R.L. Anand, J.
1. Constable Surinder Singh, No. 1287 has filed the present writ petition against the State of Punjab, Inspector General of Police, Deputy Inspector General of Police and Senior Superintendent of Police, Punjab, seeking the direction of this Court in the nature of writ of certiorari for the quashment of the impugned order of his dismissal from service dated 9.2.1984, Annexure P-3, the order dated 31.8.194, Annexure P-4 and the order dated 17.4.1995, Annexure P-5. The petitioner has claimed his reinstatement with all consequential benefits on the ground that he joined the Police Department, Punjab, in the year 1990 and his work and conduct remained satisfactory and unblemished during the above period. He served the department sincerely and honestly. He was posted as a Constable at Police Post, Ghuman Mandi, under Police Station, Civil Lines, Ludhiana, on 15.7.1992 when the petitioner became mentally upset, the Incharge of the Police Post, Kuldip Singh instructed a Home Guard Jawan Jang Singh to leave the petitioner as his residential house at village Kohrian as he was under mental disorder vide Rapat No. 9 dated 15.7.1992 and leave for our days was also sanctioned on this ground. On 16.7.1992, the petitioner was taken to a clinic of Dr. Gurmeet Singh in Bank Colony, Patiala, who is an expert in such diseases. The petitioner remained under his treatment from 16.7.1992 to 12.1.1993 as Out Door Patient. He was advised complete rest and was asked to get him check up every week. The petitioner was not in senses during the period from 16.7.1992 to 12.1.1993. As and when Dr. Gurmeet Singh declared the petitioner fit to join duty, the petitioner went to join duty vide rapt No. 8 dated 13.1.1993 and he was allowed to join his duty but he was treated absent for the period from 20.7.1992 to 12.1.1993. However, the petitioner, served upto 8.2.1994. Inspector Sukhdev Singh was appointed as Inquiry Officer to conduct an inquiry into the allegations of absence from duty against the petitioner, who conducted the inquiry and recorded the statements. In the inquiry report, Annexure P-2, inquiry officer concluded that the petitioner was under mental disorder but he had not sent any information or leave and, in these circumstances, the absence from duty against the petitioner stands proved. On 31.1.1994, on the basis of the inquiry report, a show cause notice was issued to the petitioner. The petitioner replied to the show cause notice in which he stated that he was handed over to his parents by the Home Guard employee Jang Singh No. 17379 on the instructions of ASI Kuldip Singh, Incharge, Police Post, Ghuman Mandi, and four days leave was also granted to him. During the period of his illness, the father of the petitioner visited the Police Post and stated the position of the petitioner regarding his mental disorder. The father of the petitioner also sent a telegram which was handed over to the inquiry officer but no entry was made in this regard. Finally, respondent No. 4 dismissed the petitioner from the service. The petitioner filed a revision before the Inspector General of Police, which was also rejected on 17.4.1995. The petitioner also filed a petition for mercy to the Chief Secretary to the Government of Punjab, which has not been decided so far inspite of repeated reminders. The petitioner has challenged the impugned orders mainly on the ground that the punishment of dismissal can be awarded only for the gravest act of the misconduct. Mere absence from duty could not be treated as an act of gravest misconduct, when such absence was not wilful and, in these circumstances, the order of dismissal was totally unjustified. The punishing authority and the appellate authority did not take into consideration the various ingredients of rule 16.2 of the Police Rules and both the authorities failed to take note of the fact as to whether the delinquent officer had actually committed the gravest act of misconduct or not. The impugned orders have been passed in clear disregard to rule 16.2 of the Police Rules inspite of the fact that the petitioner has been able to prove that he was a case of mental disorder and this was even admitted and concluded by the inquiry officer in the report. It is further alleged by the petitioner that the impugned orders, Annexures P-3 to P-5 have been passed in an arbitrary manner and against the principles of natural justice. The orders are without jurisdiction, unconstitutional and against the provisions of Punjab Police Rules.
2. With the above main allegations, the petitioner has prayed for the setting aside of the impugned orders.
3. The notice of the writ petition was given to the respondents who filed a joint written statement and a preliminary objection has been taken that the present writ petition has been filed at a belated stage because the last order was passed by the competent authority on 17.4.1995.
