Delhi High Court
M.B.Saxena vs Delhi Vidyut Board on 9 May, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 425/2002
% 9th May, 2013
M.B.SAXENA ......Petitioner
Through: Mr. Sarvesh Bisaria, Adv.
VERSUS
DELHI VIDYUT BOARD ... Respondent
Through: Mr. Vibhav Misra, Adv. for Ms. Avnish
Ahlawat, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This writ petition is filed by the petitioner Sh. M.B.Saxena for
quashing of the meeting of the Minutes of the Departmental Promotion Committee
(DPC) dated 20.11.1998 and for promoting the petitioner as an Assistant Security
Officer w.e.f 25.1.1968.
2. Various persons including the petitioner were put in a merit list of
appointment as Ward Inspector/Gate Keeper pursuant to their being selected in
terms of a notice dated 9.5.1962 issued by the erstwhile Municipal Corporation of
Delhi (Delhi Electric Supply Undertaking). Petitioner was placed at serial no.1 in
the list and one Sh. Rajinder Sharma was put at serial no.6 in the list. Another
WPC-425/2002 Page 1 of 11
person Mr. P.C.Chaturvedi was put at serial no. 3 in the list. There were disputes
with respect to inter se seniority between the petitioner and Sh. Rajinder Sharma
who was put at serial no. 6 in the merit list. An Award was passed by the Labour
Court in favour of the petitioner and which Award was upheld by a learned Single
Judge of this Court in CW No. 1624/1989 in case titled as Municipal Corporation
of Delhi Vs. M.B.Saxena & Ors. decided on 11.3.1998. In spite of upholding the
order of the Labour Court, this Court however, gave the following directions:-
"9. The Labour Court had taken into account all the relevant facts and had
kept in mind the law applicable to the facts of the case. I do not find any error
apparent on the face of record and as laid down by the Supeme Court, the High
Court cannot interfere with the adjudication made by the Industrial Tribunal
unless the infirmities are so serious that would affect the parties before the
court. However, having regard to the fact that the award of the Labour Court, if
implemented in its full, vigour, would unsettle the promotion of the second
respondent and the third respondent also would be deprived of his rights, in the
interest of justice, the rights of respondents 1 and 3 for further promotion have
to be considered as on the 25th of January, 1968 because that was the date on
which the second respondent was promoted, a committee shall be formed by the
petitioner for the purpose of considering the suitability of respondents 1 & 3 and
appropriate orders shall be passed without being influenced by what has
happened till date and they shall be considered without any bias or prejudice.
On the DPC finding respondents 1 & 3 being fit for promotion, they shall be
given consequential notional benefits. The promotion given to the second
respondent shall remain unchanged.
10. The writ petition is ordered accordingly.
11. The petitioner shall constitute a committee and pass appropriate orders
on or before the 31st of July, 1998. It is made very clear that on the DPC finding
respondents 1 & 3 fit for promotion, they shall be given their salary and
consequential benefits and this shall be also taken into account while calculating
the retrial benefits of the respondents 1 & 3."
3. Accordingly, in terms of the directions of the learned Single Judge as per the
WPC-425/2002 Page 2 of 11
judgment dated 11.3.1998, DPC was to be held for considering the promotion of
the petitioner and Sh. P.C.Chaturvedi.
4. The case of the petitioner is that the respondent did not constitute the DPC,
thereupon petitioner approached this Court in a contempt petition being CCP No.
361/1998. The contempt petition was dismissed as barred by time, however, in the
contempt petition, the respondent took up a stand that DPC was in fact constituted
and this DPC in terms of its Minutes of Meeting dated 20.11.1998 did not find
both the petitioner and Sh. P.C.Chaturvedi fit for promotion. I am informed that
Mr. P.C.Chaturvedi has not filed any legal proceedings challenging the decision
taken by the DPC on 20.11.1998.
5. Before I refer to the arguments urged on behalf of the petitioner, let me
reproduce the Minutes of DPC Meeting held on 20.11.1998. The same reads as
under:-
MINUTES OF THE MEETING OF THE DEPARTMENTAL PROMOTION
COMMITTEE HELD ON 20.11.1998 AT 4.00 P.M. IN THE CHAMBER OF
ADDL. G.M.(ADMN.)
Present:
1. Sh. N.P.Singh -Chairman
Addl. General Manager (A)
2. Sh. N.K.Jain -Member
Addl. C.P.O.(P.III)
3. Sh. Mohinder Paul -Member
Addl. CPC (E&P)/Liaison Officer
4. Sh. B.Subhash, -Member
WPC-425/2002 Page 3 of 11
Administrative Officer (P.IV)
Item:
To consider the promotion of two officials S/Sh. M.B.Saxena and
P.C.Chaturvedi to the post of Asstt. Security Officer in the scale of pay of Rs.
210-380 (revised from time to time) as on 25.1.68 pursuant to Hon'ble High
Court's order dated 11.3.98 to be implemented by 30.11.98.
In pursuance of Hon'ble High Court's Order dated 11.3.98 in CWP No.
