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CASE NO.: Appeal (civil)  928 of 2007

PETITIONER: Harjit Singh & Anr

RESPONDENT: The State of Punjab & Anr

DATE OF JUDGMENT: 23/02/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T [Arising out of S.L.P. (C) No. 12390 of 2006]

S.B. SINHA, J.         Leave granted.

       Appellants were appointed as Constables in the Police Department of  the State of Punjab.   They had been put on a duty to keep a watch on Bhagu  Ram who was admitted in a hospital.   He was allegedly shackled to the bed.  At about 9 p.m. on the intervening night of 19th/20th May, 1984, the appellants  alongwith one Parminder Singh (since deceased) were found to be absent by  the Inspector of Police.  He made enquiries whereupon, he came to know that  all the three constables were absent from duty from 9 p.m. onwards.  Other  constables from the police lines had to be requisitioned.  They reported to  Police Lines at about 3 a.m. on the same day.  They were charge sheeted and a  departmental proceedings was initiated against them.  The Enquiry Officer  found  them guilty.  The enquiry report was accepted by the Superintendent of  Police, the Disciplinary Authority.   A second Show Cause Notice was issued  to which all the delinquent officers replied.  By an Order dated 21.1.1985, the  disciplinary authority, however, having found the cause shown by the  delinquents to be unsatisfactory, passed orders of dismissal from service  against them.  Appellants and said Parminder Singh filed a suit.   One of the  contentions raised in the said suit was that in passing the order of punishment,  the disciplinary authority had not complied with the provisions of Rule 16.2 of  the Punjab Police Rules.  It reads as under:-

"16.2 Dismissal \026 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 convicted and sentenced to  imprisonment on a criminal charge shall be dismissed :

"Provided that in case the conviction of a police  officer is set aside in appeal or revision, the officer  empowered to appoint him shall review his case  keeping in view the instructions issued by the  Government in this behalf."

       Whereas the learned Trial Judge was of the opinion that the misconduct  committed by the delinquents was of grave nature,  the first Appellate Court  held:

"\005.I find force in the contention of the learned counsel for the  appellants because admittedly all the three constables, who are

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plaintiff-appellants because admittedly all the three constables,  who are plaintiff-appellants before me were on duty in the T.B.  Hospital, to escort and prisoner, where at least one person could  have been present because as per Rule 18.5 and 6 a constable can  be on duty for three hours only and the department had put three  persons on duty and therefore, they could not be present for 24  hours.   So they had committed slight delineation in duty.  Thus  we can say that one of them was atleast absent, who was on duty  at that time and it has been admitted that Parminder Singh alias  Bhola was on duty at that time when the absence of the plaintiff- appellants was marked, but that absence cannot be taken to be  serious lapse which merits dismissal from service.  It is well  settled that the punishment of dismissal is not proper in case of  absence from duty and I am supported on this point by a case  State of Punjab Vs. Ahhar Singh, reported as 1991(4) SLR 539  wherein it was held as under:-

"Mere absence from duty for a few days does not  amount to an act of gravest misconduct and the  cumulative effort of which may go to prove  incorriginiety and complete unfitness of the  employees for police service and dismissal from  service was held illegal."

Even otherwise, I am of the considered view that if a person  committed negligence of being absent from duty that should not  go to the root of his service because in that case it will be too  harsh not only for him, but for the children who are dependent on  him\005.."

       A second appeal preferred by the State of Punjab as also the  Disciplinary Authority was allowed by the High Court by reason of the  impugned judgment.

       The High Court in its judgment noticed some decisions of this Court  including Hombe Gowda Educational Trust v. State of Karnataka [(2006) 1  SCC 430] where inter-alia it was held:- "This court has come a long way from its earlier view  points.  The recent trend in the decisions of this court seek  to strike a balance between the earlier approach to the  industrial relation wherein only the interest of the  workmen was sought to be protected with the avowed  object of fast industrial growth of the country.  In several  decisions of this court it has been noticed how discipline at  the workplaces/industrial undertakings received a setback.   In view of the change in economic policy of the country, it  may not now be proper to allow the employees to break the  discipline with impunity.  Our country is governed by rule  of law.   All actions, therefore must be taken in accordance  with law."                   Hombe Gowda (supra) has been noticed by this Court in large number  of cases including the following:-         L.K. Verma v. HMT Ltd. [(2006) 2 SCC 269], State of U.P. v. Sheo  Shankar Lal Srivastava [(2006) 3 SCC 276], Maharashtra State Seeds Corp.  Ltd. v. Hariprasad Srupadrai Jadhao [(2006) 3 SCC 690], A. Sudhakar v.  Postmaster General [(2006) 4 SCC 348], Anand Regional Coop. Oil  Seedgrowers’ Union Ltd. v. Shaileshkumar Harshadbhai Shah [(2006) 6  SCC 548], North-Eastern Karnataka RTC v. Ashappa [(2006 ) 5 SCC 137].

       Mr. Jawaharlal Gupta, learned senior counsel appearing on behalf of  appellants took us through the impugned order passed by the Disciplinary  Authority and submitted that from a perusal thereof, it would appear that it  had failed to consider the implication as also the effect and purport of the  provisions of Rule 16.2 of the Punjab Police Rules.

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 Mr. Swarup Singh, learned counsel appearing on behalf of the  respondent, on the other hand, submitted that it was not necessary for the  disciplinary authority to specifically state in the order of dismissal of services  that the delinquents were guilty of gravest acts of misconduct.   Strong  reliance in this behalf has been placed in State of Punjab & Ors. v.  Sukhwinder Singh [(1999) SCC (L&S) 1234].

       A disciplinary proceeding was initiated against the appellants herein as  also against the said Parminder Singh inter-alia on the premise that they were  absent from duty from 9 p.m. till 2 a.m. on 19th/20th May, 1984.   All the three  constables were required to watch a convict named ’Bhagu’.  It is really a  matter of surprise that the patient was shackled although he was 80 years old  and a patient of tuberculosis.  Why the human right of the prisoner was  violated is not known.  Absence from duty on the part of all the delinquent   officers constitutes a grave misconduct particularly, when the convict was  placed on shackles as evidently they knew that he would not be able to move  from his bed.  It furthermore appears that all the witnesses examined before  the enquiry officer categorically stated that all the three delinquent officers   had absented from duty together.  Their cross-examination was directed only  towards the nature of guard duty and the facilities and infrastructure available  to those who were posted therefor.  The case of the State, however, all along  been the appellants had not been put on guard duty.   They never said that they  were not absent from duty.  They were obligated to keep a watch over the  convict, particularly, when he was an aged patient suffering from tuberculosis.   However, despite the fact that the appellants might have committed a grave  act of misconduct, the law requires the disciplinary authority to arrive at such  a finding.   The disciplinary authority held:-

"\005.They were also asked to report in my office and  submit their explanation.  The accused constables  submitted their replies which is on record.  These accused  constables for keeping a strict vigil and watch on the  prisoners which is a very important duty.   But the said  accused constables left the prisoners all alone in the night  and remained absent from their duties in the Hospital.   Such an absence of important duty by the accused  constables is a very big mistake\005.."

The decision of this Court in Sukhwinder Singh (supra) is an authority  for the proposition that it is not necessary to use the words "gravest act of  misconduct" as it can be found out from the factual matrix obtaining in each  case.

       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

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justice.

Justice Frankfurter in Vitarelli v. Seaton [359 US 535] stated:

"An executive agency must be rigorously held to the standards by  which it professes its action to be judged\005\005   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.  \005..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:-

"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

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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 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.

       In the facts and circumstances of the case, there shall be no order as to  costs.