Subrat Kumar Panigrahi v. Hindustan Petroleum Corporation Limited

7. Accordingly, the learned Single Judge, vide the first order under appeal, dated 28 July 2021, adjudicated on the said challenge.

8. Apart from referring to the judicial authorities on which the appellant placed reliance, the judgment dated 28 July 2021 record the rival contentions, and proceeds to reason thus:

Signing Areas where performance was not in line with targets", the following has been stated:- “The officer could not complete the project (Revamping of ETP) assigned to him during the year due to his lack of involvement and initiatives. Delayed planning for execution had made it to carry over for next year”

7. Mr. Datta states that in fact, the petitioner had not contested any of the parameters of the ACRs, a reference of which has been made above. Mr. Datta has also drawn my attention to page 80, which is an order rejecting the appeal of the petitioner against his performance rating, wherein the Authority, after due application of mind, has rejected the appeal. He has read to me the decision of the Authority on the grievance of the petitioner and decided to retain the performance rating as '3 '. In this regard, I may reproduce the relevant decision of the Authority in the following manner:- “This is in reference to the MERC grievance logged by you and subsequent MERC meeting conducted to address the grievance. In this regard, we wish to inform you that the counter-signing authority has critically reviewed the MERC recommendation, which is based on the inputs received through personal interaction during MERC meeting and review of HRD documents including comments by Reporting Officer, Reviewing Officers and Moderation Committee. Based on the same, it is observed and commented as under: Significant achievements namely; installation of access control and CCTV, HSE reports in portal, etc., are recorded in HRD documents and appropriate comments are recorded by RO/RVO. 2. Assessment of KPIs was reviewed objectively and on overall basis found in order. 3. It is noted that majority of the KPIs were assessed as "Meeting Target". 4. It is noted from HRD document that there are certain key performance areas, were targets were not achieved. For eg. Project on Revamping of ETP. 5. Assessment and feedback by RO was duly acknowledged and accepted by you as per HRD documents. 6. Assigned Rating is commensurate with achievements and within the "system-suggested Rating band", which is based on the assessment of KPIs. 7. Assigned Rating is reviewed considering inter-se performance within the workgroup. In view of the above, detailed review and deliberations on the Signing merit of the case, it is advised that assigned Rating is in order and is "retained".

8. In effect, it is the submission of Mr. Datta that the observations made in the ACR, as sought to be highlighted by learned counsel for the petitioner is totally misleading. It is a case where the petitioner could not able to meet targets of the work assigned to him. It is keeping in view this aspect also, the petitioner has been rated as 'Good'. He also highlight page 30 of the counter affidavit to state as to what process is evolved by the respondents to carry out a performing rating of a particular officer. The relevant paragraph is reproduced as under:-

9. Having heard the learned counsel for the parties, the only issue, which arises for consideration is whether the performance rating of the petitioner as '3' is justified or not. The submission of the learned counsel for the petitioner is that in the ACR, it is the observation of the Authorities that the petitioner has met all the time lines of the work assigned to him and in fact for certain work, he has exceeded the target. In other words, there is no reason for the Authorities to give a performance rating of ‘3’. Such a submission, apparently, may not be correct for the reason that at page 65, which is also part of the ACR, which I have reproduced above, it is noted that the petitioner could not complete the project of revamping of ETP because of which the project had to be carried forward to the next year.

10. That apart, I find that the respondent has also considered in detail, the representation made by the petitioner with proper application of mind, as is clear from the order itself. That apart, I Signing find that there is a very foolproof system for assessing performance of an Officer at different levels.

11. That apart, the plea of the learned counsel for the petitioner of mala fide may not be sustainable as the petitioner neither has made the Reporting Officer/ Reviewing Officer or a higher officer than them who accepts the performance rating as a party in this petition. It is the case of the petitioner that the Reporting Officer and Reviewing Officer have graded him as '3', which rating the petitioner accepts. Hence, there cannot be any mala fide on the part of the Reporting Officer/Reviewing Officer. Even the higher authorities have not been made a party, hence the allegations cannot be gone into.

