08 May 1956
Supreme Court
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THE STATE OF PUNJAB Vs KHARAITI LAL.

Case number: Appeal (crl.) 140 of 1954


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PETITIONER: THE STATE OF PUNJAB

       Vs.

RESPONDENT: KHARAITI LAL.

DATE OF JUDGMENT: 08/05/1956

BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. JAGANNADHADAS, B.

CITATION:  1956 AIR  551            1956 SCR  569

ACT:        East Punjab Essential Services (Maintenance) Act, 1947 (East        Punjab  Act XIII of 1947), ss. 3, 5, 7-Complaint-Whether  it        should  be  authorised by the State  Government-Police  Act,        1861  (V  of 1861), ss. 22, 29-Absence  from  Police  Lines-        Neglect of duty Whether amounts to abandonment of employment        or absence from work.

HEADNOTE:        Section 7(3) of the East Punjab Essential Services (Mainten-        ance)  Act,  1947,  provides  that  "no  court  shall   take        cognisance  of  any  offence  under  this  Act  except  upon        complaint  in  writing made by a person authorised  in  this        behalf by the State Government".        Held, that the law does not require that the particular com-        plaint  should have been authorised by the State  Government        and  it  is  sufficient if it has been  filed  by  a  person        authorised by the State Government to do so.        Neglect of duty as contemplated by s. 29 of the Police  Act,        1861,  is quite different from abandoning an  employment  or        absenting oneself from work without reasonable cause  within        the meaning of s. 5(b) of the East Punjab Essential Services        (Maintenance) Act.        The   respondent,  a  constable,  on  account  of   physical        infirmity  was not assigned any "work" in the  Police  Lines        within  the  meaning of el. (b) of s. 5 of the  East  Punjab        Essential  Services (Maintenance) Act.  He absented  himself        from  the Police Lines without permission.  Held,  that  his        absence from Police Lines during the relevant time may  have        amounted  to neglect of duty but he could not  be  convicted        under s. 5(b).

JUDGMENT:        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 140  of        1954.        Appeal  by special leave from the judgment and  order  dated        the  23rd  July 1953 of the Punjab High Court.  in  Criminal        Revision  No.  487 of 1953 arising out of the  judgment  and        order  dated  the 17th April 1953 of the Court  of  Sessions        Judge at Hoshiarpur in Criminal Appeal No. D/I of 1953.

