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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 ..... an 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 alongw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcept 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 makin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el. 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 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 88SC1737 , 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 nonapplication 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 17.3.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 beginni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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