Whether the DGP can reverse the adverse remaks in the matter of integrity recorded in ACR after the lapse of 9 years ? NO. Whether the successor D.G.P. CAN CANCEL THE SAME - yes - High court dismissed the writs filed by aggerieved persons - Apex court confirmed the same.
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.”
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.
“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.
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. =
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, therefore, do not find any merit in this appeal which is
accordingly, dismissed.
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. ….......RESPONDENT(S)
WITH
CIVIL APPEAL Nos. 393 of 2008; 396 of 2008; 405 of 2008; 395 of 2008;
400 of 2008; 402 of 2008; 1811 of 2008; 1721 of 2008; 592 of 2009; 459
of 2008;
SLP(C)No. 5080 of 2008;
C.A. 9455/2013 (@SLP(C)No. 3932 of 2008)
C.A. 9456/2013 (@SLP(C)No. 32653 of 2011)
J U D G M E N T
A.K. SIKRI, J.
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
C.A. No. 392 of 2008
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.
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 ½ 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.
C.A. No. 393 of 2008
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.
C.A. No. 402 of 2008
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.
SLP(C)No. 5080 of 2008
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. Leave granted.
47. 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.
C.A. No. 592 of 2009
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.
C.A. No. 1811 of 2008
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 ½ 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
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.”
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.
“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.
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. =
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, therefore, do not find any merit in this appeal which is
accordingly, dismissed.
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. ….......RESPONDENT(S)
WITH
CIVIL APPEAL Nos. 393 of 2008; 396 of 2008; 405 of 2008; 395 of 2008;
400 of 2008; 402 of 2008; 1811 of 2008; 1721 of 2008; 592 of 2009; 459
of 2008;
SLP(C)No. 5080 of 2008;
C.A. 9455/2013 (@SLP(C)No. 3932 of 2008)
C.A. 9456/2013 (@SLP(C)No. 32653 of 2011)
J U D G M E N T
A.K. SIKRI, J.
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
C.A. No. 392 of 2008
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.
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 ½ 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.
C.A. No. 393 of 2008
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.
C.A. No. 402 of 2008
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.
SLP(C)No. 5080 of 2008
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. Leave granted.
47. 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.
C.A. No. 592 of 2009
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.
C.A. No. 1811 of 2008
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 ½ 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
