Suresh Yashwant Bhautkar vs The M.D. M.S.E.D.C.L. Mumbai And ...
2017 Latest Caselaw 5506 Bom

                                                        1                      j-wp-588-10.odt

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR

                          WRIT PETITION NO.588 OF 2010

 Suresh Yashwant Bhautkar,
 Occu. Service, R/o 43,
 Jethwan Society, Khamla,
 Nagpur - 440 025.                                                ..... PETITIONER

                                 ...V E R S U S...

 1. The Managing Director,
    Maharashtra State Electricity
    Distribution Company Ltd.,
    Prakashgad, 6th Floor,
    Anant Kanekar Marg,
    Station Road, Bandra (E),
    Mumbai.

 2. The Deputy Manager (P.A.Cell),
    Maharashtra State Electricity
    Distribution Company Ltd.,
    Prakashgad, Ground Floor,
    Anant Kanekar Marg,
    Station Road, Bandra (E),
    Mumbai.

 3. The Chief Engineer,
    Maharashtra State Electricity
    Distribution Company Ltd.,
    Nagpur Zone, Nagpur.

 4. Chief Engineer (Stores),
    Material Management Cell,
    1st Floor, Prakashgad, 
    Bandra (E), Mumbai.                                           ... RESPONDENTS

 -------------------------------------------------------------------------------------------
 Shri M. R. Pillai, Advocate for the petitioner.
 Shri A. D. Mohgaonkar, Advocate for the respondent No.3.
 -------------------------------------------------------------------------------------------
                                  CORAM:-    
                                             SMT. VASANTI  A  NAIK &
                                                 ARUN D. UPADHYE, JJ.

DATED :-

03/08/2017.

2 j-wp-588-10.odt

ORAL JUDGMENT : (Per Smt. Vasanti A Naik, J.)

By this writ petition, the petitioner seeks a direction

against the respondents to expunge the adverse remarks for the year

2005-2006 as also uncommunicated adverse remarks for the years

2007-2008 and 2008-2009.

The petitioner was appointed as a junior engineer in the

respondent-company in the year 1978. The petitioner belongs to the

Scheduled Castes. The petitioner was promoted to the post of deputy

engineer in the year 2003. According to the petitioner, the petitioner

was eligible for promotion to the post of executive engineer in the year

2009. It is stated that instead of considering the case of the petitioner

for promotion from the Scheduled Castes category, the respondent-

company promoted the deputy engineers that were junior to the

petitioner. It is the case of the petitioner that the adverse remarks for

the years 2005-2006 were communicated to the petitioner belatedly

and though the petitioner had made a representation for expunging the

said remarks, the respondent-company had not decided the same till the

writ petition was filed. Since in 2009 promotion to the posts of

executive engineers were effected on two occasions, the petitioner has

filed the present petition for a direction against the respondent-

company to consider the claim of the petitioner for promotion by

3 j-wp-588-10.odt

expunging the remarks for the years 2007-2008 and 2008-2009. It is

stated on behalf of the petitioner that the petitioner is the only deputy

engineer in the scheduled castes category, who is not promoted to the

post of executive engineer by the respondent-company for the reasons

best to known to it.

Shri Mohgaonkar, the learned counsel for the

respondent-company submitted that the representation made by the

petitioner against the adverse entries for the year 2005-2006 was

decided and decision on the said representation was communicated to

the office where the petitioner was working and also to the head office.

It is however fairly admitted that the remarks for the year 2007-2008

and thereafter were not communicated to the petitioner.

Without deciding the question whether the

representation was decided before the filing of the petition or not, it

would be necessary to decide the petition as the representation of the

petitioner is stated to have been rejected and admittedly the remarks for

the year 2007-2008 were not communicated to the petitioner. The

Hon'ble Supreme Court has laid down in the judgment, reported in

2008 (8) SCC 725 that it would be necessary for the employer to

communicate every remark in the confidential reports, be it an adverse

entry or "good" entry or "very good" entry, so that the employee could

make a representation against the remarks. In the reported decision,

since the entries in the confidential reports were not communicated to

4 j-wp-588-10.odt

the appellant before the Hon'ble Supreme Court, it was directed that the

entries be communicated to the appellant so that he could make a

representation, if he so chooses, against the entry within two months.

The Court further directed that if the entry of the appellant is upgraded,

the appellant should be considered for promotion retrospectively by the

departmental promotion committee, within a time frame. Certain other

ancillary relief was also granted by the Hon'ble Supreme Court to the

appellant. The principle of law laid down in the judgment reported in

2008 (8) SCC 725 was reiterated in the judgment, reported in AIR

2013 Supreme Court 2741 and it was observed that every entry in the

annual confidential reports, be it a "poor", "fair", "average" 'good" 'very

good" entry must be communicated to the employee within a

reasonable period. Since in this case, the entries of the years 2007-2008

and 2008-2009 were not communicated to the petitioner, it would be

necessary to grant an opportunity to the petitioner to make a

representation against the adverse entries for the said period within a

time frame so that the respondent-company could decide the

representation and if the remarks are expunged, the case of the

petitioner could be considered for promotion to the post of executive

engineer w.e.f. 2009.

Hence in view of the law laid down by the Hon'ble

Supreme Court in the aforesaid judgments, the writ petition is partly

allowed. The petitioner is permitted to make a representation against

5 j-wp-588-10.odt

the adverse entries for the year 2007-2008 and 2008-2009 within one

month. If the representation is so made, the respondent-company is

directed to decide the same within two months and convey the decision

to the petitioner within the same time. If the adverse remarks are

expunged, the claim of the petitioner should be considered for

promotion from the year 2009 by constituting a departmental

promotion committee for considering the case of the petitioner.

Rule is made absolute in the aforesaid terms with no

order as to costs.

                      JUDGE                                     JUDGE




 Choulwar