IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP-T No. 2665/2008 Reserved on: 28.4.2011 Decided on:05.05.2011 _____________________________________________ Krishan Chand. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. B.C. Negi, Advocate. For the Respondents: Mr. Mr. Vikash Rathore, Dy. Advocate General with Mr. R.P. Singh, Asstt ____________________________________________________ Justice Rajiv Sharma, Judge. Departmental proceedings were initiated against the petitioner for dereliction of duty on 9.7.2004. He was served with a summary of allegations on 12.8.2004. The principal charge levelled against the petitioner was that one under trial had escaped from his custody on 24.5.2004 when he was being escorted from I.G.M.C. Shimla to Open Air Jal, Bilaspur. He filed reply to the same vide Annexure A-2. Thereafter, a notice was served upon the petitioner on 18.12.2004. He was 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 granted seven days time to file the reply and also to supply the list of witnesses. Inquiry Officer submitted the report to the Disciplinary Authority. The Disciplinary Authority imposed penalty of dismissal upon the petitioner on 22.2.2005. Petitioner preferred an appeal to the Deputy Inspector of General, which was rejected by him on 30.5.2005. Revision, preferred by the petitioner, was also dismissed by the Director General of Police on 29.7.2006. 2. Mr. B.C. Negi has strenuously argued by relying Rule 16.2 of Punjab Police Rules, as applicable to the State of Himachal Pradesh, that the act of the petitioner was not gravest leading to his dismissal. He then contended that it was necessary for the Disciplinary Authority to mention in the show cause notice issued to the petitioner before the imposition of penalty that the act of the petitioner was gravest. He finally argued that the penalty imposed upon the petitioner of dismissal is disproportionate to the alleged misconduct. 3. Mr. Vikas Rathore, learned Deputy Advocate General has strenuously argued that the charges levelled against the petitioner were duly proved. Petitioner had been given ample opportunity to defend himself during the course of inquiry. He lastly contended that the penalty of dismissal 3 imposed upon the petitioner is neither disproportionate nor harsh. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. The petitioner had taken the custody of under trial, Sanjay Kumar from Open Air Jail, Bilaspur. He was taken to I.G.M.C., Shimla. Thereafter he was to be lodged in the Open Air Jail, Bilaspur. However, the under trial was taken to Palampur from where he escaped. This fact was brought by the petitioner to the notice of the higher authority only on 29.5.2004 though the under trial had already been apprehended by the Kangra Police on the intervening night of 26/27.5.2004. The explanation given by the petitioner why this fact was not brought to the notice of the higher authority immediately was that he was apprehending that action will be taken against him. This explanation has rightly been rejected by the competent authority. Petitioner had been given opportunity to file reply to the summary of allegations and also to main charge dated 18.12.2004. The Inquiry Officer has given opportunity to the petitioner to file reply alongwith list of witnesses to be relied upon by him. The Inquiry Officer has taken into consideration the statements of PW-1 Gopal Singh, PW-2 Sanjay Sharma, PW-3 Ravinder Kumar, PW-4 Duni Chand 4 and PW-5 Kushal Kumar. The opportunity to cross-examine the witnesses cited by the Department was given to the petitioner. However, he has not availed the opportunity to cross-examine these witnesses. What emerges from the statements of these witnesses is that the petitioner had taken the custody of under trial from Open Air Jail, Bilaspur and the under trial had escaped from his custody on 24.5.2004. Escape of an under trial from the custody of a police official/officer is a serious misconduct. He should have taken all the precautions while escorting the under trial. It has been proved in the inquiry that the petitioner has, in fact, taken the under trial to Palampur alongwith constable Karam Singh instead of lodging him in Open Air Jail, Bilaspur. The under trial Sanjay Kumar was arrested by Palampur Police on the intervening night of 26/27.5.2004. The escape of under trial was reported by the petitioner only on 29.5.2004. 6. Mr. B.C. Negi has failed to point out any shortcomings in the inquiry conducted by Ms. Rani Bindu, Deputy Superintendent of Police (Headquarters). The inquiry has been conducted against the petitioner strictly in conformity with law. Mr. B.C. Negi has also failed to point out infraction of any mandatory provisions of law while holding inquiry against his client. Petitioner had been served with a notice on 5 11.1.2005. Copy of the inquiry report was also annexed with the same. The petitioner though has filed the reply, however, the same was not found satisfactory. He was also heard personally on 16.2.2005 by the Disciplinary Authority. The penalty of dismissal was imposed upon him vide order dated 22.02.2005. 7. Mr. B.C. Negi has also argued that the copy of the inquiry report was not supplied to his client before the decision was taken to impose penalty of dismissal upon his client. It is true that copy of the inquiry report is required to be supplied to the delinquent before the Disciplinary Authority makes its mind to impose penalty to enable him to point out the shortcomings etc. in the inquiry. However, it is equally well settled by now that the delinquent has to amply prove what prejudice has been caused to him by non-supply of the same. In the instant case, the petitioner has not pointed out any prejudice caused to him by non-supply of the copy of inquiry report. 