A.D Koshal, J.:— The facts giving rise to this petition under Articles 226 and 227 of the Constitution of India may be briefly stated. On the 17th of April, 1972, the petitioner who was holding the post of a Sub-Inspector of Police and was working as the Station House Officer, Police Station Ladwa, was summoned from his residential quarter by Tikka Singh Deputy Superintendent of Police, Thanesar who found him to be under the influence of liquor. A medical examination under taken by Dr. P.D Choudhary revealed that although the petitioner was conscious, he was smelling of alcohol and his gait was staggering. A departmental enquiry was held against him in respect of a charge that he was found druak while on duty. The Enquiry Officer found the charge proved and a notice requiring him to show cause as to why the penalty of dismissal should not be imposed upon him was issued to him by the Deputy Inspector General of Police, Ambala Range (respondent No. 3). In his reply dated the 16th of September, 1974, the petitioner laid emphasis on the provisions of sub-rule (1) of rule 16.2 of the Punjab Police Rules (hereinafter referred to as the sub-rule which states):
“16.2(1) 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.”
2. And contended that he was not liable to the proposed penalty. The contention, however, did not find favour with respondent No. 3 who ordered the dismissal of the petitioner on the 9th October, 1974, with the following observations:
“In the matter of punisment, I am of the confirmed view that no leniency is called for in this case even though when summoned before me on 1-10-1974, after the defaulter submitted his reply to the dismissal show cause notice, he pleaded for merely, leniency and begged to be excused. The defaulter who was then working as S.H.O, P.S Ladwa was responsible for the maintenance of discipline in the force deployed under him but was himself found in a drunken condition during the broad daylight in the forenoon, while he was required to be present in the Police Station and was on duty. I, therefore, find that the proposed punishment is called for and warranted by the facts of the case. The defaulter is not a fit person to be retained in the Police Department. I, therefore, award the penalty of dismissal from the force with immediate effect to the defaulter A.S.I Gurdev Singh No. 177.A of Kurukshetra District.”
3. It is this order that is challenged by the petitioner as illegal.
4. The first contention raised on behalf of the petitioner is that although he was admittedly guilty of misconduct, such misconduct could not be Classified as “the gravest act of misconduct” within the meaning of the sub-rule. The contention appears to be well-founded. It is true that generally speaking, it is for the punishing authority to determine the seriousness of the misconduct and to decide upon the suitability of punishment and it is not within the ambit of the powers of this Court to interfere with the direction of that authority. But then there is an important exception to this rule and that is that the Court will strike down an order which has been passed want only or arbitrarily (vide Bhagwat Parsad v. Inspector General of Police (1). In the present case it was incumbent on respondent No. 3, before he could award the punishment of dismissal, to come to a finding that the misconduct attributed to the petitioner was a “gravest act of misconduct”.
5. It is true that in the context in which that expression is used it does not mean an act which is absolutely the worst act of misconduct and means, on the other hand, an act denoting a very high degree of misconduct as opposed to a merely grave or a very grave act of misconduct (Bhagwat Prasad's case, supra). But then it appears to me that respondent No. 3 when awarding the punishment was not alive to the provisions of the sub-rule otherwise he would not only not have awarded the punishment of dismissal without coming to a finding that the misconduct attributed to the petitioner was of the “gravest” type but would perhaps not have awarded that punishment at all for the reason that the misconduct even though grave was not of the “gravest” type. The lack of a finding about the misconduct being of the requisite type Makes the Impugned order arbitrarily in nature and, therefore, liable to be quashed.
6. The impugned order is vitiated by anothers illegality. According to the sub-rule, the punishing authority is duty bound to take into consideration the length of service of the offender and his claim to pension before it can award the penalty of dismissal. The relevant part of the sub-rule is mandatory in character and an order passed in disregard of it cannot be upheld. In the present case the petitioner had to his credit about 27 years of service on the date when the impugned order was passed and this factor was completely ignored by respondent No. 3 when awarding dismissal. Had the relevant factors been taken into consideration by respondent No. 3 the punishment may well have been much lighter.
7. For the reasons stated the impugned order is quashed as being illegal. It will of course be open to the punishing authority to pass an order conforming to the provisions of the sub-rule. No order as to costs.
8. Petition allowed.