JUDGMENT: A.S. Supehia, J. 1. This is yet another case that brings to the fore the remissness of a police officer in exercising his duties. 2. In the present writ petition, the petitioner seeks quashing and setting aside the impugned order dated 10/11.07.2003 passed by respondent No. 4, order dated 07.11.2003 passed by respondent No. 3, order dated 28.02.2006 passed by respondent No. 2 as well as order of the State Government dated 14.07.2006, and also seeks a direction upon the respondent authorities to reinstate the petitioner in service with all consequential benefits with full back wages for interim period, as if the order of removal of the petitioner had never been passed against the petitioner. 3. Briefly, the facts, material for adjudication of the present petition, may be stated thus: 4. The petitioner was serving as Armed Police Constable with the respondent authorities. On 05.06.2001, the petitioner was served with a charge-sheet by respondent No. 4 wherein it was, inter alia, alleged against the petitioner that while he was entrusted with the duty of production of three accused persons from Jamnagar District Jail to the Court at Jamnagar on 02.02.2000, one of the accused namely Hanif Amad Sama, facing the charges of kidnapping and rape, escaped from his custody. It is alleged in the charge-sheet that the petitioner had unauthorizedly taken the accused to his home without the knowledge of the Guard Commander and other police personnel in the party and thereby created circumstances for escape of the said accused. It was further alleged that for such incident, a complaint was also belatedly given by the petitioner at 19:25 hrs. 5. Pursuant to the allegations made in the aforesaid charge-sheet, the petitioner gave his reply clarifying that he had not taken the accused to his home, but the accused had escaped, from the Court Compound itself, under the pretext of going to the urinal, hence, to that extent, the allegations leveled against the petitioner in charge-sheet was incorrect. 6. Thereafter, C.R. No. 43 of 2000 was lodged by the petitioner as a complainant. A Criminal Case No. 2294 of 2000 was tried by Chief Judicial Magistrate, Jamnagar and on the basis of the deposition Exh. 6 given by the petitioner, vide judgment and order dated 15.10.2001, the accused was convicted to undergo simple imprisonment of one year and fine of Rs. A Criminal Case No. 2294 of 2000 was tried by Chief Judicial Magistrate, Jamnagar and on the basis of the deposition Exh. 6 given by the petitioner, vide judgment and order dated 15.10.2001, the accused was convicted to undergo simple imprisonment of one year and fine of Rs. 500/- and also to undergo further fifteen days simple imprisonment, in default to make payment of fine. 7. Learned Senior Counsel Mr. Shalin Mehta appearing for Mr. Joshi has contended that Order dated 15.10.2010 rendered in Criminal Case No. 2294 of 2000, has not been considered either by the Inquiry Officer or by the respondent authorities while passing the order of removal. This aspect has not been considered or examined by the appellate or revisional authority in further revision and appeal after order of removal. He has submitted that at the most the petitioner can be said to be negligent in his duties, but the same cannot fall within the ambit of misconduct, hence, the punishment imposed on the petitioner is disproportionate to the negligence. 8. Learned Senior Counsel Mr. Mehta has submitted that the charge-sheet is based on an incorrect fact that the petitioner had taken the accused at his home and he escaped from there, whereas it is proved from order dated 15.10.2010 passed by the Trial Court that the petitioner has escaped from court compound. Hence, he has submitted that the entire disciplinary proceedings are required to be set aside. Mr. Mehta has also submitted that the Inquiry Officer has relied on the statement of Aminaben, wife of the accused, who is declared hostile witness in proving the charge against the petitioner, which is not permissible. Hence, the findings of the Inquiry Officer stand vitiated on such statement of the hostile witness. 9. Per contra, learned Assistant Government Pleader Mr. Soni appearing on behalf of the respondent authorities has relied upon the affidavit-in-reply filed on behalf of respondent No. 1 and has submitted that on 02.02.2000, the petitioner was assigned with the duty of production of the accused persons from Jamnagar District Jail to District Court, Jamnagar, one of whom was Hanif Amad Sama. Soni appearing on behalf of the respondent authorities has relied upon the affidavit-in-reply filed on behalf of respondent No. 1 and has submitted that on 02.02.2000, the petitioner was assigned with the duty of production of the accused persons from Jamnagar District Jail to District Court, Jamnagar, one of whom was Hanif Amad Sama. The matter was adjourned at 13:30 hours, the petitioner wrongly informed the Guard Commander that the accused had to go for natural call and thereby the accused was unauthorizedly taken to his home