Aish Mohammad vs State Of Haryana

CIVIL APPEAL NO.4044 OF 2023 [@ SPECIAL LEAVE PETITION (CIVIL) NO.12248 OF 2023] [@ DIARY NO. 23042 OF 2011]

AISH MOHAMMAD ...APPELLANT

VERSUS

STATE OF HARYANA & ORS. ...RESPONDENTS

R1: STATE OF HARYANA R2: DIRECTOR GENERAL OF POLICE (HARYANA), PANCHKULA R3: INSPECTOR GENERAL OF POLICE, GURGAON R4: SENIOR SUPERINTENDENT OF POLICE, GURGAON R5: INSPECTOR GENERAL OF POLICE, FARIDABAD R6: SUPERINTENDENT OF POLICE, NUH R7: SUPERINTENDENT OF POLICE, PALWAL

J U D G M E N T

AHSANUDDIN AMANULLAH,J.

Signature Not Verified Heard learned counsel for the parties finally on Digitally signed by ASHA SUNDRIYAL Date: 2023.06.14

the basis of the available record. The Respondents 15:22:52 IST Reason: 2

are represented through counsel and have filed

written submissions. Delay condoned, in these

peculiar facts and circumstances, in the interest of

justice. I.A. 72995/2022 [seeking condonation of

delay in refiling/curing the defects] is formally

allowed.

2. Leave granted.

3. The sole appellant has moved this Court being

aggrieved by the Final Judgment and Order dated

25.04.2011 (hereinafter referred to as the “Impugned

Judgment”) [2011 SCC OnLine P&H 4687 | ILR (2012) 2

P&H 747] passed by a learned Division Bench of the

High Court of Punjab and Haryana at Chandigarh

(hereinafter referred to as the “High Court”) in

Letters Patent Appeal No.406 of 2011 (O & M), whereby

the learned Division Bench allowed the appeal

preferred by the respondent-State and set aside the

Order dated 27.01.2010 [2010 SCC OnLine P&H 1193]

passed by the learned Single Judge in Civil Writ

Petition No.19128 of 2006.

3

THE FACTUAL PRISM:

4. The appellant joined as Constable in Haryana

Police on 15.01.1973 and promoted as Head Constable

on 06.12.1993. One Assistant Sub-Inspector Basant Pal

made a complaint against the appellant. This led to a

departmental enquiry, where the appellant was held

guilty and ordered to be reverted from Head Constable

to Constable. A representation was filed by the

appellant before the Inspector General of Police,

Gurgaon Range against the said reversion order,

resultantly whereof, by order dated 28.04.2001, the

Inspector General of Police, Gurgaon Range, modified

the order of reversion to stoppage of one increment.

The Controlling Officer of the appellant recorded

adverse remarks against him for the periods between

11.10.1999 to 31.03.2000 and 01.04.2000 to

29.12.2000. Initially, the representation filed

apropos the period between 01.04.1999 to 31.03.2000

was rejected by orders dated 19.02.2002 and

27.06.2001. However, the representation pertaining to

the period from 01.04.2000 to 29.12.2000 was partly 4

accepted by order dated 20.07.2002. Thereafter, the

appellant preferred a second consolidated

representation for the aforesaid periods, which was

accepted on 28.01.2005. This second representation by

the appellant was pursuant to judgment dated

27.09.2004 in Civil Suit No.168 of 2002 (filed on

06.08.2002) before the learned Civil Judge (Junior

Division), whereby the stoppage of one increment was

set aside and the respondents were directed to

release the same. However, his prayer for expunging

the adverse remarks was not accepted, yet liberty to

prefer a fresh representation was granted by the

learned Civil Court.

5. Challenge to judgment dated 27.09.2004 supra by

the respondent-State was dismissed by the learned

District Judge, Gurgaon, and the same has attained

finality. The appellant, in terms of observations

made by the learned Civil Judge (Junior Division)

Gurgaon in the judgment dated 27.09.2004, preferred a

consolidated representation before the Inspector 5

General of Police, Gurgaon Range for expunction of

adverse remarks, on 07.01.2005. The Inspector

General of Police, Gurgaon Range, Gurgaon vide order

dated 28.01.2005 expunged all the adverse remarks.

