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2010 DIGILAW 1241 (PNJ)

Om Prakash, Inspector v. State Of Haryana

2010-03-19

PERMOD KOHLI

body2010
Judgment Permod Kohli, J. 1. The order dated 15.1.2009 (Anexure P-7) passed by the Director General of Police, Haryana to review an earlier order dated 1.7.2004 passed the then Director General of Police, Haryana is subject matter of challenge in the present writ petition. Vide the impugned order (Annexure P-7), the Director General of Police has rejected the reply to the show-cause notice for re-construction of the adverse ACRs earlier expunged by the then Director General of Police on the ground that no second representation lies to the Director General of Police. The petitioner is seeking quashment of the aforesaid order. 2. The petitioner was initially appointed as Constable on 6.4.1971 in the Haryana Police Department. He earned promotion as Head Constable, ASI, SI and finally as Inspector on 17.11.2004 and retired from service on 31.8.2008. While the petitioner was serving as an ASI, he was communicated adverse reports for the period from 5.4.2002 to 31.3.2002 by the Inspector General of Police, Hisar Range, Hisar. The adverse entries are as under :- "Class of report : C Moreal Character : Departmental enquiry is pending in this respect Reputation : Less than average Reliability : Unreliable Defects, if any : Is facing departmental enquiry for commiting rapte on Smt. Mamta w/o Parveen Kaushal General Remarks : An office of below average category." 3. The petitioner represented against the aforesaid adverse remarks to the Inspector General of Police, Hisar Range Hisar. The plea of the petitioner was however rejected vide order dated 21.10.2003 (Annexure P-1). Against the rejection of the representation, the revision was preferred before the Director General of Police who accepted the same and expunged the adverse remarks in toto vide his memo dated 1.7.2004 (Annexure P-3). It is relevant to notice that departmental proceedings were initiated against the petitioner which came to be filed by the Superintendent of Police, Hisar vide his order dated 2.7.2003 (Annexure P-6). This order was passed on the basis of the report of the enquiry officer who exonerated the petitioner. 4. The petitioner was served with a show-cause notice dated 12.12.2006 (Annexure P-4) from the DGP to reconstruct the adverse remarks for the period 5.4.2002 to 31.3.2002. On receipt of the show-cause notice, the petitioner submitted detailed reply (Annexure P-5). This order was passed on the basis of the report of the enquiry officer who exonerated the petitioner. 4. The petitioner was served with a show-cause notice dated 12.12.2006 (Annexure P-4) from the DGP to reconstruct the adverse remarks for the period 5.4.2002 to 31.3.2002. On receipt of the show-cause notice, the petitioner submitted detailed reply (Annexure P-5). Apprehending that the reply may not be considered, the petitioner filed CWP No. 15353 of 2007 before this Court which came to be dismissed as premature. Respondent No. 2 has now passed the impugned order dated 15.1.2009 (Annexure P-7) rejecting the reply of the petitioner to the show-cause notice and deciding to reconstruct the adverse ACRs earlier expugned by the Director General of Police. 5. The submissions of the learned counsel for the petitioner are two fold :- (1) that the adverse ACRs against the petitioner were solely based upon the departmental enquiry initiated against the petitioner. The departmental proceedings having been filed after enquiry, the alleged basis for adverse entries cease to exist and thus, the Director General of Police, Haryana has had no jurisdiction, authority or competence to review the order of his predecessor; and (2) that while passing the order dated 1.7.2004 (Annexure P-3), on the second representation of the petitioner, the DGP was fully competent to expunge the remarks which were otherwise, without any material on record. 6. From the perusal of the adverse ACRs on record, it is evident that the adverse entries were made on the basis of the departmental enquiry which was pending against the petitioner at the relevant time. Departmental enquiry stands filed vide order dated 24.7.2003 (Annexure P-6) by the competent authority accepting the enquiry report wherein nothing was found against the petitioner. 