RAM KISHANversusUNION OF INDIA AND ORS.

                            RAM KISHAN                                       A
                                   v.
                    UNION OF INDIA AND ORS.

                         SEPTEMBER 1, 1995

            K. RAMASWAMY AND B.L. HANSARIA, JJ.]                             B

     Se1vice Law:

      Delhi Police Act, 1978/Delhi 1'olice(Appointment and Rec1uitment)
Rules. 1980/Delhi Police (Punishment and Appeal) Rules, 1980/General         C
Clause Act, 1897:

      S. l l/r.4/r.6/s.19-Disciplinary proceedings-Punishment-Authoiity
competent to award-Constable in Delhi police:-Misconduct by-Abusing
Superior Officers-Dismissal from service-Order passed by Additional
Deputy Commissioner of Police incharge of Police district-Held-Not void D
or without auth01ity of law-Powers of Deputy Commissioner of Police can
be exercised by Additional Deputy Commissioner of Police-However, im-
position of punishment of removal from service is harsh and disproportionate
to gravity of misconduct-Dismissal order set aside-Direction given to im-
pose punishment of stoppage of two increments with cumulative effect.        E
      The appellant, a police constable, was charged for: (1) facilitating an
undertrial prisoner to drink alcohol before being taken to the court, and
(2) abusing superior officers and creating an ugly scene in their presence.
The inquiry officer found the first charge not to have been proved and the
second partly proved. The disciplinary authority, namely, the Additional F
Deputy Commissioner of Police, incharge of the police district, disagreeing
with the inquiry officer, issued a notice to the appellant to show cause as
to why both the charges should not be taken to have been proved; and on
considering the explanation of the appellant dismissed him from service.
Ultimately, the appellant filed a petition before the Central Administrative G
Tribunai, which dismissed the same. Aggrieved, the appellant filed the ·
appeal by special leave.

      The appellant contended that the order was bad in law inasmuch as
the Additional Deputy Commissioner of Police was not the Deputy Com-
missioner of Police incharge of the district and as such was not competent   H
                                    251
    252                   SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.

A   to impose the penalty; the disciplinary authority did not give any reason
    in the show cause notice to disagree with the inquiry officer; and, even
    otherwise, the punishment imposed was disproportionate to alleged mis-
    conduct.

          Allowing the appeal and modifying the punishment; this Court
B
          HELD : 1. Where a superior officer has been authorised to perform
    some dutie!i 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. Under r.4
    of the Delhi Police (Appointment and Recruitment) Rules 1980, not only
c   the Deputy Commissioner but the Additional Deputy Commissioner also
    has been delegated the power of appointing Sub-Inspectors, Assistant Sub-
    Inspectors, Head Constables and constables; and by the force of S.19 of
    the General Clauses Act, 1897, the Additional Commissioner of Police can
    exercise the powers of Deputy Commissioner of Police. The exercise of
D   power by the Additional Deputy Commissioner of Police, incharge of the
    police district, with the aid of the Appointment and Recruitment Rules and
    the Delhi Police (Punishment and Appeal) Rules 1980, in the instant case,
    can not be said to be without authority of law or void. [255-F-G; 256-B-D]

           2.1. The purpose of the show cause notice, .in case of disagreement
E   with the findings of the enquiry officer, is to enable the delinquent to show
    that the disciplinary authority is persuaded 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
F   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 persuade 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
G   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. [256-E-G]

          2.2. In the instant case, the only charge which was found to have been
H accepted is that the appellant had used abusive language on the superior
                            R. KISHAN v. U.0.1.                         253

authority. Since the disciplinary authority has said that it has agreed        A
partly to that charge, the provisional conclusion reached by the discipli-
nary authority in that behalf even in the show cause notice, cannot be said
to be vague. Therefore, on the facts of the case, it cannot be said that the
show cause notice is vitiated by an error of law. [256-H; 257-A]