8. Their Lordships of the Hon’ble Supreme Court in Haryana Financial Corporation and another versus Kailash Chandra Ahuja, (2008) 9 SCC 31 have held as under: “21. From the ratio laid down in B. Karunakar, it is explicitly clear that the doctrine of natural justice requires supply of a copy of the Inquiry Officer's report to the delinquent if such Inquiry Officer is other than the Disciplinary 6 Authority. It is also clear that non-supply of report of Inquiry Officer is in the breach of natural justice. But it is equally clear that failure to supply a report of Inquiry Officer to the delinquent employee would not ipso facto result in proceedings being declared null and void and order of punishment non est and ineffective. It is for the delinquent-employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the Court on that point, the order of punishment cannot automatically be set aside.” 9. Now, the Court will advert to the non-compliance of the provisions of Rule 16.2 of the Punjab Police Rules. Rule 16.2 reads thus: “16.2. Dismissal.-Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness of police service. In making such an award regard shall be had to the length of service of the offender and his claim to pension.” A bare perusal of notice issued to the petitioner by the Disciplinary Authority on 22.2.2005 makes it abundantly clear that expression ‘gravest misconduct’ has not been mentioned in it. It is also true that even one single misconduct can constitute gravest misconduct. The Court is of the considered view that it was incumbent upon the disciplinary authority to put to the petitioner to notice that it has viewed the misconduct of the petitioner as ‘gravest misconduct’ which could lead to his dismissal. The Disciplinary Authority in the instant case has 7 also not taken into consideration the length of the service of the petitioner and his claim for pension, as visualized under Rule 16 of the Punjab Police Rules. The petitioner was appointed as Constable in the Police Department on 30.6.1990. He has been dismissed from service vide order dated 22.2.2005. He had put in 15 years of uninterrupted service. In the show cause notice issued to the petitioner, the Disciplinary Authority has also not mentioned that the conduct of petitioner was incorrigible and he was thus completely unfit to be retained in the police service, as provided under Rule 16.2 of the Punjab Police Rules. 10. Rule 16.2 of the Punjab Police Rules, as applicable to the State, had fallen for consideration before the Apex Court in State of Punjab and others versus Ram Singh Ex- Constable (1992) 4 SCC 54. Their Lordships have held as under: “4. Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999 thus "A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness." Misconduct in office has been defined as: 8 "Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in character. The term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act. P.Ramanatha Aiyar's the Law Lexicon, Reprint Edition 1987 at p. 821 'misconduct' defines thus:- "The term misconduct, implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion if left, except what necessity may demand and carelessness, negligence and unskillfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected." 5. Thus it could be seen that the word 'misconduct' though not capable of precise definition, its reflection receive its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act, a transgression of 9 established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order. 6. Rule 16.2(1) consists of two parts. The first part is referable to gravest acts of misconduct which entails awarding an order of dismissal. Undoubtedly there is distinction between gravest misconduct and grave misconduct. Before awarding an order of dismissal it shall be mandatory that dismissal order should be made only when the are gravest acts of misconduct, that too wnen it impinges the pensionary rights of the delinquent after putting long length of service. As stated the first part relates to gravest acts of misconduct. Under General Clauses Act singular includes plural, act includes acts. The contention that there must be plurality of acts of misconduct to award dismissal is fastidious. The word "acts" would include singular "act" as well. It is not the repetition of the acts complained of but its quality, insidious effect and gravity of situation that ensues from the offending 'act'. The colour of the gravest act must be gathered from the surrounding or, attending circumstances. Take for instance the delinquent that put in 29 years of continuous length of service and had unblemished record; in 30th year he commits defalcation of public money or fabricates false records to conceal misappropriation. He only committed once. Does it mean that he should not be inflicted with the punishment of dismissal but be allowed to continue in service for that year to enable him to get his full pension. The answer is 10 obviously no. Therefore, a single act of corruption is sufficient to award an order of dismissal under the rule as gravest act of misconduct. 7. The second part of the rule connotes the cumulative effect of continued misconduct proving incorrigibility and complete unfitness of police service and that the length of service of the offender and his claim for pension should be taken into account in an appropriate case. The contention that both parts must be read together appears to us to be illogical. Second part is referable to a misconduct of minor in character which does not by itself warrant an order of dismissal but due to continued acts of misconduct would have insidious cumulative effect on service morale may be a ground to take lenient view of giving an opportunity to reform. Despite giving such, opportunities if the delinquent officer proved to be incorrigible and found ,complete unfit to remain in service than to maintain discipline in the service, instead of dismissing the delinquent officer, a lesser punishment of compulsory retirement or demotion to a lower grade or rank or removal from service without affecting his future chances of re-employment, if any, may meet the ends of justice. Take for instance the delinquent officer is habitually absent from duty when required. Despite giving an opportunity to reform himself he continues to remain absent from duty off and on. He proved himself to be incorrigible and thereby unfit to continue in service. Therefore, taking into account his long length of service and his claim for pension he may be compulsorily retired from service so as to enable him to earn proportionate pension. The second part of the rule operates in that area. It may also be made clear that the very order of dismissal from service for gravest misconduct may entail forfeiture of all pensionary benefits. Therefore, the word 'or' cannot be read as "and". It must be disjunctive and independent. The common link that connects both clauses is "the gravest act/acts of misconduct." 