Kamal Kishore Sharma vs National Bank of Agriculture and Rural Development and others

T.S. Doabia, J.—On 30.06.1996 in the performance Appraisal Report certain remarks were made. These were conveyed to the petitioner

vide communication dated 18.02.1997. these adverse remarks are as under:

i. Due to his insubordinations always he has shown disrespect to senior officers;

ii. Though he is having abilities and knowledge about working but due to his disinclination for section work, he has put his competencies to astray.

The letter addressed to the petitioner is Annexure 'A' petitioner preferred an appeal. This is Annexure 'D'. He submitted a further representation

on 25.03.1997. In this he made a prayer that matters mentioned in this communication may kindly be given serious consideration. The matters

were

a. As to whether the Officer, who has reported the matter and is responsible for making the remarks was an Officer under whom he had worked;

b. Whether before making the adverse remarks the petitioner was ever apprised about his short comings;

c. Whether there was any remissness in his work;

d. That his previous record be also seen because no body would change his habit in a day or so or in weeks also.

The representation submitted by him stands rejected. This was communicated to the petitioner vide communication dated 31.07.1997.

Petitioner has challenged that order.

Respondents have filed objections. The stand taken is that the attitude of the petitioner towards his superiors was not healthy and that he used to

show disrespect to them. It is submitted that he was orally advised to improve himself, but there was no response from his side. It is further

submitted that under the NABARD Staff Rules of 1982, the procedure which is there for assessing the record was followed.

Another grievance of the petitioner is that vide order dated 30.08.1997, the petitioner has been promoted as Clerk Grade 1 w.e.f. 18.08.1997.

He submits that he was supposed to be promoted w.e.f. 01.02.1997. As this belated promotion is said to be linked with the adverse remarks, the

petitioner is making a grievance regarding this fact also. The stand of the respondents \s that so far as other employees are concerned, their record

was clear, but as the record of the petitioner was not clear therefore, his promotion was delayed. The basic relief which is being sought by the

petitioner is that the adverse remarks should be quashed and the respondents be directed to reconsider the issue regarding promotion.

There can be no dispute with the broad proposition that in the matter of making of entries in the performance reports a decision has basically to

been taken by the authority competent to do so and that this court is not to act as an appellate authority.

As indicated above these are matters on which this court would normally not interfere. However, the argument is that in rarest of the rare case it

would be possible for this court to interfere.

Petitioner joined service on 01.06,1990. The adverse report came to be made on 30.06.1996. What is said is due to his insubordination always he

has done disrespect to Senior Officers. If this type of remark is to be made then there should be some justification for making such a remark. Any

particular instance where there was an act of insubordination should have been part of some record maintained by the respondents bank.

Insubordination is a word with serious implications. In Black Law Dictionary, the term has been defined as under:

State of being insubordinate, disobedience to constituted authority. Refusal to obey some order which a Superior Officer is entitled to give and

being obeyed. Term imports a wilful or intentional disregards of the lawful and reasonable instructions of the employer.

As a matter of fact, the stand taken by the respondent Bank in para 3 of the preliminary submissions is that petitioner had shown his misconduct

on several occasions and that the petitioner was also asked to mend his ways, but he did not do so. It is stated that the petitioner was also

counselled by the officer incharge. Even though such statement has been made in para 3, but nothing has been brought on the record to

substantiate this. There are opinions which are purely subjective.

There are opinions which are objective also. An act of continuous insubordination has to be based on some objective materiel and not on

subjective opinion. This is one aspect of the matter.

The other aspect of the matter is that the petitioner has preferred an appeal, which has been dismissed.

As is apparent from the Dictionary meaning of insubordination, the term has been defined as a wilful or international disregard of the lawful and

reasonable instructions of the employer. If this be the position then this has to be supported by some material on the record. This is missing.

As indicated above even the appeal preferred by the petitioner has been dismissed by a nonspeaking order. The petitioner had categorically

stated that he had rendered six years of service and if there was nothing adverse in the last six year, then what was the basis of the decision to

make a remark when he was due for promotion is a matter which should have been dealt with. The fact as to whether this is dealt with or not is not

apparent.

This petition is accordingly allowed. Appellate authority is directed to redecide the matter. The authority would examine and go into the

question as to whether there is any instance of insubordination or the petitioner has merely been victimized on account of some other factor or this

is merely a device with a view to deprive him of promotion at the proper stage. Let a decision be taken within a period of six months from the date

of copy of the order is made available by the petitioner to the respondent. In the meanwhile, the adverse entry shall not be given effect to in the

matter of promotion or further promotions.

Disposed of accordingly.