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PETITIONER: STATE OF PUNJAB AND ORS.

       Vs.

RESPONDENT: NACHHATFAR SINGH

DATE OF JUDGMENT30/04/1990

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) PUNCHHI, M.M.

CITATION:  1990 SCR  (2) 822        1990 SCC  (3) 585  JT 1990 (2)   431        1990 SCALE  (1)110

ACT:     Civil   Procedure  Code,   1908:   Section   100--Second Appeal-Serious  question of law involved--High Court not  to dismiss the appeal in limine.     Punjab   Police   Rules,  1934:   Rule   16.2(2)--Police Officer--Conviction  of--Dismissal from service--Suit  chal- lenging dismissal--Period of limitation--What is.

HEADNOTE:     The  respondent, a constable, convicted  under  sections 325/34  of the Indian Penal Code along with  another  co-ac- cused  constable  and dismissed from service, filed  a  suit challenging his dismissal, which was dismissed by the  trial court  holding that it was barred by limitation.  On  appeal the  First Appellate Court decreed his suit by holding  that the  respondent-plaintiff was discriminated because his  co- accused was re-instated in service pursuant to the  decision in the suit filed by the co-accused; his dismissal was  void on  the ground of arbitrariness, and the bar  of  limitation was not applicable.     The  defendant-appellant filed a regular  second  appeal against the aforesaid decree before the High Court which was dismissed in limine.     In  the appeal to this Court it was contended on  behalf of the appellant that the High Court erred in dismissing the second appeal in limine. Allowing the appeal, this Court,     HELD:  1. Serious questions of law are involved in  this case and they should not have been lightly brushed aside  by the High Court in the manner it has been done. Therefore the High Court erred in dismissing the second appeal in  limine. [824F; 825D]     2. Rule 16.2 (2) of the Punjab Police Rules, 1934 manda- torily directs that a police officer judicially sentenced to rigorous  imprisonment  exceeding one month  shall  be  dis- missed, and this mandate of law 823 cannot be ignored on the ground that in the case of  another member of the police force a mistake was committed. [824F]     3.  The appellant’s assertion that the respondent’s  co- accused  who  was  .reinstated in service  pursuant  to  the Court’s  decision  was subsequently dismissed has  not  been

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denied  by the respondent. The case is, therefore,  remitted to the High Court for fresh disposal. [824G; 825D]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 4055  of 1987.     From  the  Judgment  and Order dated  11.8.1987  of  the Punjab and Haryana High Court in R.S.A. No. 2092 of 1987. C.M. Nayar for the Appellants. R.P. Agarwal and U.S. Prasad for the Respondent. The Judgment of the Court was delivered by     SHARMA, J. This appeal of the State of Punjab by special leave arises out of a suit filed by the respondent, Nachhat- tar  Singh. The plaintiff-respondent was serving  the  State Police  as  a  constable  when an  incident  took  place  on 17.2.1971,  which  led to the prosecution of  the  plaintiff along  with  the  Head Constable Kahan  Singh  and  the  Sub Inspector   Baldev  Singh.  The  charge  made  against   the plaintiff was that he physically assaulted and detained  one Gurdial  Singh. The accused were tried and Baldev Singh  was acquitted.  So  far  the  plaintiff  and  Kahan  Singh  were concerned, they were found guilty under s. 325 read with  s. 34 of the Indian Penal Code and several other sections,  and were sentenced to rigorous imprisonment for six months each. The conviction was maintained up to the Supreme Court stage. The  Senior  Superintendent of Police,  Patiala,  thereafter dismissed the plaintiff on 20.4.1976. This order of dismiss- al  was challenged as illegal in the present suit which  was instituted on 6.11.1982.     2. Besides taking several technical objections, the suit was defended on merits, as well as on the ground of  limita- tion.  From the judgment of the trial court it appears  that only  two  questions were pressed by  the  parties,  namely, whether  the suit was barred by limitation and  whether  the order of dismissal was illegal on the ground that the plain- tiff  was  not served with a show cause  notice  before  the impugned  order was passed. Both the issues were decided  by the learned 824 Subordinate  Judge  against the plaintiff and the  suit  was accordingly dismissed.     3.  The  plaintiff  appealed against  the  decision.  It appears that before the Additional District Judge, who heard the appeal, it was contended on behalf of the plaintiff that the  other accused constable Kahan Singh, who was also  con- victed  with the plaintiff, had also filed a  separate  suit against  his dismissal from service, which was decreed  with an observation that it was open to the competent authorities to  pass fresh order of punishment in accordance  with  law, but while no further punishment was awarded to Kahan  Singh, the  respondent’s service stands terminated.A plea  of  dis- crimination  was taken on this basis which was  accepted  by the  first appellate court and the suit was decreed. On  the question of limitation the court after a very brief  discus- sion  in the judgment held that the impugned order  of  dis- missal  was void on the ground of arbitrariness and,  there- fore, the bar of limitation would not apply. It was  further observed that this decision would not preclude the authority to award a minor punishment, provided such a punishment  has been  awarded to the other police officials tried  and  con- victed  along with him. The authority was also permitted  to take  a decision in regard to the pay and allowance for  the period the plaintiff remained out of service because of  his

