Supreme Court Dismisses Appeal Filed By Compulsory Retired Constable

Recently, Hon’ble Division Bench comprising Hon’ble Mr. Justice Vikram Nath and Hon’ble Mr. Justice Ahsanuddin Amanullah of Hon’ble Supreme Court dismissed the appeal filed by the compulsorily retired Head Constable challenging the order passed by Division Bench of Punjab & Haryana High Court wherein the Hon’ble High Court has set aside the order passed by the Single Judge and found that order passed by the D.G.P., Haryana to compulsorily retire the appellant as correct.

Further, the Hon’ble court observed that “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.”

BRIEF FACTS OF THE CASE

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. He filed representation, where the punishment is lowered down to withholding 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. The representation pertaining to the period from 01.04.2000 to 29.12.2000 was partly 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.

The appellant preferred a consolidated representation before the Inspector 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. The Director General of Police, Haryana by order dated 30.10.2006 directed reconstruction of the Annual Confidential Report. Aggrieved by the said order, appellant filed the writ petitioner before Hon’ble single judge of High Court and writ petition was allowed. State Respondent filed the letter patent appeal which was allowed and now the present appeal before Hon’ble Supreme Court.

CONTENTION OF APPELLANT

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.

CONTENTION OF RESPONDENT

Per contra, 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.

HON’BLE COURT’S OBSERVATIONS

Hon’ble Division Bench at the very outset remarked that both the learned Single Judge and the learned Division Bench did not appreciated the legal position in the correct perspective of the factual background.

Further, while dealing with expunction of remark of IG of Police, the Hon’ble court observed that :-

“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 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 InspectorGeneral, 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.

Hon’ble court further pointed out the error in Hon’ble Single judge and Hon’ble Division Bench observed that

“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 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.

21-22. …………

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 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.”

Further Hon’ble Court relied on High Court of Tripura v Tirtha Sarathi Mukherjee, (2019) 16 SCC 663, B S Hari Commandant v Union of India, 2023 SCC OnLine SC 413 and Sanjay Dubey v State of Madhya Pradesh, 2023 SCC OnLine SC 610 to explain the unique power of High Courts under Article 226 & 227 in absence of any statutory provision.

Furthermore, Hon’ble Division bench stated that

“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 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.”

In view of the above observations, Hon’ble Apex Court dismissed the instant appeal.

Case title :- Aish Mohammad Vs. State of Haryana & ors.

Case no. :- CIVILAPPEAL NO.4044 OF 2023

Order date :- 14.06.2023