The State of Punjab vs Kharaiti Lal

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 140 of 1954

Decision Date: 8 May, 1956

Coram: Bhuvneshwar P. Sinha, B. Jagannadhadas

In this matter titled The State of Punjab versus Kharaiti Lal, the judgment was delivered on 8 May 1956 by the Supreme Court of India. The bench consisted of Justice Bhuvneshwar P. Sinha and Justice B. Jagannadhadas. The petitioner was the State of Punjab and the respondent was Kharaiti Lal. The citation for the decision is reported as 1956 AIR 551 and 1956 SCR 569. The case concerned the East Punjab Essential Services (Maintenance) Act, 1947, which is also referred to as East Punjab Act XIII of 1947, and specifically sections 3, 5 and 7 of that Act. The issues also involved the Police Act, 1861, sections 22 and 29, with reference to the question of whether a complaint must be authorised by the State Government, and whether an absence from police lines could be characterised as neglect of duty, abandonment of employment or unauthorised absence from work.

According to the headnote, section 7(3) of the East Punjab Essential Services (Maintenance) Act, 1947 provides that no court shall take cognisance of any offence under the Act unless a written complaint is made by a person authorised in that behalf by the State Government. The Court held that the law does not require the specific complaint to have been authorised by the State Government itself; it is sufficient that the complaint be made by a person who has been given authority by the State Government to file such a complaint. The Court further clarified that neglect of duty as contemplated by section 29 of the Police Act, 1861 is distinct from abandoning an employment or being absent from work without reasonable cause, which is the language of section 5(b) of the East Punjab Essential Services (Maintenance) Act.

The respondent, who was a constable, suffered from a physical infirmity that prevented him from being assigned any “work” within the police lines as contemplated by clause (b) of section 5 of the Act. Nevertheless, he left the police lines without obtaining permission. The Court observed that his unauthorised departure during the period in question might constitute neglect of duty, but it could not be regarded as an offence under section 5(b) of the Act, and therefore he could not be convicted on that ground.

The judgment arose from Criminal Appeal No. 140 of 1954, filed by special leave against the order dated 23 July 1953 of the Punjab High Court in Criminal Revision No. 487 of 1953. That order had in turn arisen from the judgment and order dated 17 April 1953 of the Sessions Judge at Hoshiarpur, which affirmed the conviction and sentence imposed by the First‑Class Magistrate at Dharamsala on 30 March 1953. Counsel for the appellant were N. S. Bindra and P. G. Gokhale, while counsel for the respondent were A. N. Chona and K. L. Mehta. The judgment of the Supreme Court was delivered by Justice Sinha, who noted that the appeal challenged the conviction of the constable for an offence under section 7 of the East Punjab Essential Services (Maintenance) Act, for which the lower court had found him guilty.

The conviction and sentence recorded on 30 March 1953, which imposed fifteen days of rigorous imprisonment, had been affirmed by the Sessions Judge of Hoshiarpur, Camp Dharamsala, in his judgment and order dated 17 April 1953. The respondent was prosecuted on a complaint lodged by the Superintendent of Police of Kangra District in the Court of the Ilaqa Magistrate, Dharamsala, District Kangra, for an alleged violation of section 7 of the East Punjab Essential Services (Maintenance) Act, 1947. The complaint alleged that the respondent had entered the Police Department as a constable in Jullundur District in 1947, and that in December 1952 he had been transferred from Jullundur District to Kangra District and posted to the Police Lines at Kangra as a constable on general duty at Seraj police station. It further alleged that in January 1953 the respondent had travelled to the Police Lines at Dharamsala to attend a monthly refresher training course. On 2 February 1953, at the roll‑call held at 7 p.m., the appellant was assigned the duty of sentry No 1 without a rifle, to be posted behind the Police Lines armoury at Dharamsala from 9 p.m. to 11 p.m. Although he was informed of this assignment, the respondent is said to have refused to obey the order or to perform any other duty in the Lines; consequently his name was struck off the duty roster and another foot constable was placed in his stead. During the night of 2–3 February 1953, at approximately 11:30 p.m., a surprise roll call of the employees of the Police Lines was conducted by sounding a bugle continuously for about fifteen minutes. The respondent was found absent at that roll call, and another constable was dispatched to search for him but could not locate him. He re‑appeared the next morning at about 9:30 a.m., having remained absent from the Police Lines without offering any explanation for his unauthorized absence. The charge laid in the complaint stated that he had refused to carry out the order of his superior officer who had assigned him the duty, and that he had remained absent from his official duty in the Police Lines without permission and without any cogent reason from 11:30 p.m. on 2 February 1953 until 9:30 a.m. on the following day, thereby constituting an offence under section 7 of the Act. On the basis of these allegations the respondent was tried before the Magistrate of the First Class at Dharamsala. After the prosecution evidence had been recorded, the learned Magistrate framed a charge under section 7 of the Act in two parts: first, that on 2 February 1953 at Dharamsala, acting as a foot constable in the Kangra District police force, the respondent had disobeyed the lawful orders of a superior officer who had assigned him the duty of a sentry without a rifle in the rear of the armoury; and second, that on the same date and place he had absent himself from duty without a reasonable excuse, remaining absent from 11:30 p.m. on 2 February 1953 until 9:30 a.m. the next day.