4. On merits, the stand of the respondents is that the petitioner was never a sincere employee. In fact, he was a habitual absentee. In his short service career, he was punished on five occasions and he was treated without pay for total 57 days. On one occasion, he remained absent for 31 days 20 hours and 30 minutes. Had the petitioner been in serious illness, intimation could have been given to the authorities with regard to that illness through a telegram or a special messenger but the petitioner failed to do so. A regular inquiry was conducted against the petitioner. The charge has been proved. Show cause notice was issued to the petitioner. His reply to the show cause notice was duly considered by the competent authority before passing a impugned orders. The petitioner remained absent from duty for 177 days arid this act on the part of the petitioner amounts to gravest act of misconduct and the punishment has been rightly awarded.
5. In support of his petition, the petitioner has placed on record Annexure P-1, a certificate issued by Dr. Gurmeet Singh, Consultant Psychiatrist, a highly qualified doctor who has certified that the petitioner was under his treatment as Out Door Patient from 16.7.1992 to 12.1.1993 and that he was suffering from Manic Depressive Psychosis, a form of severe mental disorder, having episodes of mania and/or depression. This certificate was issued by Dr. Gurmeet Singh on 28.5.1993. Annexure R-2 is the report of the inquiry officer dated 20.6.1993, which has also been relied upon by the petitioner in order to show his conduct and in this regard, I will make a brief mention of this report in the subsequent portion of this judgment. Annexure P-3 is the order dated 9.2.1994, passed by the Senior Superintendent of Police, Ludhiana, who ordered for the dismissal of the services of the petitioner. Annexure P-4 is the order dated 31.8.1994 passed by the Dy. Inspector General of Police, Annexure P-5 is the order dated 17.4.1995, passed by the Inspector General of Police, through which the appeal-cum-mercy petition of the petitioner was also rejected. Annexure P-6 is the representation of the petitioner which has been addressed to the Principal Secretary to the Government of Punjab. Home and Justice Affairs, and the representation is dated 13.6.1995.
6. No document has been placed on record by the respondents in support of the written statement.
7. I have heard Mr. M.S. Joshi, counsel for the petitioner and Mr. J.S. Brar, D.A.G., Punjab, on behalf of the respondents and with their assistance have gone through the record of this case.
8. The sole point for determination in this case is whether the impugned order of dismissal can be justified on the touch stone of judicial scrutiny or not. The petitioner hails from Punjab Police and in this regard we can interpret Section 16.2. of the Punjab Police Rules, as applicable to the State of Punjab. According to rule 16.2 dismissal shall be awarded only for the gravest acts of misconduct proving incorrigibility and complete un-fitness for police services. In making such an award regard shall be had to the length of service of the offender and his claim to pension. What is the gravest act of misconduct for the purposes of rule 16.2 will always be a question of fact. It is true that the petitioner belongs to the disciplined force and the administration cannot afford that a person belonging to the disciplined force should remain absent from duty. Even the administration cannot expect a single individual who is part of the force to become absent without due sanction of the leave because it is well said that 'A Stitch in time can save nine'. We have to make a distinction between misconduct and the gravest act of misconduct before invoking the provisions of rule 16.2. It is true that it is for the punishing authority to determine the seriousness of the misconduct and to decide upon the suitability of the punishment and that it is not within the ambit of the powers of the High Court to interfere with the directions' of that authority but there is an important exception to this rule, i.e., the Court can strike down an order of dismissal which has been passed in an arbitrary manner. Before passing the order of dismissals the punishing authority should also make an assessment whether the absence from duty was a wiful affair or that the employee became absent under the forced circumstances. If the circumstances went out of the control of an employee and he is not responsible for his absence from duty and if this aspect of the case has not been appreciated by the punishing authority, such an order should be interfered by the High Court on the basis of judicial scrutiny and fairness. The words 'gravest act of misconduct' are incapable of definition and one is supposed to apply his mind to the words and give meaning to each of them in the light of the actual deed, situation and circumstances. This Court is of the opinion that the word 'misconduct' in the phrase 'gravest act of misconduct' should be of high degree and the punishment of dismissal should be granted for the misconduct which of higher order and most serious in nature. The word 'gravest' would indicate that the Legislature has used the word in the form of superlative degree which clearly spells out a very high degree or misconduct and not that the degree should be so high or so low as cannot be outclassed or excelled. The law Courts should always take into consideration that the word 'misconduct' used in the rules has to be interpreted in such a manner that a distinction should be drawn between misconduct simpliciter and grave misconduct. The gravest act of misconduct appearing in rule 16.2. of the Police Rules in not capable of being put in a strait jacket or confined to definition. However, it must relate to an action which is of utmost gravity and grossly flagrant.
