These instructions also categorically stipulate that no further
representations are allowed except in those cases where new facts have come
to light and representation on such ground would be considered by the
original deciding authority. Period of six months is provided for making such
a representation.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 392 OF 2008
VINOD KUMAR
........ APPELLANT(S)
VERSUS
STATE OF HARYANA & ORS.
Citation; 2014 ALL SCR 460
1. Though all these appeals were directed to be heard together, during the
course of hearing, it transpired that on facts all these cases are not identical
or of similar nature. At the same time these appeals can be categorized in
three groups. These appeals have arisen from the judgments of Punjab and
Haryana High Court. First judgment in point is dated 4.4.2007, which is the
main judgment, passed by the High Court in batch of writ petitions with
CWP No. 9805 of 2006 as the lead case. Appeal in the said case is C.A. No.
392 of 2008. Therefore, we propose to start from this appeal so that the
veracity or the legality of the main judgment is discussed. Some of other
appeals fall in this group and discussions in other groups of appeals would
also flow from this case. In this manner, we would be in a position to proceed
systematically and coherently.
Ist Group Cases
2. The appellant in this appeal was recruited into the police service in the State
of Haryana as a Constable in the year 1971. He got promotion to higher ranks
from time to time and became Inspector of Police in the year 2002. During
the course of his employment, an adverse entry was recorded in his Annual
Confidential Report (hereinafter to be referred as 'ACR') for the period
11.10.1989 to 31.3.1990. Though the exact report was not placed on record
either before the High Court or this Court, it is a common case of the parties
that the ACR for this period related to adverse comments on his “integrity”. It
was acknowledged by the appellant's counsel before the High Court that the
said adverse remarks pertained to his character and antecedents.
3. These remarks were recorded by the then Superintendent of Police, Hisar
Range, Hisar. As he wanted these remarks to be expunged, the appellant
made a representation to the Deputy Inspector-General of Police, Hisar. His
representation was rejected on 26.5.1993. Initially, there was a stoic silence
on the part of the appellant who did not pursue the matter further for quite
some time. However, he woke up from slumber and after almost 9 years, he
made another representation to the Director General of Police, Haryana. This
was accepted by the DGP vide orders dated 15.7.2002 and the aforesaid
remarks were expunged. The operative part of the order of the DGP, Haryana,
in this behalf, is as under:-
“Mercy Petition of ASI Vinod Kumar NO. 345/SR5S (now SI
No. 56/H) against the adverse remarks in the matter of integrity
recorded his ACR for the period from 14.11.89 to 31.3.1990, has
been considered on the basis of available record. The
departmental enquiry was conducted on the charges of
carelessness and indiscipline in which he was awarded a
punishment of censure. No advice/ warning was awarded to him
in the matter of integrity. But the reporting officer has doubted his
integrity. Thus, the adverse remarks are uncalled for and without
any basis and will not stand scrutiny of the judiciary. The mercy
petition is accepted and adverse remarks are expunged in the
interest of principles of natural justice. The representationist may
be informed accordingly.”
4. As would be seen in almost all these appeals before us, the DGP had
expunged adverse remarks of many such police officials during this period
namely from 1999-2002. After the change of regime when new Director
General of Police took over the charge, he noticed this phenomena where the
adverse remarks were expunged after substantial lapse of time and/ or for no
valid reasons and in some cases even after all the departmental remedies had
been exhausted by those officials, unsuccessfully. The new DGP, therefore,
issued Instructions dated 9.6.2005 to all Range Inspector General of Police,
Railways and Technical Services, Haryana and the Inspector General of
Haryana Armed Police, Madhuban. In these Instructions, it was stated that he
had come across some old cases where remarks related to integrity were
expunged after obtaining fresh representations, despite the fact that their
earlier representation/ mercy petition/ memorial/ writ petitions had been
rejected/ dismissed by the competent authority/ State Government or Courts.
Many such cases were even accepted after a lapse of 10/ 12 years. Opinion of
the Legal Remembrancer, Haryana was taken who had opined out that in
such cases expunction of remarks of the concerned employees was wrongful
and the adverse remarks recorded earlier should be reconstructed, after
issuing show-cause notice to these officials. Vide these Instructions, the DGP
ordered a review of all such cases.
5. Show cause notice was issued to the appellant. He submitted his reply dated
22.5.2006. After considering the same, DGP, Haryana passed the orders dated
21.6.2006 restoring/ reconstructing the earlier adverse remarks and recalled
orders dated 15.7.2002 of the DGP, Haryana vide which the aforesaid
remarks were expunged.
6. The appellant filed petition challenging the aforesaid Orders dated 21.6.2006.
This petition was heard alongwith some other cases where similar orders
were passed and vide common judgment dated 4.4.2007, the writ petition of
the appellant has been dismissed.
7. Since this is the main judgment giving detailed reasons for dismissing the
writ petitions, it would be apt to traverse through the same to find out the
grounds of challenge laid by the appellant and other writ petitions before the
High Court as well as the reasons given by the High Court while rejecting
those submissions.
JUDGMENT OF THE HIGH COURT
8. The argument of the appellant before the High Court was that second
representation was permissible having regard to the instructions contained in
Standing Order No. 65/ 1998 dated 8.2.1999 issued by the DGP, Haryana.
These instructions referred to the earlier policy instructions issued by the
State Government dated 28.8.1962 which lays down procedures for the
guidance of all departments for entertaining the representations against the
adverse remarks. In the Government's Instructions dated 28.8.1962, it was
emphasized that in the absence of specified procedure for entertaining the
representations against ACR, the authorities had noted that whenever any
officer in a key position is transferred, certain government servants think that
it is a good opportunity to re-open finally settled cases connected with their
conditions of service or disciplinary matters, which may be even several
years old. There was also a tendency of sending advance copies of
representations to all the higher authorities which was leading to unnecessary
work at all levels. At the same time, it was also necessary to ensure a fair
chance of representation to the government employee. Going by these
considerations the detailed procedure was laid down in those Instructions
dated 28.8.1962. It inter alia provided that if a government servant wishes to
press his claim or to seek redress of his grievance, the proper course was to
address his immediate official superior, or the head of office or such other
authority at the lowest level, who is competent to deal with the matter. Once
that authority decides the case, one representation be allowed to the next
higher authority. When the lowest competent authority is the Government
itself, one representation is allowed asking for a review of Government
orders. These instructions also categorically stipulate that no further
representations are allowed except in those cases where new facts have come
to light and representation on such ground would be considered by the
original deciding authority. Period of six months is provided for making such
a representation. There is also a provision for allowing one memorial which
is to be decided at Government level in terms of Instructions dated 12.2.1952.
Second memorial is permissible if it furnishes new
material grounds
requiring re-consideration. Relevant portions of these Instructions, stating the
aforesaid position, is extracted below:
“ After Careful consideration the following procedure is laid
down for the guidance of all departments:-
(a)
Whenever in any
matter connected with his service rights or conditions, a
government servant wishes to press his claim or to seek
redress of a grievance, the proper course for him is to
address his immediate
official superior, or
the Head of Office or such other authority at the lowest
level, as it competent to deal with the matter. When a case
has thus been decided
by
the
lowest
competent authority one representation should be allowed to
the next higher authority. Where the lowest competent
authority is government itself, one representation should be
allowed, asking for a review or government orders.
(b)
If an official sends
up a representation in addition to those permitted under (a)
above, on the ground that certain new facts have come to
light, that representation will be considered by the origianl
deciding authority, who will be competent to withhold it and
reject it if finds
that in fact no new
data has been given which would
provide any material
grounds for reconsideration.”
9. In nut-shell as per Policy Instructions dated 28.8.1962, representations can
be made, if it is a case of adverse remarks, in the following manner:
1. Representation to immediate official superior, or the head of
office or such other authority at the lowest level who is
competent to deal with the matter.
2. If it is rejected by the lowest authority one more
representation is allowed to the next higher authority.
OR
If the lowest competent authority is the Government itself
then representation by way of review is allowed to the
Government.
3. No further representation is to be entertained except on the
ground that certain new facts have come to light. If it is
found by the competent authority that no new fact has been
given he would be competent to reject it.
4. After the representations are made in the manner stated
above, one memorial is allowed which is to be decided at
Government level.
5. Second memorial is allowed only on furnishing new material
grounds.
10.
As already pointed above, Instructions dated 28.8.1962 were referred to
in Standing Order No. 65/1998 dated 8.2.1999. In these Instructions, reliance
was placed on the earlier Standing Order. It reiterated the tendency to entertain
belated representations qua seniority or seeking ante-dated promotion or
expunction of adverse remarks in ACR or appeals against punishments after
lapse of number of years that too whenever any officer in key position is
transferred. It condemned and deprecated this practice in strong words. It also
highlighted that entertainment of such representations after long lapse of time is
not only in contravention of Rules and settled legal position on the subject but it
also creates unnecessary complications/ litigations and unsettles the settled inter
se relativities. Apart from issuing mandate to the effect that such delayed
representations qua seniority, promotion, ACR's etc. be not entertained ,
following instructions were specifically issued, which are relevant in the context
of entertaining representations against ACR:-
1. If any personnel is not satisfied with the decision of the
competent authority or next higher authority, he may approach
next higher authority to get justice as per settled law within
six months.
2.
No competent authority shall consider any representation
against an order, if the order against which the personnel is
aggrieved is more than 5 years old.
11.
It was argued before the High Court, which was the submission before us
as well, that these instructions were applicable only in those cases which were
not covered or governed by the Punishment and Appeal Rules. It was argued that
a representation was permitted to an employee in addition to the prescribed
representations as per para (b) of the Policy Instructions dated 28.8.62 and the
second representation of the appellant which was accepted by the DGP was thus,
permissible. However, this argument was brushed aside by the High Court, and
rightly so, taking note of the fact that as per clause (b), further representation
could be made only on the ground that certain new facts have come to light.
Further, whereas the period specified for making this representation as per 1962
Instructions was six months, the appellant had made the second representation
almost after nine years which was clearly not permissible as reiterated even in
1999 instructions. In fact, it is this mischief of re-opening the settled cases, by
making belated representations which these government instructions aimed
curbing at. The High Court in the impugned judgment, in this behalf, aptly
remarked as under:
“Although, the contention of the learned counsel for the
petitioner seems to be attractive on first blush, however, a perusal
of clause (c) takes the wind out of the aforesaid contention. It is
clearly and emphatically pointed out, that any such representation
permitted to be made under the 1962 instructions, has to be made
within a period of six months. It is not the case of the petitioner,
that the representation made by him was within the ambit of the
instructions of 1962. In fact, from the facts narrated hereinabove,
it is apparent, that after the first representation made by the
petitioner was rejected on 26.5.1993, whereafter the second
representation was allegedly made by the petitioner only on
25.2.2002 i.e. after almost nine years.”
12.It is manifest that after the change of guards, the appellant took a chance by
making another representation to the new DGP and got favourable orders.
13.
Even the punishment under Appeal Rules are of no help to the appellant.
Reliance was placed on Rules 16.28 and 16.32 of Punjab Police Rules, 1934.
These Rules read as under:
“16.28. Powers to review proceedings.--
(1) The Inspector-General, a Deputy Inspector-General,
and a superintendent of Police may call for the records of
awards made by their subordinates and confirm, enhance,
modify or annul the same, or make further investigation or
direct such to be made before passing orders.
(2) If an award of dismissal is annulled, the officer
annulling it shall state whether it is to be regarded as
suspension followed by reinstatement, or not. The order
should also state whether service previous to dismissal
should count for pension or not.
(3) In all cases in which
officers propose to enhance an award they shall, before
passing final orders, give the defaulter
concerned an
opportunity of showing cause, either
personally or
in writing, why
his
punishment
should not be
enhanced.
16.32.
Review.- An officer whose appeal has been rejected is
prohibited from applying for a fresh scrutiny of the evidence.
