TMI Blog2013 (10) TMI 1466X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 25.2003 could be interdicted by the successor. 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. 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. 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 compulsoril ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscussed. 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 Inspec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration. 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 reconsiderati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in which the ACRs were expunged was not permissible. It was not only contrary to 1962 and 1999 Instructions, but was made after 9 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 actin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cree 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 years, thereafter he preferred mercy petition which was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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