Case: Vinod Kumar Vs. State Of Haryana

C.A.No. 392 of 20082. The appellant in this appeal was recruited into the police service in the State of Haryana as a Constable in the year 1971. He got promotion to higher ranks from time to time and became Inspector of Police in the year 2002. During the course of his employment, an adverse entry was recorded in his Annual Confidential Report (hereinafter to be referred as ACR) for the period 11.10.1989 to 31.3.1990. Though the exact report was not placed on record either before the High Court or this Court, it is a common case of the parties that the ACR for this period related to adverse comments on hisIt was acknowledged by the appellants counsel before the High Court that the said adverse remarks pertained to his character and antecedents.3. These remarks were recorded by the then Superintendent of Police, Hisar Range, Hisar. As he wanted these remarks to be expunged, the appellant made a representation to the Deputy Inspector-General of Police, Hisar. His representation was rejected on 26.5.1993. Initially, there was a stoic silence on the part of the appellant who did not pursue the matter further for quite some time. However, he woke up from slumber and after almost 9 years, he made another representation to the Director General of Police, Haryana. This was accepted by the DGP vide orders dated 15.7.2002 and the aforesaid remarks were expunged. The operative part of the order of the DGP, Haryana, in this behalf, is asPetition of ASI Vinod Kumar NO. 345/SR5S (now SI No. 56/H) against the adverse remarks in the matter of integrity recorded his ACR for the period from 14.11.89 to 31.3.1990, has been considered on the basis of available record. The departmental enquiry was conducted on the charges of carelessness and indiscipline in which he was awarded a punishment of censure. No advice/ warning was awarded to him in the matter of integrity. But the reporting officer has doubted his integrity. Thus, the adverse remarks are uncalled for and without any basis and will not stand scrutiny of the judiciary. The mercy petition is accepted and adverse remarks are expunged in the interest of principles of natural justice. The representationist may be informed accordingly.As would be seen in almost all these appeals before us, the DGP had expunged adverse remarks of many such police officials during this period namely from 1999-2002. After the change of regime when new Director General of Police took over the charge, he noticed this phenomena where the adverse remarks were expunged after substantial lapse of time and/ or for no valid reasons and in some cases even after all the departmental remedies had been exhausted by those officials, unsuccessfully. The new DGP, therefore, issued Instructions dated 9.6.2005 to all Range Inspector General of Police, Railways and Technical Services, Haryana and the Inspector General of Haryana Armed Police, Madhuban. In these Instructions, it was stated that he had come across some old cases where remarks related to integrity were expunged after obtaining fresh representations, despite the fact that their earlier representation/ mercy petition/ memorial/ writ petitions had been rejected/ dismissed by the competent authority/ State Government or Courts. Many such cases were even accepted after a lapse of 10/ 12 years. Opinion of the Legal Remembrancer, Haryana was taken who had opined out that in such cases expunction of remarks of the concerned employees was wrongful and the adverse remarks recorded earlier should be reconstructed, after issuing show-cause notice to these officials. Vide these Instructions, the DGP ordered a review of all such cases.5. Show cause notice was issued to the appellant. He submitted his reply dated 22.5.2006. After considering the same, DGP, Haryana passed the orders dated 21.6.2006 restoring/ reconstructing the earlier adverse remarks and recalled orders dated 15.7.2002 of the DGP, Haryana vide which the aforesaid remarks were expunged.6. The appellant filed petition challenging the aforesaid Orders dated 21.6.2006. This petition was heard alongwith some other cases where similar orders were passed and vide common judgment dated 4.4.2007, the writ petition of the appellant has been dismissed.7. Since this is the main judgment giving detailed reasons for dismissing the writ petitions, it would be apt to traverse through the same to find out the grounds of challenge laid by the appellant and other writ petitions before the High Court as well as the reasons given by the High Court while rejecting thoseargument of the appellant before the High Court was that second representation was permissible having regard to the instructions contained in Standing Order No. 65/ 1998 dated 8.2.1999 issued by the DGP, Haryana. These instructions referred to the earlier policy instructions issued by the State Government dated 28.8.1962 which lays down procedures for the guidance of all departments for entertaining the representations against the adverse remarks. In the Governments Instructions dated 28.8.1962, it was emphasized that in the absence of specified procedure for entertaining the representations against ACR, the authorities had noted that whenever any officer in a key position is transferred, certain government servants think that it is a good opportunity to re-open finally settled cases connected with their conditions of service or disciplinary matters, which may be even several years old. There was also a tendency of sending advance copies of representations to all the higher authorities which was leading to unnecessary work at all levels. At the same time, it was also necessary to ensure a fair chance of representation to the government employee. Going by these considerations the detailed procedure was laid