Per Sharma J: 1. This is a Letters Patent Appeal against the judgment dated: 26-04-1994 passed in SWP No. 1171/1988. The Superintendent of Police, Kupwara vide order dated: 19-05-1987 while accepting the report of the Enquiry Officer imposed penalty of forfeiture of annual increments for a period of two years against all the three writ petitioners. However, punishment imposed by the appointing authority was considered inadequate by the Deputy Inspector General of Police, Kashmir who vide order dated 11-08-1987 terminated all of them from service in exercise of powers vested under rule-363 of the Jammu and Kashmir Police Rules. The appeal by them against this order was rejected by Director Generaral of Police vide order dated: 13.06.1988. 2. Aggrieved by the order of dismissal from service, the petitioners filed SWP No.1171/88 which was allowed by a learned Single Bench of this court on 26-04-1994 and the order of dismissal was quashed with a direction to respondents to treat the petitioners in service and release all the consequential benefits including arrears of pay. 3. The learned Single Judge allowed writ petition inter-alia on the grounds (i) that order of dismissal from service passed by the respondent No. 3 is vitiated because it has been passed for extraneous considerations having been influenced by the discussion in the Legislative Assembly (ii) that the order was passed out making record of the enquiry available e petitioner (iii) that no further investigation made by respondent-3 before passing the impugned order (iv) that the charge was not framed by the competent authority and therefore, the order impugned is vitiated. 4. At the outset it may be pointed that the following facts are not disputed. Three writ petitioners were admittedly on Guard duty in the office of Superintendent of Police, Kupwara on the night intervening 3-01-1987. On the same night a burglary is said to have taken place in the office and an amount exceeding Rupees two lacs was stolen. This happened because all the three writ petitioners were found absent from duty. A departmental Enquiry was held and the absence of all the three writ petitioners from duty was established. The enquiry held by the Deputy Superintendent of Police who recommended their dismissal from service. This happened because all the three writ petitioners were found absent from duty. A departmental Enquiry was held and the absence of all the three writ petitioners from duty was established. The enquiry held by the Deputy Superintendent of Police who recommended their dismissal from service. The Superintendent of Police, Kupwara taking a lenient view of the matter forfeited annual increments of the writ petitioners for a period of two years vide his order No. 229, 230 and 231 of 1987 dated: 19-05-1987. This order of punishment was not challenged by the petitioners and it is the finding of the writ court that the delinquent officials had accepted this punishment by observing that "it is admittedly a fact that the persons of the petitioners who were punished for alleged unauthorized absence and a lenient view was taken by respondent No. 4 vide order No. 530 of 1987 and the petitioners reconciled with the position." It is also an admitted fact that it is only petitioner Mohd Maqbool who has challenged the order of forfeiture of two increments passed against him vide order No. 230 of 1987 dated 19-05-1987 while the other two have not. It is also an admitted fact that articles of charges were framed against the petitioners by the Deputy Superintendent of Police on 31-03-1987 and all the three submitted their replies. 5. The other admitted facts are that the order of punishment was reviewed by respondent-3 after giving an opportunity of being heard to them and the appeal filed by all the three was dismissed by the appellate authority. 6. Mr. Qadri, learned Sr. Additional Advocate General argued that the finding of the writ court that charge was not framed by the competent authority is erroneous because under the Police Rules, Deputy Superintendent of Police is competent to frame charge and also hold an enquiry against constables as well as Head Constable. This is provided in Rule 359 of the Police Rules. Since the charge was framed by the competent authority, therefore, the order of punishment cannot be said to be without jurisdiction. His further argument is that the writ petitioners have not challenged the finding of fact returned by the enquiry officer by accepting the punishment of forfeiture of two increments, they cannot be heard to say that the enquiry was not conducted in accordance with rules. According to Mr. His further argument is that the writ petitioners have not challenged the finding of fact returned by the enquiry officer by accepting the punishment of forfeiture of two increments, they cannot be heard to say that the enquiry was not conducted in accordance with rules. According to Mr. Qadri, the writ petitioners had themselves annexed copies of the charge-sheet as well as reply submitted by them. After considering their replies, the Enquiry Officer had examined witnesses also before holding them guilty of dereliction of duty and criminal negligence as a result of which amount of Rupees more than two lacs was lost. He next pointed out that the court was not concerned with the sufficiency of material because insufficiency cannot be a ground to interfere in exercise of powers of judicial review. Since the writ petitioners had admitted their negligence, the quantum of punishment was to be decided by the competent authority and, therefore, the learned Single Judge erred in allowing the writ petition because the reviewing authority has not to hold fresh enquiry as observed by the Single Bench. Reviewing authority has to review the order on the basis of material available on the file and not after holding fresh enquiry. The contention of Mr. Warn appearing for the respondents is that the order of removal from service is against the mandate of police rules because the punishment of removal from service cannot be awarded for negligence of duty. He further argued that the charge having not been framed by the competent authority, the punishment awarded is illegal and the petition was rightly allowed. His last submission is that even if the charge of negligence is held proved though it is not, the punishment imposed is too harsh and therefore, the order of the Superintendent of Police by virtue of which two increments were forfeited did not justify interference while exercising powers of review. 