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      N.   S. Bindra and P. G. Gokhale, for the appellant.        A.   N. Chona and K. L. Mehta for,-the respondent,        71        570        1956.  May 8. The Judgment of the Court was delivered by        SINHA  J.-This  is  an  appeal by  special  leave  from  the        judgment  of a single Judge of the High Court of  Judicature        of  Punjab  at Simla in Criminal Revision No.  487  of  1953        dated  the  23rd  July 1953  acquitting  the  respondent,  a        constable  in  the police force of the State of  an  offence        under  section  7  of the  East  Punjab  Essential  Services        (Maintenance)  Act, XIII of 1947 (which hereinafter will  be        referred  to as "the Act"), for which he had been  convicted        by  a  Magistrate of the First Class at  Dharamsala  by  his        judgment dated the 30th March 1953 and sentenced to 15 days’        rigorous  imprisonment,  which.  orders  of  conviction  and        sentence  had  been  affirmed  by  the  Sessions  Judge   of        Hoshiarpur, Camp Dharamsala, by his judgment and order dated        the 17th April 1953.        The  facts leading up to this appeal may shortly be  stated.        The  respondent was prosecuted on a complaint filed  by  the        Superintendent  of Police, Kangra District, in the Court  of        the  1laqa Magistrate, Dharamsala, District Kangra,  for  an        offence under section 7 of the Act.  The allegations against        the respondent were that he joined the Police Department  as        a constable in Jullundur District in 1947, that in  December        1952  he was transferred from Jullundur District  to  Kangra        District and posted to Police ’Lines, Kangra, as a constable        on  general  duty at Seraj police station; that  in  January        1953  he  came  to  Police  Lines,  Dharamsala  for  monthly        training  (refresher course), that on the 2nd February  1953        at  the  time  of  roll call at 7  p.m.  the  appellant  was        assigned  the duty as sentry No. 1 without rifle behind  the        Police   Lines   Armoury,Dharamsala,from9p.m.toll.p.m.   The        respondent,  though  informed  of  the  assignment  of   the        aforesaid  duty  to him, refused to obey that  order  or  to        perform any other duty in the Lines.  Thereupon his name was        struck  off from the Duty Roster and another foot  constable        was duly placed in that post of duty.  On the night  between        the 2nd and 3rd February 1953 at 11-30 p.m. a surprise  roll        call  of the employees of the Police Lines was duly made  by        means        571        of   an  alarm  sounded  with  a  bugle  which   was   blown        continuously for about 15 minutes.  The respondent was found        absent on such a roll call and another constable was deputed        to search for the respondent but he could not be found.   He        appeared the next morning at about 9-30 a.m. after remaining        absent  from the Police Lines without offering any  explana-        tion  for  his unauthorised absence.  The  gravamen  of  the        charge  as  laid in the petition of complaint  was  that  he        refused  to carry out the order of his superior officer  who        had assigned a duty to him and that he remained absent  from        his  official  duty in the Police  Lines  without  obtaining        permission  and without any cogent reasons, from 11-30  p.m.        on  the  2nd  February  1953  till  9-30  a.m.  on  the  day        following.   Thus he was said to have committed  an  offence        under section 7 of the Act.        On those allegations the respondent was placed on his  trial        before  the  Magistrate of the First  Class  at  Dharamsala.        After  recording  the.  prosecution  evidence  the   learned        Magistrate framed a charge under section 7 of the Act  under        two heads, firstly, that he had on the 2nd February 1953  at        Dharamsala  as a foot constable in the police force  of  the        Kangra  District had disobeyed the lawful orders given by  a

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      superior officer who had assigned to him a duty as such foot        constable  of  a  sentry without rifle in the  rear  of  the        armoury  in  the Police Lines from 9 p.m. to 1 1  p.m.  and,        secondly, that on the same date and at the same place he had        absented  himself  from  duty as a  foot  constable  without        reasonable  excuse and had thus remained absent  from  11-30        p.m. on the 2nd February 1953 to 9-30 a.m. of the  following        day.        The  respondent’s  defence  as disclosed in  his  answer  to        questions  put  by  the court under  section  342,  Criminal        Procedure  Code  was  one  of denial  of  the  charge.   His        substantive defence may be stated in his own words:-        "On 2nd February, 1953 at 7 p.m. my duty was allotted to  me        and I signed at Ex.  P. D./I. I then told Raghbir Singh P.W.        that according to the Civil Surgeon, Jullundur I could  only        be given sitting or        572        office  duty.   I showed him the copy Exhibit D. E.  I  also        told  him  that  the Civil  Surgeon,  Dharamsala,  had  also        examined  that  very day on 2nd  February  1953.   Thereupon        Raghbir Singh P.W. cancelled my said duty.  I was lying  ill        in  the Police Lines Barracks and did not hear the bugle  In        the  morning of 3rd February, 1953, I came to know  that  my        absence  had been noted.  Thereupon I presented  myself  for        duty to the Head Constable and signed at Exhibit P.E./1.  My        leg  was burnt in rescue work at Gujranwalla when I  was  in        the special Police Lines".        He also examined a number of defence witnesses including the        Civil  Surgeon of Jullundur who deposed to  having  examined        the respondent on the 27th February 1953 "and found that  he        had got extensive burn scars on the back of the right  thigh        and  leg crossing the knee.  Hence he could not perform  any        strenuous duty like standing for long hours.  In my  opinion        he  could be given some light duty in the office.  Ex.  D.W.        I/D is a true copy of my medico-legal report of this case".        The  learned Magistrate acquitted the accused in respect  of        the  first  part  of  the charge  relating  to  his  alleged        disobedience of the lawful orders of his superior officer to        perform  sentry  duty.  But he convicted him of  the  second        part of the charge, namely, absence from duty -and sentenced        him  to  15 days’ rigorous imprisonment.  On appeal  by  the        accused, the learned Sessions Judge affirmed the findings of        the trial Magistrate and held that the appellant before  him        was  absent  from duty without permission during  the  night        between  the  2nd  and 3rd February  1953.   He  accordingly        dismissed the appeal.        On  a revisional application made by the  convicted  person,        the  learned  single Judge who heard the case, came  to  the        conclusion  that  the accused had not offended  against  any        provisions  of the Act.  Accordingly he acquitted him.   The        ratio  of  his  decision may be given in his  own  words  as        follows:-        "This Act does not appear to me to apply to the kind of  act        which  the  constable  is said to have done.   He  had  been        called to Dharamsala on a refresher        573        course and on the night in question and in the early morning        he  appears  to have been not present at the  time  when  he        according  to  the  prosecution should  have  been  present.        This,  in my opinion, does not attract the attention of  the        Essential Services Maintenance Act.  It is possible that  if        he  is guilty be is liable to some disciplinary  punishment,        but his prosecution under the East Punjab Essential Services        Maintenance Act is in my opinion not justified.  I hold that        he  has not offended against the provisions of this Act  and

