Wazir Singh vs Delhi Administration & Ors.
1999 Latest Caselaw 423 Del

ORDER

Madan B. Lokur, J.

1. In this writ petition under Article 226 of the Constitution, the Petitioner has challenged the correctness of the Order dated 24th April, 1998 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (for short the Tribunal) in O.A. No.2776/92. By the impugned order, the Tribunal dismissed the application filed by the Petitioner challenging his dismissal from service.

2. The Petitioner, a constable with the Delhi Police was posted at a check post at Loni near the border of Delhi and Ghaziabad.

3. On 25th May, 1990 Deep Chand, the Deputy Commissioner of Police, North-East District, Delhi (DCP/NE) and the Assistant Commissioner of Police (ACP), Shahadra carried out a check during which it was found that the Petitioner alongwith Head Constable Limji Bhai and three persons from the general public were consuming beer inside the check post. Recovery was made of four empty bottles and one full bottle of beer as also four full glasses and one half filled jug. On the same day, Limji Bhai and the Petitioner were placed under suspension pending enquiry into their conduct.

4. Thereafter, in an order dated 28th June, 1990, the DCP/NE (Deep Chand) expressed the (tentative) view that the act of Limji Bhai and the Petitioner amounts to gross negligence, remissness and dereliction in the discharge of their official duties, which renders them liable for disciplinary action. Accordingly, he ordered that they be dealt with departmentally under Section 21 of the Delhi Police Act, 1978. The ACP/Seelampur was appointed as the Enquiry Officer. Subsequently, the Petitioner was served with a summary of allegations, along with a list of witnesses and a list of documents to be relied upon during the course of the disciplinary enquiry.

5. On 7th March, 1991 the Petitioner was formally charged by the Enquiry Officer with consuming liquor (that is beer) while on duty, alongwith three members of the public. It was mentioned in the charge sheet that this act amounted to grave misconduct on the part of the Petitioner which rendered him liable for departmental action.

6. An enquiry was then conducted into the above incident and the Enquiry Officer submitted a report dated 8th May, 1991 wherein he held the Petitioner guilty of the charge of consuming beer in the company of three members of the general public inside the police check post on 25th May, 1990.

7. Thereafter, the disciplinary authority, the Additional DCP/NE (Kewal Singh) gave an oral hearing to the Petitioner and by a detailed order dated 27th June, 1991 agreed with the findings of the Enquiry Officer and concluded that the Petitioner is the real culprit who "not only took his friends to consume beer inside the check post but also supplied lass and jug for this purpose and himself joined the drinking session with them without caring that he was in uniform nd on duty". The disciplinary authority further concluded that in "the days of terrorists activities at its peak and keeping in view the crime infested border area of Ghaziabad the conduct of HC Limji Bhai and ct. Wazir Singh is highly reprehensible and condemnable. They have not only neglected their sensitive duty, but also lowered down the esteem of the department. They put their lives at risk at the hands of terrorists and criminals and put their arms to rest. In case of attack this could have been disastrous to them and to the department".

8. The disciplinary authority then concluded that the Petitioner ought to be dismissed from service with immediate effect.

9. The Petitioner preferred an appeal against the order dated 27th June, 1991 of the Additional DCP/NE (Kewal Singh). This appeal was heard and dismissed by the Additional Commissioner of Police by an order dated 28th October, 1991. A revision petition directed against the order of the Additional Commissioner of Police was heard and dismissed by the Commissioner of Police by an order dated 7th September, 1992. It was then that the Petitioner approached the Tribunal wherein he challenged his dismissal from service and the order of the disciplinary authority, the appellate authority and the revisionary authority. As stated earlier, the Tribunal dismissed the application of the Petitioner by the impugned order dated 24th April,1998.

10. This petition was taken up for admission on 7th May, 1999 when learned counsel for the Petitioner raised three contentions.

11. The first contention raised by the learned counsel for the Petitioner is that there is no finding given by the disciplinary authority that the Petitioner has either committed "grave misconduct" or that he is"unfit for police service". Learned counsel based this two-fold submission on the language of Rule 8(a) and Rule 10 of the Delhi Police (Punishment and Appeal) Rules, 1980 (hereinafter referred to as the Rules). Rules 8(a) and 10 read as follows :

Rule 8: Principles for inflicting penalties

(a) Dismissal/Removal - The punishment of dismissal or removal from service shall be awarded for the act of grave misconduct rendering him unfit for police service.