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being in jail.     4.  The  defendant-appellants  filed  a  regular  second appeal before the High Court against the decree of the first appellate  court which was dismissed at the admission  stage by merely saving:-- "HEARD. DISMISSED" It  has been contended on behalf of the appellants,  and  in our  view correctly, that serious questions of law  are  in- volved  in this case and the High Court erred in  dismissing the  second appeal in limine. It has been argued  that  Rule 16.2(2) of the Punjab Police Rules, 1934 mandatorily directs that  a  police  officer judicially  sentenced  to  rigorous imprisonment  exceeding  one month shall be  dismissed,  and this mandate of law cannot be ignored on the ground that  in the case of another member of the police force a mistake was committed. Besides, it has been asserted on oath before this Court  and not denied by the respondent that  the  aforesaid Kahan  Singh  had to be re-instated in service for  a  short time  in pursuance of the decision in the suit as the  order of his dismissal had been passed by an authority not  compe- tent in this regard, and that later he was again  dismissed. It has also been pointed out that another convicted  consta- ble Surinder Singh was given the 825 benefit  of  probation by the criminal court and  his  case, therefore,  is distinguishable. Even in the concluding  por- tion of the last paragraph of the judgment of the Additional District  Judge,  the  possibility that  "the  other  police officials convicted with him" (that is, the plaintiff) might have been later punished, is recognised.     5. It has been further urged on behalf of the appellants that  the  finding of the Additional District Judge  on  the question  of limitation is patently illegal inasmuch as  the judgment assumes that no law of limitation is applicable  to suits  where  an order is impugned as being void.  The  High Court  should have examined the plaint for finding  out  the cause  of action for the suit and then in that light  deter- mined  the correct article of the Limitation Act  applicable to  the case. Serious objection has been taken  against  the observations  of  the first appellate court  permitting  the competent authority to inflict only minor punishment on  the plaintiff in certain conditions, and the direction about the payment of the salary and the other emoluments. After  heat- ing  the learned counsel for the parties, we agree with  the appellants  that the question involved in this  suit  should not have been lightly brushed aside by the High Court in the manner it has been done. We, therefore, set aside the  judg- ment  of the High Court and remit the case to it  for  fresh disposal  in  accordance with law. It will be  open  to  the appellants  to file an application for admitting  additional evidence  in  regard to the further  orders  passed  against Kahan  Singh subsequent to the civil court’s decree  in  his favour, and to argue before the High Court that the case  of the  present  plaintiff is distinguishable. The  High  Court should  call for the records and decide the case finally  at the  motion stage itself as the case is an old one.  In  the event  of admission of fresh evidence, the High Court  shall permit  the plaintiff to file relevant  rebutting  evidence. The  operation  of the decree of the first  appellate  court shall  remain stayed till the final disposal of  the  second appeal by the High Court. The appeal is accordingly allowed. There will be no order as to costs. T.N.A.                                                Appeal allowed. 826

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