Madan Gopal vs The Punjab State

Dua, J.—This is a plaintiffs appeal from the judgment and decree of the learned Senior Subordinate Judge. Karnal, disallowing the plaintiff''s appeal from the dismissal of his suit in the Court of first instance.

The plaintiff instituted the suit out of which this second appeal arises for a declaration that the order of his dismissal passed by the Superintendent of Police, Karnal on 1st February, 1957 is ultra vires, unconstitutional and inoperative and that the plaintiff should be deemed to be still in service on full pay and allowances. The plaintiff alleges to have been enlisted in the Pan jab Police on 4th January, 1951 and on 14th May, 1956 he was posted at Judicial Guard, Kaithal. On 1st February, 1957, he was dismissed from service by Shri Puran Singh, Superintendent of Police, without affording him reasonable opportunity within the meaning of Article 311 of the Constitution. Violation of Police Rule 16.38 (1) and (2) was also pleaded. On the pleadings of the parties, the following issues were settled:

Whether the dismissal of the plaintiff is by way of punishment ?

If issue No. 1 is proved whether the plaintiff had a right to be heard before any such dismissal ?

Whether the plaintiff was working as confirmed Constable at the time of dismissal ?

Whether the dismissal is void, illegal and ultra vires ?

Relief.

The Court of first instance held the plaintiff to have been working as confirmed Constable at the time of dismissal and also that his dismissal was by way of punishment, with the result that he was entitled to be heard before his dismissal. The charge framed, according to the trial Court, could not be stated to be an offence in connection with the plaintiff''s official relations with the public and, therefore, did not attract the applicability of Rule 16.38. After a detailed discussion of the evidence, the trial Court also came to the conclusion that reasonable opportunity within the meaning of Article 311 of the Constitution had been afforded to the plaintiff before he was dismissed from service.

On appeal before the learned Senior Subordinate Judge, the plaintiff did not specifically challenge the conclusion of the trial Court on the non-applicability of Rule 16.38 of the Police Rules. Indeed, even in the judgment, there is no mention of any argument having been addressed on the applicability of this rule. The lower Appellate Court has expressly reproduced three points argued by the learned counsel for the appellant and in the end, it has been clarified that no other point was argued in that appeal. Non supply of a copy of the daily diary was the first point canvassed before the Court below and discussed by it. In its opinion, the appellant knew about the contents of the daily diary and reliance on its non-supply was an after-thought, and it has been expressly observed that this did not cause any prejudice to the appellant.

Reference to the previous record without its being put to the appellant was the next point canvassed before the lower Appellate Court, but, according to its judgment, that the decision of the Punishing Authority was not influenced by any such entry, the Court relied on the evidence of Shri Puran Singh himself who had passed the impugned order. The third and the last objection raised by the appellant was that the Deputy Inspector General of Police, while exonerating the appellant of the three charges had found the fourth charge to be amply established and this alone was considered sufficient to justify an order of dismissal. This, according to the appellant''s contention is violative of the principles of natural justice because the Punishing Authority might well have taken a different view on the quantum of punishment on the basis of the solitary charge which was held proved by the Deputy Inspector General of Police. The lower Appellate Court did not agree with this contention either. In the result, the appeal was dismissed.

On second appeal, the learned counsel for the appellant has, to begin with, tried to revive his challenge on the basis of Rule 16.38 which does not find place in the judgment of the lower Appellate Court. According to the appellant''s learned counsel, this point was argued before the lower Appellate Court, but has erroneously not been dealt with. I am unable to uphold this assertion on the bald statement from the Bar.

It is quite clear that this point was not specifically raised in the memorandum of appeal presented to the Court below and there is no affidavit or any other statement from the counsel who actually argued the appeal, asserting that this point was in fact agitated and canvassed during the course of arguments. The assumption from the absence of any discussion on this point in the judgment of the lower Appellate Court must be raised that no such point was argued before the Court below: Abdul Karim v. The Shop Thakar Ram AIR 1923 Lah. 124, Ct. A. Ct. Nachiappa Chettiar and Others Vs. Ct. A. Ct. Subramaniam Chettiar, and Nachiappa Chettiar v. Subramaniam Chettiar ILR 4 Lah. 364.