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      therefore he has not committed any offence under this-Act".        Against this order of acquittal the State of Punjab obtained        special  leave to appear to this Court,  apparently  because        the judgment of the learned Judge of the High Court involved        very  important questions as to the scope and effect of  the        Act and the question of law decided by the High Court was of        great public importance.        This  case  was  first placed on the 11th  April  this  year        before  another Bench of this Court and learned counsel  for        the  respondent  raised  a  preliminary  objection  to   the        maintainability  of  the prosecution on the ground,  it  was        alleged,  that there was no proper complaint  under  section        7(3) of the Act and as this question bad not been raised  in        any of the courts below and as counsel for the appellant was        taken  by  surprise,  the Bench granted two  weeks  time  to        enable  him  to satisfy the court that there  was  a  proper        compliance  with the provisions of section 7(3) of the  Act.        When  the matter came up before us for hearing, the  learned        counsel  for  the appellant placed before us  the  following        notification.  by  the  Punjab  Government  authorising  all        police  officers above the rank of Deputy Superintendent  of        Police  and the Heads of the various Government  Departments        to  make  complaints  in writing to a court  in  respect  of        alleged offences against the Act:-        " Dated Simla-2, the 20th January, 1948.        No. 1248-H Camp-48/2075.-In exercise of the powers conferred        by  sub-section  (3)  of  section  7  -of  the  East  Punjab        Essential Services (Maintenance) Act        574        1947 the Governor of the East Punjab is pleased to authorise        all  police  officers  of  and  above  the  rank  of  Deputy        Superintendent  of  Police  and the  Heads  of  the  various        Government  Departments to make complaints in writing  to  a        court  against persons of their respective Departments,  who        are alleged to have committed offences against the Act.                              Sd. Nawab Singh                Home Secretary to Govt. of East Punjab".         On  a  reference to  the notification quoted above,  it  is        clear  that  the complaint filed by  the  Superintendent  of        Police   Kangra  District;  in  the  court  of   the   Ilaqa        Magistrate, Dharamsala in the district of Kangra, was  filed        in  compliance  with the provisions of  sub-section  (3)  of        section 7 of the Act which is in these terms:-        "No  court shall take cognisance of any offence  under  this        Act  except  upon  complaint in writing  made  by  a  person        authorised in this behalf by the State Government".         But  it was argued on behalf of the respondent  that  there        was nothing to show that the complaint on the basis of which        the  prosecution  had been initiated in this case  had  been        authorised  by  the  State Government.   The  law  does  not        require  that  the  particular complaint  should  have  been        authorised  by  the State Government.  What is  required  is        that  the  complaint  should have been  filed  by  a  person        authorised   by  the  State  Government  to  do   so.    The        notification  has authorised a Superintendent of  Police  to        file  a  complaint  in respect of  a  contravention  of  the        provisions of the Act by a person in his department.  It  is        not denied that the respondent was such a person.  Hence the        preliminary objection must be overruled ’        Coming  to  the  merits  of the decision,  it  is  a  little        surprising   that  the  learned  Judge  below  should   have        completely ignored the opening words of section 3 of the Act        which  completely  answer the ratio of  the  decision  under        appeal.        "This  Act  shall apply to all employment under  the  State

