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PETITIONER: STATE OF PUNJAB AND ORS.

       Vs.

RESPONDENT: RAM SINGH EX. CONSTABLE

DATE OF JUDGMENT24/07/1992

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. AHMADI, A.M. (J) PUNCHHI, M.M.

CITATION:  1992 AIR 2188            1992 SCR  (3) 634  1992 SCC  (4)  54        JT 1992 (4)   253  1992 SCALE  (2)76

ACT:      Civil Services : Punjab Police Manual 1934 :      Vol-II  Rule  16.2(1)-Dismissal  for  gravest  acts  of misconduct-Misconduct-What is-Police personnal on duty found heavily drunk-Held-Misconduct.

HEADNOTE:      The  respondent while working as Gunman of  the  Deputy Commissioner  of Police was dismissed from service by  order dated  ‘February  11, 1980 on the charge that he  was  found heavily  drunk  and  roaming at the bus  stand  wearing  the service  revolver.   Traffic Constable brought  him  to  the police  station  and  the  revolver  was  deposited  in  the malkhana.    When  the  respondent  was  sent  for   medical examination,  he was declared as heavily drunk.  An  enquiry was conducted as per prescribed procedure in this behalf and found  him to have contravened Ruled 16.2(1) of  the  Punjab Police  Manual 1934 Vol. 1.  The Departmental  appeal  ended against the respondent.      Thereon  the respondent filed the suit for  declaration that  the  said  order was null  &  void,  unconstitutional, illegal ultravires and opposed to the principles of  natural justice.    He   sought   for   consequential   relief    of reinstatement and other benefits.      The  trial Court decreed the said suit and  the  appeal was  affirmed  stating  that  the  order  of  dismissal  was vitiated  by  not giving reasonable opportunity due  to  non supply  of the documents and the disciplinary authority  did not keep in view the mandatory provisions of Rule 16.2(1) of the Rules.      The  High Court in second appeal held that the  enquiry was not vitiated but affirmed the decree on the ground, that Rule  16.2(1)  contemplates  that  the  dismissal  shall  be awarded  only  for the gravest acts of  misconduct.   Taking drink is a single act and is not a gravest act, so the                                                        635 Superintendent  of  Police was not alive to the  mandate  of rule 16.2(1) which envisages dismissal only for gravest acts of  misconduct  and the respondent had put in  17  years  of service  and would have qualified for pension after  putting

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another  3  to 4 years of service and that was not  kept  in view.      Granting the special leave setting aside the decree  of the courts below restoring the dismissal order, the Court,      HELD: That the word misconduct is though not capable of precise definition, its reflection received connotation from the context.  The delinquency in performance and its  effect in the discipline and nature of duty.  It may involve  moral terpitude,  it must be improper or wrong behavior,  unlawful behavior   willful   in  character,  a  forbidden   act,   a transgression of established and definite rule of action  or Code   of   Conduct.   But  not  mere  error   of   judgment carelessness  and  negligence in performance of  duty.   Its ambit has to be construed as to the scope of the statute and the public purpose it seeks to serve.  The police service is a  disciplined service and its requires to maintain  strict- discipline causing serious effect in the maintenance of  Law and Order.  [639 E-G] (Black’s Law Dictionary Sixth  Edition P.999.  P.  Ramanatha Aiyer’s Law Lexicon,  Reprint  Edition 1987 P.821 referred).      Rule 16.2(1) Consists of two parts.  The first part  is referable to gravest-acts of misconduct entailing orders  of dismissal,  undoubtedly  there  is  a  distinction   between gravest  misconduct and grave misconduct so before  awarding the  dismissal order it shall be mandatory that  such  order should  be  made  only  when  there  are  gravest  acts   of misconduct  and  that  too when it  impinges  the  pensioner rights of the deliquent.  Thus though the first part relates to gravest acts of misconduct but under the General  Clauses Act singular include plural acts.  It is not the  repetition of the acts complained but its quality insideous effect  and gravity  of situation that ensures from the  offending  act. The  colour  of the gravest act must be  gathered  from  the surrounding or attending circumstances.  Thus even a  single act  of  corruption  is  sufficient to  award  an  order  of dismissal   under  the  Rule  16.2(1)  as  gravest  act   of misconduct.[639H-640D]      The  second  part  of the Rule 16.2(1)  cannot  is  the cumulative effect of continued misconduct proving cumulative and  complete  unfitness of the offender and his  claim  for pension,  which  should  only be taken into  account  in  an appropriate case.  So the contention of the respondent  that both parts of Rule 16.2(1) must be read together appears  to be illogical                                                        636 when the deliquent officer is proved to be incorrigible  and therefore  unfit to continue in service.  For the length  of service and his claim for pension or compulsory  retirement, it  is the second part of rule which operates and  thus  the very order of dismissal from service for gravest  misconduct may  entail  forfeithere  of all  the  pensionary  benefits. Therefore the ‘word’ ‘or’ cannot be read as ‘and’.  It  must be  disinjunctive  and independent.  The  common  link  that connects   both   clause  is  "The   gravest   act/acts   of misconduct." [640E-641A]      The  question whether the single act of heavy  drinking of  Alchohol  by the respondent while on duty is  a  gravest misconduct.  It may be stated that taking to drink by itself may not be a misconduct but being on duty in the disciplined service  like  police service and having heavy  drink,  then seen  roaming  or  wandering  in  the  market  with  service revolver and even abusing the medical officer when sent  for medical  examination shows his depravity or delinquency  due to  his  drinking habit.  Thus it would  constitute  gravest misconduct   warranting   dismissal  from   service.    Thus