Such officer may, however, apply, within a month of the date of
despatch of appellate orders to him, to the authority next above
the prescribed appellate authority for revision on grounds of
material irregularity in the proceedings or on production of fresh
evidence, and may submit to the same authority a plea for
mercy: provided that no application for the revision of an order
by the Inspector-General will be entertained. An officer whose
appeal has been heard by the Inspector-General may, however,
submit to the Inspector-General a plea for mercy or may apply
to the Inspector-General for a review of his appellate order only
on the ground that fresh evidence has become available since the
appellate order has been pronounced. This Rule does not affect
the provisions of Rule 16.28. Such application or plea must be
in English”.
14.
However, these are part of Rule 16 which falls in Chapter XVI relating
to “punishment”. This Rule 16 prescribes the procedure for conducting
departmental inquiries and imposition of penalties consequent thereto. It has
nothing to do with the confidential reports. In fact, provision relating to
Confidential Reports is contained in Rule 13.17 of the aforesaid Rules. Relevant
portion of Rule 13.17 reads as under:-
“13.17.
Annual Confidential Reports.--
(1) Superintendents shall prepare and submit annually to the
Deputy Inspector-General, after obtaining the District
Magistrate's remarks thereon, reports in form 13.17 on
the working of all Upper Subordinates serving under
them. These reports shall be submitted to reach the
Deputy Inspector-General on or before 15th April.
Deputy Inspectors-General and Assistant Inspector-
General, Government Railway Police, will add their
own remarks and retain reports on Assistant Sub-
Inspectors and Sub-Inspectors who are not on list 'F'
and Sergeants will be forwarded by Deputy Inspectors-
General and Assistant Inspector-General, Government
Railway Police, so as to reach the Inspector-General on
or before the 15th May. In the cases of Indian
Inspectors of the General Line, Sub-Inspectors on list
'F' and all Sergeants, Deputy Inspectors-General and
Assistant Inspector-General, Government Railway
Police, will attach with each report so submitted a
duplicate copy thereof. Any remarks recorded by the
Inspector-General on the original report will be copied
in his office on the duplicate prior to the return of the
latter report for record with the duplicate personal file
maintained in accordance with Rule 12.38 (1).
(2) Reports shall be of three kinds, A, B and C, and shall be
marked as such:--
A reports.-- Reports in which for special reasons it is
recommended that promotion be given irrespective of
seniority.
B reports.-- Reports in which it is recommended that
promotion be given in the ordinary course of seniority.
C reports.-- Reports in which it is recommended that
the officer be passed over for promotion or that the
taking of departmental action on general grounds of
inefficiency or unsatisfactory conduct be considered.
15.
This Rule only states the manner in which ACR is to be written. We also
have Rule 14.7 which may be relevant to the context and is reproduced below:-
“14.7 Comments on remarks of superior officer.--
A police officer shall not record comments on the remarks
made by a superior officer. If a police officer considers that
an erroneous view has been taken of his conduct or of any
matter affecting his administration he may refer the
question in a temperate manner through the proper
channel.”
16.
Thus, these Rules only pertain to recording of ACRs. There is no
provision in the Rules containing any procedure for dealing with representations
against the ACRs. That is provided in 1962 and 1999 Instructions, already taken
note of above. Therefore, the High Court rightly rejected the contention of the
appellant predicated on these Rules. Thus, we find that on the face of it, the
second representation preferred by the appellant, in which the ACRs were
expunged was not permissible. It was not only contrary to 1962 and 1999
Instructions, but was made after 9 1⁄2 years from the date when first
representation against the ACR was rejected.
17.We would like to make certain comments, at this juncture, on the powers of
the successor DGP, Haryana in over turning the decision of his predecessor
who had accepted the representation and expunged the adverse remarks in a
petition which was not maintainable and wholly unwarranted. The general
principle is that merely because there is a change in the regime or when the
successor assumes the office, he would not be entitled to review and reopen
the cases decided by his predecessor. That would apply in those cases where
the predecessor had passed the orders which he was empowered to pass
under the Rules and had exercised his discretion in taking a particular view.
Therefore, this proposition applies in a situation where order of the
predecessor resulted in legal, binding and conclusive decision. However, the
position would be different when it is found that the order of the predecessor
was without jurisdiction or when a palpably illegal order was passed
disregarding all the cannons of administrative law
viz. when the
predecessor’s decision was without jurisdiction or ultra vires or when it was
exfacie an act of favoritism. In the present case we find that not only the
order passed by earlier DGP, Haryana was ultra vires, as that was not backed
by any authority vested in it under the Rules as the representation/ mercy
petition was not maintainable, even while exercising its discretion in passing
that order, the alleged reasons are abhorrent to the good administration/
governance and in fact there was no valid reason or justification shown in
exercise of the non existent power. It was, thus, not a case of mere discretion
which the DGP was empowered to exercise or the exercise of power on
rational basis.
Undue sympathy,
that too without stating any such
sympathetic grounds would be anathema to fairness. There has to be fairness
in the administrative action and it should be free from vice of arbitrariness.
We may usefully refer to the judgment of the English Court in the case of
Roberts v. Hopwood; 1925 All E.R. 24 laying down the law in the following
terms:
“.... A person in whom is vested a discretion must exercise his
discretion upon reasonable grounds. A discretion does not
empower a man to do what her likes merely because he is
minded to do so – he must in the exercise of his discretion do not
what he likes but what he ought. In other words, he must, by use
of his reason, ascertain and follow the course which reason
directs. He must act reasonably.....”
18.
The matter can be looked into from another angle as well. In those cases
where Courts are concerned with the judicial review of the administrative action,
the parameters within which administrative action can be reviewed by the courts
are well settled. No doubt, the scope of judicial review is limited and the courts
do not go into the merits of the decision taken by the administrative authorities
but are concerned with the decision making process. Interference with the order
of the administrative authority is permissible when it is found to be irrational,
unreasonable or there is procedural impropriety. However, where reasonable
conduct is expected, the criterion of reasonableness is not subjective but
objective; albeit the onus of establishment of unreasonableness rests upon the
person challenging the validity of the acts. It is also trite that while exercising
limited power of judicial review on the grounds mentioned above, the court can
examine whether administrative decisions in exercise of powers, even if
conferred in subjective terms are made in good faith and on relevant
considerations. The courts inquire whether a reasonable man could have come
to the decision in question without misdirecting himself on the law or facts in a
material respect.(See: M.A.Rasheed & Ors. v. The State of Kerala; (1974) 2
SCC 687).
The decision of the administrative authority must be related to the
purpose of the enabling provisions of Rules or Statutes, as the case may be. If
they are manifestly unjust or outrageous or directed to an unauthorized end, such
decisions can be set aside as arbitrary and unreasonable. Likewise, when action
taken is ultra vires, such action/decision has no legal basis and can be set aside
on that ground.
When there are Rules framed delineating the powers of the
authority as well as the procedure to be followed while exercising those powers,
the authority has to act within the limits defined by those Rules. A repository of
power acts ultra vires either when he acts in excess of his power in the narrow
sense or when he abuses his power by acting in bad faith or for an inadmissible
purpose or on irrelevant grounds or without regard to relevant considerations or
with gross unreasonableness. This was so explained in Shri Sitaram Sugar
Co.Ltd. v. Union of India (1990) 3 SCC 223 in the following manner:
“A repository of power acts ultra vires either when he acts in
excess of his power in the narrow sense or when he abuses his
power by acting in bad faith or for an inadmissible purpose or on
irrelevant grounds or without regard to relevant considerations or
with gross unreasonableness. See Associated Provincial Picture
Houses Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223. In
the words of Lord Macnaghten in Westminster Corporation v.
London and North Western Railway, [1905] AC 426:
“...It is well settled that a public body invested with
statutory powers such as those conferred upon the
Corporation must take care not to exceed or abuse its
powers. It must keep within the limits of the authority
committed to it. It must act in good faith. And it must
act reasonably. The last proposition is involved in the
second, if not in the first....”
In Barium Chemicals Ltd. and Anr. v. The Company Law Board
and Ors., : [1966] Supp. SCR 311, this Court states:
“...Even if (the statutory order) is passed in good faith
and with the best of intention to further the purpose of
the legislation which confers the powers, since the
Authority has to act in accordance with and within the
limits of that legislation, its order can also be
challenged if it is beyond those limits or is passed on
grounds extraneous to the legislation or if there are no
grounds at all for passing it or if the grounds are such
that no one can reasonably arrive at the opinion or
satisfaction requisite under the legislation. In any one
of these situations it can well be said that the authority
did not honestly form its opinion or that in forming it, it
did not apply its mind to the relevant facts.”
In Renusagar, AIR1988SC1737 , Mukharji, J., as he then was,
states:
“The exercise of power whether legislative or
administrative will be set aside if there is manifest error
in the exercise of such power or the exercise of the
power is manifestly arbitrary. Similarly, if the power
has been exercised on a non-consideration or non-
application of mind to relevant factors the exercise of
power will be regarded as manifestly erroneous. If a
power (whether legislative or administrative) is
exercised on the basis of facts which do not exist and
which are patently erroneous, such exercise of power
will stand vitiated”.
The true position, therefore, is that any act of the repository of
power, whether legislative or administrative or quasi-judicial, is
open to challenge if it is in conflict with the Constitution or the
governing Act or the general principles of the law of the land or it
is so arbitrary or unreasonable that no fair minded authority could
ever have made it.”
19.
Thus, if wrong and illegal acts, applying the aforesaid parameters of
judicial review can be set aside by the courts, obviously the same mischief can
be undone by the administrative authorities themselves by reviewing such an
order if found to be ultra vires. Of course, it is to be done after following the
principles of natural justice. This is precisely the position in the instant case and
we are of the considered opinion that it was open to the respondents to take
corrective measures by annulling the palpably illegal order of the earlier DGP,
Haryana.
20.
We, therefore, do not find any merit in this appeal which is accordingly,
dismissed.
21.
This appeal arises out of decision in Civil Writ 9805 of 2006 which was
decided by the common judgment dated 4.4.2007 already taken a note of above.
In this case, ACR is for the period 25.4.1994 – 31.3.1995. It was inter alia
recorded that there was report of corruption against this officer. The appellant
made the representation which was rejected in the year 1995 itself. After a lapse
of almost 7 years, the appellant gave another representation in the year 2002
which was accepted by the DGP, Haryana who expunged the adverse remarks,
giving following reasons:
“Representation of SI Swantanter Singh No. 225/H has been
examined in depth. Keeping in view the improvement shown by
the SI especially in view of good entries against major
punishment nil, adverse remarks so recorded in his ACR for the
period from 25.4.1994 to 31.3.1995, are hereby expunged and
upgraded as “Good”. The representations may be informed
accordingly.”
22.
Thus, in this case also not only second representation was made after
more than 7 years, but there was no new material or facts as well which were
given in the second representation. Furthermore, the reasons given for
expunging the remarks on “corruption” and substituting the same by “good
remarks” is shocking and untenable to say the least. Simply because the
appellant allegedly showed improvement and earned good entries in the
subsequent years cannot be a ground to erase the earlier remarks recorded 7
years ago thereby treating him as a good officer even for the earlier period i.e.
25.4.1994 to 31.3.1995. The petition of the appellant was thus, rightly dismissed
by the High Court. Present appeal is totally bereft of any merits and is
accordingly dismissed.
CA No. 395 of 2008
23.
The petitioner was communicated adverse annual confidential remarks
for the period from 24.4.1998 to 31.3.1998. Relevant extract thereof is
reproduced hereunder:-
1. Discipline Poor
2. Integrity Poor
3. Reliability Poor
4. Moral Character Deserves Improvement
5. General Remarks He was placed under suspension
due to misbehaviour with Smt.
Dhano
Devi,
DC/FTB
was
requested to accord sanction under
PPR 16.38 for DE. But DC/ FTB
refused to accord sanction.