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      Government..........  (omitting words not material  for  the        present case).        575        The  learned  Judge  of  the  High  Court  has  quoted   the        provisions of sections 5 and 6 of the Act in support of  his        conclusion  that  the  Act is "intended  to  be  applied  in        special  cases of dislocation of essential services  because        of  extraordinary  events  such as  strikes  of  because  of        political agitation or similar circumstances".  The relevant        -portion of section 5 is in these terms:-        "Any person engaged in any employment or class of employment        to  which this Act applies who(a) disobeys any lawful  order        given to him in the course of such employment, or        (b)without  reasonable  excuse abandons such  employment  or        absents himself from work,        is guilty of an offence under this Act".        The  opening  words  of section 5  -have  reference  to  the        opening  words of section 3 so far as an employee under  the        State Government is concerned.  As the learned Judge  missed        these  opening  words as indicated above, he fell  into  the        error  of  supposing that a person in the  position  of  the        respondent  was not intended to be governed by the Act.   It        is  mainfest  that  the  learned  Judge  has  acquitted  the        appellant, not on a misreading of the provisions of the Act,        but  by  ignoring the opening words of section  3.  It  must        therefore be held that the judgment of the High Court cannot        be sustained.        But  it still remains to consider whether the orders  passed        by  the  High  Court acquitting  the  respondent  should  be        interfered  with.   The  courts  below  have  acquitted  the        respondent of the first part of the charge which could  have        come within clause (a) of section 5 which lays down offences        under  the  Act.  The respondent had been convicted  by  the        first  two  courts of an offence referred to in  the  second        part of the charge, namely, of his, having absented  himself        from  duty.. Under section 22 of the Police Act, V of  1861,        every  police  officer is to be considered to be  always  on        duty  and may at any time be employed as a  police  officer,        and  on  the findings of the courts of fact  that  the  res-        pondent had absented himself from the Police Lines        576        during  the night between the 2nd and 3rd February  1953  he        may  have made himself liable to the penalty for neglect  of        duty  under section 29 of the Police Act, or may  have  made        himself  liable to departmental punishment for absence  from        the  police  lines  without  permission.   But  we  are  not        concerned  here with these provisions.  The  respondent  bad        been found guilty under clause (b) of section 5, that is  to        say,  for  the  offence  of  absenting  himself  from  work.        Neglect of duty as contemplated by section 29 of the  Police        Act  is quite different from abandoning an employment or  of        absenting  oneself from work without reasonable cause  which        is  the  particular offence contemplated by  clause  (b)  of        section   5.  As  already  indicated,  on  account  of   the        respondent’s  physical  infirmity  or  deficiency  the  work        assigned to him had been cancelled and he was expected to be        in police lines during the material time without  apparently        doing  any "work".  It is clear from the record that he  had        not  been assigned any "work" within the meaning  of  clause        (b) of section 5. Hence his absence from Police Lines during        the  relevant-  time may have amounted to neglect  of  duty;        but,  in  our opinion, is not synonymous with  absence  from        work or abandonment of employment which has been made  penal        under clause (b) of section 5.        For   the  reasons-aforesaid  it  must  be  held  that   the

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      respondent  bad  been rightly acquitted, though  for  wholly        wrong reasons.  The appeal must therefore stand dismissed.        Appeal dissmissed.        577