7. Let us now examine the merits of rival contention. We have examined the record of the enquiry proceedings and are satisfied that the enquiry has been conducted in accordance with the Police Rules. The argument that charge was not properly framed is without substance because it is not a form but the substance of allegations which the delinquent must be made aware. We have examined the record of the enquiry proceedings and are satisfied that the enquiry has been conducted in accordance with the Police Rules. The argument that charge was not properly framed is without substance because it is not a form but the substance of allegations which the delinquent must be made aware. The copies of the charge-sheet annexed with the writ petition in a most uncertain terms charged the delinquent officials of dereliction of duty by remaining absent from the guard duty on the aforesaid date. The specific charge against Abdul Rashid Head Constable is that he was posted as Incharge Guard in the office of Superintendent of Police, Kupwara vide report No. 7 dated: 18-01-1987 entered in the Daily Diary of Police Line, Kupwara. It is also mentioned that the office of Superintendent of Police, Kupwara houses different administrative branches including the office of Accounts Branch. It is further stated that it was duty of the delinquent Head Constable to keep watch on those posted as Guards. It is further alleged that on 31-01-1987 the Head Constable after receiving his monthly pay without informing his superior officer absented from his duty and due to which two constables Mohd Maqbool and Noor-ud-Din the other two writ petitioners also absented themselves. Further allegations is that because of their absence from duty an amount of Rupees more than two lacs lying in the office of Accounts Branch in the premises of the SP office Kupwara was stolen on the night intervening 31 Jan. and 1 Feb. 1987. Similar allegations were made in the charge-sheet against the other two constables. In reply to the charge-sheet Head Constable Abdul Rashid stated that he was temporarily posted on Guard duty. He did not deny his absence, but instead pleaded that there was no record of absence from duty. Further plea was that there was no justification to keep such huge amount in the office without informing him and the other two constables on duty. Moreover, while keeping such huge amount in the office premises, double guard had to be provided. Similarly, constable Noor-ud-Din pleaded that he was posted on guard duty without any proper order. Besides, he was never informed that such a huge amount has been kept in the office without making a provision for double guard. This was in contravention of Rule 403 of the Police Rules. Similarly, constable Noor-ud-Din pleaded that he was posted on guard duty without any proper order. Besides, he was never informed that such a huge amount has been kept in the office without making a provision for double guard. This was in contravention of Rule 403 of the Police Rules. He has not denied the charge of negligence or his absence from duty. Reply to the charge-sheet by Mohd Maqbool is also on the identical line. So neither Head Constable who was incharge of Guard duty, nor two delinquent constables denied the charge of their absence from duty or their negligence. Despite this admission the enquiry officer recorded statements of Shri Khalid Durani the then District Superintendent of Police, Kupwara who stated that all the three delinquents were found absent from duty on the night when theft was committed. He also stated that all the three had been posted on guard duty in his office. Similar is the statement of Sub-Inspector Bashir Ahmad Khan who was also examined by the Enquiry Officer. Statements of Bashir Ahmad Accountant, Head constable Ghulam Ahmad Lone, constable Abdul Rashid and constable Masood Ahmad were also recorded by the Enquiry Officer. All of them unequivocally stated that the three delinquent police officials were found absent from duty which facilitated commission of theft in the Accounts branch of the office from where more than Rs. 2 lacs were stolen. These statements were recorded by the Enquiry Officer between 5th and 15th March 1987. Thereafter, the Enquiry Officer came to the tentative conclusion that the charge of negligence because of their absence from duty stood established against them and framed regular charge sheet against them on 31-01-1987 whereafter they were given opportunity to produce defence. All the three pleaded that they rely on Rules 233 and 403 of the Police Rules in support of their defence both of which according to them were violated. However, whether there was any violation of these rules or not is a separate question. So far as enquiry is concerned, it was complet and the same has been conducted in accord with the police Rules. All the three have admitted their absence from duty. 8. Rule 359 of the police rules prescribes the procedure to be followed in the departmental enquiries. Deputy Superintendent of police who conducted the enquiry has strictly adhered to the rules as shall be presently noticed. All the three have admitted their absence from duty. 8. Rule 359 of the police rules prescribes the procedure to be followed in the departmental enquiries. Deputy Superintendent of police who conducted the enquiry has strictly adhered to the rules as shall be presently noticed. Sub-rules (2)and (3) of rules-359 read as under:- (2) The officer conducting the inquiry shall summon the accused police officer before him and shall record and read out to him a statement summarizing the alleged misconduct in such a way as to give full notice of the circumstances in regard to which