The pathology of performance appraisals--insights from supreme court rulings.

Joseph, Jerome

Introduction

Performance management, like other management practices espouses that control is necessary to enable subordinates to achieve their potential, and that without such control, production would be sub-optimal or abysmally low (Willmott, 1984). Performance management is instrumental in generating competition among employees, and this sense of competition can degenerate into allegations of manipulation, lack of transparency and denial of voice. Issues of denial of voice are seen in the case of Arvind Kumar Saxena versus Brij Raj Kishore Ranga and others (Supreme Court, 2005 September 28) where the post of Superintending Mining Engineer in the Rajasthan Civil Services was to be filled through an assessment of merit of the candidates. The procedure for filling the posts was the assessment of Annual Performance Appraisal reports, and candidates had to have a rating of 'very good' in at least five of the seven previous appraisal reports in order to be considered for promotion. The contention of an aspirant Arun Kumar Kothari was that he had the requisite rating of 'very good' in five out of the seven previous appraisals, and yet he had been overlooked.

He was also not given an adequate opportunity by the appellate tribunal to present his case, while another aspirant Brij Raj Kishore Ranga had been given such an opportunity. The Supreme Court (ibid: 3) attempted to provide voice to Arun Kumar Kothari in its judgement--"We direct that if Arun Kumar Kothari, the rival candidate, is desirous of filing, and files, a counter affidavit in Appeal No. 283/97, within such period as permitted by the Tribunal, the Tribunal shall consider such affidavit after giving opportunity of filing a rejoinder affidavit to Brij Raj Kishore Ranga. Arun Kumar Kothari shall be afforded an adequate opportunity of making submissions with regard to the contentions urged in Ranga's Appeal No. 283/ 97, and thereafter the appeal shall be decided in accordance with law, as expeditiously as possible...". In another case though, the Supreme Court (2005 November 22) ruled that adverse remarks need not necessarily be communicated to employees if stages such as counseling and guidance had not led to an improvement in desired performance. In another case, the Supreme Court (2007 February 12) has allowed the lowering of performance ratings given by a reporting officer by a reviewing officer without communication to an employee, if the performance ratings is only one of the elements among many other procedural requirements to make promotion decisions.

Performance management initiates a politics of stigma, fear and competitive tensions where individuals begin to see each other as 'rival candidates' in the context of limited opportunities for career progression. In this sense, performance management is a composite of the practices of management through which unequal and asymmetrical relationships are instituted and reproduced within the enactment of the processes of organizing (Dreyfus & Rabinow, 1986). The everyday reality of performance management can be seen as part of a technology that induces divisiveness and displacements in social relationships in a hierarchically structured career progression (Gordon, 1980).

Performance Management as Subjugation

A Supreme Court (2010 January 12) decision pertaining to the termination of an employee working as a senior manager in a firm allows us to understand several possible meanings of the performance management practice and discourse. H Omkarappa was given an offer to be appointed as Executive Director (Marketing) by M/s Hindustan Photo Films Manufacturing Company in June 1998. He accepted the offer and joined in September 1998. As per the terms of the appointment, Omkarappa would be under probation for a period of one year, and if his performance during this period was found to be satisfactory, his appointment would be confirmed, else his probation would be extended or his services would be terminated. At the end of a year's service, the company did not find Omkarappa's performance to be satisfactory and indicated to him that it was extending his probation by three months. His performance was to be reviewed on October 5, 1999 and he was expected to show concrete results pertaining to improvement in his performance. Meanwhile Omkarappa wrote to the company on September 20, 1999 pointing out that his performance during the year of probation had been excellent and there had been no adverse remarks in his service records. In response, a detailed performance and assessment report had been prepared on November 25, 1999 and placed before the Board of Directors on November 27, 1999. Following the resolution of the board, Omkarappa's services were terminated on November 29, 1999. Omkarappa's appeal was on the ground that the termination was of a stigmatic and punitive nature and therefore an opportunity should have been given to him to defend his actions before the termination was affected. Since a proper process of inquiry was not followed, and since he had not been given an opportunity to defend himself, the termination was not sustainable in law. The company's argument was that the decision was not a punitive or stigmatic one and that deficiencies pertaining to his performance had been pointed out to him. It is interesting to note that the letters pertaining to communication of performance deficiencies as cited in the Supreme Court judgement are dated September 20, 1999, November 4, 1999 and November 8, 1999, all of which are within a couple of months within the termination of Omkarappa. Therefore, the communications pertaining to performance deficiencies may have been the enactment of an attempt to ensure the termination of Omkarappa rather than with any intentions of developmental interventions on the part of higher management. The Supreme Court, by setting aside the Madras High Court judgement in this regard refused to see the termination of Omkarappa as of a punitive or stigmatic nature and therefore ruled in favour of the company. It stated that there was no need for an enquiry to be conducted or for Omkarappa to be heard before his termination was effected, as this was an instance of performance deficiency. Further, the court took cognizance of a letter written by Omkarappa just a fortnight before his termination, and described it as being rude and intemperate.

