Somnath Iyer, J.
(1) The petitioner before us was a police constable in the District of Kolar and there was a disciplinary proceeding commenced against him on a charge of indecent behaviour and misconduct towards a married young lady on December 16, 1961. The enquiry into the charge was made by an Inspector of Police who gave him the person hearing enjoined by paragraph 159 of the Mysore Police Manual, Volume 1, the provisions of which, as pointed out by this Court in Nanjundiah v. Inspector General of Police 1964 Mys LJ (supp) 659, governed the police force, to the exclusion of the Civil Services Classification, Control and Appeal Rules made by the Governor under the proviso to Article 309 of the Constitution. The Superintendent of Police, on receipt of the report made by the enquiring authority who was an Inspector of Police imposed a punishment reducing the pay of petitioner from Rs. 66/- to Rs. 65/- for a period of four years from April 1, 1963 so as to affect future increments. The Deputy Commissioner dismissed the appeal against the imposition of that punishment as a time-barred appeal.
(2) The petitioner got himself involved in further trouble by the presentation of a further appeal to the Inspector General of Police who, in the exercise of the power created by paragraph 181(4) of the Police Manual, enhanced the punishment to one of dismissal. The punishment inflicted by the Superintendent of Police and the enhanced punishment imposed by the Inspector General of Police are both called in question in this writ petition.
(3) There was a two-fold submission made before us by Mr. Jois appearing for the petitioner. The first was that the disciplinary proceeding stood vitiated by the transgression of the rules of natural justice. The second was that the Inspector General of Police had no power to enhance the punishment to one of dismissal.
(4) In support of the first submission it was asserted that the petitioner was informed that the disciplinary proceeding would commence on November 4, 1962, and that the service of notice that it would so commence was made on the petitioner only on November 2, 1962. It is also contended that on that day, the petitioner was lying in a hospital in Gudibanda for treatment for arthritis and that he was advised by the Gudibanda doctor to enter a major hospital which, according to Mr. Jois, the petitioner entered on November 5, 1962. It was maintained that he was an inpatient in that hospital till January 9, 1963 when he was discharged with advice for ten days' rest.
(5) The argument maintained was that notwithstanding the information transmitted to the enquiring authority which was written on the very notice served on the petitioner, that the petitioner was lying ill and could not therefore attend the disciplinary proceeding, the enquiring authority proceeded with the matter ex parte, without having adjourned the matter as he should reasonably have done. The Inspector General of Police in the appeal preferred to him, came to the conclusion that the petitioner did not ask for an adjournment on the ground that he was unwell, and that on the contrary all that he stated in what he wrote on the notice served on him, was, that the representation which he had previously made was all that he wished to say in the matter. It is seen that in the course of that representation which had been previously made, the petitioner was insisting on his prosecution in a criminal Court instead of the charge being investigated in a disciplinary proceeding.
(6) We find from what the petitioner wrote on the notice, that he made an allegation therein, that he was under treatment for arthritis in the Mission Hospital of Chikballapur. but Mr. Jois asked us to say--and that is also the allegation in the affidavit produced before us--that at the relevant point of time the petitioner was an inpatient in the Gudibanda hospital. It is thus clear that the allegation in the affidavit before us is irreconcilable with what was written by the petitioner himself on the notice. Mr. Jois says that the petitioner has produced a certificate from the Gudibanda hospital, but the value which we can attach to that certificate stands greatly diminished when we find that the contents of that certificate are incompatible with what was contemporaneously written by the petitioner on the notice.
(7) On behalf of the State, the allegation that the petitioner was under treatment for any serious ailment which prevented him from participating in the disciplinary proceeding is repudiated. Mr. Government Pleader urges that the petitioner had numerous opportunities on earlier occasions to participate in the disciplinary proceeding, and that he obtained repeated adjournments on one ground or the other.