from where the accused - Hanif Ahmad escaped from the custody of the petitioner. He has further submitted that the petitioner has unauthorizedly taken the accused to his home without the knowledge of the Guard Commander and other police personnel and purposely created circumstances for the accused to escape. He has stated that the fact remains that the accused had escaped from the custody of the petitioner, and manner and place of escape will not make any difference so far the misconduct of the petitioner is concerned. The incident of escape of the accused occurred at 13:30 hrs., but the petitioner informed the authorities at 19:25 hrs. The incident of escape of the prisoners from the petitioner's custody had occurred for more than four occasions and for this act of negligence departmental inquiry was initiated against the petitioner, and he was also issued charge-sheet for the same and was punished accordingly. 10. Learned Assistant Government Pleader also submitted that the Presiding Officer had framed five points and after considering all factors the charges against the petitioner are proved. He has submitted that the petitioner, being a police employee, has breached the disciplinary rules of the Police Department, which he has done intentionally. Petitioner was given the opportunity of hearing on 10.07.2003. After considering the written statement as well as the oral submissions, and the details of the Service Book of the petitioner, and the fact that during seven years of his service record 12 small punishments and two occasions of the accused escaping, in two cases major punishments were imposed on the petitioner, the impugned order of penalty is passed. Learned AGP Mr. Soni has submitted that there was no improvement in the petitioner as the accused had escaped more than four times, and was also imposed minor and major punishments. Learned AGP Mr. Soni has submitted that there was no improvement in the petitioner as the accused had escaped more than four times, and was also imposed minor and major punishments. In such circumstances, in the interest of public order, Superintendent of Police, Jamnagar, passed the order of removal of the petitioner from service. Learned AGP therefore, submitted that the order of punishment is lawful, legal and has been passed after undergoing the departmental inquiry and after giving full opportunity of hearing to the petitioner. 11. In response to the aforesaid submission, Mr. Mehta has contended that the earlier punishment imposed upon the petitioner were minor, and hence, the same cannot be considered while imposing the present penalty. 12. I have considered the rival contentions made by the learned advocates appearing on behalf of the respective parties for the lis. I have also perused the documents on record. 13. The fact which is not in dispute is that the petitioner was assigned the duty of production of three accused persons from Jamnagar District Jail to District Court, Jamangar. Out of three accused, namely, accused Hanif Amad Sama, who was facing the criminal prosecution for kidnapping and rape, escaped from his custody. The facts further reveal that the accused escaped at 13:30 hours, but the petitioner informed the authorities after one and half hours. The petitioner lodged a complaint at the Police Station at 19:25 hours. Thus, the petitioner can be said to be grossly negligent in his duties, as the accused, who is involved in a heinous offence, managed to escape from his custody. 14. Assuming that the contention canvassed by learned Senior Counsel Mr. Mehta apropos the incorrect mentioning of the place of escape that the accused escaped from the home of the petitioner, instead from the court compound is accepted, then also the same will not wipe out the negligence of the petitioner towards his duty. The principle of res ipsa loquitur is clearly applicable to the facts of the case. It is not the case of the petitioner that the accused was not in his custody. The observation made by the Trial Court that the accused escaped from the compound of the Court will not absolve the petitioner from his negligence. The principle of res ipsa loquitur is clearly applicable to the facts of the case. It is not the case of the petitioner that the accused was not in his custody. The observation made by the Trial Court that the accused escaped from the compound of the Court will not absolve the petitioner from his negligence. There was no need for the appellate or revisional authorities to consider the judgement dated 15.10.2010 passed in the criminal trial convicting the accused only for ascertaining the fact of the place of incident. It is not the case of the petitioner that the Trial Court has made any observations absolving the petitioner from his negligence. On the contrary, the Trial Court has observed that the accused, who was in legal custody of the petitioner, managed to escape and the complaint to that effect was belatedly made. The findings of the Inquiry Officer are not solely based on the statement of Aminaben, wife of the convict, who is declared hostile. The Inquiry Officer has also considered the statements of other witnesses also. He has also considered that the petitioner did not immediately complain to the superiors about the incident, which is also very grave in nature. Hence, the disciplinary proceedings cannot be set aside only because the Inquiry Officer has referred to the statement of Aminaben, who is wife of the accused, in wake of the fact that the same is not the solitary factor on which the Inquiry Officer has proved the misconduct of the petitioner. 