LPA No. 1840 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No. 1840 of 2010 (O&M) Date of decision 17 .3.2011 Papinder Singh and others ... Appellants Versus State of Haryana and others ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. Namit Kumar Advocate for the appellants Mr. Aman Chaudhary, Addl. AG Hy. 1. To be referred to the Reporter or not ? 2. Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. 1. The instant appeal filed under Clause X of the Letters Patent is directed against judgement dated 27.10.2009 rendered by the learned Single Judge holding that appellants could get their appeal revived filed under Section 96 of the Code of Civil Procedure, 1908 (for brevity 'the Code') before the learned first Appellate Court by moving appropriate application therein. The appeal was withdrawn on the basis of an order passed by the Director General of Police, Haryana on 16.12.2004 (P.6) which order was subsequently reviewed on 28.2.2008 /10.3.2008 (P.14). According to the view taken by the Director General of Police, the then Director General of Police in his order dated 10.3.2008 (P.14) could not have reviewed the order passed in revision petition filed by the appellants as there was no power to review. 2. Brief facts of the case may first be noticed. The appellants were recruited as Constables in the year 1988-89. All of them were probationers. LPA No. 1840 of 2010 2 On account of their participation in strike they were discharged from service vide order dated 1.10.1991 in pursuance of the powers vested in the Superintendent of Police by virtue of provisions of Rule 12.21 of the Punjab Police Rules, 1934 (for brevity 'the Rules'). In the order of discharge it was mentioned that they were unlikely to prove efficient police officers. The discharge had been ordered because they all were on probation and three years period of probation was yet to be completed by them. However, other than the appellants, there were another set of Constables. They were not probationers. They were confirmed hands. They were dismissed from service by invoking the provisions of Article 311(2)(b) of the Constitution and the departmental inquiry was dispensed with in their case. It is obvious that both set of Constables are in two different categories. However, in the present proceedings, we are dealing with the Constables who were discharged under Rule 12.21 of the Rules. They had challenged the order of discharge dated 1.10.1991 by filing CWP No. 686 of 1992 alongwith many other similarly situated Constables belonging to other districts. All the writ petitions were clubbed together and were disposed of on 13.7.1995 (P.2) by the learned Single Judge. The main judgement has been rendered in the case of Suresh Kumar v. State of Haryana and others 1996(1) SCT 420. It was held by this Court that the order of discharge was punitive in nature and enquiry was required to be held. It would be appropriate to set out the operative part of the order, which reads thus: “ Consequently the writ petitions CWP Nos. 670, 686, 688, 687, 689 and 5753 of 1992 and 1689 of 1991 are allowed and the impugned orders quashed. In view of the relief granted to the petitioner in Jagdish Chander's case (supra) and the LPA No. 1840 of 2010 3 judgement of the Constitutional Bench of the Supreme Court in Managing Director, ECIL, Hyderbabad v. B. Karunakar, 1994 (1) SCT 319 (SC); 1993(5) SLR 532, the petitioners presently are not entitled to be reinstated into service. Instead they will be deemed to be continuing under suspension. It shall be open to the respondents to hold inquiry against the petitioners in accordance with law and pass fresh orders within six months from the date of receipt of orders of this Court. The petitioners shall be not entitled to salary or other monetary benefits between the date of their dismissal and the date of this order. As to what treatment should be meted to the period of their suspension shall be decided by the disciplinary authority at the time of passing of fresh orders. No costs.” 3. It is thus patent that the appellants were deemed to continue under suspension and liberty was given to the respondents to hold departmental enquiry against them. It was thereafter that respondents could pass a fresh orders. The appellants were not held entitled to salary or other monetary benefits for the period from the date of their dismissal to the date of the fresh order which was to be passed. It was also left to the respondents to decide as to how their suspension period would be treated at the time of passing the fresh order. The aforesaid directions issued by the learned Single Judge attained finality as no further appeal was filed. 