24.
Dissatisfied
with
the
aforesaid
annual
confidential
remarks
communicated to the petitioner, the petitioner made his first representation for
the expunction thereof, on 13.12.1999. The aforesaid representation made by the
petitioner was partly accepted by an order dated 22.6.2000 inasmuch as the
general remarks recorded in the annual confidential report extracted hereinabove
at Serial No. 5 were expunged.
25.
The petitioner submitted a second representation for the expunction of
his other adverse remarks on 13.7.2000. The second representation made by the
petitioner was also rejected on 27.12.2000. Dissatisfied with the aforesaid
rejection, the petitioner moved a mercy petition i.e. the 3rd representation in his
series of representations, on 9.8.2001. This mercy petition was rejected by the
authorities on 22.11.2001. The petitioner, then made a 4th representation for the
expunction of annual confidential remarks communicated to him for the period
24.4.1998 to 31.3.1999. This representation of the petitioner was accepted by an
order dated 12.6.2002 (14.6.2002). Relevant extract thereof is being reproduced
hereunder:-
“The representation dated 1.1.2002of H.C. Ram Kumar No. 26/
Fatehabad against adverse remarks has been considered and
accepted. The adverse remarks recorded in his A.C.R. For the
period from 24.4.98 to 31.3.99 have been expunged. He may
please be informed accordingly.”
26.
The respondents, having arrived at the conclusion, that only one
representation was competent at the hands of the petitioner for the expunction of
adverse annual confidential remarks, acceptance of 4th representation made at
the hands of the petitioner on 1.1.2002 by an order dated 12.6.2002 was
impermissible in law. Therefore, a show cause notice dated 4.7.2006 was issued
to the petitioner. After the petitioner submitted his reply thereto, an order dated
23.8.2006 was passed whereby the order expunging the adverse annual
confidential remarks dated 12.6.2002 was set aside and the annual confidential
remarks for the period 24.4.1998 to 31.3.1999, as originally recorded, subject to
the modification vide order dated 22.6.2000, was reconstructed.
27.
Vide judgment dated 18.4.2007, the Division Bench dismissed the
appellant’s challenge to the orders dated 23.8.2006 relying upon the legal
position expressed in Vinod Kumar's Case (supra). At the same time, the Court
clarified that the remarks in the ACR for the period from 24.4.1998 to
31.3.1999, which relate to the allegation of misbehaviour based on his conduct
with Smt. Dhano Devi, were actually and factually expunged (since a regular
inquiry was conducted in this behalf in which he was exonerated) while
deciding his first representation which was partly accepted on 22.6.2000.
28.
In so far as other remarks are concerned, in view of our detailed
discussion above, it is clear that such a mercy petition, in the form of 4th
representation, at the hands of DGP, Haryana was impermissible in law. The writ
petition of the appellant was, therefore, rightly dismissed. This appeal also
stands dismissed accordingly.
29.
From the facts of this case also it is apparent that the representation
against the ACR for the period 1992-1993 was rejected on 7.5.1996 and
thereafter when fresh representation dated 20.6.2000 was made after a lapse of
more than 4 years. It was accepted vide orders dated 12.7.2000 and the adverse
remarks were expunged. This case is thus, on the same footing as Vinod
Kumar's case. The appeal is accordingly dismissed.
C.A. No. 405 of 2008
30.
The appeal arises out of C.W.P. NO. 20401 of 2006 which was part of
batch petitions decided vide common judgment dated 4.4.2007 with lead matter
in the case of Vinod Kumar. Without stating the facts in detail, suffice is to
mention that adverse reports is for the period 1.4.2001 to 31.3.2002 which was
communicated to him on 2.7.2002. His first representation was rejected by IGP
on 30.9.2002, he filed second representation to the higher authority namely DGP
which was rejected on 28.1.2003. Thereafter, he made another representation
(purported to be a review) before the DGP in July, 2003 which was allowed on
30.9.2003 by expunging the adverse remarks. After issuance of show cause
notice, orders dated 19.10.2006 were passed recalling earlier order dated
30.9.2003 and reconstructing the ACR by restoring earlier adverse remarks. As
is clear from the above, the appellant had earlier exhausted the remedy of first
representation before the immediate officer and second representation to the
higher officer namely DGP. Thereafter, DGP could not entertain any further
representation or review except on “new facts”. Record reveals that no such new
facts were pleaded. Thus, we do not find any merit in this appeal as well and
dismiss the same.
31.
No one appeared in this matter to address the petition at the time of
hearing. Dismissed.
2nd Group Cases
C.A. No. 396 of 2008 & SLP(C)No. 32653 of 2011.
32.
This appeal and SLP are filed by the same appellant H.C. Shiv Kumar.
Leave granted in SLP.
33.
On the basis of those adverse remarks, the appellant was compulsorily
retired from service. Vide orders dated 17.3.2011, his writ petition challenging
the compulsory retirement has been dismissed against which SLP(C)No.
32653/2011 is preferred. Thus, the outcome of this SLP depends upon the result
of C.A. No. 396 of 2008.
34.
Coming to C.A. No. 396 of 2008, in the case of the appellant, adverse
remarks relate to the period 1.4.2001 to 2.10.2001 which were communicated to
him on 2.7.2002. He made the representation dated 24.8.2002 for expunction of
these remarks to the Inspector-General of Police which was rejected on
10.3.2003. Immediately thereafter, in the month of March itself he filed the
revision petition which was allowed on 2.5.2003 expunging the adverse remarks
in toto and replacing the same with 'good' rating.
35.
The appellant was also issued show cause notice dated 30.6.2006, in a
similar manner as in other cases, stating that as per Government’s Instructions
dated 28.8.1962, no second representation lies against the adverse remarks.
Therefore, it was proposed to re-construct
the original adverse remarks
recorded in his ACR for the period in question. The appellant submitted his
detailed reply to the aforesaid show cause notice running into almost 20 pages.
However, his reply did not cut any ice with the authorities and vide orders dated
25.10.2006, DGP, Haryana recalled earlier order dated 2.5.2003 and directed re-
construction of the ACR by restoring the remarks recorded earlier for the period
in question i.e. 1.4.2001 to 2.10.2001. His Writ Petition against the said orders
dated 25.10.2006 has met the same fate at the hands of the High Court which
has dismissed a Writ Petition, following Vinod Kumar's Case (supra), and
holding that second representation submitted by a employee is not acceptable in
law.
36.
We would like to point out, at this stage, that it was also the contention
of the appellant before the High Court that on the same set of allegations on the
basis of which the adverse remarks were communicated to him, a regular
departmental inquiry was conducted against the appellant and the appellant had
been exonerated in the said inquiry. It was argued that for this reason adverse
remarks could not remain in his service record and the order of restoring those
remarks was illegal on this ground as well. The High Court however, rejected
this contention recording a finding that the charge sheet in which the inquiry
was held, was dated 13.3.2001, which naturally referred to the allegations
preceding the date of charge sheet. On the other hand, the adverse remarks were
relatable to the subsequent period and, therefore, in the opinion of the High
Court, this contention of the appellant was untenable.
37.
Mr. Patwalia, learned Senior Counsel appearing for the appellant, after
drawing our attention to the chronology of events from the date of recording the
adverse remarks to that of expunction thereof, made a fervent plea that the case
was not covered by the principle laid down by the High Court in its earlier
judgment in Vinod Kumar's Case (supra) and there was an apparent error in
applying that judgment in the present case as well. His first submission in this
behalf was that it was not a case where the “second representation” was made
after long lapse of time. Secondly, his first representation was to the Inspector-
General which was rejected and the purported “second representation” was in
fact in the nature of representation given to the higher authority namely DGP
which was permissible under the Rules. He, thus, argued that the High Court
wrongly treated the same as second representation to the same authority which
became the cause of error on the part of the High Court. He referred to the
judgment of the High Court in the case of Vinod Kumar itself where such cases
as that of the appellant, were saved after interpreting the relevant Instructions.
38.
We find the aforesaid contention of Mr. Patwalia to be meritorious.
While discussing C.A. No. 392/2008, we have already taken note of the relevant
government instructions as well as Rules on the subject. In para 9 above, we
have summarised the position contained in the policy instructions dated
28.8.1962 as per which, once a representation is rejected by the immediate
superior officer, one more representation is permissible and allowed to be made
to the next higher authority. This precisely happened in the instant case. First
representation was to the Inspector-General of Police which was rejected on
10.3.2003 and within few days, the appellant made second representation which
was allowed on 2.5.2003. Thus, not only this representation was made within
stipulated period prescribed under the Rules namely six months, which is
prescribed in the Standing Order, it was made to the higher authority as well. It
seems that this vital difference between the appellant's case from the fact
situation in Vinod Kumar's Case has been overlooked by the High Court.
39.
Once, we find that the revision or second representation to the higher
authority was made within prescribed period (in fact within few days of the
rejection of representation by the IGP) and such a representation to the higher
authority was permissible, it cannot be said in this case that the order of the
DGP, Haryana was without jurisdiction i.e. on a representation “which was not
permissible” in law. Once, we find this to be the factual position, we are
constrained to hold that three years thereafter, the case could not be re-opened
and order dated 25.2003 could be interdicted by the successor.
40.
As a result, this appeal is allowed and the order of the High Court is set
aside. Result would be to allow the writ petition filed by the appellant before the
High Court and quash the orders dated 25.10.2006 passed by the DGP, Haryana.
41.
The appellant was given show cause notice dated 24.10.2010 proposing
compulsory retirement. The ground on which the action proposed was attached
to the show cause notice. On perusal thereof reveals that the material sought to
be put up against the appellant was as under:
1.
Adverse remarks for the period 1.4.2001 to 2.10.2001.
2. Award of punishment of “warning” vide SP/AMB/OB/218/08
for showing negligence in investigation in case FIR NO. 121
dated 9.7.2008 under Section 279/ 304 A IPC, PS Narayan.
42.
In reply, the appellant had submitted that his appeal No. 396/08 is
pending against the judgment of the High Court in so far as ACR's for the
period 1.4.2001 to 2.10.2001 is concerned and, therefore, notice in question be
withdrawn. However, this plea of the appellant was not accepted and vide
orders dated 17.3.2011, appellant was ordered to be compulsory retired from
service with immediate effect. In this order also, same two grounds namely,
ACR for the period 1.4.2001 to 2.10.2001 and award of punishment of warning
in every case, are mentioned.
43.
Since, we have allowed C.A. No. 396 of 2008, the effect thereof is that
adverse remarks for the period in question no longer remain in the service record
of the appellant and for this period his rating now is “good” to which he was
upgraded vide orders dated 2.5.2003. In so far as award of “warning” is
concerned, leaned Counsel for the State could not dispute that “warning” is not a
punishment prescribed under the Rules. It was not given to him after holding
any inquiry. Therefore, such a warning recorded administratively in a service
record cannot be the sole basis of compulsory retirement.
44.
The appellant's writ petition has been dismissed by the High Court vide
orders dated 26.12.2011. We, thus allow this appeal and set aside the impugned
judgment of the High Court. As a consequence, the appellant shall be reinstated
in service in the same position on which he was working as on the date of
compulsorily retirement with consequential benefits in case he has not already
attained the age of superannuation. However, if he has already attained the age
of superannuation, he shall be treated as deemed to be in service throughout as if
no compulsory retirement orders were passed and will be given consequential
benefits including pay for the intervening period and pensionary benefits on that
basis.
C.A. No. 400 of 2008
45.