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authorities  were  justified  in  imposing  the  penalty  of dismissal.   The Courts below failed to properly  appreciate the legal incidence and the affect of the rules. The  ration in Bhagwal Pershal v. Inspector General of Police & Ors.  is approved  as the correct Law.  AIR 1970 (Punjab  &  Haryana) 81. [641B-F]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2651 of 1992.      From  the  Judgment and Order dated  10.3.1989  of  the Punjab and Haryana High Court in RSA No. 1159 of 1986.      H.S. Munjral and G.K. Bansal for the Appellants.      Harbans Lal and R.S. Sodhi for the Respondent.      The Judgment of the Court was delivered by      K. RAMASWAMY, J. Special leave granted.      The  respondent, while working as Gunman of the  Deputy Commissioner of Police, Ropar, was dismissed from service by Order  dated  February  11, 1980 by  the  Superintendent  of Police, Ropar, on the charge that he was found heavily drunk in  the evening of September 6, 1979 and was roaming at  the bus stand wearing the service revolver.  Traffic Con-                                                        637 stable,  Gurbhachan Singh, brought him with difficulty in  a jeep to the police station and the revolver was deposited in the  malkhana and sent the respondent to the Civil  Hospital for medical examination.  The Doctor declared him as heavily drunk.   He also had a quarrel with the doctor on  duty  and abused him.  An enquiry into his conduct was conducted after following the prescribed procedure in this behalf and  found him  to have contravened Rule 16.2(1) of the  Punjab  Police Manual  1934, Vol.II for short ‘the rule.  The  departmental appeals  ended against the respondent.  Thereon he laid  the suit  for  a  declaration that the  order  of  dismissal  as confirmed  in  the departmental appeals was null  and  void, unconstitutional,  illegal, ultra vires and opposed  to  the principles   of  natural  justice.   He  also   sought   for consequential relief of reinstatement into the service  with all  consequential  benefits.  The trial court  decreed  the suit.   On appeal it was affirmed.  The Civil  Courts  found that  the  order  of dismissal was vitiated  by  not  giving reasonable  opportunity due to non-supply of  the  documents and  the  Inquiry  Officer  cross  examined  the  witnessses produced by the respondent.  The disciplinary authority  did not keep in view the mandatory provisions of Rule 16.2(1) of the Rules.  The High Court in Second Appeal No.1159 of  1986 dated  March 10, 1989 while holding that the respondent  was supplied  with the required documents and that  the  enquiry was  not, vitiated by cross-examination done by the  Inquiry Officer,  however,  affirmed the decree on the  ground  that Rule  16.2(1) contemplates that "dismissal shall be  awarded only for the gravest acts of misconduct"; taking drink is  a single   act   and  it  is  not  a  gravest  act   and   the Superintendent  of  Police was not alive to the mandates  of Rule 16.2(1) which envisages dismissal only for gravest acts of  misconduct  and the respondent had put in  17  years  of service  and would have qualified for pension after  putting in another 3 to 4 years of service and that was not kept  in view.      Sri  Harbans  Lal,  learned  Senior  Counsel  for   the respondent,  did not canvass before us that the enquiry  was vitiated for any infraction due to non supply of the  copies of  the statements or the Inquiry Officers participation  in