The counsel has then suggested that it is a pure question of law and as such should be allowed to be raised. It may in this connection be pointed out that the Court of first instance had observed that the allegations did not disclose a criminal offence in connection with the plaintiff''s official relations with the public and this conclusion was not challenged on first appeal. Now, charge No. 4, on the basis of which the impugned action has been taken against the appellant is in these words:

While on duty at the rear of the judicial lock-up, you were still abusing H.C. Bansi Lal. In anger you loaded the rifle in the presence of F. Cs. Yash Pal No. 34, Ram Kishan No. 79 and Faqir Chand No. 11. Later, H.C. No. 239 Sunder Lal took the rifle from you and after unloading it, it was found that one cartridge was in the chamber while 4 in the magazine. To avoid the further deterioration of situation, F.C. No. 475 Gian Chand was deputed on duty in place of you.

These allegations, as urged by the learned counsel for the respondent, did not amount to a criminal offence in connection with the plaintiff-appellant''s official relations with the public. I have not been persuaded by the appellant''s learned counsel to hold that this conclusion is so grossly wrong in law as to induce this Court to allow it to be raised for the first time on second appeal, when it was not argued on first appeal before the learned Senior Subordinate Judge. There is certainly force in the respondent''s contention that the rule in question is really meant to have a completely objective and unbiased consideration by the District Magistrate whether a particular case relating to official relations of the police with the public should be tried by a Magistrate having first class powers or investigated departmentally by the police authorities themselves. The case in band, according to the respondent''s counsel, is apparently one which was not required to be forwarded to the District Magistrate under the mandate contained in this rule, and he relies on Amrik Singh v. State (1963) 65 P.I.R. 802. I am inclined to agree and I have, therefore, no hesitation in repelling the appellant''s contention founded on the basis of Rule 16.32.

The counsel has next urged with considerable force that the impugned order is trained with the vice of violation of rules of natural justice. To substantiate this point, the learned counsel has read out paragraph 4 of the judgment of the lower Appellate Court and argued that the Superintendent of Police had in passing the impugned order taken into consideration the appellant''s previous record and adverse remarks contained therein and also that the daily diaries were not shown to the appellant. Reference to paragraph 4 of the judgment, I am afraid, is n;isconceived in this connection because this paragraph merely recites the appellant''s case and does not contain the conclusions or the opinion of the Court. Realising this, the counsel then read out paragraph 10 of the same judgment, but this paragraph, instead of supporting him, negatives the counsel''s submission. The conclusion of the Court below contained in paragraph 10 of the judgment is clearly one of fact and no vitiating circumstances has been made out. I am, however, also of the view that this conclusion is fully supported on the evidence and the decisions relied upon by the learned counsel for the appellant, namely, State of Madhya Pradesh v. Chintaman AIR 1961 S.C. 1623, Railway Board, New Delhi and Another Vs. Niranjan Singh Bela Singh, Gopalrao v. State Government AIR 1954 Nag. 90, Harbans Singh Iqbal Singh Vs. State of Punjab, , and Nripendra Nath Bagchi Vs. Chief Secretary, Govt. of West Bengal, do not vitiate the conclusion.

Lastly, it has been urged that the Deputy Inspector General of Police having exonerated the appellant of three charges, the guilt on the fourth charge alone could not in law support the punishment inflicted. I am equally unable to sustain this contention : see in this connection State of Orissa Vs. Bidyabhushan Mohapatra,

The Courts below have taken a correct view of law and the conclusions of facts have not been shown to be vitiated. In service matters, particularly relating to police service, if the Deputy Inspector General of Police thinks, as he has done in the present case, that a constable "is so hot-headed that he may prove a source of danger to others at any provocation or no provocation", and, therefore, such person has no place in the police department, civil Courts, in face of such opinion of the head of the department, are not expected to lightly interfere with such decisions in the absence of some jurisdictional or other similarly serious legal infirmity justifying judicial interference. The duties and functions of a police officer in this Republic are of a highly responsible character and they call for a balanced, mature, disciplined and composed but courage us minds, who can keep their impulses under proper control. Ordinarily, the proper judge of these qualities are the appointing, controlling and dismissing authorities and not the civil Courts.

I may here in fairness to the learned counsel for the appellant observe that as a last resort, he has offered that his client would not insist on payment of arrears of salary and would be satisfied if his removal is set aside. I do not think this is at all a relevant consideration for setting aside the impugned order, if it is otherwise not shown to be vitiated.

For the foregoing reasons, this appeal fails and is dismissed with costs.