15. The charge which is levelled against the petitioner, indubitably is grave in nature. The Supreme Court in the case of Secretary to Government, Home Department v. Srivaikundathan, reported in 1998 (9) S.C.C. 553 while examining the case of an employee involved in an identical misconduct has observed thus: "The tribunal was also not justified in interfering with the punishment which was imposed on the respondent. It is for the disciplinary authority to consider the punishment which should be imposed. The disciplinary authority in the present case, looking to the gravity of charges, and looking to the fact that both the respondent as well as Joseph were entrusted with the custody of the two prisoners and had been guilty of total dereliction of duty, as a result of which a life convict escaped, has imposed a somewhat lesser punishment of removal from service on the respondent. The tribunal was wrong in saying that since the respondent had served only for a short period, he should be given another chance. The tribunal, in a serious matter involving proper discharge of duty by a member of the Police Force, ought not to have interfered in this wholly unwarranted manner with the punishment imposed. Nor was there any occasion to direct that a second chance be given to the respondent and that he should not be removed from service. Not only is the order beyond the jurisdiction of the tribunal but is also grossly improper in a case like this. The appeal is allowed and the impugned order of the tribunal is set aside. The application of the respondent before the tribunal is dismissed with costs." The Apex Court in no uncertain terms has held that escaping of prisoners is a serious matter involving proper discharge of duty by a member of the police force, and such a police officer cannot be given a second chance. In the present case, the petitioner is already held guilty of similar misconduct in past, hence, the punishment imposed upon him cannot be interfered with. 16. During nine years of service of the petitioner, the petitioner was imposed 12 minor punishments. Two major penalties were imposed for similar misconduct relating to escaping of the accused. The impugned order dated 10/11.07.2003 mentions that on four occasions, the accused have run away from the custody of the petitioner. The submission canvassed by leaned Senior Counsel Mr. Mehta, that earlier minor penalties imposed on the petitioner cannot be considered for imposing the impugned penalty since a single act of negligence on behalf of the petitioner will not constitute misconduct, does not merit acceptance since the petitioner is involved in similar type of misconduct earlier also. 17. I may gainfully extract the observations made by the Supreme Court in the judgement rendered in the case of State of Punjab v. Ram Singh Ex. Constable, reported in 1992 (4) S.C.C. 54 . The Supreme Court has observed thus: "5. xxx xxx xxx Misconduct in office has been defined as: "Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. The term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act. xxx xxx xxx Misconduct in office has been defined as: "Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. The term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act. P. Ramanatha Aiyar's the Law Lexicon, Reprint Edition 1987 misconduct' defines thus:- "The term misconduct, implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion if left, except what necessity may demand and carelessness, negligence and unskillfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected." 6. Thus it could be seen that the word 'misconduct' though not capable of precise definition, its reflection receive its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order. 7. Rule 16.2(1) consists of two parts. The first part is referable to gravest acts of misconduct which entails awarding an order of dismissal. Undoubtedly there is distinction between gravest misconduct and grave misconduct. Before awarding an order of dismissal it shall be mandatory that dismissal order should be made only when the are gravest acts of misconduct, that too when it impinges the pensionary rights of the delinquent after putting long length of service. As stated the first part relates to gravest acts of misconduct. Under General Clauses Act singular includes plural, act includes acts. The contention that there must be plurality of acts of misconduct to award dismissal is fastidious. The word "acts" would include singular "act" as well. It is not