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the examination of the witnesses.  The finding that there is no violation of the procedure laid down in Rule 16.2(4)  and the  Government  instructions dated October 16,  1972,  thus remained unquestioned.  The finding that the respondent  was heavily  drunk  on that day while on duty and  that  he  was caught  while wandering in the market with service  revolver and when he was taken into custody by the traffic  constable and was sent to the doctor, he abused the doctor on duty  in the hospital, was not                                                        638 canvassed.  The only question on those facts is whether  the conduct  of the respondent is gravest misconduct within  the meaning of Rule 16.2(1) of the Rules, which reads thus:-          "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."      The  contention  of  Sri Harbans  Lal  is  that  taking alcolohic  drink as such is not a misconduct.  The  solitary act  of drinking alcohol per se is not  gravest  misconduct. The  respondent  had put in 17 years unblemished  record  of service.  Had he not been dismissed from service within  two or three years, he would have qualified for pension; without taking  these factors into consideration,  the  disciplinary authority  or  the appellate authorities have  violated  the mandatory requirements.  Therefore, awarding the  punishment of  dismissal from service is vitiated by manifest error  of law violating Rules 16.2(1) of the Rules.      Misconduct has been defined in Black’s Law  Dictionary, Sixth Edition at page 999 thus :-          "A  transgression of some established  an  definite          rule of action, a forbidden act, a dereliction from          duty,  unlawful  behavior,  willful  in  character,          improper  or  wrong  behavior,  its  synonyms   are          misdemeanor,  misdeed,  misbehavior,   delinquency,          impropriety,   mismanagement,   offence   but   not          negligence or care-lessness."      Misconduct in office has been defined as :          "Any  unlawful  behavior  by a  public  officer  in          relation  to the duties of his office,  willful  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:-                                                        639          "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  unskilfulness   are          transgressions of some established, but indifinite,          rule   of   action,  where   some   discretion   is

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        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  in   definite.          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."      Thus it could be seen that the word ‘misconduct’ though not  capable of precise definition, on  reflection  receives 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, if  must  be improper or wrong behaviour; unlawful behaviour, willful  in character; forbidden act,a transgression of 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.      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                                                        640 that  dismissal  order should be made only  when  there  are gravest  acts  of  misconduct, since it  impinges  upon  the pensionary rights of the deliquent 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  festidious.  The word  "acts"  would  include singular  "act"  as well.  It is not the repetition  of  the acts  complained  of but its quality, insideous  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  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 rules as gravest act of misconduct.      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

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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  deliquent officer  who is habitually absent from duty  when  required. Despite giving an opportunity to reform himself he continues to remain absent from duty off an 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                                                        641 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".      The  next question is whether the single act  of  heavy drinking  of  alcohol by the respondent while on duty  is  a gravest  misconduct.  We have absolutely no doubt  that  the respondent,  being a gunman having service revolver  in  his possession, it is obvious that he was on duty; while on duty he drunk alcohol heavily and became uncontrollable.   Taking to  drink by itself may not be a misconduct.  Out of  office hours  one may take to drink and remain in the  house.   But being on duty in a disciplined service like police  service, the personnel shall maintain discipline and shall not resort to  drink or be in a drunken state while on duty.  The  fact is  that  the respondent after having had heavy  drink,  was seen  roaming  or  wandering  in  the  market  with  service revolver.   When  he  was sent to  the  doctor  for  medical examination  he  abused the medical officer  on  duty  which shows  his  depravity  or delinquency due  to  his  drinking habit.    Thus  it  would  constitute   gravest   misconduct warranting   dismissal  from  service.    The   authorities, therefore,  were  justified  in  imposing  the  penalty   of dismissal.   The courts below failed to properly  appreciate the legal incidence and the affect of the rules.      The  ratio  relied  on  by  learned  counsel  for   the respondent  in  Gurdev  Singh v. State of  Haryana  &  Ors., (1976)  2  S.L.R. 443; Rattan Lal Ex-Constable v.  State  of Haryana & Ors., (1983) 2 SLR 159 and Sukhdev Singh v.  State of Punjab & Ors., (1983) 2 SLR 645 turned on their  peculiar facts and would render little assistance to the  respondent. We approve the ratio in Bhagwat Parshad v. Inspector General of  Police,  Punjab & Ors., AIR 1970 (Punj. &  Har.)  81  as correct law.      The  appeal is accordingly allowed.  The decree of  the courts  below  is  set  aside and  the  dismissal  order  is restored.  But in the circumstances, parties are directed to bear their own costs throughout. S.B.                                         Appeal allowed.                                                        642