Parts of Omkarappa's letter to the Managing Director are reproduced below.

"Sir, I must refer here that unlike my above explained case, yourself and Director Finance have joined this company only to enjoy better benefits which include status, good pay, perquisites and other facilities ... from the beginning of my career in HPF, I found that I have been restrained to perform with my full capacity by CMD and DF ... affecting my efficiency to a great extent ... I have been totally restricted from functioning as EDM, with even small part of my capacity."

The opinion of the Supreme Court is best summarized in its own words (ibid: paragraph 15)--"If a subordinate officer like the respondent is in the habit of using an intemperate language against his superior like appellant No. 1 the decision taken by the appellant company cannot be said to be in any manner vitiated." In a sense such pronouncements ultimately tend to legitimize the practice of performance management as subjugation. The worker's right to dissent and express her legitimate and righteous disagreement against her 'superiors' in passionate but authentic forms is taken away from her, and her conduct and behavior is thought to be objectionable unless she is willing to accept a subjugated existence, and give up all possibilities of entering into representations to redress injustice. Organizations are not about the reproduction of neat hierarchies where 'subordinates' must pay constant obeisance to their 'superiors' but they are about finding collective solutions to the needs and problems of society. In order to meet these needs of society in just and ethical ways, organizational renewal and change needs to take place. For such change to occur, passionate disagreement, dissent and conflicts may be necessary. The suppression of conflicts may only reproduce unjust hierarchies rather than bringing about the necessary change that will renew the quest for justice and dignity. There is another problem with performance management apart from it being philosophically anchored against the possibilities of dissent and organisational change. It fails to recognise that superiors could be incompetent and inadequate in performing their roles. When this is the case, and when they sit in judgement on the performance of others, then the performance appraisal that is being generated is only likely to reproduce mediocrity and subservience rather than independence and excellence. The pedagogy of organisational re-creation on a constant basis will have to rely on methods of dialogue and dissent rather than any evaluative enactments such as performance management where hierarchical exercise of power masquerades as higher capability and superior knowledge.

Townley (2005: 317) articulates the methods through which performance management enacts a culture of subjugation--"Appraisal operates as a form of panopticon with its anonymous and continuous surveillance as seen in the articulation of a monitoring role ... Often monitoring and hierarchical access to records is introduced under the guise of fairness ... As a system of surveillance, appraisal, although discontinuous in action, is rendered permanent in its effects. Its functioning principle is that the individual never knows whether he or she is under surveillance or not. It represents the exercise of control at a distance both spatially and temporally..." The discursive control that performance management enacts is imprisoning not only for those who are appraised, but also for those who act as appraisers, as they have to live up to the normality of appraisers and thus engage in evaluative processes that are implicitly non egalitarian, thus indicating the Foucauldian maxim that supervisors are perpetually supervised (Foucault, 1977). It is necessary to remember that even if performance management is articulated as an objective and neutral exercise, it is not a disembodied exercise. In the emergence of its embodiments in organisational and social locus, it is inevitable that its human enactors will get enmeshed in issues of politics and power. It is towards these embodiments of hierarchical politicization that we turn next.

