Harjit Singh Bedi, J.
1. The present Regular Second Appeal was admitted to be heard by a Division Bench in view of the argument raised, but doubted by, the admitting Judge that it was incumbent on the Punishing Authority under Rule 16.24 of the Punjab Police, Rules, 1934 (hereinafter called the ‘Rules’) to affored an opportunity to a delinquent police official of a personal hearing and the failure to do so would invalidate the punishment awarded.
2. The facts giving rise to the appeal are stated hereunder : Parkash Chand plaintiff/respondent, who was working as a Constable in the Punjab Armed Police, absented himself from duty for the period July 20, 1977 to September 16, 1977. On account of the absence, an enquiry was held under the provisions of the Rules and vide order dated 6th April, 1978, the respondent was dismissed from service. The appeal taken to the higher authorities having failed, the present suit was filed challenging the order dated 6th April, 1978. The challenge was made on the ground that no valid enquiry had been held against the respondent, that no reasonable opportunity had been given to him to cross-examine the witnesses and that the punishment imposed was violative of the safeguards provided under the Rules and under Article 311 of Constitution of India while controverting the averments made in the plaint, the State of Punjab in its reply stated that the procedure provided under the Rules for conducting an enquiry had been complied with and as such, the dismissal of the respondent was perfectly in order.
3. On the basis of the pleadings, the trial Court framed the following issues :-
1. Whether the impugned order dated April 16, 1978 dismissing the plaintiff from employment in service of the defendant is void, without jurisdiction, mala fide etc. as alleged in para 6 of the plaint; if so, its effect ? OPP
2. Whether the notice under Section 80 C.P.C. is invalid ? OPD
3. Whether the suit is properly valued for the purposes of court fee and jurisdiction ? OPD
Issue No. 1 was decided against the plaintiff/respondent, whereas issue No. 2 was found against the defendant/appellant. Issue No. 3 was found in favour of the plaintiff/respondent with the result that . the suit was dismissed. Feeling aggrieved by the order of the trial Court, the respondent/plaintiff filed an appeal before the District Judge, Patiala, and on the said appeal having been allowed, the present Regular Second Appeal has been filed by the State. The lower Appellate Court decided in favour of the plaintiff/respondent on the ground that it was incumbent on the punishing Authority to afford a personal hearing to the delinquent official under sub-rule (ix) of Rule 16.24 of the Rules before ordering the imposition of the penalty of dismissal from service and the failure to do so, vitiated the order. It was also held that as no finding had been recorded by the Punishing Authority that the misconduct attributed to the delinquent official amounted to the gravest act of misconduct in terms of Rule 16.2 of the Rules which along could result in dismissal of service, the impugned order could not have been made.
4. Mr. Varinder Pal Singh, learned Assistant Advocate-General, has raised the argument that prior to the order of dismissal a show cause notice had been issued to the respondent and the reply to the said notice had also been filed by him. The issuance of the notice and the consideration of the reply by the punishing Authority, he argued, amounted to substantial compliance with rule 16.24 (ix) of the Rules, and as such, it was not necessary to give a personal hearing to the respondent before passing the impugned order. He has also urged that the respondent remaining absent for almost two months was unbecoming of a member of a discipliened force and, as such, this action amounted to the gravest act of misconduct which could result in dismissal from service.
5. Miss Nirmaljit Kaur, Advocate, appearing for the respondent has reiterated the two points, decided by the lower Appellate Court and argued that it was incumbent and mandatory for the Punishing Authority to give a personal hearing to the respondent and secondly that the said authority was required to apply its mind to the case in hand and to give a finding that the misconduct attributed to the respondent was of the highest gravity which would inflexibly lead to dismissal from service. She has urged that the words ‘gravest act of misconduct’ have to be read in the context of the subsequent words used in rule 16.2 that the official concerned can be dismissed also for the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service. She has urged on this basis-that it is only for the most serious Misconduct proving incorrigibility for police service that an order of dismissal can be made, and this finding has to be recorded by the Punishing Authority.
5. We have examined the matter in the light of the arguments of the counsel for the parties. Rule 16.24 of the Rules deals with the procedure in departmental enquiries. Rule 16.24(i) to (ix) deal with the procedure to be followed in the conduct of enquiries against police Officials. The second last part of rule (ix) provides as under:-
“Before an order of dismissal or reduction in rank is passed the officer to be punished shall be produced before the officer empowered to punish him, and shall be informed of the charges proved against him, and called upon to show cause why an order of dismissal or reduction in rank should not be passed. Any representation that he may make shall be recorded shall form part of the record of the case, and shall be taken into consideration by the officer empowered to punish him before the final order is passed.”