evidence is to be recorded. (3) If the accused police officer at this stage admits the misconduct alleged against him the officer conducting the enquiry may proceed forthwith to record a final order if it is within his power to do so or a finding to be forwarded to an officer empowered to decide the case, whenever a serious default is reported and the preliminary enquiry is necessary before a definite change can be framed, this is usually best done on the spot and might be carried out by the sub-inspector of the particular police station in the case of head constables and constables serving under him or by the Inspector of the circle in the case of sub-Inspectors within his charge. At the same time it must be left to superintendent of police to select the most suitable officers for the purpose or to do it themselves when such a course appears desirable. When the preliminary enquiry indicates a criminal offence, application for permission to prosecute should at once be made to the authority competent to dismiss the officer and" permission should be promptly granted if that authority agrees that there is prima-facie case for prosecution.� 9. The enquiry officer Shri Bashir Ahmad Khan Dy. SP Kupwara had summoned the three delinquent officials and informed them in writing of the alleged misconduct as required under sub-rule (2). So sub-rule-(2) has been complied. Since the officials had admitted absence but raised legal plea about the violation of Rules 233 and 403, therefore, the only question to be considered by the Enquiry officer was whether this could absolve them of their negligence. So he had to proceed under sub-rule (3). However, inquiry officer proceeded under para-2 of sub-rule (3) and recorded statements of witnesses as mentioned above. So he had to proceed under sub-rule (3). However, inquiry officer proceeded under para-2 of sub-rule (3) and recorded statements of witnesses as mentioned above. Thereafter he framed definite charge against each one of them on the basis of evidence collected by him. Since all of them pleaded violation of rules 233 and 403 as defense while admitting their absence from duty and negligence, the Enquiry officer had given them chance to produce evidence to prove their innocence. They did not chose to do so. The enquiry officer accordingly found them guilty of negligence. This framing of formal charge is strictly in accord with sub-rules (5) (b) of rule 359. So after farming the formal charge the enquiry officer had given them opportunity to prove their innocence and thereafter recorded his conclusion that they were guilty of negligence. He concluded that all the three officials had committed an act of grave misconduct by unauthorisedly absenting themselves from guard duty. He further found that their negligence had brought entire police force to disrupt. He accordingly recommended their removal form service. 10. However, respondent No.4 being the appointing authority took a lenient view and let them off by forfeiting their annual increments for two years. This finding of the Enquiry officer holding them guilty of negligence and dereliction of duty by remaining unauthorisedly absent was not challenged by the petitioners as they accepted the punishment imposed by respondent No.5. This fact has been accepted by the writ court while observing that "it is admittedly a fact that the persons of the petitioners who were punished for alleged unauthorised absence and the lenient view was taken by respondent No.4 vide No.530 (it should be 230 of 1987 dated 19.5.1987) and the petitioners reconciled with the position.� these findings cannot be challenged unless it is found that the enquiry officer was not competent to frame charge or hold enquiry. So the finding of the Enquiry officer accepted by the disciplinary authority have attained the finality. 11. The next question is what is effect of violation of rules 233 and 403 of the Police Rules. Rule-233 lays down the procedure how the money received in the Head-quarters of the district police from a police station or from the Treasury is to be kept. 11. The next question is what is effect of violation of rules 233 and 403 of the Police Rules. Rule-233 lays down the procedure how the money received in the Head-quarters of the district police from a police station or from the Treasury is to be kept. It lays down that when money is received the person bringing the amount shall deposit them in the Iron safe kept in the Verandah of the Quarter Guard room. However, failure to observe Rule 233 cannot absolve the delinquents from the charge of negligence of their unauthorised absence because they were on guard duty which is a social duty and in case they were to go put they ought to have sought permission so that replacement for guard duty was arranged. So this rule does not help the delinquents. Similarly Rule 403 which provides that standing orders shall be framed by the superintendent of police for each standing guard and a copy of these orders shall be hung-up in the Guard room does not help the delinquents as it is a procedure to be followed for arranging guard duty. So it being a matter of procedure its violation if any cannot be pressed to justify the negligence attributed to the delinquents. So none of these rules are o f any help to the delinquents. 12. This takes us to the competence of Deputy Superintendent of Police to frame charge and hold enquiry. The Learned Single Judge has found that Deputy Superintendent of Police was not competent to frame charge because he is not their appointing authority. Rule 359(1) reads as under:- 359. Procedure in departmental enquiries.