Performance Management as Political Vitiation

Reacting to a scheme for building managerial competencies, Townley (1999: 285) writes--"Reading the document was a 'moving' experience. It prompted a degree of anger that for a time, was difficult to explain..." The surveillance saturated sketch that informs the textuality of a performance appraisal has the potential to evoke the same degree of anger. An illustration of such a performance appraisal sketch is available in the Supreme Court (2007 February 20) judgement in the S T Ramesh versus State of Karnataka and another case where the court was to decide on the issue of expunging the adverse remarks in the confidential records of an Indian Police Service officer, S T Ramesh who was given an overall grading of average for the period between October 16, 1996 and March 15, 1997 and several adverse remarks were entered in his annual confidential report. Pertaining to quality of output, the entry said, "He did not use his optimum capacity and gave an impression as though his stint in COD was a sojourn." While analysing this entry pertaining to quality of output, it may be useful to remember that in industrial relations parlance, output does not only mean 'goods and services but also structures of advantage and disadvantage. These are properly called structures because they are established features of society which are hard to change' (Edwards, 2003: 4). The structures of performance appraisal are inherently unequal as they provide the ability to pass sweeping judgements on those being appraised. Performance appraisals thus give the power to think of the optimum ability to which an employee can deliver and describe the employee in cavalier terms such as being on a sojourn. Work is thus reduced to technical units whose optimums can be calculated rather than being a social and political process of engagement to meet social needs.

In the entry pertaining to knowledge and sphere of work, the following entries were made--"He is knowledgeable in the profession and its related application but, however his 'paradigm' prevented him from performing better". The statement that the police officer was knowledgeable but obstructed by his paradigm is inherently undemocratic, as it offers a view that there can be only one view of what it means to be knowledgeable, that other dissenting views are not possible. Pertaining to leadership qualities, the appraisal states--"He could not appreciate the environment and the work culture as defined by the competent authority ... and this blocked flow of new ideas or new methods of work." This view constructs leadership as merely being a function of conforming to the culture defined by the competent authority and privileges subordination over creativity. Performance appraisals are thus reinforcements of the fact that our 'social being is structured in direct subordination to the will' (Prashad, 2000: 167) of entrenched, dominant interests.

The entry pertaining to management qualities states--"All the management qualities which very much exist in him, became dormant to the dangerous extent of his not visiting a scene of occurrence in an important case of rape and murder of a young girl student..." And yet it is forgotten that the collective processes of the police in bringing to justice the criminal(s) involved in this despicable act is far more necessary than a hierarchical superior visiting the scene of occurrence. Perhaps the need would be to strengthen the grassroots to such an extent that they are able to engage with such issues of heinous crime in the most robust and urgent manner possible, than subjecting the grassroots to minute and total control. Thus performance appraisals seek to reinforce a sense of hierarchy than grassroots democracy. Raffnsoe (2011: 190) comments on the role of power in performance development reviews--"In PDR meetings, for example, people don't really want to admit that there are rules and a power relationship at play. It's very soft, something you want to negotiate together through dialogue." It is in cases of conflict that the power relationships at play emerge explicitly and the atmosphere of negotiation is shown up to be an irrelevant facade. And the statements which are a part of Ramesh's appraisal indicate the depths to which power informs the process of assessment.

The description pertaining to initiative and planning ability states--"On the only occasion when a group of agitators, after due intimation through handbills, came and squatted outside ... he, for reasons best known to himself, went out of the office around that time and in the process, his senior had to defuse the situation." Thus, what is being reinforced is a standard policing technique of keeping away from agitations and working towards defusing them, rather than engaging with them in open, creative and honest ways. Gandhi (1927) of course has a different view on agitations and believes that they have the potential to revitalize communities and provide them the belief to sustain their sense of political rights. The cynical purpose that performance appraisals may serve is also indicated by the comment on initiative and planning abilities--"His decision making was governed by his 'paradigm'." This is almost as if decision making is normally a paradigm less process and occurs spontaneously and Ramesh has deviated from this normality. Perhaps if the paradigm of subordinates is congruent with that of their superiors or appraisers, then the differences in paradigm would not be made visible. It is necessary that paradigms are not dogmatically privileged and that they reflect lived experiences in terms of anchoring them around the premises of justice.