The ACR for the appellant pertains to 3.11.2002 to 31.3.2003 which
were adverse in nature. These remarks were conveyed to him vide memo dated
8.6.2003, the appellant made representation against those adverse remarks vide
his communication dated 30.10.2003 which was rejected by the Inspector-
General of Police, Hisar Range, Hisar. He filed “appeal” thereagainst to the
Director General of Police within a few days thereafter i.e. 30.10.2003 which
was accepted by the DGP. Adverse remarks were expunged and his ACR was
upgraded to 'good'. He was given show cause notice for reversal of the good
rating and re-construction of old ACR on 15.8.2006 and order to this effect was
passed, after eliciting his reply, on 18.10.2006 on the ground that his adverse
remarks were expunged on his “second representation” which was not
permissible in law. The aforesaid facts would demonstrate that the appellant
herein is also identically situated as the appellant in C.A. No. 396 of 2008. For
the reasons given therein, this appeal is also allowed and the order of the High
Court is set aside. As a consequence, writ petition of the appellant stands
allowed and the orders dated 18.10.2006 of DGP, Haryana are hereby quashed.
SLP(C)No. 3932 of 2008
46.
47.
Leave granted.
The appeal arises out of C.W.P. No. 1249 of 2007 which was part of
batch petitions decided vide common judgment dated 4.4.2007 with lead matter
in the case of Vinod Kumar. Adverse remarks in the case of this petitioner are
for the period 1.4.2001 to 31.3.2002. His representation dated 18.7.2002 was
rejected. On 30.4.2003, he filed revision/ representation against order dated
30.4.2003 to the higher authority namely DGP which was
by the DGP vide
orders dated 6.10.2003 and the adverse remarks were expunged. He was given
show cause notice dated 8.9.2006 whereafter orders dated 3.12.2006 were
passed reviewing the earlier order dated 6.10.2003 and reconstructing the ACR
by maintaining earlier adverse report which was communicated to him in the
beginning. From the aforesaid facts it becomes clear that it was not a case of
second representation to the same authority. Another representation to the higher
authority was made which is permissible under the Rules and that too
immediately after his first representation by the IGP was rejected. His case is
thus para materia with C.A. No. 396 of 2008.
48.
The impugned order of the High Court qua the appellant is accordingly
set aside and appeal is accordingly allowed.
C.A. No. 459 of 2009
49.
This appeal is filed by the State of Haryana against the judgment of the
High Court in the writ petition filed by the respondent. The respondent was
communicated adverse ACR for the period 5.11.00 to 31.3.2001. On 13.11.2001
he submitted his representation dated 18.12.2001 which was rejected on
14.8.2002. Thereafter he filed the revision petition dated 4.10.2002 which was
allowed on 13.2.2003. However, this order was recalled vide orders dated
18.1.2007 after giving show-cause notice dated 21.11.2006. From the aforesaid,
it is clear that second representation to a higher authority was clearly
maintainable and this aspect has been discussed in detail by us while dealing
with CA 396 OF 2008.
50.
Additionally, we find that on the same allegations on which ACR's were
recorded, the respondent was also issued charge sheet but was completely
exonerated therein. The High Court in these circumstances rightly allowed the
writ petition following its earlier judgment in the case of Randhir Singh, ASI vs.
State of Haryana & Ors. (C.W.P. No. 867 of 2007 decided on 29.3.2007) in the
following manner:-
“In our view, the claim of the petitioner was liable to be
adjudicated upon its merits based on the judgment and decree
dated 24.5.1999. in this behalf, it would be pertinent to mention,
that the annual confidential report for the period 1.4.1995 to
2.7.1995 ( which has been extracted herein above), clearly
reveals that the same was based on the allegation, wherein in a
departmental enquiry was conducted against the petitioner, and
the petitioner had been found guilty, and inflicted with the
punishment of stoppage of two annual increments with
cumulative effect. So far as the aforesaid factual position is
concerned, there was no difference of opinion between learned
counsel representing the rival parties. However, the aforesaid
factual position underwent a change, with the passing of the
judgment and decree at the hands of the civil judge at Sirsa dated
24.5.1999. The findings recorded int eh departmental enquiry
which constituted the foundation and the basis of the annual
confidential report dated 30.9.1995 were set aside in the
judgment and decree dated 24.5.1999. In sum and substance,
therefore, the very basis on which the annual confidential report
(under reference) was recorded, had been annulled by the
judgment and decree dated 24.5.1999. Not only that, although
liberty was given by the trial Court o the respondents to hold a
fresh enquiry, yet, after a conscious application of mind, the
Government by its order dated 11.7.2002 decided to file the
matter. That being so, we have no doubt in our min, that the
allegation contained in the charge sheet were considered to be
unjustified by the respondents themselves. Since, the basis of the
aforesaid charge sheet was treated as unjustified by the State
Government itself, it is apparent, that the adverse remarks
recorded thereon were wholly unjustified in the facts and
circumstances of this case. We are, therefore satisfied, that the
former Director General of Poki8ce, was fully justified in passing
the order dated 26.8.2003, by which he ordered the expunction of
remarks communicated to the petitioner on 30.9.1995.”
51.
We thus, do not find any merit in these appeal and is dismissed.
52.This appeal is also preferred by State of Haryana. The factual position in this
case is same as in C.A. No. 495 of 2008. For same reasons, this appeal also
stands dismissed.
3rd Group Cases
C.A. No. 1721 of 2008
53.
In this appeal, subject matter is not the annual confidential report but the
departmental inquiry. Though the orders are shadowed by same set of
circumstances, here the penalty imposed as a result of disciplinary proceedings
was set aside on the basis of mercy petition filed by the appellant, that too after
exhausting all the departmental remedies. It happened in the following
circumstances:
The appellant was charge sheeted and departmental inquiry conducted
against him related to conduct of investigation in a case wherein he had
implicated innocent persons in false cases getting the accused free from police
custody and misusing his post for ulterior motives. Charges were proved in the
inquiry on the basis of which Superintendent of Police, Faridabad as a
disciplinary authority imposed the penalty of stoppage of three future annual
increments on permanent basis vide order dated 17.1.1999. The appellant filed
appeal against the said order which was rejected by the DGP on 1.3.1999. He
filed revision on 20.6.2000 which was also rejected on 13.2.2001. Under the
disciplinary Rules, there is no further departmental remedy provided. However,
the appellant has preferred mercy petition dated 12.5.2001 to the Secretary,
Home, Government of Haryana, through proper channel. On this mercy petition,
order dated 9.7.2001 was passed by DGP, Haryana accepting the said petition
thereby setting aside the penalty imposed upon the appellant.
54.
A perusal of the orders dated 9.7.2001 would show that the DGP took
note of the facts of the case and holding of the inquiry. He also referred to the
departmental remedy of appeal and revision filed by the appellant. Thereafter, it
is mentioned that being satisfied with the order passed in revision the appellant
had “preferred the instant mercy petition”. Curiously, after examining the
records, the DGP also held the view that departmental inquiry was properly
conducted. Inspite thereof, without giving any reasons and simply “taking a
lenient view”, the punishment is set aside as is clear from the following paras of
the said order.
“And whereas, I have carefully gone through the revision petition,
departmental enquiry file and the relevant records. The instant
departmental enquiry has been conducted as per prescribed Rules
and procedure and does not suffer from any legal infirmity various
pleas taken by the revisionist have been examined and could to be
devoid of any merit.
Now, therefore, keeping in view the please of mercy made by the
revisionist after taking a lenient view, the punishment of stoppage
of three future annual increments with permanent effect is hereby
set aside”.
55.
When this fact came to light, show-cause notice dated 25.8.2006 was
issued stating that there was no provision in the Rules for entertaining another
petition (Mercy Petition) by the DGP without new material, once revision
petition of the appellant had already been considered and rejected. It was,
therefore, proposed to restore the penalty orders and the appellant was asked to
show-cause against the proposed action. The appellant submitted his reply and
on consideration thereof the orders dated 22.10.2006 were passed restoring the
earlier penalty order finding no merit in the lease taken by the appellant.
56.
Writ petition of the appellant challenging the said order has been
dismissed by the High Court. However the High Court has directed the
respondent not to make any recovery from the appellant as he did not play any
fraud or made any mis-representation.
57.
While dealing with C.A. No. 392 of 2008, we have already reproduced
extract of the relevant Rules i.e. Rule 16.28 and 16.32 of the Punjab Police
Rules, 1934. Rule 16.28 relates to the review which had already been exhausted
by the appellant. As per Rule 16.32 such an officer is prohibited from applying
from a fresh scrutiny of an appliance. He could however apply, within a month
of the appellate order, to the authority next above the prescribed appellate
authority for revision on grounds of material irregularity in the proceedings.
58.
Thus, such a review under Rule 16.32 is admissible only if some
material irregularity in the proceedings is found or some fresh evidence is
surfaced.
59.
Rule 16.28 is in Chapter XVI which deals with “punishments” and
various sub rules of Rule 16 in this Chapter cover all the aspects of punishment
which include the nature of punishments that can be imposed and the
circumstances under which such punishments can be imposed viz. either on the
basis of conviction in a judicial case or after conducting departmental inquiry
into the misconduct. These provisions also deal with suspension, subsistence
grants etc.. Rule 16.24 deals with the procedure which is to be adopted in
departmental inquiries. Thereafter, relevant provision is Rule 16.28 which deals
with “powers to review proceedings”. Next Rule is Rule 16.29 which gives
“right of appeal” to the delinquent employee. Rule 16.30 relates to the manner of
dealing with these appeals and Rule 16.31 enumerates the orders on appeals by
prescribing that every order shall contain the reasons. Thereafter, comes Rule
16.32 which again deals with revision.
60.
In the scheme of things, as provided, it is clear that Rule 16.28 is
different from Rule 16.32. While Rule 16.28 deals with Review, Rule 16.32
deals with Revision which is permissible under certain specified circumstances,
after the appeal is rejected. It is this provision in Rule 16.32 which talks of
Revision on certain grounds namely (a) material irregularity in the proceedings
or (b) on provision of fresh evidence.
61.
It also stipulates that mercy petition may be submitted to the same
authority. There is no separate or other provision for mercy petition which is
contained in Rule 16.32 itself. Thus, under Rule 16.32 an employee can seek
Revision either on the ground of material irregularity in the proceedings or on
provision of fresh evidence. In the alternative he can submit Revision Petition
raising a plea for mercy. We are ,therefore, of the opinion that when the Revision
Petition is earlier rejected on merits, another revision petition raising the plea for
mercy would not permissible. Moreover, no grounds for mercy are stated except
showing that lenient view be taken.
62.
In the present case, we also find that the mercy petition was not filed
within one month. Further, it was not filed on the ground of material irregularity
in the proceedings or by producing any fresh evidence. On the contrary, as
pointed out above, the DGP while allowing the mercy petition specifically
recorded that there was no irregularity in the conduct of departmental
proceedings. In spite thereof, he cancelled the order of penalty without giving
any cogent reasons. Such a order was palpably illegal and was rightly set right
departmentally. We thus do not find any merit in this appeal which is
accordingly dismissed.
63.
This is also a case of departmental inquiry which was held against the
appellant and culminated an order of dismissal from service on 2.2.1999. His
appeal was rejected by DIG on 1.7.1999. Thereafter, revision was rejected by
the IGP ON 3.9.1999. More than 1 1⁄2 years, thereafter he preferred mercy
petition which was allowed by DGP, Haryana and the punishment of dismissal
was reduced to stoppage of 5 increments. This order was also recalled after
giving show-cause notice, vide orders dated 16.10.2006. Appellant challenged
this order by filing writ petition in the High Court which has been dismissed by
the High Court on 21.8.2007. Order fo the High Court is the subject matter of
the present appeal.
64.
In view of our discussion in C.A. No. 1721 of 2008, we find that here
also such a mercy petition was not maintainable which was not only filed
belatedly but no fresh material was also furnished.
65.Thus, we are of the view that the order allowing the mercy petition without
reason was clearly untenable and was rightly recalled. We thus, do not find
any merit in this appeal either which is accordingly dismissed.
................................................J
[Sudhansu Jyoti Mukhopadhaya]
...............................................J.