9. With this background we have to examine the seriousness of the charge against the petitioner and also to examine under what circumstances the petitioner became absent. The charge against the petitioner is that he became absent from duty starting from 12.7.1992 and he remained absent for 177 days but the point for scrutiny is under what circumstances. In this regard, I would like to refer to the stand of the petitioner who submitted that he became a patient of mental disorder on 15.7.1992 itself and he was taken to his village. My attention has been invited to Annexure P-2, the report of the inquiry officer itself. In this report, there is a reference, which can be referred as follows:-
'It is correct that Constable Surinder Singh No. l287/Ludhiana told me that he became absent due to mental disorder. My report was Exhibited as Ex. P.'
10. It is also stated by the inquiry officer as follows:-
'Kuldip Singh A.S.I. told that Constable Surinder Singh was under mental disorder. It is correct that due to mental disorder I sent an employee with the constable to send him to his village and it is also correct that the father of offender came to me and told me about the treatment of Surinder Singh from Patiala.'
11. It is also clear that four days leave was sanctioned to the petitioner on 15.7.1992 vide rapat No. 9. In the concluding portion of the inquiry report, Annexure P-2, it is concluded by the inquiry officer, himself that mental disorder was definitely there in the case of the petitioner. The findings of the inquiry officer, precisely, can be quoted as follows:-
'Mental disorder was there.'
12. The petitioner did not waste any time. His relations took him to Dr. Gurmeet Singh a highly qualified doctor in the subject, who certified that the patient Surinder Singh remained under his treatment from 16.7.1992 to 12.1.1993 and that the petitioner had been suffering from Manic Depressive Psychosis, a form of severe mental disorder having episodes of mania and/or depression. In such a situation, it is difficult to expect that the petitioner would be able to sent an intimation about his absence from duty w.e.f. 20.7.1992 onwards. In this case, the bona fides of the petitioner are discernible on the record. It was admitted even by Kuldip Singh that the father of the petitioner had approached him and told him about the treatment of Surinder Singh from Patiala. This is a clear corroboration to the stand of the petitioner. If all these aspects have not been taken note of by the punishing authority before passing the impugned order, Annexure P-3, dated 9.2.1994, it can be certainly said that the order is arbitrary and does not satisfy the touch stone of judicial scrutiny. It is true that the High Court cannot sit as a Court of appeal but the propriety of the impugned order can always be looked into in the light of the provisions of the Police Rule 16.2. If there is no wilful gravest act on the part of the petitioner, the gravest sentence of dismissal could not be justified or stand judicial scrutiny and so is the order in appeal and the order of revision.
13. The learned counsel for the respondents, no doubt, made an effort to convince to this Court that the proper procedure of inquiry was conducted in this case and it is proved on the record that the petitioner not only became absent this time for 177 days but also he remained absent from duty on the previous occasions too and, in these circumstances, the punishment was totally justified.
14. I am not convinced with the submission of the learned counsel for respondents. In the view of this Court, even the charge in this case was defective. The petitioner was only charge-sheeted on the ground that he was a habitual absentee. The impugned order dated 9.2.1990 shows, on the contrary, that the Senior Superintendent of Police, Ludhiana, had taken into consideration the past record of the petitioner when he remarked in the impugned order as follows:-
'.....because he has also remained absent in past also from which it is evident that he offender is an habitual absentee. Therefore, I immediately dismiss Constable Surinder Singh, No. l287/Ludhiana from Police Department as proposed in the show-cause notice issued on the basis of enquiry report.'
15. The past absence of the petitioner had also weighed in the mind of the punishing authority before passing the order. The punishing authority has not rightly taken note of the proved facts and the petitioner was a genuine patient of mental disorder and his absence from duty from 12.7.1992 was not a wilful affair.
16. In this view of the matter, I allow this writ petition and set aside the impugned order, Annexures P-3 to P-5.
17. The akin point which survives for determination is whether the petitioner should be given the benefit of the past service or not. The petitioner remained absent from duty. He had not worked in the Police Department and, in these circumstances, he will not get the benefit of service from 12.7.1992 onwards in the shape of continuity of service or back wages.
18. The net result is that the present petition is allowed in the light of the observations made above by setting aside the impugned orders, Annexure P-3 to P-5 and the petitioner is ordered to be reinstated into service without any back wages without the benefit of continuity of service. For the sake of clarification, the petitioner will be put in the minimum of time scale when he assumes duty in pursuance of this judgment. The respondent shall comply with this order within 15 days from the receipt of the copy of this order.