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PETITIONER: RAM KISHAN

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT01/09/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1996 AIR  255            1995 SCC  (6) 157  JT 1995 (7)    43        1995 SCALE  (5)431

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      The appellant,  while working  as constable  under  the charge of  Additional Deputy Commissioner of Police, Central District,  New   Delhi,  was  charged  with  two-fold  grave misconduct: (i) while he was in charge of the sub-jail (naib court)  he  facilitated  one  Puran,  s/o  Rama,  undertrial prisoner, to  drink alcohol before being taken to the Court; and (ii)  he had  abused the superior officer and created an ugly scene  in their  presence. The  inquiry officer  in his report dated  July 20, 1985 found that the second charge was partly proved  and the first charge had not been proved. The disciplinary    authority,     viz.,    Additional    Deputy Commissioner, disagreeing  with the  conclusions reached  by the inquiry  officer, issued  a show  cause notice on August 16, 1985  as to  why both the charges should not be taken to have been  proved. The  appellant submitted  his explanation and thereon by order dated September 6, 1986, the Additional Deputy  Commissioner   dismissed  him  from  service.  After unsuccessful appeal  and revision, he approached the Central Administrative Tribunal  in May,  1986. The  Tribunal in its order dated  September 17, 1990 dismissed the O.A. Thus this appeal by special leave.      Mr. Shyam  Babu, the learned counsel for the appellant, raised three-fold  contention. First,  that  the  Additional Deputy Commissioner is not the Deputy Commissioner in charge of the  District and,  therefore, he  was not  competent  to impose the punishment on the appellant. It is next contended that the  disciplinary authority had not given any reason in the show  cause notice  to  disagree  with  the  conclusions reached by  the inquiry  officer and  that,  therefore,  the findings based  on that  show cause  notice are  bad in law. Lastly, it  is contended  that  even  on  proved  facts  the punishment imposed is disproportionate to the gravity of the alleged misconduct.

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    The learned counsel for the respondents has refuted the contentions  by   submitting  that   the  Additional  Deputy Commissioner is  of the same rank as the Deputy Commissioner and perusal  of Rule  4 of  the Delhi  Police (Appointment & Recruitment) Rules, 1980, [for short ’the Rules’] shows that Additional  Deputy   Commissioner  of   Police  is  also  an authority  on   whom  the  power  of  appointment  has  been delegated.  Therefore,   he  is   competent  to  impose  the punishment of  dismissal from service. It is also urged that in the  dismissal order the disciplinary authority had given reasons why he did not agree with the disciplinary authority and therefore,  the show cause notice is not invalid in law. Lastly, it is contended that the conduct of the appellant is unbecoming  of  the  disciplined  police  force.  Therefore, dismissal from service is the appropriate punishment.      The  first   question  that   arises  is   whether  the Additional Deputy  Commissioner of  Police is  the competent authority. It  is true  that Section  11 of the Delhi Police Act,  1978  enumerates  the  authorities,  viz.,  Additional Deputy Commissioners  and Assistant Commissioners who assist the  Deputy  Commissioner  of  the  District.  That  section provided:      "11. Officers  in charge  of the  police      district and  police  sub-divisions  and      police stations.       (1) Each police district shall be under      the charge  of a  Deputy Commissioner of      Police  who   may  be  assisted  in  the      discharge of  his duties  by one or more      Additional   Deputy   Commissioners   of      Police.      (2)  Each police  sub-division shall  be      under  the   charge  of   an   Assistant      Commissioner of  police and  each police      station shall  be under the charge of an      Inspector of Police."      It would be seen that the Deputy Commissioner of Police is in  charge of  the district  and one  or more  Additional Deputy Commissioner  of Police  has/have been  authorised to assist the  Deputy Commissioner.  Section 19  of the General Clauses Act, 1887 lays down thus:      "19. Official Chiefs  and subordinates.-      (1) In  any Central  Act  or  Regulation      made after the commencement of this Act,      it shall  be sufficient, for the purpose      of expressing that a law relating to the      chief or  superior of  an  office  shall      apply to  the deputies  or  subordinates      lawfully performing  the duties  of that      office in  the place  of their superior,      to prescribe the duty of the superior."      So, it would be clear that where a superior officer has been authorised  to perform  some duties  under an  Act or a regulation,  a   subordinate  or   deputy  officer  lawfully performing those  duties in  the place  of his  superior  is equally empowered to perform the duties of the office of the superior. Rule  4 of  the Rules  states that  not  only  the Deputy Commissioner  but Additional Deputy Commissioner also has been  delegated the  power of appointing Sub-Inspectors, Assistant Sub-Inspectors, Head Constables and Constables. An Additional Deputy  Commissioner is thus competent to pass an order of  dismissal  qua  a  police  constable,  as  is  the petitioner,      Our attention  is then  invited to  Rule 6 of the Delhi Police (Punishment  and Appeal) Rules, 1980 [for short, ’the

