# THE STATE OF PUNJAB v. KHARAITI LAL

- **Citation:** [1956] 1 S.C.R. 569
- **Court:** Supreme Court of India
- **Decided:** 1953-07-23
- **Case number:** Criminal Ap'peal No. 140 of 1954
- **Bench:** Jagannadhadas, B. P. Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-punjab-v-kharaiti-lal-1246
- **Pages:** 8

## Headnote

East Punjab Essential Services (Maintenance) Act, 1947 (East
Punjab AcO XIII of 1947 ), ss. 8, 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 dutyWhether amounts to abandonment of employment or absence from work.
Section 7(3) of the Ea.st Punjab Essential Services (Mainten·
a.nee) Act, 194 7, provides that "no court shall take cognisance of any
offence under this Act except upon complaint in writing ma.de by a
person authorised in this behalf by the State Government".
Held, that the law does not require that the particular com·
plaint chould 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 absent·
ing 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 mean·
ing of cl. (b) of s. 5 of the Ea.st Punjab Essential Services (Ma.inten·
ance) Act. He absented himself from the Police Lines without per·
mission. Held, that his absence from Police Lines during the rele·
vant time may have a.mounted to neglect of duty but he could not be
convicted under s. 5(b).

## Text

S.C.R.
SUPREME COURT REPORTS_
569
THE STATE OF PUNJAB
v.
KHARAITI LAL.
[JAGANNADHADAS and B. P. SINHA JJ.]
East Punjab Essential Services (Maintenance) Act, 1947 (East
Punjab AcO XIII of 1947 ), ss. 8, 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 dutyWhether amounts to abandonment of employment or absence from work.
Section 7(3) of the Ea.st Punjab Essential Services (Mainten·
a.nee) Act, 194 7, provides that "no court shall take cognisance of any
offence under this Act except upon complaint in writing ma.de by a
person authorised in this behalf by the State Government".
Held, that the law does not require that the particular com·
plaint chould 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 absent·
ing 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 mean·
ing of cl. (b) of s. 5 of the Ea.st Punjab Essential Services (Ma.inten·
ance) Act. He absented himself from the Police Lines without per·
mission. Held, that his absence from Police Lines during the rele·
vant time may have a.mounted to neglect of duty but he could not be
convicted under s. 5(b).
CRIMINAL APPELLATE JURISDICTION:
Criminal
Ap'peal 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/1 of 1953.
N. S. Bindra and P. G. Gokhale, for the appellant.
A. N. Chona and K. L. Mehta for the respondent.
1956
Moy&
1956
The State of
Punjab
v.
Khaf'aiti Lal
570
SUPREME COURT REPORTS
[1956]
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 d'ated
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 Dharanisala, 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 ,l>y the Superintendent of Police, Kangra
District, in the Court of the Ilaqa 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, from 9 p.m. to 11 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.
There-
. upon 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
S.C.R.
SUPREME COURT REPORTS
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 explanation 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
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 11 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
1956
The State of
Punjab
v.
Kharaiti Lal
Sinha}.
1956
Th• Slate of
Punjab
v.
Hharaiti Lal
Sinha J.
572
SUPREME COURT REPO-RTS
[1956]
office duty. I showed him the copy Exhibit D. E. I
also told him that the Civil Surgeon, Dharamsala,
bad also examined that very day on 2nd February
1953. 'Thereupon Ragbbir 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./I.
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. l/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
S.C.R.
SUPREME COURT REPORTS
573
course and on the night in question and in the early
morning he appears to have been not present at the
time when be 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 he 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 therefore he has not committed any
offence under this Act".
Against this order of acquittal the State of Punjab
obtained special leave to appeal 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 had 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.-ln exercise of the
powers conferred by sub-section (3) of section 7 of
the East Punjab Essential Services (Maintenance) Act
1956_
Tire State of
P11njab
v.
K/im·aiti I.al
Sinha J.
1956
The State of
Punjab
v.
Kharaiti Lal
SinhaJ.
574
SUPREME COURT REPORTS
[1956]
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:-
"N o 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 decieion, 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 Government ........ " (omitting words not
material for the present case).
S.C.R.
SUPREME COURT REPORTS
575
The learned Judge of the High Court has quotea 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
or 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)>erson 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 respondent had absented himself from the Police Lines
1956
The State of
Pttnjab
v.
Kharaiti Lal
Si11ha J.
1956
The State of
Punjab
v.
Kltaraiti Lal
Sinha}.
576
SUPREME COURT REPORTS
[1956]
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 l:lim 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 bad
· 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
respondent bad been rightly acquitted, though for
wholly wrong reasons. The appeal must therefore
stand dismissed.
Appeal dismissed.