12. On a specific query to the learned counsel for the petitioner that did the petitioner made an averment in the petition that he has completed ETP project on time, no justifiable answer is forthcoming. In any case, it is the satisfaction of the authority concerned, who actually supervise the work of the Officer, which is relevant. It is the case of the respondents, that assigned rating is reviewed considering inter se performance with the working group and the rating has been retained after deliberations. The scope of interference in the cases of ACR is very limited. In this regard, I deem it appropriate to refer to the judgment of a Division Bench of this Court in the case of Navin Kumar Garg v Union of India[5], wherein in paragraph 9 it was held as under:

2012 SCC OnLine Del 1593 Signing its order dated 01.04.2011 by directing that the representation of the petitioner in this regard be considered by the competent authority. That has been done. The representation has been considered and a speaking order has been passed. The competent authority has decided to maintain the original gradings given to the petitioner. There is no material before us and there can be no material before us which would enable us to take a different view insofar as the gradings are concerned. As regards the procedure to be adopted after the passing of the order of the Tribunal dated 01.04.2011, we are clear that the competent authority, having considered the representation in detail and having passed a speaking order, has complied with the same. " *****

17. In view of my discussion above, I do not see any merit in the writ petition. The same is dismissed.”

9. The circumstances in which the subsequent order dated 6 August 2021, though illustrative of the magnanimity for which the learned Single Judge who has passed the impugned orders is well known, came to be passed, are somewhat disturbing. Despite the specific statement of learned Counsel who had appeared on behalf of the appellant before the learned Single Judge on 28 July 2021, that he was restricting its case to the challenge to the grading of “3” awarded for the year 2018-2019, and was not pressing the challenge to the grading of “4” awarded for 1996-1997, the appellant proceeded to file CM 24705/2021, alleging that no such submission had been made by his Counsel on 28 July 2021 and, therefore, seeking to place the challenge to the grading of “4” awarded to the appellant for the year 1996-1997. The application was not signed by the learned Counsel who had argued the matter on 28 July 2021, and was accompanied only by an affidavit of the appellant. The learned Single Judge, Signing therefore, called upon learned Senior Counsel for the respondent, who had appeared before him on 28 July 2021 – and who is now a learned Sitting Judge of this Court – to vouchsafe regarding the proceedings which had transpired on 28 July 2021. The learned Senior Counsel confirmed that the learned Counsel for the appellant had in fact confined his challenge to the grading of “3” awarded to the appellant for the year 2018-2019.

10. Despite this, the learned Single Judge, displaying characteristic fairness and magnanimity, condescended to hear the appellant even on the challenge to the grading of “4” awarded for the year 1996-1997. We, frankly speaking, might not have been inclined to be so generous. Apropos the conduct of the appellant, we say no more.

11. The learned Single Judge proceeded to hold, unexceptionably, that the challenge, by the appellant, to the grading of “4” awarded for the year 1996-1997, as well as the prayers for convening of review DPCs, were hit by delay and laches. Before us, Mr. Mahapatra did not seriously press for setting aside the judgment dated 6 August 2021, which rejected the challenge to the grading of “4” awarded for the year 1996-1997 and the prayers for convening review DPCs and consequential reliefs as barred by delay and laches, and once again restricted his challenge to the grading of “3” awarded to the appellant for the year 2018-2019. Signing

12. We, therefore, are only required to consider the challenge, by the appellant, to the grading of “3” awarded to the appellant for the year 2018-2019. Discussion and Findings

13. Having heard learned Counsel for both sides, and perused the record, we are of the opinion that there is substance in the appellants challenge to the grading of “3” awarded to the appellant for the year 2018-2019. A reading of para 6 of the impugned judgment dated 28 July 2021 reveals that the respondent relied, to support the said grading, on the following note made by the Reviewing Officer in the appellant’s ACRs for the year 2018-2019, against the head “Key Areas where performance was not in line with targets”: “The officer could not complete the project (Revamping of ETP) assigned to him during the year due to his lack of involvement and initiatives. Delayed planning for execution had made it to carry over for next year.”

14. Mr. Mahapatra took us through the comments made by the Reporting Officer with respect to various objectives to be achieved by the appellant during the year 2018-2019, as entered in the appellant’s ACRs, and we deem it appropriate to reproduce them, in extenso: Signing Signing Signing Signing Signing

15. It is apparent, from a bare glance at the above remarks of the Reporting Officer of the appellant, for the year 2018-2019, that the appellant either met, or exceeded, every target set for him during the said year, under every head. The final remark reads: “Exceeded all set targets”. The “Overall Feedback of the Reviewing Officer”, in conclusion, reads: Signing “Officer is very sincere and responsible and hard working. Maintains good interpersonal relationship. Keeps cool in tense situation. Already got good exposure in the field of safety. Should be given higher responsibility in other field in LPG or any other SBU.”