4. It has remained undisputed that in accordance with the directions issued by this Court in Suresh Kumar's case (supra) a departmental enquiry was held. After holding the departmental proceedings, the appellants were found guilty of charges. They were awarded punishment of stoppage of two LPA No. 1840 of 2010 4 increments with cumulative effect vide order dated 20.8.1997 (P.3). In compliance of the directions issued, the respondents also decided that for the period they remained out of service namely from the date of discharge to the date of resuming duty they were not to be paid anything and that period was to be treated as dies-non i.e. the period was not to count towards increment, promotion gratuity and other similar benefits under Rule 4.20(b) of the Civil Service Rules, Volume II (as applicable to the State of Haryana). The aforesaid order was challenged by the appellants in appeal which was partly accepted vide order dated 27.3.1998. The punishment was reduced to stoppage of one increment with permanent effect and the remaining part of the order was maintained (P.4). The appellants then filed revision petition before the Director General of Police, Haryana and vide order dated 12.10.1998 (P.5), the revision was dismissed. Accordingly the order of punishment inflicted stoppage of one increment with cumulative effect attained finality. 5. The appellants then filed Civil Suit challenging order dated 27.3.1998 and 12.10.1998 (P.4 and P.5). The suit was dismissed vide judgement and decree dated 22.3.2004. The aforesaid judgement and decree was challenged before the First Appellate Court under Section 96 of the Code which remained pending. However, on account of development which took place after the dismissal of the revision petition on 12.10.1998 (P.5) the appeal was withdrawn. It is necessary to make a mention of the development which has already come on record when the revision petition filed by the appellant was dismissed on 12.10.1998 upholding the order of the First Appellate Authority dated 27.3.1998 inflicting the punishment of stoppage of one increment with cumulative effect on the appellants. LPA No. 1840 of 2010 5 However, the aforesaid order was reviewed on 16.12.2004 (P.7) by the successor Director General of Police. The operative part of the order dated 16.12.2004 (P.7) passed by the Director General of Police reviewing the order of his predecessor dated 12.10.1998 (P.5) reads as under: “ Now, they have demanded same relief as was granted to other police personnel who participated in agitation and their services were dispensed with and subsequently were taken back in service with 50% back wage as was held in LPA No. 918 vide judgement dated 29.4.97 passed by the Hon'ble Punjab and Haryana High Court. It is admitted that the benefit of payment of 50% back wages for the period police personnel remained out of service who were similarly placed, were given as per judgement in LPA No. 918 of 1996 passed by the Hon'ble Punjab and Haryana High Court. But the revisionists were deprived from the said benefit as the competent authority took decision in pursuant to the judgement dated 13.7.1995. And whereas, I have carefully gone through the review petition, departmental inquiry file and other relevant documents. The instant departmental inquiry has been conducted as per rules and prescribed procedure and does not suffer from any legal infirmity. Various pleas taken by the revisionists have been examined. A perusal of the relevant record reveals that the similar situated police personnel were given benefit of payment of 50% back wages for the period they remained out of service as per judgement in LPA No. 918 of 1996 passed by the Hon'ble Punjab and Haryana High Court. LPA No. 1840 of 2010 6 But the revisionists were dispensed with on the same ground i.e. participation in police agitation, as such, they should be given same treatment as was given to the police personnel of other districts vide judgement dated 29.4.1997 in LPA No. 918 of 1996. I, therefore, order accordingly.” 6. It was on the basis of the aforesaid order that appeal No. 86 of 2008 which was pending before the learned Addl. District Judge, Chandigarh (P.8) was permitted to be withdrawn. The learned Addl. District Judge recorded the order in the following terms: “ Shri Suraj Bhan Hooda, GP for State of Haryana has made a statement in this appeal that relief is being granted to the appellants in terms of order dated 16.12.2004, passed by Dr. M.S. Malik, Director General of Police, Haryana in view of LPA No. 918 of 1996. The above mentioned order shall be implemented as soon as possible. On this, Shri S.S. Kharab, Adv. Learned counsel for the appellant gave statement that in view of order dated 16.12.2004, passed by Director General of Police, Haryana, he withdraws this appeal, provided the claim is granted to the appellants from the date the others have been granted as per LPA order Ex.A.1. In view of the statements given by learned Government Pleader for State of Haryana and learned counsel for the appellant, this appeal is dismissed as withdrawn. Needless to say that order dated 16.12.2004 passed by the Director General of Haryana in view of LPA No. 918 of 1996 of Hon'ble Punjab and Haryana High Court shall be implemented as early LPA No. 1840 of 2010 7 as possible. File be consigned to the record room.” 7. To the mis-fortune of the appellants, the order dated 16.12.2004 passed by the earlier Director General of Police was withdrawn by the successor in office by holding that the judgement passed by this High Court in Suresh Kumar's case (supra) alongwith many other petitions had attained finality and there were specific directions issued by the High Court that the appellants were not entitled to salary or any other monetary benefits for the period from the date of dismissal to the date of judgement which was rendered