IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. : 664/2002 & 667/2002 Date of decision : 2.4.2008 CWP No. 664 of 2002 State of H.P. and another …Petitioners. Versus Jagat Singh …Respondent. CWP No. 667 of 2002 State of H.P. and another …Petitioners. Versus Gian Chand …Respondent. Coram The Hon’ble Mr. Deepak Gupta, J. The Hon’ble Mr. Rajiv Sharma, J. Whether approved for reporting ?1 yes. For the petitioners : Mr. Ram Murti Bisht and Mr. Rajesh Mandhotra, Deputy Advocate General For the respondent : Mr. Ashutosh Burathoki, Advocate. Pt. Om Parkash Sharma, Advocate. Per Rajiv Sharma, J. These two petitions are directed against the orders rendered by the learned H.P. Administrative Tribunal in O.A.No. 561 of 1995 and O.A.No. 562 of 1995 on 20.6.2001 and 2.1.2002, respectively. Since common questions of law and facts are involved in these petitions, the same are being disposed of by a common judgement. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. The facts in nutshell common to both the petitions are that the disciplinary proceedings were initiated against the respondents on the ground that they had taken one Ram Singh accused from the Court of Judicial Magistrate Ist Class, Dharamshala on September 3, 1992 and on the same evening when they brought the accused to District Jail, Dharamshala they were found drunk. The disciplinary proceedings were initiated against them. The inquiry was conducted by the Additional Superintendent of Police, Kangra. The report was submitted to the disciplinary authority. The Inquiry Officer had concluded that the charge had been proved against the delinquents. The report was accepted by the Superintendent of Police, Kangra. He agreed with the findings of the Inquiry Officer and imposed a penalty of forfeiture of one year’s service and stoppage of one increment of the respondents on 16.2.1994. The Respondents preferred an appeal against the order dated 16.2.1994 to the Deputy Inspector General of Police. The appeal was rejected. They filed a revision before the Director General of Police. The Director General of Police came to the conclusion that the penalty imposed was not commensurate with the misconduct and issued a notice to the respondents asking them to show cause why the penalty of dismissal from service be not imposed on them. They submitted their replies. The Director General of Police imposed the penalty of dismissal from service on the respondents. They approached the learned H.P.Administrative Tribunal by way of O.A.No. 561 of 1995 and O.A.No. 562 of 1995 against the order of their dismissal. The learned H.P.Administrative Tribunal allowed the original application No. 561 of 1995 on 20.6.2001 by a detailed order. The original application No. 562 of 1995 was also disposed of by the learned Tribunal on 2.1.2002 on the basis of the order dated 20.6.2001 rendered in O.A.No. 561 of 1995. The learned Deputy Advocate General has strenuously argued that the orders passed by the learned H.P.Administrative Tribunal in O.A. No. 561 of 1995 and O.A.No. 562 of 1995 are not sustainable in the eyes of law. Mr. Ashutosh Burathoki and Pt. O.P.Sharma, Advocates, had supported the orders dated 20.6.2001 and 2.1.2002. I have heard the parties and perused the record carefully. What emerges from the pleadings of the parties before the H.P.Administrative Tribunal is that the disciplinary proceedings were initiated against the respondents for their misconduct dated 30th November, 1991. The charges levelled against the respondents were that they had come drunk while escorting the accused Ram Singh from the Court of the Judicial Magistrate Ist Class, Dharamshala to District Jail. The inquiry was conducted. The report was furnished by the Additional Superintendent of Police to the Superintendent of Police. The Superintendent of Police by taking an overall view has passed a very appropriate order whereby he only imposed a penalty of forfeiture of one year’s service and stoppage of one increment of the respondents. We are convinced that this penalty commensurate with the misconduct of the respondents. The petitioners have not placed any material on record to suggest that the respondents were ever proceeded earlier against departmentally for misconduct. The appellate authority did not change the order passed by the Superintendent of Police, Kangra. It was only the Director General of Police who in revision preferred by the respondents has come to the conclusion that the penalty imposed by the Superintendent of Police did not commensurate with the alleged misconduct. The Director General of Police after issuing notice to the respondents had imposed the penalty of dismissal upon the respondents. The H.P.Administrative Tribunal had come to just conclusion that the extreme penalty of dismissal could not be imposed upon the respondents. The penalty as imposed by the Superintendent of Police according to us commensurate with the misconduct. The Director General of Police was bound to take into consideration the reply filed by the respondents to the show cause notice whereby the penalty of dismissal from service was proposed. Notice is issued to an employee against the proposed penalty to enable him to convince the authorities on the basis of the evidence that no penalty should be imposed upon him. The circumstances mentioned in the reply filed with the notice are bound to be considered by the authorities in