- (1) The following procedure shall be followed in departmental enquiries: (a) The enquiry shall, whenever, possible be conducted by a gazetted officer empowered to inflict a major punishment upon the accused officer. Any other gazette officer or an Inspector specially empowered by the Minister I/C Police Department, to hold departmental enquiries (vide Order No. 636-C dated: 27-06-1945) may be deputed to hold an inquiry or may institute an enquiry on his own initiative against an accused police officer who is directly subordinate to him, except that in the case of a complaint against a constable. The inquiry may be conducted by an Inspector. The inquiry may be conducted by an Inspector. The final order, however, may be passed only by an officer empowered to inflict a major punishment upon the accused police officer." So enquiry against a constable could be held both by the Dy.SP or an Inspector of Police. Sub-Rule (5) of Rule-359 provision as follows:-" (5) When the evidence in support of the allegations has been recorded, the enquiring officer shall (a) if he considers that such allegations are not substantiated either discharge the accused himself if he is empowered to punish him or recommend his discharge to the Superintendent or other officer who may be so empowered, or (b) proceed to frame a formal charge or charges in writing, explain them to the accused officer and call upon him to answer them." So the Enquiring officer has been specifically empowered to frame formal charge against the delinquent officers. These police Rules have been made in exercise of powers conferred by section 8 and 12 of the Police Act, 1983 and as such are statutory rules. These are known as Jammu and Kashmir Police Rules 1960. The Government has thus empowered the Enquiry Officer to frame charge. The question therefore, is whether the charge framed by the Dy. SP who admittedly is not appointing authority is valid. A Single Bench of this court in Nishat Ahmad Vs. State 194 SLJ104 has held that Dy. SP has no authority to frame charge because he was not appointing authority by observing as under:- (2) It is specifically alleged mat no charge sheet was framed against the petitioner by the competent authority. In the impugned order it is stated that charge-sheet was framed and replies of the accused obtained. As the respondents have failed to produce the record or to file the affidavit by the Enquiry Officer, the court has to presume that the charge-sheet was not framed by any competent officer. In this regard rule 359 envisages the framing of the charge sheet by the officer empowered to inflict a major punishment on the accused. This is also the mandate of section 126 of the Constitution of Jammu and Kashmir. In the present case admittedly the inquiry was conducted by some Dy. SP whether he had framed any charge-sheet or not is not established. Even if he had framed it, that too is not legal. The Dy. This is also the mandate of section 126 of the Constitution of Jammu and Kashmir. In the present case admittedly the inquiry was conducted by some Dy. SP whether he had framed any charge-sheet or not is not established. Even if he had framed it, that too is not legal. The Dy. SP is not competent to impose the major punishment on a constable and nor is he his appointing authority and, therefore, he could not frame the charge-sheet. No doubt rule 359(a) provides that "whenever possible" the inquiry be conducted by the officer competent to inflict a major punishment. The words "whenever possible" used therein when read with the mandate of section 126 of the Constitution, it would mean that the charge-sheet is necessarily to be framed by the appointing authority or any authority higher in rank, to it, and none else. The inquiry however, can be conducted either by that authority itself or by such officer as appointed by that authority in that behalf. As a matter of fact the officer empowered to impose punishment has to conduct inquiry himself unless when not available. In the present case the charge-sheet, if at all framed has been framed by the Dy. SP himself and the inquiry too conducted by him. No reasons have been stated in the order impugned as to why the charge-sheet was not framed by the competent authority or inquiry conduct by him. In this view of the matter the whole inquiry is vitiated on this ground.� 13. Rizvi J (as his Lordship then was) thus held that Rule 359(a) is not in accord with section 126 of the Constitution and therefore, the charge framed by any officer other than the appointing authority could not be made basis of any punishment. 14. Strangely enough the finding was returned without quashing rule 359(1)(a). If this rule had been declared ultra-vires the position might have been different. But if finding are quashed without declaring the rule unconstitutional, it appears the learned Judge did not go into the question whether the rule is intra-vires the Police Act under which these have been framed, if so whether any provision of the Police Act is ultra-vires the Constitution. Same view was expressed by a learned Single Bench of this court in Shive Paul Singh Slathia Vs. Same view was expressed by a learned Single Bench of this court in Shive Paul Singh Slathia Vs. DG Police, 1996 KLJ 520 wherein Kawoosa J (as his Lordships then was) observed as under: - In this case, it is an admitted fact that respondent No. 4, who is the Dy. Superintendent of Police is not competent authority, because the competent authority is always an appointing authority. Dy. SP was not an appointing authority of the petitioner, it is admittedly Superintendent of Police, Jammu, who was the appointing authority of the petitioner. So, according to law, it was the competent/appointing authority only which could frame the charge and could appoint an inquiry officer to conduct the inquiry. It is beaten law now that the charge can be framed only by the competent authority which is an appointing authority and competent authority can both frame the charge and inquire into the matter or can appoint any other officer to make an inquiry. But a person below the rank of appointing authority could not frame charge. Here in this case, the same person who has made the complaint and is a witness, has framed the charge himself, and has conducted the inquiry himself. Respondent No. 4 is not an appointing authority in this case, so framing of charge by him is not valid.� In both the cases it has been held that in terms of section 126 of the Constitution charge could be framed only by the appointing authority. However, Rule 359(1)(a) is in two parts. The first part provides that The Enquiry shall, whenever, possible conducted by a gazetted officer empowered to inflict a major punishment upon the accused officer.