the repetition of the acts complained of but its quality, insidious effect and gravity of situation that ensues from the offending 'act'. The colour of the gravest act must be gathered from the surrounding or, attending circumstances. Take for instance the delinquent that put in 29 years of continuous length of service and had unblemished record; in 30th year he commits defalcation of public money or fabricates false records to conceal misappropriation. He only committed once. Does it mean that he should not be inflicted with the punishment of dismissal but be allowed to continue in service for that year to enable him to get his full pension. The answer is obviously No. Therefore, a single act of corruption is sufficient to award an order of dismissal under the rule as gravest act of misconduct. 8. The second part of the rule connotes the cumulative effect of continued misconduct proving incorrigibility and complete unfitness of police service and that the length of service of the offender and his claim for pension should be taken into account in an appropriate case. The contention that both parts must be read together appears to us to be illogical. 8. The second part of the rule connotes the cumulative effect of continued misconduct proving incorrigibility and complete unfitness of police service and that the length of service of the offender and his claim for pension should be taken into account in an appropriate case. The contention that both parts must be read together appears to us to be illogical. Second part is referable to a misconduct of minor in character which does not by itself warrant an order of dismissal but due to continued acts of misconduct would have insidious cumulative effect on service morale may be a ground to take lenient view of giving an opportunity to reform. Despite giving such, opportunities if the delinquent officer proved to be incorrigible and found, complete unfit to remain in service than to maintain discipline in the service, instead of dismissing the delinquent officer, a lesser punishment of compulsory retirement or demotion to a lower grade or rank or removal from service without affecting his future chances of re-employment, if any, may meet the ends of justice. Take for instance the delinquent officer is habitually absent from duty when required. Despite giving an opportunity to reform himself he continues to remain absent from duty off and on. He proved himself to be incorrigible and thereby unfit to continue in service. Therefore, taking into account his long length of service and his claim for pension he may be compulsorily retired from service so as to enable him to earn proportionate pension. The second part of the rule operates in that area. It may also be made clear that the very order of dismissal from service for gravest misconduct may entail forfeiture of all pensionary benefits. Therefore, the word 'or' cannot be read as "and". It must be disjunctive and independent. The common link that connects both clauses is "the gravest act/acts of misconduct." 18. As observed by the Apex Court, the colour of the gravest act must be gathered from the surrounding or, attending circumstances. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order. The dereliction of duties by the petitioner resulted into escape of a prisoner who was involved in serious offences. The duty of the police officer has to be synonymous with alertness. Thus, the laxity on behalf of the petitioner will indubitably constitute a serious misconduct. Hence, it cannot be said that the punishment imposed on the petitioner is disproportionate to the misconduct. 19. In the judgement rendered in the case of Union of India v. J. Ahmed, reported in 1979 (2) S.C.C. 286 , the Apex Court has observed thus: "The High Court was of the opinion that misconduct in the context of disciplinary proceeding means misbehaviour involving some form of guilty mind or mens rea. We find it difficult to subscribe to this view because gross or habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary proceedings". The service record of the petitioner shows that he was habitual negligent in performance of his duties. The petitioner was imposed various minor penalties for several misconducts, one of which was similar type of misconduct of escaping of the accused. Total four incidents of escaping of the accused have occurred during his short span of career. When the earlier penalties, though minor, were imposed upon him, he did not improve his conduct. As observed by the Apex Court in the afore-noted paragraph in the case of Ram Singh (supra) despite giving such opportunities, if an officer does not improve, removal from service may meet the ends of justice. In the present case the petitioner has only served nine years and during such short span of career, he is involved in various misconducts. The service of the petitioner, in no uncertain terms, can be said to be meritorious. The Supreme Court in the case of J. Ajmed (supra) has also held that habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for the disciplinary proceedings. 