(8) However that may be, we are disposed to take the view, having regard to the discrepancy in regard to the hospital where the petitioner is supposed to have been receiving treatment for his indisposition, that the Inspector General of Police was right in thinking that the indisposition, even if there was one, was not such as to prevent the petitioner from participating in the disciplinary proceeding. Moreover, as observed by the Inspector General of Police, the petitioner did not want an adjournment and prayed for none. He made it clear that he did not wish to add anything to what he had already stated, and, what he had already stated was no more than that there should be no disciplinary proceeding, but only a prosecution. That, the petitioner could not insist upon.
(9) That being so, and since the petitioner neglected to appeal to the Deputy Commissioner within the period of limitation, we should be justified in thinking that the appeal presented by the petitioner was rightly dismissed by the Inspector General of Police.
(10) But the other submission which was placed before us by Mr. Jois appears to us to be substantial. That submission is that, since the personal hearing in the enquiry which constitutes the source of this writ petition was made only by an Inspector, the Inspector General of Police could not enhance the punishment of reduction in salary to one of dismissal.
(11) Paragraph 159 of Volume 1 of the Police Manual prescribes the procedure for a disciplinary proceeding in regard to persons constituting members of the police force to which it refers. Sub-paragraph (1) of that paragraph says that there shall be a charge in writing which shall be explained to the Government servant, and that evidence shall be recorded in his presence. It provides for other subsidiary matters for which it is not necessary to refer. Sub-paragraph (2) which is of importance reads:
'The personal hearing under this rule shall be given by a superior officer, except in cases of reduction of Daffedars, Naiks and Constables when it may be given by an Inspector'.
(12) It becomes clear from this sub-paragraph that in a case where the punishment is higher than the punishment of reduction, the personal hearing should be given by an officer of a rank higher than that of an Inspector. So, in the proceedings before us, in which the personal hearing was given only by an Inspector, and not by an officer superior to him, the only punishment which could be inflicted at the inception by the disciplinary authority, on a consideration of the report made by the enquiring authority, no higher punishment could be imposed either in an appeal or in the exercise of the revisional jurisdiction for enhancement which could be exercised by the Inspector General of Police under paragraph 181(4) of the Police Manual, which reads:--
'In any case in which the Inspector General considers the punishments inadequate, he may enhance the punishment, provided that the officer affected has had an opportunity to explain why the punishment should not be enhanced'.
(13) Mr. Government Pleader contended that this sub-paragraph creates power in the Inspector General of Police to inflict a punishment of dismissal even in a case in which the personal hearing under paragraph 159 was given only by an Inspector and not by a superior officer. According to him, the Inspector General of Police was the repository of a special power to do so I derogation of the requirement of paragraph 159 (2).
(14) It is clear that this submission does not rest upon a sound comprehension of the provisions of paragraphs 159 and 181. If, in an enquiry conducted by an Inspector of Police, the only punishment which could be inflicted is a punishment of reduction, no higher punishment could be inflicted either in appeal or in revision by any one. That is so, because, the clear requirement of paragraph 159 is that in a case in which it is proposed to inflict a punishment higher than the punishment of reduction, the personal hearing should be given by an officer higher in rank than that of an Inspector. So, it should necessarily follow that in a case where no such superior officer afforded the personal hearing, the punishment is necessarily limited and restricted to a punishment of reduction. What the disciplinary authority cannot do at the inception, is what cannot also be done by an appellate or revising authority, and, that, is how, in our opinion, we should understand paragraph 181 (4).
(15) Under the provisions of that sub-paragraph the Inspector General of Police may enhance a punishment only when he considers the punishment inflicted to be inadequate. It would be so inadequate, only when the punishment could have been imposed by the disciplinary authority in the exercise of power which resided in him, but is not, and instead, a smaller punishment is inflicted. But, if the disciplinary authority cannot himself impose a punishment, it would be impossible for the Inspector General of Police to think that an adequate punishment which could have been imposed by him was not imposed and so the punishment imposed should be enhanced.
(16) That being the position, the enhancement made by the Inspector General of Police cannot be sustained. We therefore set aside the enhancement as being without competence.
(17) The resultant position is that this writ petition succeeds only in part. The punishment imposed by the Superintendent of Police reducing the salary of the petitioner remains undisturbed, while the order of dismissal made by the Inspector General of Police stands vacated.
(18) No costs.
(19) Orders accordingly