question. If the reply filed by an employee is not taken into consideration by the disciplinary or the appellate authority it will amount to miscarriage of justice. It is also specifically provided in Rule 16.2 of the Punjab Police Rules as applicable to the State of Himachal Pradesh that the penalty of dismissal should be imposed only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. Rules 16.2. reads thus :- “(1) Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. In making such an award regard shall be had to the length of service of the offender and his claim to pension. (2) An enrolled police officer sentenced judicially to rigorous imprisonment exceeding one month or to any other punishment not less severe, shall, if such sentence is not quashed on appeal or revision, be dismissed. An enrolled police officer sentenced by a criminal court to a punishment of fine or simple imprisonment, or both or to rigorous imprisonment not exceeding one month, or who, having been proclaimed under Section 87 of the Code of Criminal Procedure fails to appear within the statutory period of thirty days may be dismissed or otherwise dealt with at the discretion of the officer empowered to appoint him. Final departmental orders in such cases shall be postponed until the appeal or revision proceedings have been decided, or until the period allowed for filing an appeal has lapsed without appellate or revisionary proceedings having been instituted. Departmental punishments under this rule shall be awarded in accordance with powers conferred by rule 16.1. (3) When a police office is convicted judicially and dismissed, or dismissed as a result of a departmental enquiry, in consequence of corrupt practices, the conviction and dismissal and its cause shall be published in the Police Gazette. In other cases of dismissal when it is desired to ensure that the officer dismissed shall not be re-employed elsewhere, a full descriptive roll, with particulars of the punishments, shall be sent for publication in the Police Gazette. “ It was incumbent upon the Director General of Police to take into consideration Rule 16.2 of the Punjab Police Rules before altering the punishment from forfeiture of one year’s service and stoppage of one increment into dismissal from service. There is no finding recorded by the Director General of Police that the respondents were incorrigible and completely unfit for police service. The Director General of Police was also required to look into the length of service of the respondents in the present case. The respondents had already put in more than 30 years of service at the time when the penalty of dismissal from service was imposed upon them by the Director General of Police. Their Lordships’ of the Supreme Court of India have held in Harjit Singh and another vs. State of Punjab and another, (2007) 9, Supreme Court Cases 582 that while issuing second show cause notice, the competent authority ought to specifically consider why misconduct was considered to be gravest act of misconduct under Rule 16.2 of the Punjab Police Rules. Their lordships have held as under:- “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 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. 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. Justice Frankfurter in Vitarelli v. Seaton (US pp. 546- 47] stated: "An executive agency must be rigorously held to the standards by which it professes its action to be judged ....Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed......This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword." (See Ramana Dayaram Shetty v. The International Airport Authority of India and Others [AIR 1979 SC 1628] ) It is also true as was submitted by Mr. Swarup Singh that in case of habitual absence, a punishment of dismissal of service would be just. [See State of Punjab & Ors. v. Sukhwinder Singh, (1999) SCC (L&S) 1234 and Maan Singh v. Union of India & Ors. 2003 (3) SCC 464]. We are furthermore not oblivious of a decision of this Court in State of Punjab v. Ram Singh Ex-Constable [(1992) 4 SCC 54] wherein interpreting Rule 16.2, this Court stated the law in the following terms: (SCC pp.58-60, paras 7-8) "7. 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 there are gravest acts of misconduct, since it impinges upon 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 who put in 29 years of continuous length of service and had unblemished record; in thirtieth year he commits defalcation of public money or fabricates false records to conceal misappropriation. He only committed once. Does it men 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 obviously no. Therefore, a single act of corruption is sufficient to award an order of dismissal under the rule as gravest act of misconduct. 8. The second part of the rule connotes the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for 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 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 and 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 completely unfit to remain in service then 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 who 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." In view of the observations made above and the law laid down by the Hon’ble Supreme Court, these writ petitions are dismissed. No order as to costs. ( Deepak Gupta), J. 2nd April, 2008 ( Rajiv Sharma), J. ™