2013 (10) TMI 1466 - SC - Indian Laws

Revision petition - Challenged the compulsory retirement - Mercy petition - Departmental inquiry - disciplinary proceedings - HELD THAT - 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. 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 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. Mercy petition - 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. 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. 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.

Issues Involved:
1. Validity of expunging adverse remarks in Annual Confidential Reports (ACRs).
2. Permissibility of second representations against adverse remarks.
3. Powers of successor DGP to overturn decisions of predecessor.
4. Judicial review of administrative actions.
5. Impact of departmental inquiries on ACRs.
6. Legality of mercy petitions in disciplinary actions.

Issue-wise Detailed Analysis:

1. Validity of Expunging Adverse Remarks in ACRs:
The primary issue was whether the expunging of adverse remarks in ACRs was valid. The Supreme Court found that the initial orders to expunge adverse remarks were not backed by any authority under the rules and were ultra vires. The court emphasized that the adverse remarks were expunged without valid reasons and after substantial delays, which was contrary to the principles of natural justice and administrative fairness.

2. Permissibility of Second Representations Against Adverse Remarks:
The court analyzed the policy instructions dated 28.8.1962 and 1999, which allowed only one representation against adverse remarks. A second representation was permissible only if new facts had come to light within six months. The court found that in most cases, the second representations were made after several years without any new facts, making them impermissible. The court upheld the High Court's decision that these second representations were not maintainable.

3. Powers of Successor DGP to Overturn Decisions of Predecessor:
The court discussed the general principle that a successor cannot review and reopen cases decided by a predecessor unless the predecessor's decision was without jurisdiction or palpably illegal. In these cases, the court found that the orders of the predecessor DGPs were ultra vires and lacked jurisdiction. Therefore, the successor DGPs were justified in annulling these orders after following the principles of natural justice.

4. Judicial Review of Administrative Actions:
The court reiterated that judicial review of administrative actions is limited to examining the decision-making process, not the merits of the decision. It emphasized that administrative decisions must be reasonable, fair, and free from arbitrariness. The court found that the orders expunging adverse remarks were irrational and unreasonable, justifying their annulment by the successor DGPs.

5. Impact of Departmental Inquiries on ACRs:
In some cases, the court noted that adverse remarks in ACRs were based on allegations similar to those in departmental inquiries where the officers were exonerated. The court held that if an officer is exonerated in a departmental inquiry, the adverse remarks related to the same allegations should not remain in the service record. However, this principle was applied on a case-by-case basis.

6. Legality of Mercy Petitions in Disciplinary Actions:
The court examined the rules regarding mercy petitions under Rule 16.32 of the Punjab Police Rules, 1934. It found that once a revision petition is rejected, another revision petition on the ground of mercy is not permissible unless it is based on new material or grounds. The court held that mercy petitions filed after exhausting all departmental remedies without new grounds were not maintainable and the orders allowing such petitions were rightly recalled.

Separate Judgments:
- C.A. No. 396 of 2008: The court allowed the appeal, finding that the second representation was made to a higher authority within the permissible period, distinguishing it from other cases.
- C.A. No. 400 of 2008: The appeal was allowed on similar grounds as C.A. No. 396 of 2008.
- SLP(C) No. 3932 of 2008: The appeal was allowed, finding that the second representation to a higher authority was permissible.
- C.A. No. 459 of 2009 & C.A. No. 592 of 2009: The appeals by the State of Haryana were dismissed, upholding the High Court's decision based on similar reasoning.
- C.A. No. 1721 of 2008 & C.A. No. 1811 of 2008: The appeals were dismissed, finding that the mercy petitions were not maintainable as they were filed without new material and after exhausting all departmental remedies.

Conclusion:
The Supreme Court upheld the principles of administrative fairness, reasonableness, and adherence to procedural rules in dealing with representations against adverse remarks in ACRs and disciplinary actions. The court emphasized the importance of timely and justified administrative actions, ensuring that decisions are not arbitrary or ultra vires.

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