Bombay High Court
Ganeshprasad Mishra vs The Maharashtra State Elect.Brd. ... on 11 January, 2018
Bench: B.P. Dharmadhikari
1 wp3332.02
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.3332 OF 2002
Ganeshprasad Mishra, aged about
57 years, occupation : service,
resident of Nagpur. ... Petitioner
- Versus -
1) The Maharashtra State Electricity
Board, through its Superintending
Engineer (Rural), Nagpur.
2) The Executive Engineer,
Operation and Maintenance, M.S.E.B.
Division No.2, Nagpur. ... Respondents
-----------------
Shri K.S. Narwade, Advocate for petitioner.
Shri R.E. Moharir, Advocate for respondents.
----------------
CORAM : B.P. DHARMADHIKARI AND
MRS. SWAPNA JOSHI, JJ.
DATED : JANUARY 11, 2018
ORAL JUDGMENT (PER B.P. DHARMADHIKARI, J.) :
Heard Adv. Narwade for petitioner and Adv. Moharir
for respondents.
2 wp3332.02
2) Admittedly, second benefit as per G.O. 74 was due to
petitioner on 31/5/2001 and it has been declined. The reason
is that he did not satisfy the norms. The norms are scoring
minimum 18 marks in preceding six years on the basis of
grading in confidential reports.
3) The petitioner has retired on superannuation on
31/3/2002. It appears that his ineligibility for second benefit
came to be communicated to him thereafter on 20/6/2002.
His employer has informed that his case was put up before
competent Authority on 23/5/2002 and after considering
confidential service records, Committee has found him not
qualified.
4) Adv. Narwade has placed reliance on the judgment of
Hon'ble Apex Court in the case of Sukhdev Singh vs. Union of
India and others {(2013) 9 SCC 566} to urge that
uncommunicated adverse remarks cannot be used to the
3 wp3332.02
prejudice of petitioner. To substantiate this submission, he has
pointed out that vide communication dated 4/1/2002, adverse
remarks for the year 2000-01 were communicated to the
petitioner and petitioner got that letter on 4/3/2002, i.e. hardly
three weeks before his superannuation. The adverse remarks
for the years 1997-98, 1998-99 and 1999-2000 were all sent by
three different communications of same date, i.e. 4/4/2002.
This is after superannuation of the petitioner. Submission is
thus that petitioner did not get even opportunity to make
representation against those adverse remarks while in service.
5) Adv. Narwade submits that purpose of
communicating adverse remarks is to enable employee to
improve. Timely communication is, therefore, essential and if a
representation is made, the representation also needs to be
decided before such adverse remarks are considered against the
employee. According to him, as all these facets are breached in
the present matter, very purpose of communicating adverse
remarks is lost. Denial of second benefit from 31/5/2001 to
4 wp3332.02
petitioner is, therefore, unsustainable.
6) Adv. Moharir for respondents submits that in the writ
petition, there is no challenge raised on this ground. Belated
communication of adverse remarks has to be pleaded as a
matter of fact and thereafter respondents would get opportunity
to bring on record necessary material or justification. He
further submits that prejudice, if any caused by such belated
communication should also have been made a ground of
challenge and as that has not been done, again opportunity to
explain its stand is declined to employer.
7) Adv. Moharir points out that against the adverse
remarks for the year 2000-01 communicated vide
communication dated 4/1/2002, a representation was made by
petitioner vide Annexure "C" on 6/3/2002. Against other
adverse remarks, representation has been made by him on
8/7/2002. The said representations were considered by
competent Authority and on 6/8/2002 representation against
5 wp3332.02
adverse remarks for the year 2000-01 came to be rejected.
8) Adv. Moharir further submits that after considering
the service records, as petitioner did not fulfill the requisite
norms, he could not be given benefit of G.O. 74. He also points
out that there are no allegations of malafides against employer
in the matter.
9) After hearing respective Counsel for the parties, we
find that though the communication of adverse remarks is not
within time, the policy decision by which such communication is
governed has not been pointed out to this Court by the
petitioner. The petitioner has also not expressly raised any
ground alleging communications to be belated or then pointing
out the illegality, which has crept in because of its use (as
alleged).
10) The aforesaid judgment of Hon'ble Apex Court no
doubt supports contentions raised by Adv. Narwade, however,
6 wp3332.02
unless and until facts are properly put on record and
respondents are given opportunity to explain those facts, we
cannot apply that judgment. Here, as necessary facts are not
on record and in any case respondents have also not been given
opportunity to put their explanation in this respect on record,
we find that no case is made out warranting interference in the
writ jurisdiction. The petition is, therefore, dismissed. Rule is
discharged. No costs.
JUDGE JUDGE
khj