� In the second part it is provided that, "Any other gazetted officer but the final order shall be passed by an officer empowered to inflict major punishment." The Enquiry in this case has been conducted by the Deputy Superintendent of Police who is a gazetted officer. The question is whether he could frame the charge also without the approval of the appointing authority. Section 126(1) of the State Constitution which corresponds to Article 311(1) of the Constitution of India reads as follows:- 126. Dismissal, reduction or removal of persons employed in civil capacities under the State. The question is whether he could frame the charge also without the approval of the appointing authority. Section 126(1) of the State Constitution which corresponds to Article 311(1) of the Constitution of India reads as follows:- 126. Dismissal, reduction or removal of persons employed in civil capacities under the State. (1) No person who is a member of a civil service of the State or holds a civil post under the State shall be dismissed or removed by an authority subordinate to that by which he was appointed." So the order of dismissal, reduction and removal can be passed only by the appointing authority. Whether it includes framing of the charge may now be taken up for consideration with reference to the decided cases. The Supreme Court in Inspector General of Police Vs. Thavasiappan (1996) 2 SCC 145 referred to a catena of earlier decisions to hold that charge needs not be framed by the disciplinary authority by observing as under:- He first invited out attention to the decision of this Court in State of M.P. Vs. Shardul Singh (1970) 1 SCC 108. In that case a departmental enquiry was initiated against a Sub-Inspector of Police by Superintendent of Police who after holding an enquiry sent his report to the Inspector General of Police who ultimately dismissed the Sub-Inspector from service was challenged before the High Court of Madhya Pradesh on the ground that the enquiry held by Superintendent of Police was against the mandate of Article 311(1) of the Constitution as he was incompetent to conduct the enquiry. The Sub-Inspector of Police was appointed by the Inspector General of Police. The High Court allowed the petition. The State preferred an appeal to this Court. Rejecting the contention that the guarantee given under Article 311(1) includes within itself a further guarantee that the disciplinary proceedings resulting in dismissal or removal of a civil service should be initiated or conducted by the authorities mentioned in that article, this Court held as under: (SCC pi 10, para 6) "This article does not in terms require that the authority empowered under that provision to dismiss or remove an official, should itself initiate or conduct the enquiry preceding the dismissal or removal of the officer or even that enquiry should be done at its instance. The only right guaranteed to a civil servant under that provision is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed.� This Court further held that (SCC p 112 para 10) ...We are unable to agree with the High Court that the guarantee given under Article 311(1) includes within itself a further guarantee that the disciplinary proceedings resulting in dismissal or removal of a civil servant should also be initiated and conducted by the authorities mentioned in that article.� 8. The learned counsel also drew our attention to P.V. Srinivasa Sastry Vs. Comptroller and Auditor General (1993) 1 SCC 419 wherein this Court in the context of Article 311(1) has held that in absence of a rule any superior authority who can be held to be the controlling authority can initiate a departmental proceeding and that initiation of a departmental proceeding per se does not visit the officer concerned with any evil consequences. Transport Comrnr. Vs. A. Rjadha Krishan Moorthy (1995) 1 SCC 332 was next relied upon. Therein also this Court has held that initiation of disciplinary enquiry can be by an officer subordinate to the appointing authority. These decisions fully support the contention of the learned counsel for the appellants that initiation of a departmental proceeding and conducting an enquiry can be by an authority other than the authority competent to impose the propose penalty." In the conclusion their Lordships held as under:- Generally speaking, it is not necessary that the charges should be framed by the authority competent to award the proposed penalty or that the enquiry should be conducted by such authority. We do not find anything in the rules which would induce us to read in Rule 3 (b)(i) such a requirement. In our opinion the view taken by the Tribunal that in a case falling under Rule 3(b) the charge memo should be issued by the disciplinary authority empowered to impose the penalties referred to therein and if the charge memo is issued by any lower authority then only that penalty can be imposed which that lower authority is competent to award, is clearly erroneous.� (Emphasis supplied) We have already reproduced Rule-359(1)(a) which specifically lays down that a gazetted officer may on his own institute an Enquiry on his own initiative against an officer directly subordinate to him. It is not disputed that the appellants were subordinate to the Deputy Superintendent of Police who initiated the Enquiry was not only the superior officer, but also authorised to initiate enquiry on his own under Rule-359 (1)(a) of the Police Rules. Since he could initiate Enquiry on his own he could frame charge memo also. Rule-359(1)(a) nowhere provides that charge can be framed only by the appointing authority. The law is thus settled that Article 311(1) does not say that the departmental proceedings must be initiated only by the appointing authority. However, it is open to Union of India or a State Government to make any rule prescribing that the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority. Any such rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an