[A.K. Sikri]
New Delhi
October 24, 2013
37
Page 37
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 392 OF 2008
VINOD KUMAR
........ APPELLANT(S)
VERSUS
STATE OF HARYANA & ORS.
Citation; 2014 ALL SCR 460
1. Though all these appeals were directed to be heard together, during the
course of hearing, it transpired that on facts all these cases are not identical
or of similar nature. At the same time these appeals can be categorized in
three groups. These appeals have arisen from the judgments of Punjab and
Haryana High Court. First judgment in point is dated 4.4.2007, which is the
main judgment, passed by the High Court in batch of writ petitions with
CWP No. 9805 of 2006 as the lead case. Appeal in the said case is C.A. No.
392 of 2008. Therefore, we propose to start from this appeal so that the
veracity or the legality of the main judgment is discussed. Some of other
appeals fall in this group and discussions in other groups of appeals would
also flow from this case. In this manner, we would be in a position to proceed
systematically and coherently.
Ist Group Cases
2. The appellant in this appeal was recruited into the police service in the State
of Haryana as a Constable in the year 1971. He got promotion to higher ranks
from time to time and became Inspector of Police in the year 2002. During
the course of his employment, an adverse entry was recorded in his Annual
Confidential Report (hereinafter to be referred as 'ACR') for the period
11.10.1989 to 31.3.1990. Though the exact report was not placed on record
either before the High Court or this Court, it is a common case of the parties
that the ACR for this period related to adverse comments on his “integrity”. It
was acknowledged by the appellant's counsel before the High Court that the
said adverse remarks pertained to his character and antecedents.
3. These remarks were recorded by the then Superintendent of Police, Hisar
Range, Hisar. As he wanted these remarks to be expunged, the appellant
made a representation to the Deputy Inspector-General of Police, Hisar. His
representation was rejected on 26.5.1993. Initially, there was a stoic silence
on the part of the appellant who did not pursue the matter further for quite
some time. However, he woke up from slumber and after almost 9 years, he
made another representation to the Director General of Police, Haryana. This
was accepted by the DGP vide orders dated 15.7.2002 and the aforesaid
remarks were expunged. The operative part of the order of the DGP, Haryana,
in this behalf, is as under:-
“Mercy Petition of ASI Vinod Kumar NO. 345/SR5S (now SI
No. 56/H) against the adverse remarks in the matter of integrity
recorded his ACR for the period from 14.11.89 to 31.3.1990, has
been considered on the basis of available record. The
departmental enquiry was conducted on the charges of
carelessness and indiscipline in which he was awarded a
punishment of censure. No advice/ warning was awarded to him
in the matter of integrity. But the reporting officer has doubted his
integrity. Thus, the adverse remarks are uncalled for and without
any basis and will not stand scrutiny of the judiciary. The mercy
petition is accepted and adverse remarks are expunged in the
interest of principles of natural justice. The representationist may
be informed accordingly.”
4. As would be seen in almost all these appeals before us, the DGP had
expunged adverse remarks of many such police officials during this period
namely from 1999-2002. After the change of regime when new Director
General of Police took over the charge, he noticed this phenomena where the
adverse remarks were expunged after substantial lapse of time and/ or for no
valid reasons and in some cases even after all the departmental remedies had
been exhausted by those officials, unsuccessfully. The new DGP, therefore,
issued Instructions dated 9.6.2005 to all Range Inspector General of Police,
Railways and Technical Services, Haryana and the Inspector General of
Haryana Armed Police, Madhuban. In these Instructions, it was stated that he
had come across some old cases where remarks related to integrity were
expunged after obtaining fresh representations, despite the fact that their
earlier representation/ mercy petition/ memorial/ writ petitions had been
rejected/ dismissed by the competent authority/ State Government or Courts.
Many such cases were even accepted after a lapse of 10/ 12 years. Opinion of
the Legal Remembrancer, Haryana was taken who had opined out that in
such cases expunction of remarks of the concerned employees was wrongful
and the adverse remarks recorded earlier should be reconstructed, after
issuing show-cause notice to these officials. Vide these Instructions, the DGP
ordered a review of all such cases.
5. Show cause notice was issued to the appellant. He submitted his reply dated
22.5.2006. After considering the same, DGP, Haryana passed the orders dated
21.6.2006 restoring/ reconstructing the earlier adverse remarks and recalled
orders dated 15.7.2002 of the DGP, Haryana vide which the aforesaid
remarks were expunged.
6. The appellant filed petition challenging the aforesaid Orders dated 21.6.2006.
This petition was heard alongwith some other cases where similar orders
were passed and vide common judgment dated 4.4.2007, the writ petition of
the appellant has been dismissed.
7. Since this is the main judgment giving detailed reasons for dismissing the
writ petitions, it would be apt to traverse through the same to find out the
grounds of challenge laid by the appellant and other writ petitions before the
High Court as well as the reasons given by the High Court while rejecting
those submissions.
JUDGMENT OF THE HIGH COURT
8. The argument of the appellant before the High Court was that second
representation was permissible having regard to the instructions contained in
Standing Order No. 65/ 1998 dated 8.2.1999 issued by the DGP, Haryana.
These instructions referred to the earlier policy instructions issued by the
State Government dated 28.8.1962 which lays down procedures for the
guidance of all departments for entertaining the representations against the
adverse remarks. In the Government's Instructions dated 28.8.1962, it was
emphasized that in the absence of specified procedure for entertaining the
representations against ACR, the authorities had noted that whenever any
officer in a key position is transferred, certain government servants think that
it is a good opportunity to re-open finally settled cases connected with their
conditions of service or disciplinary matters, which may be even several
years old. There was also a tendency of sending advance copies of
representations to all the higher authorities which was leading to unnecessary
work at all levels. At the same time, it was also necessary to ensure a fair
chance of representation to the government employee. Going by these
considerations the detailed procedure was laid down in those Instructions
dated 28.8.1962. It inter alia provided that if a government servant wishes to
press his claim or to seek redress of his grievance, the proper course was to
address his immediate official superior, or the head of office or such other
authority at the lowest level, who is competent to deal with the matter. Once
that authority decides the case, one representation be allowed to the next
higher authority. When the lowest competent authority is the Government
itself, one representation is allowed asking for a review of Government
orders. These instructions also categorically stipulate that no further
representations are allowed except in those cases where new facts have come
to light and representation on such ground would be considered by the
original deciding authority. Period of six months is provided for making such
a representation. There is also a provision for allowing one memorial which
is to be decided at Government level in terms of Instructions dated 12.2.1952.
Second memorial is permissible if it furnishes new
material grounds
requiring re-consideration. Relevant portions of these Instructions, stating the
aforesaid position, is extracted below:
“ After Careful consideration the following procedure is laid
down for the guidance of all departments:-
(a)
Whenever in any
matter connected with his service rights or conditions, a
government servant wishes to press his claim or to seek
redress of a grievance, the proper course for him is to
address his immediate
official superior, or
the Head of Office or such other authority at the lowest
level, as it competent to deal with the matter. When a case
has thus been decided
by
the
lowest
competent authority one representation should be allowed to
the next higher authority. Where the lowest competent
authority is government itself, one representation should be
allowed, asking for a review or government orders.
(b)
If an official sends
up a representation in addition to those permitted under (a)
above, on the ground that certain new facts have come to
light, that representation will be considered by the origianl
deciding authority, who will be competent to withhold it and
reject it if finds
that in fact no new
data has been given which would
provide any material
grounds for reconsideration.”
9. In nut-shell as per Policy Instructions dated 28.8.1962, representations can
be made, if it is a case of adverse remarks, in the following manner:
1. Representation to immediate official superior, or the head of
office or such other authority at the lowest level who is
competent to deal with the matter.
2. If it is rejected by the lowest authority one more
representation is allowed to the next higher authority.
OR
If the lowest competent authority is the Government itself
then representation by way of review is allowed to the
Government.
3. No further representation is to be entertained except on the
ground that certain new facts have come to light. If it is
found by the competent authority that no new fact has been
given he would be competent to reject it.
4. After the representations are made in the manner stated
above, one memorial is allowed which is to be decided at
Government level.
5. Second memorial is allowed only on furnishing new material
grounds.
10.
As already pointed above, Instructions dated 28.8.1962 were referred to
in Standing Order No. 65/1998 dated 8.2.1999. In these Instructions, reliance
was placed on the earlier Standing Order. It reiterated the tendency to entertain
belated representations qua seniority or seeking ante-dated promotion or
expunction of adverse remarks in ACR or appeals against punishments after
lapse of number of years that too whenever any officer in key position is
transferred. It condemned and deprecated this practice in strong words. It also
highlighted that entertainment of such representations after long lapse of time is
not only in contravention of Rules and settled legal position on the subject but it
also creates unnecessary complications/ litigations and unsettles the settled inter
se relativities. Apart from issuing mandate to the effect that such delayed
representations qua seniority, promotion, ACR's etc. be not entertained ,
following instructions were specifically issued, which are relevant in the context
of entertaining representations against ACR:-
1. If any personnel is not satisfied with the decision of the
competent authority or next higher authority, he may approach
next higher authority to get justice as per settled law within
six months.
2.
No competent authority shall consider any representation
against an order, if the order against which the personnel is
aggrieved is more than 5 years old.
11.
It was argued before the High Court, which was the submission before us
as well, that these instructions were applicable only in those cases which were
not covered or governed by the Punishment and Appeal Rules. It was argued that
a representation was permitted to an employee in addition to the prescribed
representations as per para (b) of the Policy Instructions dated 28.8.62 and the
second representation of the appellant which was accepted by the DGP was thus,
permissible. However, this argument was brushed aside by the High Court, and
rightly so, taking note of the fact that as per clause (b), further representation
could be made only on the ground that certain new facts have come to light.
Further, whereas the period specified for making this representation as per 1962
Instructions was six months, the appellant had made the second representation
almost after nine years which was clearly not permissible as reiterated even in
1999 instructions. In fact, it is this mischief of re-opening the settled cases, by
making belated representations which these government instructions aimed
curbing at. The High Court in the impugned judgment, in this behalf, aptly
remarked as under:
“Although, the contention of the learned counsel for the
petitioner seems to be attractive on first blush, however, a perusal
of clause (c) takes the wind out of the aforesaid contention. It is
clearly and emphatically pointed out, that any such representation
permitted to be made under the 1962 instructions, has to be made
within a period of six months. It is not the case of the petitioner,
that the representation made by him was within the ambit of the
instructions of 1962. In fact, from the facts narrated hereinabove,
it is apparent, that after the first representation made by the
petitioner was rejected on 26.5.1993, whereafter the second
representation was allegedly made by the petitioner only on
25.2.2002 i.e. after almost nine years.”
12.It is manifest that after the change of guards, the appellant took a chance by
making another representation to the new DGP and got favourable orders.
13.
Even the punishment under Appeal Rules are of no help to the appellant.
Reliance was placed on Rules 16.28 and 16.32 of Punjab Police Rules, 1934.
These Rules read as under:
“16.28. Powers to review proceedings.--
(1) The Inspector-General, a Deputy Inspector-General,
and a superintendent of Police may call for the records of
awards made by their subordinates and confirm, enhance,
modify or annul the same, or make further investigation or
direct such to be made before passing orders.
(2) If an award of dismissal is annulled, the officer
annulling it shall state whether it is to be regarded as
suspension followed by reinstatement, or not. The order
should also state whether service previous to dismissal
should count for pension or not.
(3) In all cases in which
officers propose to enhance an award they shall, before
passing final orders, give the defaulter
concerned an
opportunity of showing cause, either
personally or
in writing, why
his
punishment
should not be
enhanced.
16.32.
Review.- An officer whose appeal has been rejected is
prohibited from applying for a fresh scrutiny of the evidence.
