S.B. Wad, J.
(1) The petitioner Constable Driver in Delhi police was dismissed from service on 15.3.1982. A charge of stealing a brass utensil (Patila) was held to be proved against him. The enquiry was conducted u/s 21 of the Act. In this petition the petitioner has challenged his dismissal from service. The charge against the petitioner was (--)
(2) A criminal complaint was lodged against the petitioner u/s 380, Indian Penal Code . However, the same was not pursued. The Deputy Comm. of police (C.K. Misra) decided that instead of proceeding in the criminal court a departmental enquiry should be conducted. [portion of his order is reproduced]
(3) The prosecution examined 9 witnesses. The petitioner examined 3 witnesses in support of his case. His main plea was that the allegation was concocted and false. From the evidence it is clear that nobody had seen the petitioner actually removing the utensil from the mess. However, the prosecution witnesses as well as the defense witnesses had found the utensil in the truck of which the petitioner was the Driver. Two prosecution witnesses also stated to have seen the petitioner depositing the utensil in the mess. All this is after the discovery of the utensil in the shop belonging to the petitioner's brother. In the strict legal requirement Section 378, Indian Penal Code , it may be difficult to hold that the petitioner had committed a theft. The petitioner's misconduct, however, can be reasonably inferred from the fact that the utensil was located in his brother's tea shop. The prosecution version that the tea shop is of both the brothers is not controverter. The utensil was returned to the mess by the petitioner. He did not do it on his own. It was done only after the utensil was discovered in the shop by the Officer-in-charge of the mess and some other employees. The conclusion in the departmental proceeding that the petitioner was guilty of misconduct is, thereforee, reasonably correct.
(4) The petitioner, however, contends that at the time of the service of the charge-sheet the names of only four witnesses were given to him but actually 9 witnesses were examined on behalf of the prosecution. I do not find much substance in this objection. The petitioner had an opportunity of cross- examining all the prosecution witnesses. There are no procedural defects in the enquiry.
(5) But the petitioner must succeed on the second ground of his challenge. He submits that the punishment awarded to him is disproportionately harsh and is not warranted by the rules in this regurd. He relies upon Rule 16.2 (1) of the Punjab Police Rules, 1934. The said rule states :-
'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 submission of the respondents is that the punishment was not excessive. It is also their submission that the Punjab Police Rules have no applicability to the present case because they have ceased to be operative after coming into force of Delhi Police Punishment and Appeal Rules, 1980 with effect from30.12.1980.
(6) The legal submission of the respondents is wrong. It has been held by this Court in R.C. Sagar v. Delhi Admini. (1975) 1 Del 284; in R.L. Afakkar v. Thakur Jagdish Singh Ilp (1978) 1 Del 40 1977 Rajdnani L.R. that the Punjab Police Rules have statutory force. It has been further laid down by this Court in Peter Samual Wallace v. I.G. of Police : 20(1981)DLT333 that S. 149 of the Delhi Police Act specifically saves the operation, amongst others, of the Punjab Police Rules to the Union Territory of Delhi. S. 149 is very clear on this point. The Delhi Police Punishment and Appeals Rules, 1980 do riot in terms repeal the Punjab Police Rules. It is, thereforee, wrong to say that the Punjab Police Rules are not applicable. Of course, S. 149 lays down that the said rules in so far as they are not in consistent with the Act are applicable.
(7) In Delhi Police P. & A. Rules, 1980 there are two provisions similar to Rule 16.2. (1) of the Punjab Police Rules quoted above. Rule 8 & 10 provides :
(8) The punishment of dismissal or removal from service shall be awarded for the act of grave misconduct rendering him unfit for police service.' (10) 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 punishment awarded shall ordinarily be dismissal from service. 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.'
(8) If Rule 16.2.(1) of the Punjab Rules and Rule 8 read with Rule 10 of the Delhi Rules are compared it may be seen that there is no inconsistency between them. In fact, both the provisions state that the misconduct must be very 'grave' and 'continued', indicating incorrigibility and complete unfitness for police service. It is thus seen that while awarding the sentence the Disciplinary authority must apply its mind closely to the nature of the misconduct. It must be very grave. It cannot be said that the temporary mis-appropriation of a utensil from a mess is such a grave misconduct. But what is more important is that neither the Dis. Auth. nor the App. Auth. have applied their mind to the requirement of the statutory provisions before awarding the sentence of dismissal. It was incumbent on the said Authorities to look to the past record of the petitioner and to find out whether there is any history of 'continued misconduct.' Neither the order of the Dis. Auth. nor the order of the App. Auth. disclose any past record of the petitioner. The requirement of the statutory provision is that it must be shown that the delinquent is incorrigible. A history of past record showing the proceedings or warnings to the petitioner would have thrown light on this aspect of the misbehavior but the orders are silent. So also the rules require that a delinquent must be found 'to be complete unfit' for working in the police force. This is in central-distinction to the unfitness to work 'in a particular rank.' The Dis. Auth. and the App. Auth. have not looked at this aspect of misconduct also. Considering the nature of the misconduct and the statutory requirements I hold that the discretion has not been properly exercised by the Dis. Auth. and the App. Auth. and the punishment of dismissal is awarded in breach of the said statutory requirements. The punishment is too severe as compared to the misconduct. Recently in Civil Writ Petitions No. 1519 of 1979 and 1983 of 1979 I was called upon to decide whether in view of Rule [6.3 of the Punjab Police Rules a departmental proceeding held against two Police Officers after their acquittal by the Criminal Court was legal and valid. The two officers were found guilty of taking a young lady, who was stranger to the city, at night to quarters of another Officer in the Police Lines for immoral purposes and for outraging her modesty. The punishment awarded to the said Officers was of forfeiture of two years of approved service. This recent example which had come to my notice from the same department shows that for more grave misconduct more mild punishment of forfeiture of two years of service was awarded in the same department, namely, Delhi Police. This would also show that the punishment in the present case is too servere and is not commensurate with the misconduct.
(9) I, thereforee, hold that the petitioner is guilty of the misconduct but the punishment of dismissal is illegal. The punishment is, thereforee, set aside. The Disciplinary Authority shall re-consider the matter of punishment in the light of Rule 16 2. (1) of the Punjab Police Rules, Rule 8 and 10 of the Delhi Police Punishment and Appeal Rules, 1980 and shall pass a fresh order of punishment. The petition partly succeeds. No order as to costs.