(b) x x x

Rule 10: Maintenance of discipline - The previous record of an officer, against whom charges have been proved,if shows continued misconduct indicating incorrigibility and complete unfitness for police service, the complete unfitness awarded shall ordinarily be dismissal from service. When complete unfitness for public service is not established, but unfitness for a particular rank is proved, the punishment shall normally be reduction in rank.

12. According to learned counsel for the Petitioner, the Supreme Court had considered these provisions and had held in SLP(C) No.12208/95 (Lt. Governor of Delhi & ors. versus Dilip Singh - decided on 12th May, 1995) that "In the light of Rule 10 which says, "When complete unfitness for police service is not established, but unfitness for a particular rank is proved, the punishment shall normally be reduction in rank" and in the absence of a finding in the order of disciplinary authority regarding complete unfitness of the respondent for the service, we cannot say that the Tribunal's order is wrong.

13. It is quite clear from the opening sentence of the decision in Dilip Singh's case, that the Supreme Court considered and interpreted Rule 10 and not Rule 8(a) of the Rules.

14. Quite apart from this, as will be clear a little later, the sum and substance of Rule 10 of the Rules is somewhat similar to the sum and substance of Rule 16.2(1) of the Punjab Police Manual, 1934, Vol.II (hereinafter referred to as the Punjab Rules). Rule 16.2(1) reads as follows :-

"Dismissal shall be awarded only for the gravest acts of miscon duct 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 offencer and his claim to pension."

15. In State of Punjab & Ors. Vs. Ram Singh, the Supreme Court considered Rule 16.2(1) of the Punjab Rules. It was held by the Supreme Court that Rule 16.2(1) consists of two parts. The second part of the said Rule (which is what we are concerned with) deals with the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. The Supreme Court held that the second part of this Rule is referable to a misconduct which is of a minor character which by itself does not warrant an order of dismissal. The Supreme Court further held that if there are continued acts of misconduct which have an insidious cumulative effect and where the delinquent officer, despite being given opportunities to reform proves to be incorrigible and is found completely unfit to remain in service, then to meet the ends of justice, he may be awarded a punishment other than dismissal such as compulsory retirement or removal from service or demotion to a lower grade or rank. In other words, it was held by the Supreme Court that Rule 16.2(1) of the Punjab Police Rules, would apply to a case where the misconduct is of a minor character.

16. There does not appear to be any real or qualitative difference between Rule 10 of the Rules and Rule 16.2(1) of the Punjab Rules. Consequently, in view of Ram Singh's case it must be held that Rule 10 of the Rules would apply to a misconduct of a minor character.

17. In the present case, however, the allegation is not of a minor character. Therefore, reliance placed by learned counsel for the Petitioner on Dilip Singh's case is, with respect, misplaced.

18. The next question that arises in this context is that if the disciplinary authority acted under Rule 8(a), was it imperative upon him to record a finding of "grave misconduct" and additionally of unfitness for police service.

19. It is true that the disciplinary authority has not specifically used the words "grave misconduct" in its order dated 27th June, 1991 but to our mind the omission to use these words is of no consequence. In the order dated 28th June, 1990 (whereby it was ordered that the Petitioner be dealt with departmentally) the DCP/NE (Deep Chand) expressed the tentative view that the conduct of the Petitioner amounts to "gross negligence, remissness and dereliction of duty". Similarly, in the chargesheet dated 7th March, 1991 it was alleged by the ACP/Seelampur that the act of the Petitioner amounts to "grave misconduct". These documents would have been before the disciplinary authority when he took a final decision on the enquiry report. Moreover, while passing the order of punishment dated 27th June, 1991, the disciplinary authority was aware of the fact that the check post was in a crime infested border area and that in those days terrorist activities were at its peak.

20. The impugned order and the documents before the Enquiry Officer have to be looked at as a whole. It appears to us, on a reading of this material that the disciplinary authority was alive to the gravity of the misconduct and was of the view that the misconduct of the Petitioner was such as to require his dismissal from service with immediate effect. There is no magic in the use or non-use of the words "grave misconduct". The sum and substance of the order of the disciplinary authority, as a whole, alongwith the material before him is all that is required to be looked into to ascertain whether the disciplinary authority took into consideration the gravity of the misconduct before ordering dismissal from service. We are satisfied that even thogh he did not use those specific words, the disciplinary authority did come to the conclusion that the Petitioner was guilty of "grave misconduct".