Thereafter, the appellant received a Show-Cause

Notice dated 05.09.2006 from the Director General of

Police, Haryana stating that undue benefit had been

given to the appellant by expunction of remarks and

why the same should not be restored and an order of

compulsory retirement be passed against him,

indicating thereby, that due to expunction of these

adverse remarks, he had escaped being retired from

service compulsorily and also became eligible for

further promotion. The appellant filed his Reply to

the Show-Cause Notice on 22.09.2006. The Director

General of Police, Haryana by order dated 30.10.2006

directed reconstruction of the Annual Confidential

Report [hereinafter referred to as “ACR” (in

singular) and “ACRs” (in plural)] for the aforesaid

period.

6

6. Aggrieved by the order dated 30.10.2006, the

appellant filed Civil Writ Petition No.19128 of 2006

before the High Court. During the pendency of this

writ petition, the appellant received notice for

retirement issued by the Superintendent of Police,

Mewat, Nuh dated 08.09.2008, informing him that his

service was not required by the department beyond the

age of 55 years, in public interest and he was to

stand retired from service under the State of Haryana

in terms of Rule 3.26(d) of the Punjab Civil Services

Rules, 1934 Vol-I Part I and Rule 8.18 of the Punjab

Police Rules, 1934 as applicable to the State of

Haryana. This was followed by the order of the

Superintendent of Police, Palwal dated 27.10.2008

directing his retirement with effect from 30.11.2008.

The learned Single Judge by judgment dated 27.01.2010

in Civil Writ Petition No.19128 of 2006 [2010 SCC

OnLine P&H 1193] allowed the Writ Petition and the

order for reconstruction of the adverse ACRs and

compulsory retirement was quashed. The learned Single

Judge also held that the appellant was entitled to 7

all consequential benefits. The relevant part of the

said judgment1 notes:

“… I have heard learned counsel for the parties. The controversy involved in these writ petitions is covered by a judgment in the case of Amarjit Kaur v. State of Punjab and others, 1988 (4) SLR 199 and a Division Bench judgment of this Court dated 26.5.2006 passed in CWP No. 8356 of 2006 (Ram Niwas v. State of Haryana) as also a judgment of the Hon'ble Supreme Court in the case of Rathi Alloys and Steel Ltd. v. C.C.E. (1990) 2 SCC 324. In the case of Ram Niwas (supra), following observations have been made:-

“….Firstly, in law there is administrative hierarchy which was not to be respect and any successor cannot set aside the order passed by his predecessor.

Secondly, there is no provision under the Punjab Police Rules, 1934, as applicable to Haryana or in any instructions or subordinate legislation providing for review of an order passed by the predecessor in office. It is well settled that power or review cannot be exercised unless it is expressly provided by the Statute. In this regard, reliance may be placed on a judgment of the Hon'ble Supreme Court in the case of Rathi Alloys and Steel Ltd. v.

C.C.E., (1990) 2 SCC 324. Our view also finds support from the 1 The extract is from the SCC OnLine version. It is noted that the cited portion from Ram Niwas (supra) seems to be grammati- cally incorrect.

8

judgment of this Court in the case of Amarjit Kaur v. State of Punjab and others, 1988 (4) SLR 199….” Following the aforesaid judgment, CWP No. 9973 of 2007 and CWP No. 12095 of 2007 were allowed by a co-ordinate Bench of this Court vide order dated 23.3.2009. Ratio of all these judgments is that the predecessor of an Officer in the hierarchy of service has no authority to review his orders.” (sic)

7. Evincibly, the learned Single Judge concluded, in

essence, that the original expunction could not be

held to be illegal, and the subsequent reconstruction

of the remarks would be incorrect in view of the

pronouncements of law referred to by him.

8. The respondent-State, aggrieved, preferred

Letters Patent Appeal No.406 of 2011 (O & M) which

was allowed by judgment dated 25.04.2011 [2011 SCC

OnLine P&H 4687] setting aside judgment dated

27.01.2010 of the learned Single Judge, thereby

restoring the order of the Director General of

Police, Haryana dated 30.10.2006. The judgment of the

learned Division Bench is impugned before us. 9

SUBMISSIONS BY THE APPELLANT:

9. Learned counsel for the appellant submitted that

the judgment impugned is unsustainable for the reason

that the main ground for allowing the appeal of the

respondent-State was that the Order of the Inspector

General of Police dated 28.01.2005 was completely

against the verdict of the learned Civil Court

refusing to expunge the adverse remarks, which was

not only highly improper but totally unwarranted and

the Director General of Police rightly set aside the

order of his subordinate. It was submitted that the

learned Division Bench failed to consider that the

Director General of Police did not have any power of

review as per the Punjab Police Rules, 1934 which

applied to the State of Haryana.