On the issue of communication skills, the evaluation stated--"His presentation of arguments is also good but on a certain occasion; he created an unpleasant scene with the DGP which was totally avoidable." Thus communication must also represent conformist orientations and dissenting positions are looked down upon for creating the possibility of unpleasantness. Yet dissent is extremely important from the perspective of creating 'civilizational hybridity and countercultural mentality' (Rudolph, 2006: 17) and it is only through dissent that course corrections can be introduced in time in organisations. With respect to appraising ability, the performance report stated--"His evaluation of some of his subordinates was clouded by some of 'his past experience' with them elsewhere". Through making the vague charge of appraisals being clouded, efforts are made to raise question marks over the credibility of the employee. If there existed wrongdoing pertaining to malafide appraisals, then there is a need to point it out in concrete terms and take appropriate action rather than resort to vague statements. It is appraisals such as these that articulate management as pathology, as the process of creating difficulties for employees--"most managers create far more obstacles for their subordinates than they remove" (Hatch, 2011: 206).

In the entry about inter-personal relations and teamwork, the appraisal states--"His professional relationship with one of his senior officers was marked by cold hostility". Professional disagreements could be expressed in strong or mild terms, the language may be in the form of an appeal or in the form of harsh critique. From these disagreements, renewed introspection may emerge about how things could be done differently in organisations. When channels of disagreement close at a larger social level, what emerges is fascism and totalitarianism. In terms of its theoretical extremes, in the political conception of organising, it is these totalitarian schemes which are the eventual telos of intrusive performance management schemes.

Remarks pertaining to other columns in the performance appraisal are also insightful:

"General bearing personality: Anything but smiling. Sociability: Prefers to be aloof.

Dedication to duty: Depends on his convenience.

Attention to details: Yes, but takes his own time, response time is not fast.

Ability to take a principled stand: It is clouded by his 'paradigm'".

These comments indicate the normality pertaining to personal behavior that appraisals desire to script. The degree of control that they desire to exercise over employees is staggering. For instance, a smiling personality is expected as being normal, and aloofness is held as an undesirable attribute of sociability. In terms of personality, a strong assertion of values such as not going back on one's words or sensitivity and care for other people's concerns are still not the features of social relationships that are being emphasized. The comment that dedication to duty exhibited by the employee depends on his convenience is destructive and damaging rather than being helpful and developmental. Instead specific suggestions for how dedication to duty may be demonstrated in more meaningful ways may have been pointed out. With respect to attention to details, the comment rather than being restricted to the issue under consideration brings in another variable such as that of response time. The debate about paradigms returns in the assessment of ability to take a principled stand. This is especially an entry where dissent and alternative voices could have been recognised, yet since the purpose of the appraisal mechanism is oriented towards producing the appropriate individual than in creating the requisite social space for plural and effective ways of functioning, this opportunity is lost. In fact rather than attributes of conformity, it has been suggested that it is disobedience which may lead to greater productivity--"When we talk about post-disciplinary society and closures that are opening up, I think we are exaggerating a little bit. Organizations are not open spaces like that, they are still quite bureaucratic ... But a lot of employees engage with disobedience to be productive, which is interesting in terms of self-management" (Rennstam, 2011: 215).