16. Though it is true that is may be beyond our remit to afford any qualitative evaluation of the appellant, it would be myopic on our part not to observe that the appellant appears, from a reading of the above entries, to have been an officer of considerable calibre. In that view of the matter, “Part B” of the “Performance & Development Review” of the appellant for the year 2018-2019 makes for surprising reading, and may be reproduced: PERFORMANCE AND DEVELOPMENT REVIEW – PART B 2018-2019 Name: SUBRAT KUMAR PANIGRAHI Employee No. 30067320 Designation: Sr. Manager-Operations Locn: Bahadurgarh LPG Plant (12121400) Stream: 60 Curr Designation: Sr. Manger- Operations Curr. Locn: Bahadurgarh LPG Plant (12121400) Stream: 60

F. ANNUAL PERFORMANCE REVIEW

1. The officer has contributed his efforts significantly to complete the installation of access control and CCTV to ensure the improvement in security safety of plant.

2. The officer has carried out various updates of HSE reports in portal timely. Key Areas where performance was not in line with targets:

1. The officers could not complete the project (Revamping of ETP) assigned to him during the year due to his lack of involvement and initiatives. Delayed planning for execution had made it to carry over for next year. General Behavioural Feedback

1. The officer is disciplined. He has taken care of plant operations in absence of Plant Manager in addition to his own assigned jobs. The officer needs to involve in team and field jobs for better performance of the plant. He needs to share his knowledge and experience among other officers in team to improve his learning and growth. Appraisee Comments: My sincere regards for recommending Signing me for higher responsibilities as mentioned in the overall feedback. I confirm you Sir, I will take up higher assignments with continued zeal and dedication. I am thankful to my supervisors for assigning me to LONI LPG Plant before OISD visit and I feel satisfied for meeting the expectation of mgmt. by bringing the location presentable on HSE parameters while working in harmony with LONI LPG plant team. Further I also excelled in all my set KPI targets during the year. Appraisee: 30067320 – SUBRAT KUMAR PANIGRAHI Appraiser: 31909370

17. We are conscious of our limitations in matters where ACR gradings and remarks are under challenge. Judgments of the Supreme Court advocate circumspection and restraint by the Court when dealing with such challenges. This is chiefly because the performance of the officer is best known to his colleagues and superiors, and not to the Court, which has had no occasion to peruse the official’s performance, or assess his work.

18. There can, therefore, be no question of the Court sitting in appeal over the decision of the Reporting or Reviewing Officers apropos the remarks that they have chosen to enter in the ACRs of officers under their supervision, or the grading that they have finally chosen to award. We are concerned, as are all courts exercising certiorari jurisdiction, with the manner in which the respondents have acted, rather than the ultimate outcome of their action. Signing

19. Viewed thus, a damaging entry in the ACR, which is contrary not only to the entire record but to the earlier comments entered by the very same officer, and is unsupported by any material whatsoever, cannot be allowed to stand, as it would be manifestly arbitrary. A reading of para 6 of the judgment dated 28 July 2021 of the learned Single Judge reveals that this observation of the Reviewing Officer was, in fact, the main defence of the respondent, to the challenge laid by the appellant to the “3” grading.

20. Not only is the aforesaid remark in Part B of the appellant’s ACR contrary to all the entries made by the Reporting Officer prior thereto, which clearly note that the appellant had not only met, but in fact often exceeded, the ETP targets; they are even contrary to the Reviewing Officer’s own “Overall Feedback”. It is one thing to say that the Reviewing Officer is entitled to exercise his own subjective assessment of the officer being assessed; it is altogether another to say that the Reviewing Officer can enter starkly contradictory remarks in the ACRs, with the adverse remark being opposed to all earlier entries in the ACRs. In a given case, such an action may smack of mala fides; in this case, no such substantial case of mala fides has been made out by the appellant and we, therefore, are spared the necessity of travelling down that path. At the very least, however, the remarks by the Reviewing Officer in Part B of the appellant’s ACRs, under the head “Key Areas where performance was not in line with targets” is ex facie arbitrary and, therefore, infracts Articles 14 and 16 of the Constitution of India. Signing

21. Despite grant of opportunity, Mr. Pawan Narang, learned Counsel for the respondents, is unable to provide any basis for the afore-noted entry made by the Reviewing Authority in the performance and development review of the appellant for the year 2018-2019. He ventured to suggest that, if the entire records of the appellant were perused, some basis for the comment might be forthcoming. We are not inclined to embark on any such roving inquiry. Our remit is not to seek to justify, one way or the other, the damaging remark entered by the Reviewing Officer. In view of the preceding entries in the appellant’s ACRs, and the concluding remark by the Reviewing Officer himself, the very least that was required was some mention of the basis for such a discordant entry having been entered by him in Part B of the ACRs. The Reviewing Officer has not chosen to do so. Extrapolating, to the entries in the ACRs, the timehonoured principle, enunciated by Krishna Iyer J. in Mohinder Singh Gill v Chief Election Commissioner[6], that an order has to speak for itself, the entries by the Reviewing Officers in the appellant’s ACRs had to speak for themselves. Of course, the Reviewing Officer was not required to adduce detailed reasons for his comments; however, for a comment as discordant with the rest of the ACRs as that entered under the head “Key Areas where performance was not in line with targets”, some justification for the comment had to be forthcoming.