10. Moreover, reiterating that the basic reasoning

of the learned Division Bench for allowing the appeal

of the State, as noted supra, was that the learned

Civil Court had refused to interfere in expunging the

remarks passed by the Controlling Officer and thus, 10

the Inspector General of Police had no authority to

pass an order for expunction, was highly improper and

totally unwarranted. Learned counsel submitted that

under similar circumstances, a co-ordinate Single

Bench had interfered to hold that the Director

General of Police had no power to review an order

passed by the predecessor-in-office.

SUBMISSIONS ON BEHALF OF THE OFFICIAL RESPONDENTS-R1

to R7:

11. Per contra, learned counsel for the State of

Haryana and the other official respondents (R2, R3,

R4, R5, R6 and R7) submitted that the present case

had been refiled after an inordinate delay of 11

years. It was submitted that even though the ground

of delay is sought to be explained, being the

unfortunate death of the appellant’s son, the same

took place in 2011 and thus, re-filing having been

done only in 2022 i.e., 10 years after such incident,

would not entitle the appellant to the benefit of

condonation for such long and unexplained delay. He 11

submitted that the view taken in the Impugned

Judgment, that the Inspector General of Police could

not have over-reached the judgment of the learned

Civil Court, is correct. Moreover, it was submitted

that the adverse entry in the ACR of the appellant

was on account of serious charges – viz. Corruption,

insubordination and dereliction of duty.

12. Learned counsel summed up his arguments by

taking the stand that the appellant, having been

compulsorily retired, the same not being a

‘punishment’, the principles of natural justice would

not be applicable.

ANALYSIS, REASONING AND CONCLUSION:

13. Having considered the rival submissions, the

Court would note that both the learned Single Judge

and the learned Division Bench did not appreciate the

legal position in the correct perspective of the

factual background.

12

14. The undisputed position is that adverse remarks

were entered into the ACR of the appellant for the

period(s) in question, due to which initially an

order of departmental enquiry was passed based on a

complaint; in the departmental enquiry, an order came

to be passed, and the appellant was reverted from the

post of Head Constable to the post of Constable. The

appellant challenged such reversion. The reversion

order was modified to stoppage of one increment. For

expunction of the adverse remarks, he moved before

the Inspector General of Police, Gurgaon Range, which

was initially rejected for the entire period in

question. On further representation, the Inspector

General of Police, Gurgaon Range, on 20.07.2002,

expunged the remarks partially for the period of

01.04.2000 to 29.12.2000.

15. The appellant filed Civil Suit No.168 of 2002

against the order of stoppage of one increment as

also the adverse entry(ies)/remark(s) in his ACR,

which was finally decided by the learned Civil Judge 13

(Junior Division), Gurgaon by judgment and order

dated 27.09.2004, interfering with the stoppage of

one increment, but not interfering with the ACR

aspect. However, in the said judgment, it was

observed as under:

“If at all, plaintiff feels that recording remarks was the result of above adverse said departmental proceedings and result thereof, then in the wake of setting aside of the impugned order by this court, plaintiff, if so advised may again file a representation with the competent authority against the adverse remarks which shall be decided by said authority expeditiously. In the totality of circumstances, this court is not inclined to interfere with the satisfaction of competent authority to record adverse remarks in the ACR of plaintiff. Hence, no relief whatsoever regarding expunction of adverse remarks can be granted in favour of plaintiff. Accordingly, issue No.2 is hereby decided against plaintiff and in favour of defendants.” (sic)

16. This permitted the appellant to again file a

representation before the Inspector General of

Police, Gurgaon Range, for expunction of adverse

remarks, which was disposed favourably, and the

adverse remarks were expunged. However, the Director

General of Police issued a Show-Cause Notice to the 14

appellant that the adverse remarks were wrongly

expunged, which made the appellant escape compulsory

retirement. Thereafter, the appellant was retired

having crossed the age of 55 years, in terms of such

power being conferred on the competent authority

under the Punjab Civil Services Rules. The matter

then came before the High Court, initially before the

learned Single Judge who, relying on certain

precedents, recorded that the Director General of

Police could not have passed the order impugned

therein, as it amounted to a review of an order

passed by his predecessor-in-office.