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Appeal Rules’], which reads:      "6.  Classification of  punishments  and      authorities competent  to award  them. -      (1) Punishments mentioned at Serial Nos.      (i)  to  (vii)  above  shall  be  deemed      ’major punishment’ and may be awarded by      an officer of the rank of the appointing      authority  or   above  after  a  regular      departmental enquiry."      It is,  therefore, contended  that the  Rule  indicates that an  officer of  the inferior  rank cannot  exercise the power to  impose major  punishment. It  is already seen that under  Rule   4  of   the  Rules,   the  Additional   Deputy Commissioner of  the police  is also  one of  the appointing authorities; and  by the  force of Section 19 of the General Clauses Act,  he can  exercise  the  powers  of  the  Deputy Commissioner of Police, So, in a given case, even Additional Deputy Commissioner can pass order of dismissal, if what has been provided  in Section  19 of  the General Clauses Act is also borne  in mind.  The exercise  of power with the aid of the Rules  and the  Appeal Rules  by the  Additional  Deputy Commissioner in  the present  case  cannot  be  said  to  be without authority  of law  or void.  He is competent to pass the order.      The next  question is  whether the show cause notice is valid in  law. It  is true,  as  rightly  contended  by  the counsel for  the appellant,  that the show cause notice does not  indicate   the  reasons  on  the  basis  of  which  the disciplinary  authority   proposed  to   disagree  with  the conclusions reached  by the  inquiry officer. The purpose of the show  cause notice,  in case  of disagreement  with  the findings of the enquiry officer, is to enable the delinquent to show  that the disciplinary authority is pursuaded not to disagree with the conclusions reached by the inquiry officer for the  reasons given in the inquiry report or he may offer additional reasons  in support of the finding by the inquiry officer.  In   that  situation,   unless  the   disciplinary authority gives  specific reasons  in the  show cause on the basis of  which the  findings of the inquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give  reasons to  pursuade  the  disciplinary authority to  agree with  the  conclusions  reached  by  the inquiry officer.  In the  absence of any ground or reason in the show cause notice it amounts to an empty formality which would cause  grave prejudice  to the  delinquent officer and would result  in injustice to him. The mere fact that in the final order  some reasons  have been  given to disagree with the conclusions reached by the disciplinary authority cannot cure the  defect. But,  on the  facts in this case, the only charge which  was found  to have  been accepted  is that the appellant  had   used  abusive   language  on  the  superior authority. Since the disciplinary authority has said that it has agreed partly to that charge, the provisional conclusion reached by the disciplinary authority in that behalf even in the  show   cause  notice,  cannot  be  said  to  be  vague. Therefore, we do not find any justification to hold that the show cause  notice is  vitiated by  an error  of law, on the facts in this case.      It is  next  to  be  seen  whether  imposition  of  the punishment of dismissal from service is proportionate to the gravity of  the imputation. When abusive language is used by anybody against  a superior,  it must  be understood  in the environment  in  which  that  person  is  situated  and  the circumstances surrounding  the event  that led to the use of the abusive  language. No  straight jacket  formula could be

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evolved in  adjudging whether  the abusive  language in  the given circumstances  would warrant  dismissal from  service. Each case  has to  be considered  on its own facts. What was the nature of the abusive language used by the appellant was not stated.      On the  facts and  circumstances of the case, we are of the considered  view that  the imposition  of punishment  of dismissal from  service is harsh and disproportionate to the gravity of  charge  imputed  to  the  delinquent  constable. Accordingly, we  set aside the dismissal order. We hold that imposition of  stoppage of  two increments  with  cumulative effect would be an appropriate punishment. So, we direct the disciplinary authority  to impose  that punishment. However, since  the   appellant  himself   is  responsible   for  the initiation of  the proceedings,  we  find  that  he  is  not entitled  to   back  wages;  but,  all  other  consequential benefits would be available to him.      The appeal is accordingly allowed. No costs.