The Oriental Insurance Co. Ltd. v. C. Haridas and Others

IN THE HIGH COURT OF KERALA AT ERNAKULA PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE ANNIE JOHN THURSDAY, THE 8TH DAY OF FEBRUARY 2018 / 19TH MAGHA, 1939 ## **WA.No. 396 of 2014 IN WPC. 36570/2010** AGAINST THE JUDGMENT IN WP(C) 36570/2010 of HIGH COURT OF KERALA DATED 15-11-2013 ## **APPELLANT(S)/3RD RESPONDENT:** THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, ERNAKULAM NORTH, COCHIN-18, REPRESENTED BY ITS REGIONAL MANAGER. BY ADVS.SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI ## **RESPONDENT(S)/PETITIONER:** 1. C. HARIDAS S/O. C.S. CHANDRASEKHARAN NAIR, ASSISTANT, THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, COCHIN-18. 2. P. GIREESH KUMAR, DIVISIONAL OFFICE, THE ORIENTAL INSURANCE CO. LTD., MANJERI-676121. 3. P. SREEKUMAR ASSISTANT, DIVISIONAL OFFICE, THE ORIENTAL INSURANCE COMPANY, CALICUT-678001. 4. P.L. JOSE, ASSISTANT, BRANCH OFFICE, THE ORIENTAL INSURANCE COMPANY, KUNNAMKULAM-680503. 5. SAJINI VARGHESE, ASSISTANT, BRANCH OFFICE, THE ORIENTAL INSURANCE CO. LTD., RANNI-689672. 2 W.A.396/2014. R1 BY ADV. SRI.S.SREEKUMAR (SR.) R1 BY ADV. SRI.P.MARTIN JOSE R1 BY ADV. SRI.P.PRIJITH R1 BY ADV. SRI.THOMAS P.KURUVILLA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## K. SURENDRA MOHAN & ANNIE JOHN, JJ. - - - - - - - - - - - - - - - - - W.A. No. 396 of 2014 - - - - - - - - - - - - - - - - - Dated this the 8[th] day of February, 2018 ## JUDGMENT ## Surendra Mohan, J. This is an appeal by the first respondent in W.P.(C) No. 36570 of 2010 challenging the judgment of the learned Single Judge dated 15.11.2013 allowing the writ petition. The learned Single Judge has set aside the impugned proceedings, Ext.P3, and has directed the conduct of a fresh selection on the basis of which alone, promotion to the respondents are to be given. 2. The respondents are all employees of the appellant. The first respondent was appointed as an Assistant in 1990. Promotion to the post of Senior Assistant was to be made on the basis of Ext.P1 which is the promotion policy of the appellant Company for supervisory, clerical and W.A.396/2014. 2 subordinate staff. As per Clause 14(b), persons who have put in at least three years service in the cadre of Assistant and are qualified as A.I.I.I. or A.C.I.I. or have passed three subjects of the Institute of Actuaries are eligible to be considered for promotion to the cadre of Senior Assistant. As per Clause 14.1 selection shall be made on the basis of seniority, qualifications and work record. As per Ext.P2, all the respondents were found to be eligible for promotion to the cadre of Senior Assistant. The name of the first respondent appears at Sl. No. 1, the total marks awarded to him was 63. As per Clause 16 of Ext.P1, the scheme of weightage for the various criteria of promotion to different cadres has been indicated. The weightage for seniority in the case of a Senior Assistant is 40, for qualifiction - 30 and for work record - 30, making up a total of 100. Clause 17.3 provides that the Confidential Reports for the previous three years would be taken into consideration and they shall be rated by the Promotion Committee as per the Scheme of Rating the W.A.396/2014. 3 Confidential Reports. In the scheme of appraisal, it is stated that average of the three years shall be taken. 3. All the respondents were considered for promotion to the cadre of Senior Assistant, in accordance with the above provisions. Thereafter, Ext.P3 was issued promoting respondents 2 to 5. The first respondent was left out. It was aggrieved by Ext.P3 that, the first respondent had approached this Court by filing W.P.(C) No. 36570 of 2010. It was contended by the first respondent that, the Confidential Reports, on the basis of which his work record was assessed, had not been communicated to him. Since he had not been put on notice regarding the entries in his Confidential Report, it was contended that they should not be relied upon to deny him promotion to the cadre of Senior Assistant. 4. The writ petition was contested by the appellant. A counter affidavit was filed on behalf of respondents 1 to 3 pointing out that, the Confidential Reports had been assessed by the Promotion Committee as per the Scheme of Rating of W.A.396/2014. 4 the Confidential Reports. Since the other candidates had scored 93 marks, they were preferred to the first respondent. The first respondent had scored only a total of 91.76 marks. The learned Single Judge considered the respective contentions, called for the files, and examined the entries in the Confidential Reports of the first respondent for the previous years 2007, 2008 and 2009. It was found that he had obtained the grading of 'outstanding' in many of the parameters, while in others he was graded as 'average' and 'above average'. The learned Single Judge therefore took the view that the omission to communicate the entries in the Confidential Report of the first respondent, had vitiated the selection. Accordingly, Ext.P3 has been set aside and a direction has been issued for the conduct of a fresh selection. Now this appeal. 