17. The Court would pause at this juncture to

indicate that the factual premise noted by the

learned Single Judge itself was wrong, inasmuch as it

was the Inspector General of Police, who had, in

effect, ‘reviewed’ an order passed by his

predecessor-in-office by expunging the adverse

remarks, which was previously declined by his 15

predecessor-in-office. Volume II of the Punjab Police

Rules, 1934 provides 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.” (emphasis supplied)

18. Clearly, the ‘review’ contemplated in Rule 16.28

empowers a superior authority to ‘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.’ As such, the ‘review’ is by a

superior authority and not the same authority. 16

19. Before adverting to the merits, we may at once

highlight the incongruity that has crept in the Rules

(supra) due to passage of time, legally and in fact.

To a judicially or legally trained mind, it is

obvious that ‘review’ carries a specific connotation,

but the same is not the case herein. Put simply,

review is a re-look at an order passed by the same

authority which passed the original order, be it a

Court or an executive officer. The heading to the

rule above is a misnomer inasmuch as no power of

‘review’ is created or conferred, as manifest from a

reading of (1), (2) and (3) of Rule 16.28. For

completeness, Rule 16.29 is entitled “Right of

appeal” and Rule 16.32 is labelled “Revision”. This

is one part of the issue.

20. The next part is that the Rules, originally

framed in 1934, contemplated the authorities as “The

Inspector-General, a Deputy Inspector-General, and a

Superintendent of Police”. The “Inspector-General” of

that time [when the service was called 17

Imperial/Indian Police] headed the State Police, but

is today known as, in most States and Union

Territories, barring a handful, in the hierarchy of

the State Police, as the Director-General of Police,

an officer drawn from the Indian Police Service, who

sits at the apex of the state police machinery. In

fact, today the Inspector-General of Police is

administratively subordinate to the Director-General

of Police and the Additional Director-General of

Police.

21. The Rules were also framed at a time when the

system of Ranges and Commissionerates had not been

established. Indubitably, the Rules, for better or

for worse (worse, we hazard) have not kept pace with

the times. We do not appreciate why the authorities

concerned are unable to update/amend the Rules with

at least the correct official description of posts to

obviate confusion.

18

22. In the case at hand, the Director General of

Police, Haryana, had never passed any order earlier

and for the first time when the issue was brought to

his notice, a Show-Cause Notice was issued to the

appellant as to why the adverse remarks be not

reconstructed; as due to such expunction, he had

escaped from being retired from service compulsorily.

Thus, the order passed by the learned co-ordinate

Single Judge in CWP No.9973 of 2007 and CWP No.12095

of 2007 dated 23.03.2009 had no applicability in the

facts and circumstances of the present case. Be that

as it was, the State of Haryana moved in appeal

against the judgment of the learned Single Judge

herein, which was allowed in favour of the

respondent-State.

23. This Court finds that the learned Division Bench

has not approached the issue in the manner it was

required to. The reason given for interference with

the learned Single Judge’s view is that it was highly

improbable and unwarranted for the Inspector General 19

of Police to have expunged the adverse remarks when

there was a judicial verdict by the learned Civil

Court refusing to do so. The said reasoning was

employed despite noting the fact that even if there

was any power of review, in the extant circumstances,

it was wholly arbitrary. It was further observed that

a judicial verdict by the learned Civil Court should

have been respected. This Court would note that such

reasoning is also erroneous. The fact remained that,

rightly or wrongly, the learned Civil Court had

granted this opportunity to the appellant to move

again for expunction of adverse remarks, which the

appellant did. Having said that, this Court would now

look at the issue from a totally legal point of view

– firstly, the authorities were exercising the power

conferred on them by statute, and secondly, any order

which amounts to ‘review’ (in the legal sense of the

word) of an earlier order by the same authority

cannot be undertaken, unless specifically so

conferred by the relevant statute.