6. Undoubtedly, the rule does appear imperative in terms and does require that the delinquent official shall be produced before the punishing Authority in order to show cause as to why an order of dismissal or reduction in rank should not be ordered. Reliance has been placed on Siri Ram v. The State of Punjab, 1967 S. L. R. 678 in support of this proposition. Undoubtedly, there are certain observations in the judgment which do support the case of the respondent, but we find that on a closer appraisal that they cannot be applied to the one before us. In the aforesaid case the delinquent official was produced before the Punishing Authority at the time of the delivery of the show cause notice to him and in the show cause notice it was clearly set out that the authority had actually made up its mind to award the punishment of dismissal. On these facts the court held that clause (ix) of rule 16.24(1) required that the show cause notice was to be given at the stage subsequent to the provisional opinion of the competent authority and prior to the final making up of the mind of the Punishing Authority. As the show cause notice had been given after the Punishing Authority had admittedly made up its mind to award the Punishment of dismissal the show cause notice was a mere formality with the result that the requirements of sub-rule (ix) of rule 16.24(1) had been violated. As a matter of fact the Division Bench was cognizant of the fact that if a written representation was made it could well amount to substantial compliance with sub-rule (ix) of rule 16.24(1) of the Rules. However, as that question did not raise on the facts of that case, the matter was left open and no positive decision was given thereon. Miss Nirmaljit Kaur has very fairly brought to our notice a Division Bench decision of this Court reported as Baldev Singh, Ex-Constable v. State of Punjab and Ors. 1985 (2) S. L. J. 1, in which the point left open by the Division Bench in Siri Ram’s case (supra) has been positively decided, but has argued that the said case has been wrongly decided and needs consideration in view of Siri Ram’s case (supra). The latter case was considered by the Division Bench in Baldev Singh’s case and it was held as under:-
“The grievance appears to be that instead of serving show cause notice in writing, the petitioner should have been told of the same verbally and should have been verbally asked as to what he had to say. Surely, the procedure envisaged by the proviso is more satisfactory. Further, the perusal of the clause (ix) would show that it has not envisaged any personal hearing-at all. What it envisages that the Punishing Authority would summon the. delinquent Officer, tell him the charge and ask him verbally to show cause and whatever he states verbally that is to be reduced in writing which would form part of the record and shall be taken into consideration.”
7. In view of what has been held above. the first point urged by the counsel for the appellant must succeed. We therefore, hold that the issuance of a written show cause notice to the delinquent official and the consideration of the reply received in response thereto, amounted to substantial compliance with subrule (ix) of rule 16.24(1) of the Rules, and the said exercise having gone through in the present case, fulfills the requirement of law. We are however not unmindful of the fact that written representation are often dealt with in a casual and perfunctory manner and to obviate, this possibility we hold that should a delinquent official request a personal hearing, it must be given to him and its denial would vitiate any action against the official.
8. We are, however, of the view that the respondent must succeed on the second point raised by his counsel. Rule 16.2 reads as under :-
“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.”
9. A number of judgments of this Court interpreting the above-said rule have been cited before us. Our pointed attention has been brought to Bhagwat Parsad v. Inspector General of Police and Ors. 1967 S. L. R. 807. Gurdev Singh v. The State of Haryana and Ors. 1976 (2) S. L. R. 442 . Rattan Lal Ex-Constable v. The State of Haryana (1983) 85 P. L. R. 427. and State of Punjab and Ors. v. Darshan Singh, 1989 (1) S. L. R. 191 as also to Baldev Singh Ex-Constable’s case (supra). In Bhagwat Parsad’s case (supra) the word ‘misconduct’ used in the rule has been analysed and it has been emphasised that a distinction has to be drawn between ‘misconduct’ simpliciter and, ‘grave misconduct’. It has also been held that the gravest act of misconduct while not being capable of being put in a strait jacket or confined to a definition must, however, relate to an action which is of the utmost gravity and grossly flagrant. It implies a matter of the utmost seriousness.
10. Keeping in view what has been said above, the argument of the counsel for the respondent does appear to be unexceptionable. It is essential for the Punishing Authority to apply its mind and to record a specific finding as to whether the conduct of the delinquent official which has been complained of is of such a grave nature that it must lead inflexibly to his dismissal. As already indicated above, reliance has also been placed by the respondent on Gurdev Singh’s case (supra), in which the respective scope of rules 16.2 and 16.24(1) were discussed. It was held by the learned single Judge that it was incumbent upon the Punishing Authority to record a finding that the misconduct attributed to the delinquent official was gravest act of misconduct and in the absence of such a finding the order could not be sustained. In Baldev Singh Ex-Constable’s case (supra) which overruled Gurdev Singh’s case, aforesaid, interpretation of rule 16.2 was not involved but the aforesaid decision was rendered on the basis of the interpretation put on rule 16.24(1). We are, therefore, of the view that Gurdev Singh’s case (supra) in so far as it deals with interpretation of rule 16.2, still holds the field. We have gone through the matter independently as well, and find that the aforesaid decision lays down the correct law and needs to be reiterated to the above extent. The order impugned herein does not indicate that the punishing authority was alive to the requirement of rule 16.2 and it has not recorded any finding that the act of the respondent amounted to the gravest act of misconduct which required his dismissal from service. The order is, therefore, unsustainable and the judgment of the lower Appellate Court is correct to that extent.
11. This court has in a number of cases gone into the matter in order to find as to what would really constitute a gravest act of misconduct. A number of cases have been , cited before us but we have chosen to pick up only one which deals with the question of absence without leave. In Darshan Singh’s case (supra), the learned single Judge has held that absence without leave for almost 13 months would not in the circumstances of that case amount to the gravest act of misconduct.
12. The final argument raised by the counsel for the respondent is that there was no compliance of the other mandatory provisions of rule 16.24(1) as the respondent had not been given a list of witnesses or documents relied upon by the Department and that a reasonable opportunity was not given to cross-examine the witnesses produced by the Department. We have gone through the pleadings of the parties in this respect and find that no such point was made in the plaint and, as such, no justifiable grievance can now be make on this score.
13. In view of what has been held above, the present appeal is dismissed with costs.