STATE OF HARYANA Vs. ASI AISH MOHAMMAD

JUDGEMENT

(1.) THE State of Haryana and its officers has filed the instant appeal under Clause X of the Letters Patent against the judgment dated 27.1.2010 rendered by the learned Single Judge allowing the writ petition filed by the petitioner -respondent by quashing orders of re -construction of adverse Annual Confidential Reports as well as compulsory retirement passed against him. He has further been held entitled to all consequential benefits. The learned Single Judge has found that the controversy involved in the writ petition is covered by a judgment rendered in the case of Amarjit Kaur versus State of Punjab and others, 1988 (4) SLR 199 and a Division Bench judgment of this Court rendered in the case of Ram Niwas v. State of Haryana (CWP No. 8356 of 2006, decided on 26.5.2006) as also a judgment of Hon'ble the Supreme Court in the case of Rathi Alloys and Steel Ltd. versus C.C.E. : 1990 (2) SCC 324. in the case of Ram Niwas (supra) it has been held that 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 and that the power of review cannot be exercised unless it is expressly provided by the Statute. The undisputed facts of the present ease are that a complaint was made against the petitioner -respondent by one ASI Basant Pal when he was posted as a Head Constable in the Police Post, Sushant Lok, Gurgaon. In a regular departmental enquiry he was found guilty and punishment of reversion from the post of Head Constable to that of Constable was ordered to be inflicted upon him. He made a representation before the Inspector General of Police, Gurgaon Range, Gurgaon, who converted the punishment of reversion into stoppage of one increment, vide order dated 28.4.2001. In the meanwhile, some adverse remarks in the ACR of the petitioner -respondent were recorded by the Senior Superintendent of Police, Gurgaon, for the period from 1.4.1999 to 11.10.1999, 11.10.1999 to 31.3.2000 and 1.4.2000 to 29.12.2000. It has come on record that the petitioner -respondent made different representations from time to time for expunging the adverse remarks, which are detailed as under:

(2.) IT is pertinent to mention that against the punishment of stoppage of one increment as well as adverse remarks, the petitioner -respondent filed a civil suit, which was partly decreed by the Civil Judge (Junior Division), Gurgaon, vide judgment and decree dated 27.9.2004 (P -2). The order dated 28.4.2001 stopping his one increment was set aside and the appellants were directed to release one increment. However, his prayer for expunging adverse remarks was not accepted by the Civil Court. Even the appeal filed by the appellants was dismissed by the learned District Judge, Gurgaon.

(3.) ON 5.9.2006, the Director General of Police, Haryana, issued a show cause notice to the petitioner -respondent stating that he was given undue benefit by expunging his adverse remarks for the aforesaid period and the orders dated 20.7.2002 and 28.1.2005 passed by the Inspector General of Police, Gurgaon Range, Gurgaon were liable to be recalled and he is to be compulsorily retired (P4). On 22.9.2006 (P -5), the petitioner filed reply to the show cause notice. Thereafter, he also filed CWP No. 16514 of 2006 challenging the show cause notice dated 5.9.2006 (P -4), However, the said writ petition was dismissed as withdrawn giving liberty to the petitioner to file a afresh one. On 30.10.2006, the Director General of Police, Haryana passed an order for restoration and reconstruction of the adverse remarks in the ACR of the petitioner -respondent No. 1 (P -6). Feeling aggrieved, the petitioner -respondent No. 1 filed CWP No. 19128 of 2006.