Shri Tapesh Datta vs The Chairman, Indian Oil ...
2004 Latest Caselaw 573 Del

ORDER

Pradeep Nandrajog, J.

1. The present order disposes of CM.No.1485/2004 filed by Indian Oil Corporation under Section 123, 124 and 162 of the Evidence Act read with Section 151 CPC.

2.Backdrop of the application is that the petitioner filed the present writ petition praying therein that adverse entries in his ACRs for the years 1989, 1990, 1991, 1992, 1993, 1994, 1995, 1996, 1997, 1998 and 1999 be quashed and review DPC be convened with a direction that petitioner's promotion be re-considered by the review DPC ignoring the adverse comments and the down graded entries in the petitioners ACRs.

3. The grievance of the petitioner is that large numbers of officers junior to him have superceeded him. No adverse remarks have been communicated to him and this is evidence of the fact that there is no adverse entry in his ACRs. It is stated in the petition that the petitioner is clueless to understand as to on what basis, he is being superceeded. It is alleged in the petition (refer para 5) that the Indian Oil Corporation indulges in practice of obtaining blank ACR form signed from the concerned officials and thereafter, the HR personally construct the same. It is further the petitioner's grievance that he comes from the engineering discipline and, therefore, his assessment by the people from the filed of accounts is arbitrary. Petitioner lleges that he had earlier filed a writ petition being WP(C) No.5201/97 which was disposed of vide judgment and order dated 26.5.2000. Directions were issued that review DPC be held and petitioner be considered for promotion in light of the observations made in the decision. Petitioner alleges that vide letter dated 15.3.2001, it was communicated to him that review DPC did not recommend his promotion from Grade-F to Grade-G. Petitioner alleges (refer para 11 of the writ petition) that he intendd to move an application in the writ petition filed by him being WP(C) 5201/97. For this, he inspected the file of the writ petition on 21.4.2001. He found, in the Court record, recording of his ACRs for the period 1989 to 1998. From the recording of the ACRs, which was submitted by the Indian Oil Corporation and was in the file of WP(C) No.5201/97, petitioner alleges that he learnt that he was down graded for the years 1992, 1996 and 1998 but the same was not communicated to him. Petitioner also sates that adverse entries have been made in the ACRs which were not communicated to him.

4. In para 13 of the petition, petitioner alleges that ACR proforma requires appraisal to discuss key performance areas with the appraisee. Petitioner alleges ( refer para 13 of the writ petition) that for the year 1989 and 1990 the said procedure was followed but never thereafter. In para 14 of the petition, petitioner alleges that guidelines provide that the ACR would be reviewed by a Reviewing Officer and thereafter countersigned by the counter signing authority. The petitioner alleges that his ACRs have been reviewed by two persons instead of one. Petitioner alleges (refer para 14 of the writ petition) that appraisal by the second reviewing officer would create a bias in the mind of the countersigning authority as it would be coloured by the fact that two officers have concurrently rated the petitioner.

5. In para 15 of the writ petition, petitioner has made a grievance that the countersigning officer is obliged to give reasons why he does not agree with the reviewing officer and is required to communicate the same to the appraisee.

6. In para 16 of the writ petition, petitioner alleges that countersigning authority has not put the petitioner to notice before down grading the rating of the petitioner.

7. In para 17 of the writ petition, petitioner lays a grievance to his ACR ratings for the year 1992. In para 19 of the writ petition, petitioner lists out the procedure to be followed while considering the ACRs at the DPC.

8. In paras 20 to 22 of the writ petition, petitioner has laid a grievance to the recording of his ACRs by down grading the petitioner for the years 1994, 1995 and 1996. It is alleged that respondent No. 2 had no familiarity with the working of the petitioner for the year 1995 and for the year 1996, the down grading was biased. It is alleged that the down grading was not communicated to the petitioner.

9. While considering the case of the petitioner, on 22.4.2003 a learned Single Judge of this Court directed the Indian Oil Corporation to produce the original minutes of the DPC held in 1992 and the ACRs of the petitioner as well as others who were considered by the said DPC. Record of the review DPC was also directed to be produced.

10. After hearing part arguments, on 3.9.2003, following order was passed :-

Mr. V.N. Koura for the respondents

CW.No.5189/2001

Let the precis of the ACRs of the petitioner for the relevant years be placed on record with copy to the petitioner before the date fixed.