additional safeguard or protection to the holder of the civil post. But in absence of any such rule, this right or guarantee does not flow from Article 311. Since initiation of a departmental proceeding per se does not visit the officer concerned with any evil consequences. At the same time this will not give right to authorities having the same rank as that of the officer against whom proceeding is to be initiated to take a decision whether any such proceeding shall be initiated. In absence of a rule, any superior authority who can be held to be controlling authority can initiate such proceedings (para-4 1993 SCC 419). This proposition was reiterated in Transport Commissioner Vs. A. Radha Krishna Moorthy(1995) 1 SCC 332. Since section 126(1) of the Constitution of the Jammu and Kashmir corresponds to Article 311 (1) of the Constitution of India the law declared under Article 141 is binding on this court also. In Govt. of Tamil Nadu Vs. Vel Raj AIR 1997 SC 1900 their Lordships have again reiterated the legal position by observing that:- 5. It was contended by the learned counsel for the appellant-State that the Tribunal has committed an error of law in holding that initiation of the disciplinary enquiry against the respondent was not lawful. He submitted that there is nothing in the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1995, which requires that a charge memo has to be issued only by an appointing authority or an authority holding a higher rank. He submitted that there is nothing in the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, 1995, which requires that a charge memo has to be issued only by an appointing authority or an authority holding a higher rank. This point is now covered by the decision of this court in Inspector General of Police Vs. Thavasiappan(1996)2 SCC 145 (1996 AIR SCW1461). We, therefore, hold that the Tribunal was wrong in holding that there was no valid initiation of the disciplinary proceeding against the respondent.� Since the departmental Enquiry has been held by the officer competent to initiate it under Rule 359 of the Police Rules, the judgment of the writ court in so far as it rules otherwise is contrary to the law laid down by the apex court. But the contention of Mr. Wani is that this court in Nishat Ahmad Vs. State 1994 SU 104 and Shiv Paul Singh Slathia Vs. D.G. Police 1996 SLJ 520 has also taken the same view. Since both these decisions were decided without declaring rule 359 (1) (a) ultra-vires, with respect it is held the cases were not correctly decided. Since Rule 359 of the Police Rules intra-vires section 126 of the Constitution of Jammu and Kashmir, both the decisions are over-ruled. Reliance has also been placed on decisions of this court in (1) Ghulam Qadir Bhat Vs. University of Kashmir & Ors. SLJ 1984 J&K 311 (2) Ghulam Mohi-ud-Din Vs. State of J&K & Ors. SLJ 1984 J&K 382 (3) Ranjit Singh Vs. State & Anr. JKLR 1986 page 1051 and Ghulam Mohi-ud-Din Vs. University of Kashmir & Ors. 1987 SLJ 300. However, in all these cases Enquiry was held under J&K Classification Control and Appeal Rules, 1956. SLJ 1984 J&K 311 (2) Ghulam Mohi-ud-Din Vs. State of J&K & Ors. SLJ 1984 J&K 382 (3) Ranjit Singh Vs. State & Anr. JKLR 1986 page 1051 and Ghulam Mohi-ud-Din Vs. University of Kashmir & Ors. 1987 SLJ 300. However, in all these cases Enquiry was held under J&K Classification Control and Appeal Rules, 1956. Rule 33(4) of these Rules reads as under:- (4) The competent authority may inquire into the charges itself or if it considers it necessary so to do, it may appoint an inquiry officer for the purposes.� While referring to this rule in the case of Ghulam Qadir Bhat, Anand J as his lordship then was (now Chief Justice of India) held that, A plain reading of the Rule shows that it prescribes that the competent authority or appointing authority shall on being satisfied frame the charge and serve the same upon the delinquent and if not satisfied with his reply either itself hold inquiry or appoint an inquiry officer." Same point was involved in other cases also. However, since the scope of Rule 33(4) of the CCA Rules is neither directly nor indirectly in issue, we refrain from expressing any opinion about the correctness of these decisions. So the charge has been rightly framed by the competent authority. No fault can be found with the enquiry report and the judgment of Single Judge in this behalf is set-aside. This takes us to the other finding that the order or removal is violative of the Constitution. The observations of the writ court in this behalf are as follows:- Extraneous matters namely discussions in the Assembly and other things have influenced the mind of the reviewing authority and he has not acted in a manner which is said to be judicious, but has acted arbitrarily in reviewing the order and in passing the impugned order No. 368 of 1987 dated: 20-07-1987 of show cause and initiated the review proceedings, but at this time also, no facts and material and any records have been made available to the petitioners as to apprise them of the additional circumstances or the allegations which necessitated the reviewing of the order of punishment passed by respondent No. 5 and approved by respondent No. 4. Though a show cause notice seems to have been issued, but there is nothing on record to suggest other proceedings which were envisaged before passing the order No. 404 of 1987 dated: 11-08-1987, whereunder the petitioners have been removed from service from the date of the order passed by the reviewing authority instead of order passed by the respondent No. 4 vide his order No. 530 of 1987. There is nothing on record to show that the respondent No. 3 while exercising the powers under Section 363(2) of the J&K police Rules has made any further investigation or directed to make such investigation before passing the impugned orders. Even the police Rules not to speak of constitutional mandates stand violated by passing the impugned orders.