21. The next question in respect of this submission is whether a grave misconduct per se is sufficient to warrant dismissal from service or should the grave misconduct be of such a nature that it must also render the delinquent unfit for police service. In other words, the submission of the learned counsel for the Petitioner was that there may be a case of grave misconduct which is not grave enough, by itself, to warrant an order of dismissal; and in view of Rule 8(a) of the Rules, the grave misconduct should be of such a nature as to warrant dismissal from service, and additionally there should be a finding of the disciplinary authority to this effect.

22. We have examined the contention of learned counsel for the Petitioner and find that Rule 8(a) of the Rules uses the expression "grave misconduct rendering him unfit for police service". A plain reading of this would indicate that grave misconduct per se is sufficient for awarding a punishment of dismissal from service. Rule 8(a) of the Rules does not postulate various categories or shades of grave misconduct, or else the language of Rule 8(a) would have read differently which ( if one may venture to suggest ) may have been "grave misconduct of the kind which renders him unfit for police service."

23. Even otherwise, it is not possible to subscribe to the view that there may be a "grave misconduct" which is not grave enough to warrant dismissal or removal from service. If it were so, it would merely be a misconduct which would then attract Rule 10 of the Rules. Consequently, it does appear that there was a conscious decision to incorporate only two "types" of misconduct - one which is misconduct attracting Rule 10 of the Rules and another which is grave misconduct attracting Rule 8(a) of the Rulers. The latter "type" of misconduct would include "single act" cases which automatically render an officer unfit for service.

24. In this view of the matter, we are of opinion that when grave misconduct is proved the consequence thereof can be dismissal or removal from service and it is not necessary for the disciplinary authority to record an additional finding that the grave misconduct is of such gravity that it renders the delinquent unfit for service.

25. In the present case, we have come to the conclusion that the disciplinary authority found the Petitioner guilty of "grave misconduct". On the material before him, the disciplinary authority concluded that the grave misconduct rendered him unfit for police service. We see no infirmity in the decision of the disciplinary authority.

26. The second contention of the learned counsel for the Petitioner was that the DCP/NE (Deep Chand) was also a witness before the Enquiry Officer. According to the learned counsel for the Petitioner, this was a violationof the principles of natural justice.

27. Learned counsel was not able to show any principle of natural justice which precludes an officer who is a witness to a misconduct from giving evidence thereof to an Enquiry Officer. The fact that Deep Chand was a witness before the Enquiry Officer cannot by itself vitiate the proceedings before the Enquiry Officer.

28. Learned counsel for the Petitioner further contended that in this situation, his client was apprehensive that he woud not be dealt with fairly since the witness held a rank higher than the Enquiry Officer. We do not find any basis for voicing such an apprehension. In fact, we find from a perusal of the enquiry report that Deep Chand was examined by the Enquiry Officer. It seems to us that the rank of the two officers concerned made no difference to the impartiality of the enquiry. Moreover, the record show that the evidence of Deep Chand was only used for the purpose of corroborating the statement of some of the witnesses and was not made the primary basis for finding the Petitioner guilty of misconduct.

29. We also find from the record that the Petitioner had made a written statement dated 28th March, 1991 before the Enquiry Officer. This written statement did not contain any apprehension on the part of the Petitioner that he will not be fairly treated because of the presence of the Deep Chand as a witness. However, the Petitioner did raise this point in his appeal to the Additional DCP who was the appellate authority. The record shows that the Petitioner was given an oral hearing by the appellate authority and he was apparently satisfied with the hearing because in the revision petition filed by him, the Petitioner did not raise this contention. These facts show that the Petitioner had nogenuine apprehension that the enquiry was not fair because Deep Chand appeared as a witness.It was finally contended by the learned counsel for the Petitioner that the order of dismissal was passed by the Additional Commissioner of Police and not by the DCP/NE who is the disciplinary authority of the Peititioner. We repeatedly asked learned counsel for the Petitioner to substantiate the contention that the DCP/NE was the disciplinary authority of the Petitioner. Unfortunately however, learned counsel for the Petitioner was unable to show us any document in support of hiscontention. We find from the record that such a submission was not made by the Petitioner before any of the departmental authorities. Consequently, we are of the view that this submission of the learned counsel for the Petitioner deserves to be rejected.

30. For the reasons stated above, we hold that the impugned order of the Tribunal dated 24th April, 1998 does not call for any intereference. Accordingly, the writ petition is dismissed.

31. There will be no order as to costs.