Civil Writ Petition No. 9346 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 9346 of 1993 Date of decision: 10.02.2011 S.S. Ahluwalia ...Petitioner Versus New Bank of India etc. ...Respondent CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. Gurpreet Singh, Advocate, for the petitioner. Mr. P.K. Mutneja, Advocate for the respondents. RANJIT SINGH J. The petitioner, who was working as Accountant at New Bank of India, Sector 37D, Chandigarh has filed this writ petition for quashing adverse remarks recorded in his confidential report in the year 1989-90. He would also pray for direction to the respondents to reconsider his case for promotion after expunging this annual confidential report and the adverse remarks contained therein and for grant of all consequential benefits in this regard. Initially, the New Bank of India and the Regional Manager of New Bank of India alongwith Executive Director were impleaded as respondents in this writ petition. Since this New bank of India was taken over by Punjab National bank, the same Bank was substituted as respondent No. 1 and General manager of Punjab National Bank, Sector 17 B Chandigarh was impleaded as respondent No. 2. Civil Writ Petition No. 9346 of 1993 2 The petitioner being a Commerce graduate is qualified Chartered Accountant. The petitioner joined the New Bank of India in 1978. Somewhere in 1989-90, the petitioner was not keeping good health and had accordingly asked for medical leave. As per the petitioner, the leave was duly sanctioned but this fact is seriously disputed by the respondents. The petitioner would aver that he had never worked even for one week during the period 1989-90 but despite this the assessment was made in his annual confidential report for this period, where he was awarded 'E' rating. The service of the employees of New Bank of India was governed by the New Bank of India Officers Service Regulations, 1982. Reference to which is made in the writ petition. The promotion policy followed by the said Bank is also referred to in the writ petition. No detailed reference to the same need to be made as the writ is being disposed of on short ground of violation of the part of policy. Though the petitioner has averred that he was given 'E' grade in the report for the year 1989-90 but as per the reply filed, the petitioner was given 'D' grade which is equivalent to 25% marks. He, however, was awarded unsatisfactory performance. Counsel for the petitioner would make reference to the promotion policy to say that any grading less then 'C' which is average was required to be communicated to the employee concerned. Accordingly, it is not in serious dispute before me that the assessment of the petitioner in the annual confidential report for the year 1989-90 being less than 'C' grading was required to be communicated to the petitioner. It is also not a matter of serious dispute that the said grading was never communicated to the petitioner and he learnt about it only Civil Writ Petition No. 9346 of 1993 3 subsequently. The petitioner had filed an appeal against the assessment made, which was not entertained on the ground that the same was filed after expiry of 45 days. Thus, the appeal was not decided on merit. In this factual background, the counsel for the petitioner has made two fold submissions. The counsel would first plead that the uncommunicated below average report containing adverse remarks could not have been validly taken into consideration for further advancement of his service career. Concededly, the petitioner was considered for next promotion on the basis of this report and primarily he could not make a grade with said reports for the year 1989-90 standing against him. Further the counsel contends that this report could not at all have been initiated since the petitioner had not worked even for one week and as such, no assessment could not have been made in this annual confidential report. As per the respondents, the petitioner had remained absent but was dealt with lightly. Counsel for the respondents submits that more appropriately the petitioner should have been proceeded against and punished instead of just being assessed in his annual confidential report. As per the counsel, this did not cause any prejudice to the petitioner despite his long absence. Once the respondents had not taken any action, now that issue may not arise. However, the issue whether the petitioner could have been assessed in the light of what is the factual position or if the adverse assessment in the annual confidential report of the petitioner could have been taken into consideration without communicating the same to him would arise in this case. Civil Writ Petition No. 9346 of 1993 4 Concededly, the communication of the report which was less than 'C' (i.e. average) was necessary even as per terms and instructions of the Bank. The same having not been done. The adverse report could not have been taken into consideration to consider the fitness of the petitioner for further promotion. This being the position, the petitioner apparently has not been treated fairly while being considered for promotion. The respondents are also not fully justified in not considering the appeal filed by the petitioner against these adverse remarks. The appeal was not considered and decided on merit only on the ground that the same was not filed within a period of limitation, which was 45 days. The petitioner could be held bound to file an appeal within time bound period if the report had been communicated to him. Once concededly the report was not communicated to the petitioner, the requirement of asking him to file appeal against the same within 45 days could not be fairly factually insisted upon. In view of this, the only proper course would be to remit the case back to the respondents to consider the appeal filed by the petitioner and to pass an appropriate order in accordance with law on merits. The petitioner would be at liberty to raise all the pleas made in the appeal including that the assessment in the impugned ACP could not have been made, as he had not performed any duties during the relevant period. The petitioner's claim is that he had applied for medical leave whereas the respondents would maintain that he had been absent. It would be for the respondents to consider this fact whether the assessment for the relevant period could have been made in respect of the petitioner or not. If the petitioner succeeds in his Civil Writ Petition No. 9346 of 1993 5 appeal and this report is interfered in any manner, the respondents would consider the case of the petitioner for promotion by excluding the same report from consideration. If the appeal is rejected, then the process of reconsideration may not be needed. This should not be taken to mean that this Court has expressed any opinion in regard to the validity of this report. It would in the discretion of the respondents to consider the case of the petitioner in accordance with law and pass any appropriate order. If the appeal filed by the petitioner is decided against him, he would be at liberty to raise the challenge against the order so passed in accordance with law. The writ petition is, accordingly, disposed of. February 10, 2011 (RANJIT SINGH ) rts JUDGE