� However, under law the authority empowered to review the order is not required to furnish the material to the delinquents. It has only to assess the material on which they had been punished and had not challenged the punishment by filing appeal. Since rules require that the show cause notice was to be issued the reviewing authority followed the mandate of rules and proceeded accordingly. Rule 363 (2) referred to by the writ court does not require fresh enquiry as suggested. 16. It thus appears that the writ court was of the opinion that the reviewing authority before passing the impugned order had to (i) furnish copies of the enquiry report and other documents to the delinquents (ii) "to make further investigation.� With respect we find this view is erroneous being contrary to the mandate of rule 363 which is extracted below:- 363. Power to review proceedings.- (1) The Inspector General or a Deputy Inspector General Police may call for the records of award made by their subordinates and confirm, enhance, modify, or annul the same or make further investigation or direct such to be made before passing orders. (2) In all cases in which officers propos< to enhance an award they shall before passing final order give the defaulter concerned an opportunity of showing cause either personally or in writing why his punishment should not be enhanced.� 17. It is clear that the power of review can be exercised without making further investigation. However, if the reviewing authority so desires, it can direct further investigation. Respondent-3 proceeded under sub-rule 3 of Rule 363 before passing the impugned order. It is clear that the power of review can be exercised without making further investigation. However, if the reviewing authority so desires, it can direct further investigation. Respondent-3 proceeded under sub-rule 3 of Rule 363 before passing the impugned order. So no fault can be found with the procedure followed by him because the finding of the Enquiry Officer holding the three officials guilty of negligence was never challenged. Moreover, he had the power/to enhance the punishment without making further investigation and this power he exercised after following the procedure laid down in the Rule. Moreover, rule-364 provides remedy of appeal against the order of punishment. All the three officers challenged the impugned order before the appellate authority and the Director General of Police vide order dated: 10-06-1988 while dismissing the appeal observed as under:- The case of the appellants alongwith relevant record has been examined by me carefully. The enhancement of punishment, after issuing show cause notice and giving personal hearing to the appellants by the DIG Kashmir is in order. The appellants had virtually deserted their post facilitating the removal of Rs. 2 lacs from the District Police Office Kupwara that they were to guard. As such the punishment is commensurate with the seriousness of the charges and does not call for any interference. The appeal having no force, is hereby rejected. The appellants may be informed accordingly.� 18. Since all the three officials had admitted that they were absent from duty and, therefore, the charge of negligence was proved that question of holding further enquiry was not justified. In view of this, there was no need for further investigation and the opinion of the learned Single Judge that further investigation was necessary is erroneous. Another observation of the learned Single Judge is that punishment has been imposed without dispensing with the enquiry u/s 126 of the Constitution. Even this view is erroneous because the enquiry has not been dispensed with and, therefore, reference to the proviso to sub-section (2) of section 126 of the Constitution is misplaced. 19. Moreover, the writ court has ignored mandate of sub-rule 11 of Rule 359 which is in fact reproduction of proviso to section 126. So it is not a case of dispensing with the enquiry but the enquiry has been held and action taken only on the basis of enquiry report. 19. Moreover, the writ court has ignored mandate of sub-rule 11 of Rule 359 which is in fact reproduction of proviso to section 126. So it is not a case of dispensing with the enquiry but the enquiry has been held and action taken only on the basis of enquiry report. It was next argued that it is a case of no evidence and, therefore, the impugned order cannot be justified. This contention is noticed only to be rejected because it is not a case of no evidence. On the contrary there is unchallenged and uncontroverted evidence that all the three police officials were on unauthorised absence from their guard duty and this facilitated the commission of theft in the office of the Superintendent of Police, Kupwara. Moreover, it is settled law that if there is some evidence to support the conclusion of the enquiring authority, the court will not review the evidence to arrive at its own independent finding. This legal position has been reiterated by the three member Bench of the Supreme Court in R. Saini Vs. State of Punjab AIR 1999 SC 3579 holding that:- 16. Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, he will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the enquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the enquiring authority, it is not the function of the Court to review the evidence and to arrive at its own independent finding. The enquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings. 17. A narration of the charges and the reason of the enquiring authority for accepting the charges as seen from the records, shows that the enquiring authority has based its conclusions on materials available on record after considering the defense put forth by the appellant and these decisions in our opinion, have been taken in a reasonable manner and objectively. 