down in those Instructions dated 28.8.1962. It inter alia provided that if a government servant wishes to press his claim or to seek redress of his grievance, the proper course was to address his immediate official superior, or the head of office or such other authority at the lowest level, who is competent to deal with the matter. Once that authority decides the case, one representation be allowed to the next higher authority. When the lowest competent authority is the Government itself, one representation is allowed asking for a review of Government orders. These instructions also categorically stipulate that no further representations are allowed except in those cases where new facts have come to light and representation on such ground would be considered by the original deciding authority. Period of six months is provided for making such a representation. There is also a provision for allowing one memorial which is to be decided at Government level in terms of Instructions dated 12.2.1952. Second memorial is permissible if it furnishes new material grounds requiring re-consideration. Relevant portions of these Instructions, stating the aforesaid position, is extracted393 of 200821. This appeal arises out of decision in Civil Writ 9805 of 2006 which was decided by the common judgment dated 4.4.2007 already taken a note of above. In this case, ACR is for the period 25.4.1994 – 31.3.1995. It was inter alia recorded that there was report of corruption against this officer. The appellant made the representation which was rejected in the year 1995 itself. After a lapse of almost 7 years, the appellant gave another representation in the year 2002 which was accepted by the DGP, Haryana who expunged the adverse remarks, giving followingof SI Swantanter Singh No. 225/H has been examined in depth. Keeping in view the improvement shown by the SI especially in view of good entries against major punishment nil, adverse remarks so recorded in his ACR for the period from 25.4.1994 to 31.3.1995, are hereby expunged and upgraded asThe representations may be informedNo. 395 of 200823. The petitioner was communicated adverse annual confidential remarks for the period from 24.4.1998 to 31.3.1998. Relevant extract thereof is reproducedCharacterDeserves Improvement5.General RemarksHe was placed under suspension due to misbehaviour with Smt. Dhano Devi, DC/FTB was requested to accord sanction under PPR 16.38 for DE. But DC/ FTB refused to accord sanction.No. 405 of 200830. The appeal arises out of C.W.P. NO. 20401 of 2006 which was part of batch petitions decided vide common judgment dated 4.4.2007 with lead matter in the case of Vinod Kumar. Without stating the facts in detail, suffice is to mention that adverse reports is for the period 1.4.2001 to 31.3.2002 which was communicated to him on 2.7.2002. His first representation was rejected by IGP on 30.9.2002, he filed second representation to the higher authority namely DGP which was rejected on 28.1.2003. Thereafter, he made another representation (purported to be a review) before the DGP in July, 2003 which was allowed on 30.9.2003 by expunging the adverse remarks. After issuance of show cause notice, orders dated 19.10.2006 were passed recalling earlier order dated 30.9.2003 and reconstructing the ACR by restoring earlier adversethe basis of those adverse remarks, the appellant was compulsorily retired from service. Vide orders dated 17.3.2011, his writ petition challenging the compulsory retirement has been dismissed against which SLP(C)No. 32653/2011 is preferred. Thus, the outcome of this SLP depends upon the result of C.A. No. 396 of 2008.34. Coming to C.A. No. 396 of 2008, in the case of the appellant, adverse remarks relate to the period 1.4.2001 to 2.10.2001 which were communicated to him on 2.7.2002. He made the representation dated 24.8.2002 for expunction of these remarks to the Inspector-General of Police which was rejected on 10.3.2003. Immediately thereafter, in the month of March itself he filed the revision petition which was allowed on 2.5.2003 expunging the adverse remarks in toto and replacing the same with good rating.35. The appellant was also issued show cause notice dated 30.6.2006, in a similar manner as in other cases, stating that as per400 of 200845. The ACR for the appellant pertains to 3.11.2002 to 31.3.2003 which were adverse in nature. These remarks were conveyed to him vide memo dated 8.6.2003, the appellant made representation against those adverse remarks vide his communication dated 30.10.2003 which was rejected by the Inspector-General of Police, Hisar Range, Hisar. He filedthereagainst to the Director General of Police within a few days thereafter i.e. 30.10.2003 which was accepted by the DGP. Adverse remarks were expunged and his ACR was upgraded to good. He was given show cause notice for reversal of the good rating and re-construction of old ACR on 15.8.2006 and order to this effect was passed, after eliciting his reply, on 18.10.2006 on the ground that his adverse remarks were expunged on hisch was not permissible in law.1811 of 200863. This is also a case of departmental inquiry which was held against the appellant and culminated an order of dismissal from service on 2.2.1999. His appeal was rejected by DIG on 1.7.1999. Thereafter, revision was rejected by the IGP ON 3.9.1999. More than 1 ½ years, thereafter he preferred mercy petition which was allowed by DGP, Haryana and the punishment of dismissal was reduced to stoppage of 5 increments. This order was also recalled after giving show-cause notice, vide orders dated 16.10.2006. Appellant challenged this order by filing writ petition in the High Court which has been dismissed by the High Court on 21.8.2007. Order fo the High Court is the subject matter of the present appeal.