      3.1. When abusive language is used by anybody against a superior, it     B
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 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. [257-B-C]       c
       3.2. In the instant case, what was the nature of the abusive language
used by the appellant was not stated. On the facts and in the circumstances
of the case, the imposition of punishment of dismissal from service is
harsh and disproportionate to the gravity of charge imputed to the delin-
quent constable. Accordingly, the dismissal order is set aside. Imposition D
of stoppage of two increments with cumulative effect would be an ap-
propriate punishment. The disciplinary authority shall impose that
punishment. However since the appellant himself is responsible for tl~e
initiation of the proceedings, he is not entitled to back wages; but, all other
consequential benefits would be available to him. [257-C-E]
                                                                               E
        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8325 of
1995.

      From the Judgment and Order dated 17.9.90 of the Central Ad-
ministrative Tribunal Principal Bench, New Delhi in 0.A. No. 477 of 1986.      F
        Shyam Babu for Lawyers Inn for the Appellant.

        S.N. Terdol and Mrs. Shashi Kiran for the Respondents.

        The following Order of the Court was delivered :                       G
        Leave granted.

      The appellant, while working as constable under the charge of Ad-
ditional Deputy Commissioner of Police, Central District, New Delhi, was
charged with two-fold grave misconduct: (i) while he was in charge of the      H
    254                   SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.

A sub-jail (naib court) he facilitated on Puran, S/o Rama, undertrial Prisoner,
    to drink alcohol before being taken to the Court; and (ii) he had abiised
    the superior officer and created an ugly scene in their presence. The
    inquiry office is his report dated July 20, 1985 found that the second charge
    was partly proved and the first charge had not been proved. The discipli-
    nary authority, viz., Additional Deputy commissioner, disagreeing with the
B
    conclusions reached by the inquiry officer, issued a show cause notice on
    August 16, 1985 as to why both the cha,rges 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
c   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-
D 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
E   law. Lastly, it is contended that even on proved facts the punishment
    imposed is disproportionate to the gravity of the alleged misconduct.

          The learned counsel for the respondents has refuted the contentions
    by submitting that the Additional Deputy Commissioner is of the same rank
F   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
G   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.

H         The first question that arises is whether the Additional Deputy
                           R. KISHANv. U.0.1.                              255

Commissioner of Police is the competent authority. It is true that Section        A
11 of the Delhi Police Act, 1978 enumerates the authorities, viz., Additional
Deputy Commissioners and Assistant Commissioner 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        B
        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
                                                                                  c
        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         D
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            E
         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 subor-
dinate or deputy officer lawfully performing those duties in the place of his     F
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            G
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 (Punish-
ment and Appeal) Rules, 1980 (for short, 'the Appeal Rules'), which reads:

         "6. Classification of punishments and authorities competent to H
    256                   SUPREME COURT REPORTS [1995] SUPP. 3 S.C.R.

A           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
B 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
c   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.
D
          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
E   by the inquiry officer. The purpose of the show notice, in case of disagree-
    ment 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
F   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
G   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
H   is that the appellant had used abusive language on the superior authority.
_,                              R. KISHAN v. U.0.1.                         257

     Since the disciplinary authority has said that it has agreed partly to that   A
     charge, the provisional conclusion reached by the disciplinary authority in

•    that behalf even in the show cause notice, cannot be said to be vague.
 I



     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 dis-      B
     missal from service is proportionate to the gravity of the imputation. When
     abusive language is used by anybody against a superior, it must be under-
     stood in the environment in which that person is situated and the cir-
     cumstances surrounding the event that led to the use of the abusive
     language. No straight jacket formula could be evolved in adjudging whether    C
     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 D
     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 effe.ct would be


..
     an appropriate punishment. So, w~ direct the disciplinary authority to
     impose that punishment.• However, since the appellant himself is respon- E
     sible 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.


-    R.P.
            The appeal is accordingly allowed. No costs.

                                                               Appeal allowed.