The charge against the respondent consisted of two distinct allegations. The first allegation stated that on 2 February 1953, while serving as a foot constable in the Kangra District police force, he had willfully disobeyed a lawful order to stand as a sentry without rifle at the armoury in the Police Lines from nine p.m. to eleven p.m. The second allegation contended that on the same date and at the same location he had absent himself from duty without a reasonable excuse, remaining away from his post from 11:30 p.m. on 2 February 1953 until 9:30 a.m. on the following morning. In response, the accused denied the charge. His substantive defence, expressed in his own words, was that on 2 February 1953 at seven p.m. his duty was allotted to him and he signed the appropriate register (Exhibit P.D./I.). He then informed the police worker Raghbir Singh that, according to the Civil Surgeon of Jullundur, he could only be assigned a sitting or office duty. He produced a copy of the surgeon’s recommendation (Exhibit D.E.) and further indicated that the Civil Surgeon of Dharamsala had also examined him on that very day. Consequently, Raghbir Singh cancelled the sentry duty that had been assigned. The accused further stated that he was lying ill in the Police Lines barracks and therefore did not hear the bugle call. On the morning of 3 February 1953 he became aware that his absence had been recorded; he then presented himself before the Head Constable and signed the register again (Exhibit P.E./1). He added that his leg had been burnt while engaged in rescue work at Gujranwalla when he was serving in the special Police Lines.

The defence also called several witnesses, including the Civil Surgeon of Jullundur. The surgeon testified that he had examined the respondent on 27 February 1953 and observed extensive burn scars on the back of the right thigh and leg crossing the knee, rendering the constable incapable of performing strenuous duties such as standing for long periods. The surgeon opined that the accused could be assigned a light office duty and produced a medico‑legal report (Exhibit D.W.I/D), which was admitted as a true copy. After considering the evidence, the learned Magistrate acquitted the accused of the first part of the charge concerning alleged disobedience of lawful orders, but convicted him of the second part relating to unauthorized absence and sentenced him to fifteen days of rigorous imprisonment. The accused appealed, and the learned Sessions Judge affirmed the magistrate’s findings, holding that the appellant had been absent from duty without permission during the night of 2 February to 3 February 1953, and dismissed the appeal. On a revisional application, a single learned Judge re‑examined the case and concluded that the accused had not infringed any provision of the East Punjab Essential Services Maintenance Act. In his own words, the Judge explained that the Act did not apply to the conduct attributed to the constable, noting that while disciplinary action might be appropriate, prosecution under the Act was unwarranted. Accordingly, the Judge acquitted the accused of the offence under the Act.

In the lower court, the judge observed that the constable had been sent to Dharamsala for a refresher course and, on the night in question, he was not present at the time when, according to the prosecution, he should have been on duty. The judge expressed the view that this absence did not fall within the ambit of the Essential Services Maintenance Act. He added that, even if the constable were found guilty, the matter might only warrant a disciplinary measure, but that a prosecution under the East Punjab Essential Services Maintenance Act would be unwarranted. Accordingly, the judge held that the constable had not contravened any provision of the Act and therefore had not committed any offence punishable under that legislation. The State of Punjab, dissatisfied with the acquittal, obtained special leave to appeal before this Court, asserting that the High Court’s decision raised important questions concerning the scope and effect of the Act, issues that were of considerable public importance.