22. Mr. Narang has, however, sought to submit, firstly, that the overall grading of “3” awarded to the appellant for the year 2018-

Signing 2019 was in sync with the remarks entered in his ACRs even if the damaging entry of the Reviewing Officer under the head “Key Areas where performance was not in line with targets” were to be ignored, and, secondly, that the appellant had, in his “Appraisee Comments” towards the end of Part B of the ACRs, not protested or objected to the said remark, thereby indicating that he accepted its correctness.

23. We are not impressed by either contention.

24. Once the injurious entry by the Reviewing Officer in the appellant’s ACRs is found to be unsustainable and arbitrary, the sequitur has necessarily to be a re-assessment by the Reviewing Officer. As is apparent from the preceding entries made in the appellant’s ACR for the year 2018-2019, the appellant has been uniformly graded as an “Excellent officer”, with the final recommendations of the Reviewing Officer being that he should be given higher responsibility. ETP targets had been noted not just to have been met, but also, often, exceeded by him. The entry by the Reviewing Officer in Part B of the appellant’s ACRs under the head “Key Areas where performance was not in line with targets” is, therefore, obviously seriously damaging to the appellant, and it remains in the realm of conjecture as to the grading which would ultimately have been accorded to him, were the said entry not to have been present. We cannot, therefore, presume that the appellant would still have been graded “3”, especially as the final comment of the Reporting Officer was that he had “exceeded all set targets”, which was echoed by the Reviewing Officer (in Part A of the ACR), who in Signing fact recommended that he deserved to be shouldered with higher responsibilities.

25. Insofar as the “Appraisee Comments” in Part B of the ACRs are concerned, they, quite obviously, cannot operate as estoppel against the appellant challenging the injurious entry in Part B which preceded it. There is neither an express, nor any implied, acceptance, by the appellant of the said entry. In any event, it would be unthinkable to hold that the appellant can be foreclosed from challenging the entry, whatsoever the outcome of the challenge might be.

26. Reliance has also been placed, by the learned Single Judge, on the decision of the appellate authority, to whom the appellant had appealed against the grading of “3” awarded to him. There is no notice, however, by the appellate authority, of the apparent discordance between the entry in Part B of the appellant’s ACR and the preceding entries in Part A, including the entry by the Reviewing Authority himself, recommending that the appellant be given higher responsibilities in view of his capability. The order of the appellate authority cannot, therefore, in our considered opinion, eradicate the effect of the injurious entry by the Reviewing Officer in Part B of the appellant’s ACRs. Even otherwise, in our opinion, so fatal, to the integrity of the appellant’s ACR, is the discordant entry by the Review Officer in Part B thereof, that an apparently reasoned appellate order cannot infuse it with life. Signing Conclusion

27. Resultantly, inasmuch as the comment by the Reviewing Officer in Part B of the appellant’s ACR for 2018-2019 under the head “Key Areas where performance was not in line with targets” cannot sustain the scrutiny of law, the said entry, as well as the grading of “3” granted to the appellant for the year 2018-2019, awarded consequent thereto, are also quashed and set aside.

28. Part B of the appellant’s ACRs for the year 2018-2019 is, therefore, directed to be rewritten, and a fresh grading granted to the appellant, within a period of four weeks from today.

29. Though we express our dissatisfaction about the manner in which the Reviewing Officer has conducted himself in the present matter and had made the aforesaid entry in the appellant’s performance and development review, we refrain from making any further comments in the order as the said officer has not been impleaded personally as a party in the present case.

30. Observations contained in this judgment are only intended to address the challenge, by the appellant, to the grading of “3” awarded to him in his ACRs for the year 2018-2019. They are not intended to represent any opinion, by us, on the appellant’s performance, or the grading to which he may ultimately be entitled. The respondent would Signing objectively re-assess the appellant, but in accordance with law, and keeping in mind his overall performance, and the entries in Part A of his ACRs.

31. The impugned order dated 28 July 2021 is, therefore, quashed and set aside.

32. Inasmuch as Mr. Mahapatra restricted his case to the grading of “3” awarded to the appellant for the year 2018-2019, the order dated 6 August 2021, insofar as it rejects the appellant’s challenge to the grading of “4” awarded for the year 1996-1997, remains undisturbed.

33. WP (C) 4005/2020 filed before the learned Single Judge, as well as the present appeal, stand allowed to the aforesaid extent.

C. HARI SHANKAR, J.