20

24. Moreover, the learned Civil Judge (Junior

Division) found no ground to interfere with the

adverse remarks yet granted liberty to the appellant

to move for expunction thereof. The learned Civil

Court erred in assuming that it had the power to do

so, in the absence of any such provision in the

Punjab Police Rules, 1934. There may be cases where a

High Court under Articles 226 or 227 of the

Constitution of India or this Court in exercise of

its constitutional powers may specifically direct for

fresh consideration of a representation, even in the

absence of specific provisions. In High Court of

Tripura v Tirtha Sarathi Mukherjee, (2019) 16 SCC

663, the question that arose was whether, in the

absence of a statutory provision, a writ petitioner

could seek re-evaluation of examination answer

scripts? Answering, this Court held:

“20. The question however arises whether even if there is no legal right to demand re- valuation as of right could there arise circumstances which leave the Court in any doubt at all. A grave injustice may be occasioned to a writ applicant in certain 21

circumstances. The case may arise where even though there is no provision for re-valuation it turns out that despite giving the correct answer no marks are awarded. No doubt this must be confined to a case where there is no dispute about the correctness of the answer. Further, if there is any doubt, the doubt should be resolved in favour of the examining body rather than in favour of the candidate. The wide power under Article 226 may continue to be available even though there is no provision for re- valuation in a situation where a candidate despite having giving correct answer and about which there cannot be even the slightest manner of doubt, he is treated as having given the wrong answer and consequently the candidate is found disentitled to any marks.

21. Should the second circumstance be demonstrated to be present before the writ court, can the writ court become helpless despite the vast reservoir of power which it possesses? It is one thing to say that the absence of provision for re-valuation will not enable the candidate to claim the right of evaluation as a matter of right and another to say that in no circumstances whatsoever where there is no provision for re-valuation will the writ court exercise its undoubted constitutional powers? We reiterate that the situation can only be rare and exceptional.” (emphasis supplied)

25. The unique nature of power bestowed on the High

Courts under Article 226 has very recently been

commented upon in B S Hari Commandant v Union of

India, 2023 SCC OnLine SC 413. In Sanjay Dubey v 22

State of Madhya Pradesh, 2023 SCC OnLine SC 610,

while declining to interfere with the order impugned

therein, a reason which weighed was that a High Court

had passed the said order, and not a Court of

Session. This again emphasised the special nature of

the High Courts, including that they are

Constitutional Courts.

26. Thus, the observation by the learned Civil Court

that the appellant could approach the authority,

cannot be taken to mean that the appellant was

granted carte blanche liberty in law to approach the

same authority. What the learned Civil Court lost

sight of was that no provision permitted the course

of action suggested by it. Examined from another

lens, even if we were to read the learned Civil

Court’s view in the appellant’s favour, at best, he

may have had some justification in approaching the

Director General of Police, Haryana, being a superior

authority, but the same authority could not have been

approached again. On this line of reasoning, it 23

becomes clear that even though the appellant had a

window to move before the authorities again and

dehors the learned Civil Court not interfering, but

the same should have been to the superior authority

and not the same authority, which had earlier refused

expunction. In any event, we need not dilate on this

further.

27. As far back as in 1971, directions were issued

by the State Government that repeated representations

would not be entertained as it would be contrary to

Government Letter No. 2784-3S-70 dated 22.03.1971

mandating that a second representation against

adverse remarks would not lie and which clarified the

position that the same authority did not have any

power of review for an order passed by its

predecessor-in-office.

28. As such, the Director General of Police had

rightly show-caused the appellant and taken

subsequent action thereupon. Considering the chain of

events, the consequential action, in our considered 24

view, cannot be said to be arbitrary or shocking the

conscience of the Court, so as to warrant

interference. For a person in uniformed service, like

the police, adverse entry relating to his/her

integrity and conduct is to be adjudged by the

superior authority(ies) who record and approve such

entry. Personnel having such remarks being

compulsorily retired as per the statutory provisions

under the Punjab Civil Services Rules, 1934, in the

instant facts, is not an action this Court would like

to interdict. We are hence not inclined to interfere

with the order impugned, though as discussed above,

for entirely different reasons than what were

considered by and prevailed with the learned Division

Bench.

29. Accordingly, the instant appeal stands dismissed.

30. Parties are left to bear their own costs. 25

ADDITIONAL DIRECTION(S):

31. Copies of this judgment be communicated to the

(a) the Chief Secretaries, Governments of Punjab and

Haryana at Chandigarh; (b.1) the Principal Secretary,

Department of Home Affairs and Justice, Government of

Punjab and (b.2) the Additional Chief Secretary,

Home, Government of Haryana, and (c) the Directors

General of Police, Punjab and Haryana by the

Registry.

32. Steps be taken forthwith in line with the

observations recorded at Paragraphs 19 to 21.

.........................J. [VIKRAM NATH]

.........................J. [AHSANUDDIN AMANULLAH]

NEW DELHI JUNE 14, 2023