Such officer may, however, apply, within a month of the date of
despatch of appellate orders to him, to the authority next above
the prescribed appellate authority for revision on grounds of
material irregularity in the proceedings or on production of fresh
evidence, and may submit to the same authority a plea for
mercy: provided that no application for the revision of an order
by the Inspector-General will be entertained. An officer whose
appeal has been heard by the Inspector-General may, however,
submit to the Inspector-General a plea for mercy or may apply
to the Inspector-General for a review of his appellate order only
on the ground that fresh evidence has become available since the
appellate order has been pronounced. This Rule does not affect
the provisions of Rule 16.28. Such application or plea must be
in English”.
14.
However, these are part of Rule 16 which falls in Chapter XVI relating
to “punishment”. This Rule 16 prescribes the procedure for conducting
departmental inquiries and imposition of penalties consequent thereto. It has
nothing to do with the confidential reports. In fact, provision relating to
Confidential Reports is contained in Rule 13.17 of the aforesaid Rules. Relevant
portion of Rule 13.17 reads as under:-
“13.17.
Annual Confidential Reports.--
(1) Superintendents shall prepare and submit annually to the
Deputy Inspector-General, after obtaining the District
Magistrate's remarks thereon, reports in form 13.17 on
the working of all Upper Subordinates serving under
them. These reports shall be submitted to reach the
Deputy Inspector-General on or before 15th April.
Deputy Inspectors-General and Assistant Inspector-
General, Government Railway Police, will add their
own remarks and retain reports on Assistant Sub-
Inspectors and Sub-Inspectors who are not on list 'F'
and Sergeants will be forwarded by Deputy Inspectors-
General and Assistant Inspector-General, Government
Railway Police, so as to reach the Inspector-General on
or before the 15th May. In the cases of Indian
Inspectors of the General Line, Sub-Inspectors on list
'F' and all Sergeants, Deputy Inspectors-General and
Assistant Inspector-General, Government Railway
Police, will attach with each report so submitted a
duplicate copy thereof. Any remarks recorded by the
Inspector-General on the original report will be copied
in his office on the duplicate prior to the return of the
latter report for record with the duplicate personal file
maintained in accordance with Rule 12.38 (1).
(2) Reports shall be of three kinds, A, B and C, and shall be
marked as such:--
A reports.-- Reports in which for special reasons it is
recommended that promotion be given irrespective of
seniority.
B reports.-- Reports in which it is recommended that
promotion be given in the ordinary course of seniority.
C reports.-- Reports in which it is recommended that
the officer be passed over for promotion or that the
taking of departmental action on general grounds of
inefficiency or unsatisfactory conduct be considered.
15.
This Rule only states the manner in which ACR is to be written. We also
have Rule 14.7 which may be relevant to the context and is reproduced below:-
“14.7 Comments on remarks of superior officer.--
A police officer shall not record comments on the remarks
made by a superior officer. If a police officer considers that
an erroneous view has been taken of his conduct or of any
matter affecting his administration he may refer the
question in a temperate manner through the proper
channel.”
16.
Thus, these Rules only pertain to recording of ACRs. There is no
provision in the Rules containing any procedure for dealing with representations
against the ACRs. That is provided in 1962 and 1999 Instructions, already taken
note of above. Therefore, the High Court rightly rejected the contention of the
appellant predicated on these Rules. Thus, we find that on the face of it, the
second representation preferred by the appellant, in which the ACRs were
expunged was not permissible. It was not only contrary to 1962 and 1999
Instructions, but was made after 9 1⁄2 years from the date when first
representation against the ACR was rejected.
17.We would like to make certain comments, at this juncture, on the powers of
the successor DGP, Haryana in over turning the decision of his predecessor
who had accepted the representation and expunged the adverse remarks in a
petition which was not maintainable and wholly unwarranted. The general
principle is that merely because there is a change in the regime or when the
successor assumes the office, he would not be entitled to review and reopen
the cases decided by his predecessor. That would apply in those cases where
the predecessor had passed the orders which he was empowered to pass
under the Rules and had exercised his discretion in taking a particular view.
Therefore, this proposition applies in a situation where order of the
predecessor resulted in legal, binding and conclusive decision. However, the
position would be different when it is found that the order of the predecessor
was without jurisdiction or when a palpably illegal order was passed
disregarding all the cannons of administrative law
viz. when the
predecessor’s decision was without jurisdiction or ultra vires or when it was
exfacie an act of favoritism. In the present case we find that not only the
order passed by earlier DGP, Haryana was ultra vires, as that was not backed
by any authority vested in it under the Rules as the representation/ mercy
petition was not maintainable, even while exercising its discretion in passing
that order, the alleged reasons are abhorrent to the good administration/
governance and in fact there was no valid reason or justification shown in
exercise of the non existent power. It was, thus, not a case of mere discretion
which the DGP was empowered to exercise or the exercise of power on
rational basis.
Undue sympathy,
that too without stating any such
sympathetic grounds would be anathema to fairness. There has to be fairness
in the administrative action and it should be free from vice of arbitrariness.
We may usefully refer to the judgment of the English Court in the case of
Roberts v. Hopwood; 1925 All E.R. 24 laying down the law in the following
terms:
“.... A person in whom is vested a discretion must exercise his
discretion upon reasonable grounds. A discretion does not
empower a man to do what her likes merely because he is
minded to do so – he must in the exercise of his discretion do not
what he likes but what he ought. In other words, he must, by use
of his reason, ascertain and follow the course which reason
directs. He must act reasonably.....”
18.
The matter can be looked into from another angle as well. In those cases
where Courts are concerned with the judicial review of the administrative action,
the parameters within which administrative action can be reviewed by the courts
are well settled. No doubt, the scope of judicial review is limited and the courts
do not go into the merits of the decision taken by the administrative authorities
but are concerned with the decision making process. Interference with the order
of the administrative authority is permissible when it is found to be irrational,
unreasonable or there is procedural impropriety. However, where reasonable
conduct is expected, the criterion of reasonableness is not subjective but
objective; albeit the onus of establishment of unreasonableness rests upon the
person challenging the validity of the acts. It is also trite that while exercising
limited power of judicial review on the grounds mentioned above, the court can
examine whether administrative decisions in exercise of powers, even if
conferred in subjective terms are made in good faith and on relevant
considerations. The courts inquire whether a reasonable man could have come
to the decision in question without misdirecting himself on the law or facts in a
material respect.(See: M.A.Rasheed & Ors. v. The State of Kerala; (1974) 2
SCC 687).
The decision of the administrative authority must be related to the
purpose of the enabling provisions of Rules or Statutes, as the case may be. If
they are manifestly unjust or outrageous or directed to an unauthorized end, such
decisions can be set aside as arbitrary and unreasonable. Likewise, when action
taken is ultra vires, such action/decision has no legal basis and can be set aside
on that ground.
When there are Rules framed delineating the powers of the
authority as well as the procedure to be followed while exercising those powers,
the authority has to act within the limits defined by those Rules. A repository of
power acts ultra vires either when he acts in excess of his power in the narrow
sense or when he abuses his power by acting in bad faith or for an inadmissible
purpose or on irrelevant grounds or without regard to relevant considerations or
with gross unreasonableness. This was so explained in Shri Sitaram Sugar
Co.Ltd. v. Union of India (1990) 3 SCC 223 in the following manner:
“A repository of power acts ultra vires either when he acts in
excess of his power in the narrow sense or when he abuses his
power by acting in bad faith or for an inadmissible purpose or on
irrelevant grounds or without regard to relevant considerations or
with gross unreasonableness. See Associated Provincial Picture
Houses Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223. In
the words of Lord Macnaghten in Westminster Corporation v.
London and North Western Railway, [1905] AC 426:
“...It is well settled that a public body invested with
statutory powers such as those conferred upon the
Corporation must take care not to exceed or abuse its
powers. It must keep within the limits of the authority
committed to it. It must act in good faith. And it must
act reasonably. The last proposition is involved in the
second, if not in the first....”
In Barium Chemicals Ltd. and Anr. v. The Company Law Board
and Ors., : [1966] Supp. SCR 311, this Court states:
“...Even if (the statutory order) is passed in good faith
and with the best of intention to further the purpose of
the legislation which confers the powers, since the
Authority has to act in accordance with and within the
limits of that legislation, its order can also be
challenged if it is beyond those limits or is passed on
grounds extraneous to the legislation or if there are no
grounds at all for passing it or if the grounds are such
that no one can reasonably arrive at the opinion or
satisfaction requisite under the legislation. In any one
of these situations it can well be said that the authority
did not honestly form its opinion or that in forming it, it
did not apply its mind to the relevant facts.”
In Renusagar, AIR1988SC1737 , Mukharji, J., as he then was,
states:
“The exercise of power whether legislative or
administrative will be set aside if there is manifest error
in the exercise of such power or the exercise of the
power is manifestly arbitrary. Similarly, if the power
has been exercised on a non-consideration or non-
application of mind to relevant factors the exercise of
power will be regarded as manifestly erroneous. If a
power (whether legislative or administrative) is
exercised on the basis of facts which do not exist and
which are patently erroneous, such exercise of power
will stand vitiated”.
The true position, therefore, is that any act of the repository of
power, whether legislative or administrative or quasi-judicial, is
open to challenge if it is in conflict with the Constitution or the
governing Act or the general principles of the law of the land or it
is so arbitrary or unreasonable that no fair minded authority could
ever have made it.”
19.
Thus, if wrong and illegal acts, applying the aforesaid parameters of
judicial review can be set aside by the courts, obviously the same mischief can
be undone by the administrative authorities themselves by reviewing such an
order if found to be ultra vires. Of course, it is to be done after following the
principles of natural justice. This is precisely the position in the instant case and
we are of the considered opinion that it was open to the respondents to take
corrective measures by annulling the palpably illegal order of the earlier DGP,
Haryana.
20.
We, therefore, do not find any merit in this appeal which is accordingly,
dismissed.
21.
This appeal arises out of decision in Civil Writ 9805 of 2006 which was
decided by the common judgment dated 4.4.2007 already taken a note of above.
In this case, ACR is for the period 25.4.1994 – 31.3.1995. It was inter alia
recorded that there was report of corruption against this officer. The appellant
made the representation which was rejected in the year 1995 itself. After a lapse
of almost 7 years, the appellant gave another representation in the year 2002
which was accepted by the DGP, Haryana who expunged the adverse remarks,
giving following reasons:
“Representation of SI Swantanter Singh No. 225/H has been
examined in depth. Keeping in view the improvement shown by
the SI especially in view of good entries against major
punishment nil, adverse remarks so recorded in his ACR for the
period from 25.4.1994 to 31.3.1995, are hereby expunged and
upgraded as “Good”. The representations may be informed
accordingly.”
22.
Thus, in this case also not only second representation was made after
more than 7 years, but there was no new material or facts as well which were
given in the second representation. Furthermore, the reasons given for
expunging the remarks on “corruption” and substituting the same by “good
remarks” is shocking and untenable to say the least. Simply because the
appellant allegedly showed improvement and earned good entries in the
subsequent years cannot be a ground to erase the earlier remarks recorded 7
years ago thereby treating him as a good officer even for the earlier period i.e.
25.4.1994 to 31.3.1995. The petition of the appellant was thus, rightly dismissed
by the High Court. Present appeal is totally bereft of any merits and is
accordingly dismissed.
CA No. 395 of 2008
23.
The petitioner was communicated adverse annual confidential remarks
for the period from 24.4.1998 to 31.3.1998. Relevant extract thereof is
reproduced hereunder:-
1. Discipline Poor
2. Integrity Poor
3. Reliability Poor
4. Moral Character Deserves Improvement
5. General Remarks He was placed under suspension
due to misbehaviour with Smt.
Dhano
Devi,
DC/FTB
was
requested to accord sanction under
PPR 16.38 for DE. But DC/ FTB
refused to accord sanction.
24.