5. According to the learned Senior Counsel Sri. George Cherian, who appears for the appellant, during the relevant time there was no rule that the entries in the Annual W.A.396/2014. 5 Confidential Reports (ACRs) should be communicated to the employees. There was also no practice in the appellant's organization of communicating such entries. Instead, the entries in the ACRs were reviewed by two superior officers thereby ensuring that, there was fairness in the procedure of assessment of an employee's performance. It is further contended that, in the case of the first respondent, there were no adverse entries and therefore, there was no necessity for communicating any entry in the ACR to him. According to the learned Senior Counsel, as per the 2014 amendment, Rules have been brought into force making provision for communication of entries in the ACRs to the employees. It is also pointed out that, the petitioner has been promoted to the cadre of Senior Assistant in the year 2013. Learned Senior Counsel therefore seeks interference with the judgment appealed against. 6. Adv. P. Prijith appears for the first respondent. According to the learned counsel, in view of the decision of W.A.396/2014. 6 the Apex Court in Dev Dutt v. Union of India ((2008) 8 SCC 725), affirmed by the decision in Sukhdev Singh v. Union of India ((2013) 9 SCC 566), the entries in the ACR of the first respondent ought to have been communicated to him. Had they been communicated, the first respondent would have represented against such entries and sought for correction thereof. Such an opportunity has been denied to the first respondent by not communicating the adverse entries. In view of the above, it is contended that, the learned Single Judge had rightly set aside Ext.P3 and directed the conduct of a fresh selection. 7. Heard. It is clear from the records of this case that, the first respondent was denied promotion to the cadre of Senior Assistant on the basis of an assessment made of his work record. The assessment of the work record has been made on the basis of his grading in his ACRs for the three years preceding the selection. As rightly noticed by the learned Single Judge on a perusal of the relevant files, he has W.A.396/2014. 7 been graded as 'average', 'above average' and 'outstanding', with respect to his personal traits and other parameters that were assessed. Though an assessment as 'average' or 'above average' cannot be termed as an adverse entry in the strict sense, in the context of the grading as 'outstanding' with respect to the other parameters, grading as 'average' and 'above average' are no doubt detrimental to his interests. In the present case, he has also been denied promotion to the cadre of Senior Assistant on the basis of the entries in his ACRs. Had they been communicated to him, he would have got an opportunity to represent against such entries and to have them corrected. Such an opportunity was denied to him. 8. The Apex Court has in Dev Dutt v. Union of India (supra) laid down that every entry in the ACR must be communicated to the employee in order to provide him with an opportunity to represent against the same. To put him on notice regarding the entries in his ACRs would also serve to provide him with an opportunity to improve his performance. W.A.396/2014. 8 Since there was a conflict of judicial opinion with respect to the dictum in Dev Dutt v. Union of India (supra), the matter was referred to a Larger Bench and the issue has been considered in the decision in Sukhdev Singh v. Union of India (supra). A Three Judge Bench of the Apex Court has now affirmed the dictum in Dev Dutt v. Union of India (supra). We also notice that, the decision Dev Dutt (supra) was in the year 2008, while the promotion in the present case was in the year 2009 when the dictum in that decision was holding the field. Therefore, we are of the view that even in the absence of the rules providing for communicating the entries in the ACRs to the employees in compliance with the decision in Dev Dutt (supra), such entries ought to have been communicated. The fact that the first respondent was promoted in the year 2013, does not improve matters for the reason that, he was denied his promotion in the year 2009. We, therefore, find that the learned Single Judge was fully justified in setting aside Ext.P3 and directing a fresh selection to be conducted in accordance W.A.396/2014. 9 with law. Since directions in the said regard have already been issued by the learned Single Judge, we do not find it necessary to issue any further directions. In the result, the writ appeal fails and is accordingly dismissed. Sd/- K. SURENDRA MOHAN JUDGE Sd/ANNIE JOHN JUDGE sb