Reasoning:
16. On the bedrock of aforesaid settled principles, it is our obligation to scrutinize the judgment of the High Court whether it withstands close scrutiny within the parameters stated hereinabove or a conviction has been recorded solely because a different view can be taken. At the very outset, we are obligated to state that the learned counsel for the parties, with lot of pains, have taken us through the evidence on record. On a scrutiny of the evidence, we find that the appellant was working as a servant in the house of husband of PW-2, Santosh, who was the first to notice that her son Anand, a 3 year old boy, was missing. She had also found the letter regarding kidnapping of Anand and demand of ransom by the accused and had shown it to her father-in-law, Manphul. Jaivir, PW-1, had gone to the police station wherein he had submitted an application Ex. PA annexing the letter on the basis of which the FIR was lodged. The Investigating Officer, Data Ram, PW-12 had proceeded to the house of Santosh wherefrom he had recovered two letters, Exhibit P1 and P2. They were kept at different places in the house. The letters were seized in presence of two persons, namely, Manphul and Santosh. Thereafter, he had proceeded to the village Bijwasan where he came to know that Vinod Kumar did not belong to that village. Being told by Jaivir that Vinod Kumar had appeared in some examination from the school at Beri, the Investigating Officer had gone to the school where he learnt that one Vinod Kumar was studying there and had remained absent for last sevenanalyzing the evidence and arriving at the conclusion that Joginder could not have been convicted, for there was no evidence on record, he has proceeded to scrutinize the evidence against the appellant. One of the facets for arriving at the conclusion that Vinod Kumar could not be found guilty as the case set forth by the prosecution against Joginder has no legs to stand upon, is absolutely unacceptable. It was the case of the prosecution that Joginder had abetted in the crime as he had instigated Vinod Kumar to kidnap the child. We perceive no reason how his acquittal would affect the case of Vinod Kumar. The High Court has rightly discarded the said reasoning of the learned trial Judge.Tested on the touchstone of the aforesaid principles, we are inclined to concur with the opinion expressed by the High Court that the learned trial Judge has really given undue emphasis on the discrepancies which are minor in nature. To elaborate, emphasis has been laid on the fact that the arrest memo indicates Vinod Kumar son of Suraj Bhan. The learned trial Judge has failed to appreciate that Vinod Kumar has been describing himself as son of Suraj Bhan. There is no dispute with regard to the fact that he was found along with boy Anand. There is no dispute with regard to his identity or the fact that he was working in the house of the husband of Santosh. It has also been brought in evidence that Harpal, PW-3, had seen him taking Anand and on a query being made, he answered that he was taking the child to Jind to buy shoes for the boy and medicine for himself. That apart, Vinod Kumar has not taken the plea that he was not employed by Jagbir. Thus, the hypertechnical approach of the learned trial Judge has correctly not been accepted by the High Court.To appreciate the aforesaid reasoning, it is first necessary to understand the plea of the accused. He has stated in his statement recorded under Section 313 CrPC that these letters were written under the pressure of police. When he was produced for the first time before the Additional Chief Judicial Magistrate, PW-11, he had admitted his signatures. It has come in evidence of the said witness that he had showed the letters to the accused who has admitted before him that the letters were written by him. Letters were read over and explained to him and he had admitted the correctness. The accused had not stated before the learned ACJM that the letters were got written from him by the police under pressure. Keeping that in view, his statement under Section 313 CrPC should be appreciated.Apart from what we have stated hereinabove, it is also important that kidnapped boy was recovered at railway station. The accused has not explained how the child could be brought to Delhi. Harpal has categorically deposed that he had seen Anand with Vinod Kumar. The learned trial Judge has noted certain discrepancies in the evidence of Harpal, but without any justifiable reason. The learned trial Judge has really niggled on unimportant and unnecessary details. It is quite natural on the part of Harpal to pose a question to Vinod Kumar as he was slightly anxious to see a domestic help taking a child. This is inherent in human nature and, therefore, the version of Harpal could not have been ignored. These aspects, in our view, weigh quite heavily against the accused.