-1. 2. THE CHAIRMAN-CUM-MANAGING DIRECTOR, BHARAT SANCHAR NIGAM LIMITED, NEW DELHI-1. 3. SRI.K.S.SRINIVASAN, THE CHIEF GENERAL MANAGER, BHARAT SANCHAR NIGAM LIMITED, THIRUVANANTHAPURAM. 4. SRI. HARIDASAN M., GENERAL MANAGER, BHARAT SANCHAR NIGAM LIMITED, TELECOM DISTRICT, ALAPPUZHA. 5. SRI. V.J.D. NAIR, DEPUTY GENERAL MANAGER (OPERATIONS), BHARAT SANCHAR NIGAM LIMITED, TELECOM DISTRICT, ALAPPUZHA. 6. SRI. K.G. BALAKRISHNA PILLAI, ASST.GENERAL MANAGER (OPERATIONS), BHARAT SANCHAR NIGAM LIMITED, TELECOM DISTRICT, ALAPPUZHA. BY ADV. SRI. JAYASANKER, SC, BSNL. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/03/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) No. 6850 of 2008 -------------------------- Dated this the 27th March, 2008 J U D G M E N T Petitioner is a Sub Divisional Engineer (Operations) in the office of the General Manager, Telecom District Alappuzha. Aggrieved by the adverse remarks communicated to him under Exhibit P2, he submitted an appeal against the same as per Exhibit P3 which was dismissed by the appellate authority under Exhibit P4. 2. Paragraph 3 of Exhibit P4 order reflects the consideration of the petitioner's contention. “The undersigned carefully considered all the above points and relevant documents connected with the case. His statement “made the adverse remarks without giving prior opportunity during the report period to improve the work and conduct” indicates he himself aware that there is need for improvement in work and conduct. From documents such as file noting advice/warning letters issued by the DGM(O) on 3.1.2007 and 19.1.2007 etc. were some of the opportunities given in writing in addition to oral advices/warnings. But Sri.Salim Babu was not taking superior officer's advices in right perspective to improve his performance and always used to blame his superiors at different levels. In the letter of DGM (O) intimating adverse remarks it is clearly mentioned “adverse W.P ( C) No. 6850 of 2008 2 entries are communicated to you with the hope that you would try to overcome the deficiencies/shortcomings now noticed and improve your work and conduct in the years to come.” Confidential Report recording system gives chance for every employee to know his defects and shortcomings, if any, in order to overcome them in time, on taking remedial measures by which he can plan his career development in a systematic manner. Hence it is clear that adverse entries given for his own benefits in the years to come and not with an ulterior motive to spoil his carrier. From the documents, it is very clear that Reporting Officer and Reviewing Officer have applied their mind properly before making such adverse entries. Circulars regarding confidential reports clearly indicate that “time limit prescribed for communication of adverse entry is not mandatory but directory. If adverse entry is not communicated in time, it is not wiped out.” So there is no justification to expunge the adverse remarks, even if there is delay in communicating it. In this case from the CR sheets it is noticed that the Reporting Officer and the Reviewing Officer made entries on 27.4.2007 and on 24.5.2007 respectively and adverse entries were communicated on 22.5.2007 well within the prescribed time limit of one month from the date they are recorded. 3. Petitioner preferred a second representation before the Chief General Manager as Exhibit P5. But this was not dealt with by the Assistant General Manager. Exhibit P6 was challenged by the petitioner before this Court in W.P(C) No.33595 of 2007. One of the contentions taken up by the BSNL W.P ( C) No. 6850 of 2008 3 is that appeal is not maintainable against the appellate order in the matter of expunging adverse remarks in his confidential reports. This Court in W.P.(C) No.33595 of 2007 directed the 2nd respondent - Chief General Manager to look into Exhibit P5 and take a decision thereon as mentioned in paragraph 2 of the judgment . Paragraph 2 of the said judgment reads as follows: “After having heard learned Standing Counsel also, I think it is appropriate that the 2nd respondent looks into Exhibit P5 and if Exhibit P4 appellate order has been passed by the competent authority, in accordance with law, that aspect may be communicated to the petitioner. Needful shall be done by the 2nd respondent as regards Exhibit P5, within a period of two months from the date of receipt of a copy of this judgment. The petitioner may be heard by the 2nd respondent before a decision is taken on Exhibit P5.” 4. In compliance with the said direction, petitioner was heard and Exhibit P11 order was passed by the Chief General Manager. The stand taken in Exhibit P4 has been affirmed. Hence the writ petition. 5. I heard learned counsel for the petitioner and learned standing counsel for the respondents. W.P ( C) No. 6850 of 2008 4 6. Learned counsel for the petitioner submits that appeal against the appellate order in these matters are maintainable and the stand taken in Exhibit P11 is wrong. In my view, it is not necessary to have a final say on this aspect especially because the merits of the contentions of the petitioner have also been looked into by the Chief General Manager. This is evident from Exhibit P11. The following portion of Exhibit P11 reads as follows: “I have carefully gone through the various pleadings and arguments of the petitioner made in his Exhibit P5 representation, his argument note and submissions made on the day of personal hearing on 22.01.2008 and do not find any merit in them warranting any intervention in the decision taken by the reviewing authority and the Appellate Authority. After evaluating the facts of the case on hand, I find that the petitioner was given sufficient opportunity for overcoming the discrepancies and to improve the work and conduct before making the adverse entries in his confidential records for the year 2005-06 and 2006-07. For the foregoing reasons, I find no merits in the Exhibit P5 representation made by Sri.Salim Babu P.K, the petitioner, and also hold that the Exhibit P4 oder passed by the General Manager, Telecom, Alappuha being the appellate authority in this case, is legal and valid as the same is within his full competency and jurisdiction empowered by the various provisions prescribed in the relevant rules on the subject matter.” W.P ( C) No. 6850 of 2008 5 7. It is then contended that there is no proper consideration by the appellate authority or by the Chief General Manager. The scope of interference with the assessment of the petitioner’s performance and possibly the adverse remarks consequent thereupon, in proceedings under Article 226 of the Constitution would be extremely narrow. After all, this Court cannot substitute its assessment for the one made by the petitioner’s superior. The only area where interference could be made is where there is violation of the principles of natural justice or orders are passed by an incompetent authority. Statutory infraction as such is not a ground available in this case because adverse remarks in confidential reports and expunging of the same is not regulated by statutory provisions. Going by the limited grounds available, I do not find any reasons to interfere with Exhibit P4 or Exhibit P11. The writ petition is bereft of merit and hence dismissed. (V.GIRI, JUDGE) ma W.P ( C) No. 6850 of 2008 6 K.THANKAPPAN,J CRL.A. NO.92 OF 1999 ORDER W.P ( C) No. 6850 of 2008 7 25th May, 2007 Common issues are raised for consideration in all these writ petitions. Reference is made to the facts in Writ Petition No.4562/2008 for the sake of convenience.