1624/89, the DPC assessed the C.R.Dossiers of the officials under
consideration as per assessment sheet (annexure).
Having made the assessment on the basis of C.R.Dossiers, as per
annexure, the DPC recommends as under:
Sl. No. Name/E.No. Assessment
1. Sh. M.B.saxena, 11448 NOT FIT
2. Sh. P.C.Chaturvedi, 11450 NOT FIT
SD/-
(N.P.SINGH
ADDL. GENERAL MANAGER (ADMN.)
CHAIRMAN
SD/- SD/-
(N.K.JAIN) (MOHINDER PAUL)
ADDL. C.P.O.(P.III) ADDL. C.P.O.(E&P)
MEMBER LAISON OFFICER
MEMBER
SD/-
(B.SUBHASH)
ADMINISTRATIVE OFFICER (P.IV)
MEMBER
6. Let me also reproduce the ACRs considered by the DPC of the
petitioner for the years ending 31.3.1967, 31.3.1968 and 31.3.1969 and which read
as under:-
ACR:-1
WPC-425/2002 Page 4 of 11
DELHI ELECTRIC SUPPLY UNDERTAKING
(Municipal Corporation of Delhi
**************
No. E/CC/69/750 Date: 26.8.69
MEMORANDUM
Through: Security Officer
Sh. M.B.Saxena is hereby informed that the following remarks have been recorded
in his Confidential Report for the year ending 31st March, 1969 (scratched) 1967.
REMARKS BY THE REPORTING OFFICER:
1. Promptness and accuracy in disposing of work No.
2. Intelligence Keeness and industry: - "Poor"
3. Aptitude for particular type of work:- "Interested in mischief"
4. Skill in drafting :- "Poor"
5. Amenability to discipline :- "Poor"
6. Punctual Attendance :- "Poor"
7. Fitness for promotion :- "Not fit for any
8. Fitness for confirmation in the present scale: "No"
9. Grading: "Poor"
REMARKS BY THE REVIEWING OFFICER
He is therefore, required to show better performance in future.
The receipt of this memo may please be acknowledged on the duplicate of
this letter attached herein.
Sd/-
ASST. PERSONAL OFFICER (E)
CONFIDENTIAL CELL (ESTT.)
DELHI ELECTRIC SUPPLY UNDERTAKING
(Municipal Corporation of Delhi
**************
No. E/CC/69/779 Date: 26.8.69
MEMORANDUM
Through: Security Officer
Sh. M.B.Saxena is hereby informed that the following remarks have been recorded
in his Confidential Report for the year ending 31st March, 1969 (scratched) 1968.
REMARKS BY THE REPORTING OFFICER:
Amenability to discipline: "Poor"
1. Punctual Attendance: "Poor"
2. Fitness for promotion: "No"
3. Fitness for Confirmation in the present grade:- "No"
4. General assessment of good and bad qualities: He is in the habit of
spreading indiscipline
amongst employee
5. Grading :- "Poor"
REMARKS BY THE REVIEWING OFFICER
He is therefore, required to show better performance in future.
The receipt of this memo may please be acknowledged on the duplicate of
this letter attached herein.
Sd/-
ASST. PERSONAL OFFICER (E)
CONFIDENTIAL CELL (ESTT.)
DELHI ELECTRIC SUPPLY UNDERTAKING
(Municipal Corporation of Delhi
**************
No. E/CC/69/1073 Date: 10.10.69
MEMORANDUM
Through: Security Officer
Sh. M.B.Saxena is hereby informed that the following remarks have been recorded
in his Confidential Report for the year ending 31st March, 1969
REMARKS BY THE REPORTING OFFICER:
1. Promptness and accuracy in disposing of work: "Needs Improvement"
2. Relations with fellow Employees:- -do-
3. Amenability to discipline:- -do-
4. Punctual Attendance :- -do-
5. Fitness for confirmation in the present scale: "Not yet"
6. General assessment of good and bad qualities: "Needs Improvement in
his professional work"
REMARKS BY THE REVIEWING OFFICER
He is therefore, required to show better performance in future.
The receipt of this memo may please be acknowledged on the duplicate of
this letter attached herein.
Sd/-
ASST. PERSONAL OFFICER (E)
CONFIDENTIAL CELL (ESTT.)
7. I may note that photocopies of the aforesaid ACRs which have been
filed appear to be carbon copies because the writing appears sometimes in the
typed portion or above the portion where it would have been found in the original
copy as against the carbon copy. Also, I may state that the original records are not
available as per the repeated stands taken at regular times by the respondent/its
predecessor-in-interest. In fact, the counter-affidavit states that possibly vested
interests deliberately destroyed the original record, however, what are those vested
interests are not mentioned because respondent obviously would not be able to
establish the same.
8. Before me, on behalf of the petitioner, following arguments have been
urged to quash the Minutes of DPC Meeting dated 20.11.1998:-
(i) That no DPC was held and which becomes clear from the fact that original
record of DPC dated 20.11.1998 has never been produced.