17. A narration of the charges and the reason of the enquiring authority for accepting the charges as seen from the records, shows that the enquiring authority has based its conclusions on materials available on record after considering the defense put forth by the appellant and these decisions in our opinion, have been taken in a reasonable manner and objectively. The conclusion arrived at by the enquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any non-application of mind on the part of the enquiring authority. Likewise, the High Court has looked into the material based on which the enquiry officer has come to the conclusion, enquiry officer has come to the conclusion, within the limited scope available to it under Article 226 of the Constitution and we do not find any fault with the findings of the High Court in this regard.� 20. We find that the learned Single Judge transgressed the limits of judicial review while holding that there was no evidence to support the order when admittedly respondents including the deceased had accepted the punishment without challenging the finding of the Enquiry officer. 21. Lastly, it was argued on behalf of the respondents that the respondents were entitled to copies of the enquiry, report in view of the judgment of the Supreme Court in Managing Director PCIL Vs. R. Krishnakant 1994 SC 1074. This argument is also misconceived because the punishment had already been awarded and the order has been passed in exercise of the powers of judicial review. Therefore, unless there is any violation of rule 363 no relief could be granted to the petitioners. Admittedly there has been no violation of Rule 363 and as such question of providing copy of the report does not arise. This judgment therefore, has no application to the facts of the case because the order impugned has been passed in exercise of power of review. 22. In view of the above discussion we find that the order impugned has been passed by the competent authority in accordance with the mandate of rule 363 of the Police Rules and does not suffer from any infirmity. However, the question still remains whether the punishment of removal from service is disproportionate to the charge found established against the delinquent. Mr. However, the question still remains whether the punishment of removal from service is disproportionate to the charge found established against the delinquent. Mr. Wani placed reliance on Rule 337 of the Rules which deals with dismissal. This rule reads as under:- 337. Dismissal.- Dismissal shall be awarded only for the acts of misconduct e.g. fraud and dishonesty, corruption and all offences involving moral disgrace 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 claims to pension.� 23. The contention of Mr. Wani is that one single lapse on the part of the three officials could not justify their removal from service. However, it is the nature of duty which deter into the gravity of the charge of misconduct. If their misconduct is such which has brought the entire police force to disgrace, punishment of removal from service could not be disproportionate as it is a disciplined force. Moreover, unauthorised absence from a guard duty cannot be equated with misconduct on account of unauthorised absence without leave from ordinary duty. This is because while unauthorised absence without leave can be justified on various grounds including sudden illness. Abandonment of guard duty amounts to desertion which has very serious consequences. The question thus is whether punishment awarded by the reviewing authority is proper or disproportionate to the misconduct. The charge against the Head Constable Abdul Rashid is very serious because being incharge of the guard he had to ensure presence of the other two on duty and provide substitute in case they were found absent. But since he abandoned his duty the other two also abandoned their duty. It is because of this serious nature of the misconduct which not only facilitated the commission of theft in the office of Superintendent of Police, but also brought disgrace to the entire police force. It is because of this misconduct that an amount of Rs two lacs was stolen from District Police Headquarters. In State of U.P. Vs. Ashok Kumar Singh AIR 1996 SC 736 which is a case of similar misconduct of a police constable the Supreme Court while setting aside the judgment of the High Court held as under:- 8. It is because of this misconduct that an amount of Rs two lacs was stolen from District Police Headquarters. In State of U.P. Vs. Ashok Kumar Singh AIR 1996 SC 736 which is a case of similar misconduct of a police constable the Supreme Court while setting aside the judgment of the High Court held as under:- 8. We are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts. The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules, and procedure more than any other department. Having noticed that the first respondent has absented himself from duty without leave on several occasions we are unable to appreciate the High Courts observation that his absence from duty would not amount to such a grave charge. Even otherwise on the facts of this case, there was no justification for the High Court to interfere with the punishment holding that the punishment does not commensurate with the gravity of the charge especially when the High Court concerned with the findings of Tribunal on facts. No case for interference with the punishment is made out.� 24. This brings to the question whether punishment awarded is excessive. Rule 334 of the Police Rules (Chapter XI) lays down the punishment which can be inflicted departmentally on the police officer below the rank of Inspector. Rule 334(2)(c) reads as under: - (C) Compulsory retirement before attainment of the age of superannuation.� 25. If we take serial order dismissal comes first, removal next followed by compulsory retirement before attaining the age of superannuation. With holding of increments is the fourth in succession. In the facts and circumstances of the case while dismissal may appear to be harsh with holding of increments for two years is too lenient a view. We, therefore, show a streak of compassion considering the service rendered by them and substitute punishment of dismissal by compulsory retirement in terms of Rule-334(2)(c) of the Police Rules. In view of the above, this appeal is allowed and the impugned judgment is set-aside. Punishment of dismissal is substituted by punishment of compulsory retirement as above. No costs.