Dissatisfied
with
the
aforesaid
annual
confidential
remarks
communicated to the petitioner, the petitioner made his first representation for
the expunction thereof, on 13.12.1999. The aforesaid representation made by the
petitioner was partly accepted by an order dated 22.6.2000 inasmuch as the
general remarks recorded in the annual confidential report extracted hereinabove
at Serial No. 5 were expunged.
25.
The petitioner submitted a second representation for the expunction of
his other adverse remarks on 13.7.2000. The second representation made by the
petitioner was also rejected on 27.12.2000. Dissatisfied with the aforesaid
rejection, the petitioner moved a mercy petition i.e. the 3rd representation in his
series of representations, on 9.8.2001. This mercy petition was rejected by the
authorities on 22.11.2001. The petitioner, then made a 4th representation for the
expunction of annual confidential remarks communicated to him for the period
24.4.1998 to 31.3.1999. This representation of the petitioner was accepted by an
order dated 12.6.2002 (14.6.2002). Relevant extract thereof is being reproduced
hereunder:-
“The representation dated 1.1.2002of H.C. Ram Kumar No. 26/
Fatehabad against adverse remarks has been considered and
accepted. The adverse remarks recorded in his A.C.R. For the
period from 24.4.98 to 31.3.99 have been expunged. He may
please be informed accordingly.”
26.
The respondents, having arrived at the conclusion, that only one
representation was competent at the hands of the petitioner for the expunction of
adverse annual confidential remarks, acceptance of 4th representation made at
the hands of the petitioner on 1.1.2002 by an order dated 12.6.2002 was
impermissible in law. Therefore, a show cause notice dated 4.7.2006 was issued
to the petitioner. After the petitioner submitted his reply thereto, an order dated
23.8.2006 was passed whereby the order expunging the adverse annual
confidential remarks dated 12.6.2002 was set aside and the annual confidential
remarks for the period 24.4.1998 to 31.3.1999, as originally recorded, subject to
the modification vide order dated 22.6.2000, was reconstructed.
27.
Vide judgment dated 18.4.2007, the Division Bench dismissed the
appellant’s challenge to the orders dated 23.8.2006 relying upon the legal
position expressed in Vinod Kumar's Case (supra). At the same time, the Court
clarified that the remarks in the ACR for the period from 24.4.1998 to
31.3.1999, which relate to the allegation of misbehaviour based on his conduct
with Smt. Dhano Devi, were actually and factually expunged (since a regular
inquiry was conducted in this behalf in which he was exonerated) while
deciding his first representation which was partly accepted on 22.6.2000.
28.
In so far as other remarks are concerned, in view of our detailed
discussion above, it is clear that such a mercy petition, in the form of 4th
representation, at the hands of DGP, Haryana was impermissible in law. The writ
petition of the appellant was, therefore, rightly dismissed. This appeal also
stands dismissed accordingly.
29.
From the facts of this case also it is apparent that the representation
against the ACR for the period 1992-1993 was rejected on 7.5.1996 and
thereafter when fresh representation dated 20.6.2000 was made after a lapse of
more than 4 years. It was accepted vide orders dated 12.7.2000 and the adverse
remarks were expunged. This case is thus, on the same footing as Vinod
Kumar's case. The appeal is accordingly dismissed.
C.A. No. 405 of 2008
30.
The appeal arises out of C.W.P. NO. 20401 of 2006 which was part of
batch petitions decided vide common judgment dated 4.4.2007 with lead matter
in the case of Vinod Kumar. Without stating the facts in detail, suffice is to
mention that adverse reports is for the period 1.4.2001 to 31.3.2002 which was
communicated to him on 2.7.2002. His first representation was rejected by IGP
on 30.9.2002, he filed second representation to the higher authority namely DGP
which was rejected on 28.1.2003. Thereafter, he made another representation
(purported to be a review) before the DGP in July, 2003 which was allowed on
30.9.2003 by expunging the adverse remarks. After issuance of show cause
notice, orders dated 19.10.2006 were passed recalling earlier order dated
30.9.2003 and reconstructing the ACR by restoring earlier adverse remarks. As
is clear from the above, the appellant had earlier exhausted the remedy of first
representation before the immediate officer and second representation to the
higher officer namely DGP. Thereafter, DGP could not entertain any further
representation or review except on “new facts”. Record reveals that no such new
facts were pleaded. Thus, we do not find any merit in this appeal as well and
dismiss the same.
31.
No one appeared in this matter to address the petition at the time of
hearing. Dismissed.
2nd Group Cases
C.A. No. 396 of 2008 & SLP(C)No. 32653 of 2011.
32.
This appeal and SLP are filed by the same appellant H.C. Shiv Kumar.
Leave granted in SLP.
33.
On the basis of those adverse remarks, the appellant was compulsorily
retired from service. Vide orders dated 17.3.2011, his writ petition challenging
the compulsory retirement has been dismissed against which SLP(C)No.
32653/2011 is preferred. Thus, the outcome of this SLP depends upon the result
of C.A. No. 396 of 2008.
34.
Coming to C.A. No. 396 of 2008, in the case of the appellant, adverse
remarks relate to the period 1.4.2001 to 2.10.2001 which were communicated to
him on 2.7.2002. He made the representation dated 24.8.2002 for expunction of
these remarks to the Inspector-General of Police which was rejected on
10.3.2003. Immediately thereafter, in the month of March itself he filed the
revision petition which was allowed on 2.5.2003 expunging the adverse remarks
in toto and replacing the same with 'good' rating.
35.
The appellant was also issued show cause notice dated 30.6.2006, in a
similar manner as in other cases, stating that as per Government’s Instructions
dated 28.8.1962, no second representation lies against the adverse remarks.
Therefore, it was proposed to re-construct
the original adverse remarks
recorded in his ACR for the period in question. The appellant submitted his
detailed reply to the aforesaid show cause notice running into almost 20 pages.
However, his reply did not cut any ice with the authorities and vide orders dated
25.10.2006, DGP, Haryana recalled earlier order dated 2.5.2003 and directed re-
construction of the ACR by restoring the remarks recorded earlier for the period
in question i.e. 1.4.2001 to 2.10.2001. His Writ Petition against the said orders
dated 25.10.2006 has met the same fate at the hands of the High Court which
has dismissed a Writ Petition, following Vinod Kumar's Case (supra), and
holding that second representation submitted by a employee is not acceptable in
law.
36.
We would like to point out, at this stage, that it was also the contention
of the appellant before the High Court that on the same set of allegations on the
basis of which the adverse remarks were communicated to him, a regular
departmental inquiry was conducted against the appellant and the appellant had
been exonerated in the said inquiry. It was argued that for this reason adverse
remarks could not remain in his service record and the order of restoring those
remarks was illegal on this ground as well. The High Court however, rejected
this contention recording a finding that the charge sheet in which the inquiry
was held, was dated 13.3.2001, which naturally referred to the allegations
preceding the date of charge sheet. On the other hand, the adverse remarks were
relatable to the subsequent period and, therefore, in the opinion of the High
Court, this contention of the appellant was untenable.
37.
Mr. Patwalia, learned Senior Counsel appearing for the appellant, after
drawing our attention to the chronology of events from the date of recording the
adverse remarks to that of expunction thereof, made a fervent plea that the case
was not covered by the principle laid down by the High Court in its earlier
judgment in Vinod Kumar's Case (supra) and there was an apparent error in
applying that judgment in the present case as well. His first submission in this
behalf was that it was not a case where the “second representation” was made
after long lapse of time. Secondly, his first representation was to the Inspector-
General which was rejected and the purported “second representation” was in
fact in the nature of representation given to the higher authority namely DGP
which was permissible under the Rules. He, thus, argued that the High Court
wrongly treated the same as second representation to the same authority which
became the cause of error on the part of the High Court. He referred to the
judgment of the High Court in the case of Vinod Kumar itself where such cases
as that of the appellant, were saved after interpreting the relevant Instructions.
38.
We find the aforesaid contention of Mr. Patwalia to be meritorious.
While discussing C.A. No. 392/2008, we have already taken note of the relevant
government instructions as well as Rules on the subject. In para 9 above, we
have summarised the position contained in the policy instructions dated
28.8.1962 as per which, once a representation is rejected by the immediate
superior officer, one more representation is permissible and allowed to be made
to the next higher authority. This precisely happened in the instant case. First
representation was to the Inspector-General of Police which was rejected on
10.3.2003 and within few days, the appellant made second representation which
was allowed on 2.5.2003. Thus, not only this representation was made within
stipulated period prescribed under the Rules namely six months, which is
prescribed in the Standing Order, it was made to the higher authority as well. It
seems that this vital difference between the appellant's case from the fact
situation in Vinod Kumar's Case has been overlooked by the High Court.
39.
Once, we find that the revision or second representation to the higher
authority was made within prescribed period (in fact within few days of the
rejection of representation by the IGP) and such a representation to the higher
authority was permissible, it cannot be said in this case that the order of the
DGP, Haryana was without jurisdiction i.e. on a representation “which was not
permissible” in law. Once, we find this to be the factual position, we are
constrained to hold that three years thereafter, the case could not be re-opened
and order dated 25.2003 could be interdicted by the successor.
40.
As a result, this appeal is allowed and the order of the High Court is set
aside. Result would be to allow the writ petition filed by the appellant before the
High Court and quash the orders dated 25.10.2006 passed by the DGP, Haryana.
41.
The appellant was given show cause notice dated 24.10.2010 proposing
compulsory retirement. The ground on which the action proposed was attached
to the show cause notice. On perusal thereof reveals that the material sought to
be put up against the appellant was as under:
1.
Adverse remarks for the period 1.4.2001 to 2.10.2001.
2. Award of punishment of “warning” vide SP/AMB/OB/218/08
for showing negligence in investigation in case FIR NO. 121
dated 9.7.2008 under Section 279/ 304 A IPC, PS Narayan.
42.
In reply, the appellant had submitted that his appeal No. 396/08 is
pending against the judgment of the High Court in so far as ACR's for the
period 1.4.2001 to 2.10.2001 is concerned and, therefore, notice in question be
withdrawn. However, this plea of the appellant was not accepted and vide
orders dated 17.3.2011, appellant was ordered to be compulsory retired from
service with immediate effect. In this order also, same two grounds namely,
ACR for the period 1.4.2001 to 2.10.2001 and award of punishment of warning
in every case, are mentioned.
43.
Since, we have allowed C.A. No. 396 of 2008, the effect thereof is that
adverse remarks for the period in question no longer remain in the service record
of the appellant and for this period his rating now is “good” to which he was
upgraded vide orders dated 2.5.2003. In so far as award of “warning” is
concerned, leaned Counsel for the State could not dispute that “warning” is not a
punishment prescribed under the Rules. It was not given to him after holding
any inquiry. Therefore, such a warning recorded administratively in a service
record cannot be the sole basis of compulsory retirement.
44.
The appellant's writ petition has been dismissed by the High Court vide
orders dated 26.12.2011. We, thus allow this appeal and set aside the impugned
judgment of the High Court. As a consequence, the appellant shall be reinstated
in service in the same position on which he was working as on the date of
compulsorily retirement with consequential benefits in case he has not already
attained the age of superannuation. However, if he has already attained the age
of superannuation, he shall be treated as deemed to be in service throughout as if
no compulsory retirement orders were passed and will be given consequential
benefits including pay for the intervening period and pensionary benefits on that
basis.
C.A. No. 400 of 2008
45.