on 13.7.1995 (P.2). The Director General of Police went on to observe that 50 percent back wages given to the appellants are based on wrong analogy. Accordingly, the order dated 16.12.2004 which has granted undue benefit of 50 percent back wages was withdrawn. As a result thereof, the appellants suffered a prejudice because they had already withdrawn their appeals filed under Section 96 of the Code from the Court of Addl. District Judge on the basis of order dated 16.12.2004. They had been left high and dry because on the one hand the State counsel made a statement before the ld. Addl. District Judge by citing order dated 16.12.2004 (P.7) on the basis of which the appeal was dismissed as withdrawn and on the other hand, the order dated 16.12.2004 itself has been withdrawn after issuing a show cause notice to them on 28.02.2008 (P.14). Accordingly they challenged the aforesaid order by filing a writ petition in this Court from which the instant appeal has emerged. The learned Single Judge has taken the view that the appeal which had been dismissed as withdrawn from the Court of Additional District Judge can be revived by the appellants by filing an appropriate application before the competent Court. The plea of discrimination put forward by the appellants was also rejected by observing LPA No. 1840 of 2010 8 that the benefit has been uniformly withdrawn in respect of all the Constables. The argument that Constables belonging to Jind, Sirsa and Sonepat have been granted their benefits leading to discrimination, was also repelled because the Superintendent of Police, Kurukshetra filed an affidavit before the learned Single Judge stating that the relief of 50% back wages granted to those Constables has also been withdrawn. 8. Having heard the learned counsel for the parties at a considerable length we are of the considered view that the order dated 16.12.2004 passed by the then Director General of Police has rightly been withdrawn vide order dated 28.2.2008 (P.14). It has come on record that on 12.10.1998, the Director General of Police has dismissed the revision petition filed by the appellants and that the order had attained finality. There is no power of review with the Director General of Police and therefore, the subsequent order passed on 16.12.2004 (P.7) accepting the revision petition and granting the benefit of 50% back wages to the appellants was not sustainable in the eyes of law because there was no power of review. This issue is no longer res-integra. A Division Bench of this Court in the case of Ram Niwas v. State of Haryana and others 2006(3) SCT 834 has held that ' firstly, in law there is administrative hierarchy which has to be respected and any successor officer cannot set aside the orders 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 of review cannot be exercised unless it is expressly provided by the statute. In this regard, reliance may be placed on a judgement of Hon'ble the supreme Court rendered in the case of Rathi LPA No. 1840 of 2010 9 Alloys and Steel Ltd v. CCE (1990) 2 SCC 324. Our view also finds support from the judgement of this Court rendered in the case of Amarjit Kaur v. State of Punjab and others 1988(4) SLR 1999.' It is thus evident that the case is squarely covered in favour of respondents in respect of order dated 28.2.2008 passed by the Director General of Police is concerned. There being no power of review the order dated 16.12.2004 passed by the Director General of Police in a review petition has been rightly withdrawn. Therefore the aforesaid order dated 28.2.2008 (P.14) would not suffer from any legal lacuna. 9. Even otherwise, we are unable to find any legal infirmity in the view taken by the learned Single Judge because the rights of the parties stand determined by virtue of the judgement in Suresh Kumar's case (supra). Any deviation from the aforesaid judgement would result into nullifying the directions issued in those proceedings which cannot be resorted to at this stage because the order has attained finality and this Court cannot sit over the aforesaid view taken by the learned Single Judge. Such a course is not available to us in view of the authoritative judgement of Hon'ble the Supreme Court rendered in the case of Naresh Shridhar Manjerkar v. State of Maharahstra AIR 1967 SC 1. Therefore, under the garb of order dated 16.12.2004 passed by the Director General of Police (P.7) reviewing the order of his predecessor dated 12.10.1998 (P.5) which inflicted punishment of stoppage of one increment, no fresh directions could be issued. The whole issue cannot be reopened by accepting the claim that 50 percent back wages should be paid to them as per the statement made by the government pleader before the first Appellate Court in an appeal under Section 96 of the Code. LPA No. 1840 of 2010 10 10. In view of the above, we are in agreement with the learned Single Judge and concur with the views that the appellants may file an application before the First Appellate Court to revive their appeal filed under Section 96 of the Code seeking adjudication of the order of punishment of stoppage of increment which has been challenged there. There is thus no merit in the appeal and the same is accordingly dismissed. (M.M.Kumar) Judge (T.P.S. Mann) 17.3.2011 Judge okg