20. The service of the petitioner, in no uncertain terms, can be said to be meritorious. The Supreme Court in the case of J. Ajmed (supra) has also held that habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for the disciplinary proceedings. 20. One more aspect which deserves to be noted is that the petitioner has not alleged any violation of statutory rules or principles of natural justice in holding the departmental inquiry. It will be apposite to extract the observations made by the Supreme Court in the judgement rendered in the case of State of Andhra Pradesh v. S. Sree Rama Rao, reported in AIR 1963 S.C. 1723 : "There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition under Art. 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Art. 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Art. 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Art. 226 of the Constitution. "In our Judgement the proceedings before the departmental authorities were regular and were not vitiated on account of any breach of the rules of natural justice. The conclusions of the departmental Officers were fully borne out by the evidence before them and the High Court had no jurisdiction to set aside the order either on the ground that the "approach to the evidence was not consistent with the approach in a criminal case," nor on the ground that the High Court would have on that evidence come to a different conclusion. The respondent had also ample opportunity of examining his witnesses after he was informed of the charge against him. The conclusion recorded by the punishing authority was therefore not open to be canvassed, nor was the liability of the respondent to be punished by removal from service open to question before the High Court." 21. Similarly, in the case of Rai Bareli Kshetriya Gramin Bank v. Bhola Nath Singh, reported in 1997 (3) S.C.C. 657 , the Apex Court has observed thus: "5. Having regard to the respective contentions, the only question that arises for consideration is : whether the conclusion reached by the High Court is correct in law? It is not in dispute that the procedural steps under the disciplinary rules, required by the appellant, have been followed. Having regard to the respective contentions, the only question that arises for consideration is : whether the conclusion reached by the High Court is correct in law? It is not in dispute that the procedural steps under the disciplinary rules, required by the appellant, have been followed. After the enquiry was concluded and report was submitted, the disciplinary authority had given him a show-cause notice to the proposed punishment and the respondent also submitted his explanation. After consideration of the report and the reply, the punishment of dismissal was imposed by the disciplinary authority against which an appeal was filed. At that stage, he made an application for summoning the witnesses afresh. That application was dismissed by the appellate authority. That order also was allowed to become final. The appeal was dismissed by the Board. 6. Under these circumstances, the question arises : whether the High Court would be correct in law to appreciate the evidence and the manner in which the evidence as examined and to record a finding in that behalf? The judicial review is not akin to adjudication of the case on merits as an appellate authority. The High Court, in the proceedings under Art. 226 does not act as an appellate authority but exercises within the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. In this case, on such errors were pointed out nor any finding in that behalf was recorded by the High Court. On the other hand, the High Court examined the evidence as if it is a Court of first appeal and reversed the finding of fact recorded by the enquiry officer and accepted by the disciplinary authority. Under these circumstances, the question of examining the evidence, as was done by the High Court, as a first appellate Court, is wholly illegal and cannot be sustained." 22. The Apex Court in the afore-noted observations has held that the High Court, in the proceedings under Article 226 of the Constitution of India does not act as an appellate authority but exercises within the limits of judicial review to correct the errors of law or procedural errors leading to manifest injustice or violation of the principles of natural justice. In the present case, the writ petition is absolute silent on the Rules governing the disciplinary proceedings. In the present case, the writ petition is absolute silent on the Rules governing the disciplinary proceedings. It is not alleged that the Inquiry Officer or the disciplinary authority has violated or has not followed a particular Rule governing such proceedings. Hence, the impugned order does not call for any interference of this Court in wake of the present fact. 23. Consequently and for the aforesaid reasons and observations, the petition is dismissed. Accordingly, RULE is discharged. There shall be no order as to costs.