11 11. Their Lordships of the Hon’ble Supreme Court in State of Punjab and others versus Dharam Singh (1997) 2 SCC 550 while deciding the case under Rule 16.21(1) of the Punjab Police Rules had directed the Authorities to consider passing an order of compulsory retirement from service instead of removal to enable him to be entitled to the pensionary/retiral benefit and other benefits under the Rules. 12. Their Lordships of the Hon’ble Supreme Court in Harjit Singh & another versus State of Punjab & another, (2007) 9 SCC 582 have held that when a second show cause notice was issued as to why the appellant should not be dismissed, it was obligatory on the disciplinary authority to arrive at such a positive finding that the respondents have committed gravest acts of misconduct. In this case, the Hon’ble Supreme Court has modified the penalty of dismissal to compulsory retirement. Their Lordships have held as under: “11. It is one thing to say that the disciplinary authority accepted the finding of the enquiry officer, but, when a second show cause notice was issued as to why the appellants and the said Parminder Singh should not be dismissed, it was obligatory on the part of the disciplinary authority to arrive at such a positive finding that the respondents have committed gravest acts of misconduct. The opinion formed by a disciplinary authority is very relevant. Ordinarily a Civil Court would not interfere with the findings of the disciplinary authority. The jurisdiction of the Civil Court is limited. The Civil Court in a suit would not 12 ordinarily interfere with the findings of fact; its jurisdiction inter-alia being to find out as to whether the statutory rules respecting the disciplinary enquiry were complied with or the principles of natural justice have been followed or not. The First Appellate Court no doubt exceeded its jurisdiction in substituting its own opinion to that of the disciplinary authority. 12. We are not oblivious of the fact, that it is not necessary to repeat the wordings of the Section for the purpose of complying with the principles thereof in the fact situation obtaining in a given case. But departmental proceeding is quasi criminal in nature. The procedures laid down therefor were required to be complied with, embodying the principles of natural justice. 15. In the aforementioned situation, ordinarily, we would have asked the Disciplinary Authority to consider the matter afresh, but the occurrence has taken place in the year 1984. Appellants and the said Parminder Singh had worked only for a few years, one of them is dead. In the aforementioned situation, we are of the opinion that we would be justified to fix the quantum of punishment. We are of the opinion that in the facts and circumstances of this case and in particular having regard to the passage of time, punishment of compulsory Retirement will meet the ends of justice. If otherwise eligible, the delinquents would be entitled to retiral benefits. The appeal is allowed to the aforementioned extent.” 13. The expressions ‘gravest misconduct’ as contained in Rule 16.2 has not been explained. However, the State of Haryana has made amendment in Punjab Police Rules, as applicable to it, and has explained the expression ‘gravest’ for the purpose of sub-rule (i) as under: (i) "indulging in spying or smuggling activities; 13 (ii) disrupting the means of transport of communication; (iii) damaging public property; (iv) causing indiscipline amongst fellow policemen; (v) prompting feeling of enmity or haltered between different classes of citizens of India on grounds or religion, race, caste, community or language; (vi) going on strike or mass casual leave or resorting to mass abstentions; (vii) causing riots and the life.” 14. The respondent-State in future shall be guided for the purpose of gravest acts, as explained hereinabove by State of Haryana. In the case in hand, the escaping of under trial from the custody of the petitioner will not constitute gravest misconduct. Moreover, the under trial was apprehended by the Dhramshala police on 26/27.5.2004. 15. In the case in hand also, the Disciplinary Authority has not recorded a positive finding that the misconduct of the petitioner was gravest. The Disciplinary Authority has also failed to take into consideration that the misconduct of the petitioner, as noticed in the show cause notice, would prove his incorrigibility and complete unfitness for police service. The appellate and revisional authorities have also not taken into consideration whether misconduct of the petitioner was gravest or not while dismissing the appeal/revision preferred by him. 16. Petitioner had rendered 15 years of service when he was imposed the penalty of dismissal. Accordingly, while 14 holding the misconduct on the part of the respondent, the Court is of the considered view that in case the punishment of dismissal from service is converted into compulsory retirement, it will serve the ends of justice. 17. Accordingly, in view of the observations and discussions made hereinabove, the petition is partly allowed. The imposition of penalty of dismissal from service imposed upon the petitioner is converted into compulsory retirement. Petitioner shall be entitled to all the consequential benefits. No costs. (Rajiv Sharma), Judge May 05, 2011 *awasthi*