TaxTMI 
TaxTMI 
2013 (10) TMI 1466
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....se 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 th....
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....ctor 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. ....
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.... 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 repre....
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....nsettles 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 b....
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....all cases in which officers propose to enhance an award they shall, before passing final orders, give the defaulter concerned an opportunity of showing cause, either personally or in writing, why his punishment should not be enhanced. 16.32. Review.- An officer whose appeal has been rejected is prohibited from applying for a fresh scrutiny of the evidence. Such officer may, however, apply, within a month of the date of despatch of appellate orders to him, to the authority next above the prescribed appellate authority for revision on grounds of material irregularity in the proceedings or on production of fresh evidence, and may submit to the same authority a plea for mercy: provided that no application for the revision of an order by the Inspector-General will be entertained. An officer whose appeal has been heard by the Inspector-General may, however, submit to the Inspector-General a plea for mercy or may apply to the Inspector-General for a review of his appellate order only on the ground that fresh evidence has become available since the appellate order has been pronounced. This Rule does not affect the provisions of Rule 16.28. Such application or plea must be in Engli....
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.... 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 hi....
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....ked 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 h....
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....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 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 administra....
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....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 expun....
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.... 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 sec....
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....ause 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 reconstruction 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 c....
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....her 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 c....
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....veyed 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. ....
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....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.....
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....y, 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....
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....sion 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....