From the perusal of the original minutes of the Review Department Promotion Committee, which was held pursuant to the orders passed by this Court on 19.2.2001, this Court would further like to see the ACRs of B.K. Mittal for the year 1992, when the etitioner was denied promotion. ACRs for the year 1993 of K.J. Gyanchandani and B.D. Soni, ACRs for the year 1994 of S.C. Bose, ACRs for the year 1995 of M.N. Anand, T.Bandopadaya, ACRs for the year 1997 of V.K. Aggarwal, Thomas Antony and Satish Kumar ACRs for the year 1998 of V.K.Rajan, S.R.Bhaskar, A.K.Jha, R.S.Shree and V.S.Kokde and ACRs for the year 1999 of Gopalkrishan and D.Mohan, ACRs for the year 2000 of Dinkar Pandit, Amit Tandon and A.Sengupta be brought in Court on the date fixed.

It seems that from 1995, a new format of evaluation of ACRs has been taken into consideration and on this score incumbents have been graded as 'high', 'Average', and 'Low' for potential. Let the records pertaining to on what basis this new format has been added in the ACRs, be brought in Court on the date fixed.

Renotify on 29.10.2003.

Copy of this order be given dusty to counsel for the respondent.

sd/-

11. Order dated 2.9.2003 would reveal that the respondent was directed to place on record the precis of the ACRs of the petitioner. On the next date of hearing i.e. 29.10.2003, following order was passed :-

Present : Ms.K.Iyer for the petitioner with petitioner in person.

Mr.V.N.Kaura with Ms.Paramjit Beniwal for the respondent.

CW.No.5189/2001

Ms.K.Iyer, counsel for the petitioner says that she is seeking discharge as the petitioner would like to argue the matter itself. On the oral request of counsel for the petitioner, she is discharged from appearing in the matter.

Let petitioner be given his relevant ACRs so as to meet his case within two weeks.

Renotify on 17.12.2003.

sd/-

12. It may be noted that there was neither an application nor does the order dated 29.10.2003 reveal that this court considered the matter whether petitioner should be supplied his ACRs. On noticing that the order dated 29.10.2003 directs that the petitioner be supplied his ACRs, Indian Oil Corporation moved an application being CM.No.14030/03. In the said application, it was stated by the Indian Oil Corporation that there is a typing error in the order dated 31.10.2003 inasmuch as, what was dictated in the Court was: "let petitioner be given precis of his ACRs so as to meet his case within two weeks". The application was listed before me on 17.12.2003. I posted it before the learned Judge who had passed the order dated 29.10.2003. Vid order dated 9.1.2004, CM.No.14030/2003 was dismissed. Order dated 9.1.2004 reads as under :

Mr.V.N.Kaura with Ms.Paramjit Beniwal for the respondent.

CM.14030/2003 in WP(C)5189/2001

There is no need for any correction in the order dated 29.10.2003.

Dismissed.

WP(C) No.5189/2001

List this matter before appropriate Bench according to Roster, on 16.2.2004.

sd/-

13. The present application came to be filed in the circumstances aforesaid. It is prayed in the application that the respondent claims privilege on disclosure to the petitioner's ACRs for the year 1989 to 1998. It is pleaded in the application as under :

courts are highly privileged and confidential because they contain independent, frank, honest, unbiased, continuous and objective opinions and assessments of the quality of work of the petitioner by his superiors made in strict confidence without far of rancour or adverse threat by the assessed. Consequently, unless it is ensured that the remarks which the Reporting Officer or the Reviewing Officer gives will be treated as confidential and not exposed to scrutiny by the assessed, the Reporing Officer or the Reviewing Officers may not be able to express their views freely, frankly and fearlessly which they would otherwise do if the Confidential Reports are treated as confidential and privileged. These documents are unpublished official records relating to the affairs of the Public Sector Undertakings which are "State" within the meaning of Article 12 of the Constitution and their disclosure will cause injury to public interest for the reasons mentioned herein above.

7(a)In view of the facts and circumstances as set out above, in case the respondents are not allowed to claim privilege, so far as ACRs of its officers are concerned, it could cause injury and harm to the respondent organisation and its functioning and consequently to the public interest.

(b)It is respectfully submitted that in any event in the present case the cause of justice would not be served in any manner by disclosing the full Annual Confidential Reports to the petitioner since the petitioner is already aware of the relevant

14. Petitioner opposed the application by alleging that the order dated 9.1.2004 concludes the issue. Order dated 29.10.2003 has attained finality. Respondent is obliged to supply to the petitioner his ACRs.

15. At the hearing, Shri Raju Ramchandran, learned Additional Solicitor General stated that the prayer of the respondent is predicated less on the ground of privilege and that the applicant invokes Section 124 of the Indian Evidence Act rather Section 123. Counsel stated that the ACRs can hardly be said to be relating to the affairs of the State. He contended that claim of the respondent is based on confidentiality.