The matter was initially listed for hearing on 11 April of the current year before another bench of this Court. Counsel for the respondent raised a preliminary objection, contending that the prosecution was not maintainable because there was no proper written complaint as required by section 7(3) of the Act. This point had not been raised before the lower courts, and counsel for the appellant was taken by surprise. The bench therefore granted a two‑week period for the appellant to demonstrate that the statutory requirements of section 7(3) had been satisfied. In response, the appellant produced a notification issued by the Punjab Government authorising all police officers of the rank of Deputy Superintendent of Police and higher, as well as heads of various government departments, to make written complaints to a court concerning alleged offences under the Act. The notification, dated Simla‑2, 20 January 1948, No. 1248‑H Camp‑48/2075, stated that the Governor, exercising the powers conferred by subsection (3) of section 7 of the East Punjab Essential Services (Maintenance) Act 1947, authorized such officers to file complaints in writing against persons in their respective departments. The court noted that this notification demonstrated that the complaint filed by the Superintendent of Police, Kangra District, in the Ilaqa Magistrate’s Court at Dharamsala complied with the requirements of subsection (3) of section 7, which provides that no court shall take cognizance of an offence under the Act except upon a written complaint made by a person authorized in this behalf by the State Government. The respondent argued that there was no evidence that the specific complaint initiating the prosecution had been authorized by the State Government. The court held that the law does not demand that the individual complaint be authorized; rather, it requires that the complaint be filed by a person who has been authorized by the State Government. Since the notification expressly authorized a Superintendent of Police to lodge such a complaint, and it was not disputed that the respondent was that authorized officer, the preliminary objection to maintainability was overruled.

The Court observed that the statutory provision required only that a complaint be filed by a person who had been authorised by the State Government, and it was not necessary for the complaint itself to carry a separate authorisation from the State Government. The notification issued under the Act expressly authorised a Superintendent of Police to lodge a complaint when an employee in his department allegedly contravened the provisions of the Act. The Court noted that the respondent, being an employee of the Superintendent’s department, fell within the class of persons who could be the subject of such a complaint. Consequently, the Court held that the preliminary objection raised by the respondent, which asserted that the initiating complaint had not been specifically authorised by the State Government, could not succeed. The objection was therefore overruled, and the prosecution was deemed to have been validly commenced.

Turning to the merits of the case, the Court expressed surprise that the learned Judge of the High Court had entirely overlooked the opening words of section 3 of the Act, words which, in the Court’s view, directly explained the scope of the legislation. Section 3 states that “This Act shall apply to all employment under the State Government…,” thereby bringing every employee of the State Government within its ambit. The High Court, however, based its reasoning on sections 5 and 6 and suggested that the Act was intended only for “special cases of dislocation of essential services” arising from extraordinary events such as strikes or political agitation. The Court quoted the relevant portion of section 5, which penalises any person engaged in an employment covered by the Act who either disobeys a lawful order or, without reasonable excuse, abandons that employment or absents himself from work. The Court pointed out that the opening words of section 5 refer back to the opening words of section 3, confirming that the provisions apply to State Government employees. By missing this connection, the High Court erred in assuming that the respondent’s position was outside the Act’s reach. The Court therefore concluded that the High Court’s acquittal of the appellant was based on a misreading of the statutory language and could not be sustained. Nevertheless, the Court acknowledged that a further consideration was required to decide whether the orders acquitting the respondent should be set aside. It noted that the lower courts had acquitted the respondent of the charge falling under clause (a) of section 5, which deals with disobedience of lawful orders, but had convicted him under the second part of the charge for absencing himself from duty, an offence falling within clause (b) of section 5. The Court indicated that this distinction would guide its subsequent analysis under section 22.

The Court examined the relevant provisions of the Police Act, 1861, which declare that every police officer is to be deemed constantly on duty and may at any time be called upon to perform police functions. Accordingly, the Court observed that, had the factual findings established that the respondent had left the Police Lines during the night of 2 February to 3 February 1953, he could have been held liable to the penalty for neglect of duty prescribed in section 29 of that Act, or could have faced departmental punishment for being absent from the lines without permission. However, the Court clarified that it was not addressing those particular provisions in the present matter. The respondent had been convicted under clause (b) of section 5, which specifically punishes the offence of absenting oneself from work. The Court stressed that the neglect of duty contemplated by section 29 is materially different from the offence of abandoning employment or being absent from work without reasonable cause, which is the precise mis‑conduct covered by clause (b) of section 5. The record showed that, because of the respondent’s physical infirmity, the work that had originally been assigned to him was cancelled, and he was expected merely to remain within the police lines during the relevant period, without any actual work to perform. Consequently, the Court found that no “work” within the meaning of clause (b) of section 5 had been assigned to the respondent. While his absence from the lines might amount to neglect of duty, the Court held that such neglect did not equate to the specific offence of absence from work or abandonment of employment that clause (b) punishes. For these reasons, the Court concluded that the respondent’s acquittal was correct, although the lower court had reached that conclusion on erroneous grounds. Accordingly, the appeal was dismissed.