In the case of the police officer S T Ramesh, the Supreme Court ruled the performance appraisal out of order. It noted that Ramesh had an outstanding career as a police officer and had received several appreciations. It was only during these four months that he had received adverse remarks in his appraisal. The Supreme Court (2007 January 12: 9) noted that the comments which had been made as a part of the performance appraisal were inconsistent and could not warrant an average rating--"The authorities are directed not to treat the appellant's performance during the period in question as average". Performance appraisals become unhelpful in two ways. Firstly, they are anchored in a philosophy of control and can degenerate in extreme circumstances to repressive totalitarianism. Secondly, performance appraisals can seldom be taken as objective indicators of individual performance as they are embedded in realities of organisational politics, and thus the possibility of political vendetta is forever present. In the case of Badri Nath versus Government of Tamilnadu and others, the Supreme Court (2000 September 29) acknowledged the possibility of such political vendetta. The Supreme Court noted that "something had fundamentally gone wrong in the decision making process in regard to the appellant" (ibid: 9) and these fundamental wrongs emerged from the hostility of senior officers towards the appellant. The issue of vendetta recurs in another Supreme Court judgement (2006 April 27) D C Aggarwal versus State Bank of India and another, where an inquiry found that charges had been falsely fabricated against the appellant to harm his performance records.

Performance Management as the Reinforcement of Hierarchy

Several cases pertaining to performance management in the Supreme Court (2011 February 23; 2009 November 17; 2008 February 22; 2006 November 8; 2006 May 9; 2003 September 12; 2000 August 28) pertain to the manner in which annual appraisals are to be interpreted when statutory provisions exist for promotion according to the principle of seniority cum merit. A closely associated issue is that of promotion and whether an interview alone or an exam also is required for promotions in some cases, and the relative proportion to be given to interviews, seniority and other modes of performance evaluation (Supreme Court 2011 March 30; 2009 November 24; 2008 September 16; 2007 May 15; 2007 March 20; 2006 May 12; 2003 May 9). Following from a series of cases, the Supreme Court has stated that when seniority cum merit schemes prevail, then for the purposes of promotion, contenders must satisfy a reasonable criteria of minimum merit requirements. Once they have qualified on parameters concerning minimum merit, then among the qualified candidates, promotion must occur according to the criteria of seniority. While the grammar of hierarchy is preserved in these cases on account of privileging the idea of seniority, there are other ways in which hierarchy is reinforced in the performance management discourse. In the case of an air force officer who sought promotion to the post of Air Marshal (Supreme Court, 2004 September 3) the promotion criteria was that the employee should have a performance rating of above 7 at least three times in the previous five years and no rating of less than 6. During the years from 1983 to 1988, the performance ratings of the air force officer were 7, 7.4, 7.5, 7, 5.3 and 7. Thus due to his performance being 5.3 in 1987, the air force officer was denied promotion. Thus, even in cases where merit is the sole criteria for making decisions pertaining to career, it is again hierarchy which is reinforced as hierarchical superiors can prevent the promotion of meritorious subordinates by adversely affecting their performance records even for a single year. In this instance, the air officer, M S Brar's rating for 1987 had been affected because of adverse remarks in his confidential report. Further these remarks had not been communicated to him, and no opportunity had been given to ensure that his voice was heard. Promotion was denied to Brar even after the adverse remarks were expunged as the performance rating was not revised. In this instance, the Supreme Court directed that his voice be given an adequate hearing.

Hierarchy is reiterated by performance appraisals as superiors decide which performance shortcomings are to be reprimanded and disciplined (Supreme Court, 2009 March 24; 2007 February 6; 2004 April 5), and which can be ignored. The pathology of performance management lies in the fact that rather than looking at organizations as a community or a social space where conflicts between different perspectives are played out before a collective decision is taken, performance management processes are conceived as hierarchical spaces where vertical mobility is experienced as the exercise of power to subjugate and marginalize those who do not toe the line. This hierarchical space is defended and reproduced by articulating unrealistic assumptions that objective and technical assessments are possible in non political and depersonalized ways. Eventually dominant interests within organizations are reproduced and a normal subject of the employee is sought to be coercively constructed. Judicial recourse and the jurisprudence of performance appraisals alone offer some hope of dignity and justice when confronted with the consequences of unfair assessments.

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Jerome Joseph is Professor, Personnel & Industrial Relations, Indian Institute of Management Ahmedabad 380015 E-mail: jerome@iimahd.ernet.in.