(ii) The respondent has erred in considering the ACRs of the petitioner because
the only ACRs which could have been considered were that as available on the
date fixed for promotion viz 25.1.1968 but in absence of original ACRs it would
not be said that there were any ACRs which were considered.
(iii) The requirement of promotion was seniority cum fitness, and since relevant
ACRs of 5 years prior have not been considered or the ACRs containing adverse
reports were not pointed out to the petitioner, the same cannot be considered.
9. At the outset, I must state that decision in this case no doubt is given
on the basis of the records, but this case shows that when legal proceedings have to
be decided decades after the actual event, various limitations come in. Obviously,
one such limitation is lack of original record. This I am saying so because this writ
petition with respect to promotion w.e.f 25.1.1968 was filed in 2002 i.e after 34
years. Not only the writ petition is filed after 34 years of the relevant date, it is
coming up for decision after 45 years. I have, therefore, endeavoured to do the
best possible under the circumstances and the record as available.
The first argument is with respect to whether there were no Minutes of DPC
Meeting dated 20.11.1998 and that thus this Court must hold that no DPC meeting
took place. In my opinion, there can be no doubt as to the existence of DPC
because after all the names of as many as four persons are mentioned who
constituted the DPC. It is not possible, in my opinion to get Minutes of DPC
manipulated, that too of the year 1998, and in which DPC the officers are specific
Government Officers. The argument in this regard may sound interesting or
appealing, however, since in a writ proceeding under Article 226 of the
Constitution of India detailed evidence is not led, I am inclined to accept the stand
of the respondent on affidavit that there did take place DPC on 20.11.1998. This is
all the more so because this was the stand of the respondent even in reply to the
contempt proceedings being CCP No. 361/1998 which was initiated by the
petitioner and which was dismissed as barred by time. Absence of original record
cannot be used against the respondent which had no personal interest for
destroying government record especially as the same was against the petitioner and
one Sh. P.C.Chaturvedi. I, therefore, hold that it cannot be argued by the petitioner
that there were no Minutes of Meeting dated 20.11.1998.
10. So far as the second argument urged on behalf of the petitioner that
the DPC has failed to consider all applicable ACRs of five previous years of the
petitioner, I find that the argument is only partially valid. Promotion had to be
considered w.e.f 25.1.1968 and therefore, it was justified for the respondent to
consider the ACRs of the earlier years available viz of 1966-1967 and 1967-1968.
The ACRs of these two years reproduced above reflect very poor picture of the
petitioner. Considering such ACRs, the DPC did not find the petitioner fit to be
promoted to the post of Assistant Security Inspector. Again, I must state that
though it seem to be obliquely argued that even the ACRs are probably fabricated
documents, I refuse to accept this oblique argument urged on behalf of the
petitioner because there appear on the ACRs initials of the officer at the relevant
point of time and also that there exist proper serial nos. to the ACRs. I do not think
fabrication can therefore take place of government record as is sought to be urged
on behalf of the petitioner. Once we take the ACRs as genuine the DPC was
perfectly justified in not considering and holding that the petitioner was not fit for
promotion. The argument that petitioner was never given the ACRs and therefore,
the same cannot be looked into, prima facie is a valid argument in law, but as
already stated above, the writ petition having been filed 34/35 years after the ACRs
were drawn up is coming up for decision after 45 years, there all these aspects do
not permit me to allow challenge to the ACRs at this stage. Further, the original
entity being the Delhi Electric Supply Undertaking which was part of the
Municipal Corporation of Delhi long back ceased to exist, BSES was replaced by
Delhi Vidhut Board (DVB) and which has thereafter been replaced/succeeded by
Delhi Transco Limited. I, therefore, in the peculiar facts of the present case, do not
find that on the ground of non-supply of ACRs to the petitioner, petitioner should
today be allowed to challenge the ACRs of the years 1966-1967 and1967-1968.
For the completion of narration I must state that DPC ought not to have considered
the ACR of the years 1968-1969, however, even if we exclude the said ACR, on
the basis of ACRs of two earlier years DPC was entitled to decide that the
petitioner was not fit for promotion. The argument on behalf of the petitioner that
five years' ACRs should be considered is an argument of desperation because if
after all there are no ACRs of five years, DPC would have to make do with
whatever ACRs were available and since two ACRs were available DPC
considered the ACRs of the years 1966-1967 and 1967-1968. It may be noted that
after all DPC in 1998 was considering record which was no less than twenty two
years and thus some imperfections are bound to creep in but the same cannot be
allowed to change the overall conclusions of the DPC. These arguments urged on
behalf of the petitioner are also rejected.
11. I must state that it is relevant, though not final that another person Sh.
P.C.Chaturvedi who was also rejected by the DPC on 20.11.1998 has not
challenged the decision of DPC, and which possibly must be because there would
have taken place a DPC and both petitioner as well as P.C.Chaturvedi would have
been found unfit for promotion.
12. In view of the above, there is no merit in the petition, which is
accordingly dismissed, leaving the parties to bear their own costs.
MAY 09, 2013 VALMIKI J. MEHTA, J.
ib