7. The order of termination of the disciplinary proceedings against the petitioner has attained finality. Even in the reply filed by the respondents, no material except the reliance placed upon departmental proceedings has been produced before this Court. There is no dispute to the fact that the allegations against the petitioner were of serious nature. The Enquiry and the disciplinary authorities both agreed and dropped the disciplinary proceedings. Thus, the very edifice on which the adverse reports against the petitioner were made has vanished. There is no dispute to the fact that the allegations against the petitioner were of serious nature. The Enquiry and the disciplinary authorities both agreed and dropped the disciplinary proceedings. Thus, the very edifice on which the adverse reports against the petitioner were made has vanished. It is pertinent to note that even when the first representation of the petitioner was rejected by the Inspector General of Police vide memo dated 21.10.2003 (Annexure P-1), he has noticed that the departmental enquiry has been filed. Relevant observations of the Inspector General of Police read as under :- "2.... No doubt the departmental enquiry has been filed, but the representationist failed to disprove his misconduct during personal hearing given by the undersigned on 21.10.2003. Thus, the representation of SI Om Prakash No. 197/H is rejected being devoid of merits. Please inform the representationist accordingly. Sd/- Inspector General of Police, Hisar Range, Hisar" From the above observations/remarks of the IGP, one fails to understand that in the departmental enquiry, nothing could be established despite evidence having been permitted, how could misconduct be disproved during personal hearing. Not only this, even the conversation during the personal hearing or the alleged basis for rejection of the representation has not been disclosed in the order dated 21.10.2003 (Annexure P-1). The fact remains that the disciplinary proceedings stood closed by the competent authority. The question whether the ACR based upon disciplinary proceedings could still be retained if the disciplinary proceedings result in complete exoneration of the government employee. The issue has been considered by a Division Bench of this Court in the case of Randhir Singh ASI v. State of Haryana etc. (Civil Writ Petition No. 867 of 2007 decided on 29.3.2007) and re-affirmed in the case of Ram Lubhaya v. State of Haryana and others (CWP No. 4805 of 2007 decided on 25.4.2007) with the following observations :- "J.S. Khehar, J. (Oral) Learned counsel for the parties are agreed that the instant writ petition deserves to be allowed in terms of the decision rendered by this Court in case title Randhir Singh ASI v. State of Haryana etc. (Civil Writ No. 867 of 2007 decided on 29.3.2007) on account of the fact that the petitioner was exonerated on the culmination of the department enquiry conducted against him on the same allegations on the basis of which the adverse annual confidential remarks were communicated to the petitioner for the period from 10.6.1997 to 31.4.1998 as well as for the period from 24.4.1998 to 31.3.1999. In view of the above, the instant writ petition is allowed and the impugned order dated 8.1.1998 (Annexure P-7) vide which the adverse entries for the periods referred to above have been reconstructed is set aside. Since the order dated 8.1.2007 has been set aside, the natural consequences thereof is that the order of reservation dated 28.2.2007 (Annexure P-8) has also to be set aside. Ordered accordingly." 8. Special Leave Petition filed against the earlier judgment in CWP No. 867 of 2007 also came to be dismissed by the Honble Supreme Court vide order dated 25.7.2008 (Annexure P-10). The same would have to be again set aside in view of termination of disciplinary proceedings in favour of the government employee. 9. The issue whether the DGP could review the decision of his predecessor in public interest on the ground that he was not having any jurisdiction to entertain a second revision petition already stands decided by this court in the case of Amarjit Kaur v. State of Punjab and others, 1995(1) S.C.T. 449 : 1999 (4) SLR 199 and a Division Bench judgment of this Court dated 26.5.2006 passed in 2006(3) S.C.T. 834 : CWP No. 8356 of 2006 (Ram Niwas v. State of Haryana) as also a judgment of the Honble 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 and 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. 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 and 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 honble Supreme Court in the case of Rathi Alloys and Steel Ltd. v. C.C.E., (1990) 2 SCC 3245. Our view also finds support from the 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. 12905 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." In view of the above, this petition is allowed. Impugned order dated 15.1.2009 (Annexure P-7) is hereby quashed. Since the petitioner has already retired from service in the rank of Inspector, he will be entitled to all service/retrial benefits.