The ACR for the appellant pertains to 3.11.2002 to 31.3.2003 which
were adverse in nature. These remarks were conveyed to him vide memo dated
8.6.2003, the appellant made representation against those adverse remarks vide
his communication dated 30.10.2003 which was rejected by the Inspector-
General of Police, Hisar Range, Hisar. He filed “appeal” thereagainst to the
Director General of Police within a few days thereafter i.e. 30.10.2003 which
was accepted by the DGP. Adverse remarks were expunged and his ACR was
upgraded to 'good'. He was given show cause notice for reversal of the good
rating and re-construction of old ACR on 15.8.2006 and order to this effect was
passed, after eliciting his reply, on 18.10.2006 on the ground that his adverse
remarks were expunged on his “second representation” which was not
permissible in law. The aforesaid facts would demonstrate that the appellant
herein is also identically situated as the appellant in C.A. No. 396 of 2008. For
the reasons given therein, this appeal is also allowed and the order of the High
Court is set aside. As a consequence, writ petition of the appellant stands
allowed and the orders dated 18.10.2006 of DGP, Haryana are hereby quashed.
SLP(C)No. 3932 of 2008
46.
47.
Leave granted.
The appeal arises out of C.W.P. No. 1249 of 2007 which was part of
batch petitions decided vide common judgment dated 4.4.2007 with lead matter
in the case of Vinod Kumar. Adverse remarks in the case of this petitioner are
for the period 1.4.2001 to 31.3.2002. His representation dated 18.7.2002 was
rejected. On 30.4.2003, he filed revision/ representation against order dated
30.4.2003 to the higher authority namely DGP which was
by the DGP vide
orders dated 6.10.2003 and the adverse remarks were expunged. He was given
show cause notice dated 8.9.2006 whereafter orders dated 3.12.2006 were
passed reviewing the earlier order dated 6.10.2003 and reconstructing the ACR
by maintaining earlier adverse report which was communicated to him in the
beginning. From the aforesaid facts it becomes clear that it was not a case of
second representation to the same authority. Another representation to the higher
authority was made which is permissible under the Rules and that too
immediately after his first representation by the IGP was rejected. His case is
thus para materia with C.A. No. 396 of 2008.
48.
The impugned order of the High Court qua the appellant is accordingly
set aside and appeal is accordingly allowed.
C.A. No. 459 of 2009
49.
This appeal is filed by the State of Haryana against the judgment of the
High Court in the writ petition filed by the respondent. The respondent was
communicated adverse ACR for the period 5.11.00 to 31.3.2001. On 13.11.2001
he submitted his representation dated 18.12.2001 which was rejected on
14.8.2002. Thereafter he filed the revision petition dated 4.10.2002 which was
allowed on 13.2.2003. However, this order was recalled vide orders dated
18.1.2007 after giving show-cause notice dated 21.11.2006. From the aforesaid,
it is clear that second representation to a higher authority was clearly
maintainable and this aspect has been discussed in detail by us while dealing
with CA 396 OF 2008.
50.
Additionally, we find that on the same allegations on which ACR's were
recorded, the respondent was also issued charge sheet but was completely
exonerated therein. The High Court in these circumstances rightly allowed the
writ petition following its earlier judgment in the case of Randhir Singh, ASI vs.
State of Haryana & Ors. (C.W.P. No. 867 of 2007 decided on 29.3.2007) in the
following manner:-
“In our view, the claim of the petitioner was liable to be
adjudicated upon its merits based on the judgment and decree
dated 24.5.1999. in this behalf, it would be pertinent to mention,
that the annual confidential report for the period 1.4.1995 to
2.7.1995 ( which has been extracted herein above), clearly
reveals that the same was based on the allegation, wherein in a
departmental enquiry was conducted against the petitioner, and
the petitioner had been found guilty, and inflicted with the
punishment of stoppage of two annual increments with
cumulative effect. So far as the aforesaid factual position is
concerned, there was no difference of opinion between learned
counsel representing the rival parties. However, the aforesaid
factual position underwent a change, with the passing of the
judgment and decree at the hands of the civil judge at Sirsa dated
24.5.1999. The findings recorded int eh departmental enquiry
which constituted the foundation and the basis of the annual
confidential report dated 30.9.1995 were set aside in the
judgment and decree dated 24.5.1999. In sum and substance,
therefore, the very basis on which the annual confidential report
(under reference) was recorded, had been annulled by the
judgment and decree dated 24.5.1999. Not only that, although
liberty was given by the trial Court o the respondents to hold a
fresh enquiry, yet, after a conscious application of mind, the
Government by its order dated 11.7.2002 decided to file the
matter. That being so, we have no doubt in our min, that the
allegation contained in the charge sheet were considered to be
unjustified by the respondents themselves. Since, the basis of the
aforesaid charge sheet was treated as unjustified by the State
Government itself, it is apparent, that the adverse remarks
recorded thereon were wholly unjustified in the facts and
circumstances of this case. We are, therefore satisfied, that the
former Director General of Poki8ce, was fully justified in passing
the order dated 26.8.2003, by which he ordered the expunction of
remarks communicated to the petitioner on 30.9.1995.”
51.
We thus, do not find any merit in these appeal and is dismissed.
52.This appeal is also preferred by State of Haryana. The factual position in this
case is same as in C.A. No. 495 of 2008. For same reasons, this appeal also
stands dismissed.
3rd Group Cases
C.A. No. 1721 of 2008
53.
In this appeal, subject matter is not the annual confidential report but the
departmental inquiry. Though the orders are shadowed by same set of
circumstances, here the penalty imposed as a result of disciplinary proceedings
was set aside on the basis of mercy petition filed by the appellant, that too after
exhausting all the departmental remedies. It happened in the following
circumstances:
The appellant was charge sheeted and departmental inquiry conducted
against him related to conduct of investigation in a case wherein he had
implicated innocent persons in false cases getting the accused free from police
custody and misusing his post for ulterior motives. Charges were proved in the
inquiry on the basis of which Superintendent of Police, Faridabad as a
disciplinary authority imposed the penalty of stoppage of three future annual
increments on permanent basis vide order dated 17.1.1999. The appellant filed
appeal against the said order which was rejected by the DGP on 1.3.1999. He
filed revision on 20.6.2000 which was also rejected on 13.2.2001. Under the
disciplinary Rules, there is no further departmental remedy provided. However,
the appellant has preferred mercy petition dated 12.5.2001 to the Secretary,
Home, Government of Haryana, through proper channel. On this mercy petition,
order dated 9.7.2001 was passed by DGP, Haryana accepting the said petition
thereby setting aside the penalty imposed upon the appellant.
54.
A perusal of the orders dated 9.7.2001 would show that the DGP took
note of the facts of the case and holding of the inquiry. He also referred to the
departmental remedy of appeal and revision filed by the appellant. Thereafter, it
is mentioned that being satisfied with the order passed in revision the appellant
had “preferred the instant mercy petition”. Curiously, after examining the
records, the DGP also held the view that departmental inquiry was properly
conducted. Inspite thereof, without giving any reasons and simply “taking a
lenient view”, the punishment is set aside as is clear from the following paras of
the said order.
“And whereas, I have carefully gone through the revision petition,
departmental enquiry file and the relevant records. The instant
departmental enquiry has been conducted as per prescribed Rules
and procedure and does not suffer from any legal infirmity various
pleas taken by the revisionist have been examined and could to be
devoid of any merit.
Now, therefore, keeping in view the please of mercy made by the
revisionist after taking a lenient view, the punishment of stoppage
of three future annual increments with permanent effect is hereby
set aside”.
55.
When this fact came to light, show-cause notice dated 25.8.2006 was
issued stating that there was no provision in the Rules for entertaining another
petition (Mercy Petition) by the DGP without new material, once revision
petition of the appellant had already been considered and rejected. It was,
therefore, proposed to restore the penalty orders and the appellant was asked to
show-cause against the proposed action. The appellant submitted his reply and
on consideration thereof the orders dated 22.10.2006 were passed restoring the
earlier penalty order finding no merit in the lease taken by the appellant.
56.
Writ petition of the appellant challenging the said order has been
dismissed by the High Court. However the High Court has directed the
respondent not to make any recovery from the appellant as he did not play any
fraud or made any mis-representation.
57.
While dealing with C.A. No. 392 of 2008, we have already reproduced
extract of the relevant Rules i.e. Rule 16.28 and 16.32 of the Punjab Police
Rules, 1934. Rule 16.28 relates to the review which had already been exhausted
by the appellant. As per Rule 16.32 such an officer is prohibited from applying
from a fresh scrutiny of an appliance. He could however apply, within a month
of the appellate order, to the authority next above the prescribed appellate
authority for revision on grounds of material irregularity in the proceedings.
58.
Thus, such a review under Rule 16.32 is admissible only if some
material irregularity in the proceedings is found or some fresh evidence is
surfaced.
59.
Rule 16.28 is in Chapter XVI which deals with “punishments” and
various sub rules of Rule 16 in this Chapter cover all the aspects of punishment
which include the nature of punishments that can be imposed and the
circumstances under which such punishments can be imposed viz. either on the
basis of conviction in a judicial case or after conducting departmental inquiry
into the misconduct. These provisions also deal with suspension, subsistence
grants etc.. Rule 16.24 deals with the procedure which is to be adopted in
departmental inquiries. Thereafter, relevant provision is Rule 16.28 which deals
with “powers to review proceedings”. Next Rule is Rule 16.29 which gives
“right of appeal” to the delinquent employee. Rule 16.30 relates to the manner of
dealing with these appeals and Rule 16.31 enumerates the orders on appeals by
prescribing that every order shall contain the reasons. Thereafter, comes Rule
16.32 which again deals with revision.
60.
In the scheme of things, as provided, it is clear that Rule 16.28 is
different from Rule 16.32. While Rule 16.28 deals with Review, Rule 16.32
deals with Revision which is permissible under certain specified circumstances,
after the appeal is rejected. It is this provision in Rule 16.32 which talks of
Revision on certain grounds namely (a) material irregularity in the proceedings
or (b) on provision of fresh evidence.
61.
It also stipulates that mercy petition may be submitted to the same
authority. There is no separate or other provision for mercy petition which is
contained in Rule 16.32 itself. Thus, under Rule 16.32 an employee can seek
Revision either on the ground of material irregularity in the proceedings or on
provision of fresh evidence. In the alternative he can submit Revision Petition
raising a plea for mercy. We are ,therefore, of the opinion that when the Revision
Petition is earlier rejected on merits, another revision petition raising the plea for
mercy would not permissible. Moreover, no grounds for mercy are stated except
showing that lenient view be taken.
62.
In the present case, we also find that the mercy petition was not filed
within one month. Further, it was not filed on the ground of material irregularity
in the proceedings or by producing any fresh evidence. On the contrary, as
pointed out above, the DGP while allowing the mercy petition specifically
recorded that there was no irregularity in the conduct of departmental
proceedings. In spite thereof, he cancelled the order of penalty without giving
any cogent reasons. Such a order was palpably illegal and was rightly set right
departmentally. We thus do not find any merit in this appeal which is
accordingly dismissed.
63.
This is also a case of departmental inquiry which was held against the
appellant and culminated an order of dismissal from service on 2.2.1999. His
appeal was rejected by DIG on 1.7.1999. Thereafter, revision was rejected by
the IGP ON 3.9.1999. More than 1 1⁄2 years, thereafter he preferred mercy
petition which was allowed by DGP, Haryana and the punishment of dismissal
was reduced to stoppage of 5 increments. This order was also recalled after
giving show-cause notice, vide orders dated 16.10.2006. Appellant challenged
this order by filing writ petition in the High Court which has been dismissed by
the High Court on 21.8.2007. Order fo the High Court is the subject matter of
the present appeal.
64.
In view of our discussion in C.A. No. 1721 of 2008, we find that here
also such a mercy petition was not maintainable which was not only filed
belatedly but no fresh material was also furnished.
65.Thus, we are of the view that the order allowing the mercy petition without
reason was clearly untenable and was rightly recalled. We thus, do not find
any merit in this appeal either which is accordingly dismissed.
................................................J
[Sudhansu Jyoti Mukhopadhaya]
...............................................J.
[A.K. Sikri]
New Delhi
October 24, 2013
37
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