16. Petitioner opposes the application and relied upon the Constitution Bench judgment of the Supreme Court in the celebrated judgment S.P. Gupta's case reported as .

17. Issue of privilege was considered by the Constitution Bench of the Supreme Court in S.P. Gupta's case. The document in respect of which privilege was claimed was communication between the Chief Justice of the High Court, Chief Justice of Supreme Court of India and the Government of India pertaining to confirmation of two additional Judges of this Court. Petitioner relied upon the observations at pages 242 and page 627 of the said judgment and contended that the claim of immunity could be justified only if it was held that disclosure of the document would be injurious to public health. Petitioner relied upon the observations that merely because disclosure would adversely affect the department or would invite public criticism was no ground to deny disclosure. The sole consideration must be whether the disclosure of the documents would be detrimental to public interest.

18. For the purpose of the present case, I need no delve in the issue of disclosure and privilege, for the law on the subject is varied. Decision in S.P. Gupta's case would reveal that the Hon'ble Judges rendering their opinion have dealt with this issue in over 150 pages. In a nut shell, ratio of the decision in S.P. Gupta's case being that issue pertaining to privilege and confidentiality must be dealt with by considering whether the claim was based on class privilege or it was based on the nature of the contents of the document. Different considerations would come into the decision where a claim of class privilege was based and different issues would come into the decision whether a claim was based on the nature of the contents of the document.

19. How for, would confidentiality be a ground for claiming privilege in respect of a document was dealt with. Ratio of the decision being that apart from the relevance it had to be decided whether disclosure was necessary for a fair disposal of the proceedings and if the Court was of the opinion that for fair disposal of the proceedings, document was necessary, then issue of confidentiality had to be considered. It was held that while taking a decision on confidentiality, the Court had to weigh public interest which would be affected if the document was brought on record viz-a-viz the right of a litigant to get justice. It was held that this balancing act had to be performed by the Court. It was held that if the document is necessary for a fair disposal of the case, it must be produced notwithstanding its confidentiality. Following observations of Lord Scarman in the decision reported as 1980 AC 1028, Science Research Council Vs. NASSE were noted by the Supreme Court :-

20. Petitioner has placed on record the proforma of ACR form which has to be fill up. Grievance of the petitioner pertaining to the recording of his ACR have been noted by me above.

21. The ACR forms which have to be fill up would reveal that it commences with the self-assessment by the appraisee recorded in the ACR. Based thereon the appraiser's comments are recorded. This is known to the appraisee as the appraisee signs this part of the ACR form. It is followed by recording of the counseling where the appraiser records the areas of improvement followed by the appraisee's response. Here again, the ACR is signed by the appraisee. After this process is completed, the career profile is filled up. It is again signed by the appraisee. It is followed by recording of the significant contributions of the appraisee. It is again signed by the appraisee. Thereafter, the assessment of the critical attributes under the rades "high", "adequate" and "low" are filled. Here again the appraisee signs the same. Thereafter, last two pages are filled with the comments by the Reporting Officer, Reviewing Officer, DGM/GM (HR) and the Countersigning Officer. Comments of the Reporting Officer, Reviewing Officer and the Countersigning Officer are entered. This part of the ACR proforma consists of two pages and is marked as confidential.

22. The proforma of the ACR form which has been filed by the petitioner would reveal that in the last two pages of the proforma which are confidential, the Reporting officer, Reviewing Officer and the Countersigning Officer, record with frankness their comments pertaining to the officer.

23. Public interest demands that discipline is maintained in a organisation. Superior officers can enforce discipline where work ethos in an organisation is vitiated by disclosure of their comments. If a junior officer is privy to inter-se notes of the senior officers, frankness in recording of the comments may be hampered.

24. Whether the petitioner be provided the confidential part of the ACRs is the matter in issue. I have noted the grievance of the petitioner as laid in the petition. As noted, the grievance of the petitioner relates to mode and manner in which his ACRs have been recorded. The petitioner has been a privy to the recording of his ACRs up to page No. 11. Petitioner has, therefore, the benefit of knowing what his appraiser and Reviewing Officer have opined qua him. Petitioner also had the opportun evant, minus the comments.

25.The application is partially allowed, in that, the respondent is directed to supply to the petitioner his ACRs for the year 1989, 1990, 1991, 1992, 1993, 1994, 1995, 1996, 1997, 1998 and 1999 after blanking out the comments of the Reporting Officer, Review Officer, DGM/GM(HR) and the Countersigning Officer in the confidential part of the ACRs.