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Durga Singh Vs. the State of Punjab - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 54 of 1956
Judge
Reported inAIR1957P& H97
ActsConstitution of India - Articles 310(1), 311(2) and 320(3); Police Act, 1861 - Sections 34 and 34(6)
AppellantDurga Singh
RespondentThe State of Punjab
Appellant Advocate B.S. Chawla, Adv.
Respondent Advocate S.M. Sikri, Adv. General
DispositionPetition dismissed
Cases ReferredSecy. of State v. I. M. Lall
Excerpt:
.....appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - the superintendent of police, simla, called upon him to show cause why he should not be dismissed from the police force under police rule 16.2(2) for having become habituated to take liquor which brings bad name to the department in this notice besides the above conviction it was mentioned that..........alone could have dismissed him because of article 310(1) which lays down that an employee of the state government holds office during the pleasure of the governor. there is no force in this contention. it is true that under article 310(1) a person holds a civil post under a state during the pleasure of the governor but this only means that the service is terminable at any time that the government chooses: vide mahesh prasad v. state of uttar pradesh, (s) air 1955 sc 70 (b). this proviso, to my mind, docs not exclude the dismissal of a government employee by the appointing authority. this is implicit in article 311(1) which enables an appointing authority to dismiss a government employes. if it is held otherwise then it would be impossible for any employee to be dismissed by an.....
Judgment:
ORDER

Bishan Narain, J.

1. Durga Singh has filed this petition under Article 226 of the Constitution to get the order of his dismissal from the Police Force quashed, The facts leading to his dismissal are not in dispute. He was recruited to Punjab Police Force as a Foot Constable in 1949 by the Superintendent of Police, Simla. During his posting at Police Station Simla East he was prosecuted under Section 34(6), Police Act, 1861. He was convicted and ordered to pay a fine of Rs. 20/- and in default of payment of fine to undergo simple imprisonment for one week. The finding of the learned Magistrate who convicted him was that he was found heavily drunk on the roadside in Sanjauli near the tunnel and abusing passers by on 2-10-1945 at about 8 p.m.

One Kesho Ram who had been beaten by him at that time reported the matter at the Police Station Simla East with the resulting prosecution mentioned above. In the trial Durga Singh admitted these facts. Departmental inquiry was held against him after his conviction. The Superintendent of Police, Simla, called upon him to show cause why he should not be dismissed from the police Force under Police Rule 16.2(2) for having become habituated to take liquor which brings bad name to the Department In this notice besides the above conviction it was mentioned that previously also he had been dealt with departmentally in 1952 for a similar offence and his one year's approved service had been then forfeited. Durga Singh made a written representation which was duly considered by the Superintendent of Police, Simla, who ordered his dismissal by order dated 24-11-1954. His representation to the Deputy Inspector-General of Police was rejected on 4-2-1955 and his representation to the Inspector-General of Police also failed. He has, therefore, applied to this Court under Article 226.

2. In this petition Durga Singh has challenged the order of his dismissal on the following grounds:

1. That he was not given adequate opportunity to show cause under Article 311(2) of the Constitution;

2. that he was dismissed by the Superintendent of Police while under Article 310 he could be dismissed only by the Governor;

3. that the State Public Service Commission was not consulted as laid down in Article 320 before the order of dismissal was passed against him; and

4. that his dismissal under Police Rule 16. 2 (2) Is not justified in the circumstances of this case.

3. This petition is contested by the Punjab State and it is pleaded that the case is neither covered by Article 311(2), nor by Article 310 nor by Article 320 and that the appointing authority had full discretion under Police Rule 16.2 (2) to dismiss him and that this discretion has been properly exercised in the present case.

4. The first argument advanced on petitioner's behalf was that in this case the provisions of Article 311(2) have not been complied with. . This is conceded by the respondent, but it 5s urged that this article cannot be invoked by the petitioner as he has been dismissed on the ground of conduct which has led to his conviction on a criminal charge (vide Proviso (a) to Article 311(2) of the Constitution) This plea is correct, but It is countered by the petitioner's counsel by urging that in this Proviso the Constitution intended to excludethe applicability of Article 311(2) only if the criminal charge involved moral turpitude. It is urged that it would be unreasonable extension of the scope of the proviso to deny the protection of Article 311(2) to a member of a civil service of the Union or the State merely on conviction of a technical or a trivial offence. The argument is that an offence under Section 34. Police Act, is of a trivial nature as the maximum punishment laid down for an offence under this provision of law is only a fine not exceeding fifty rupees, or imprisonment not exceeding eight days, and that therefore conviction on such a charge should not be held to deprive the petitioner of the protection of Article 311(2) of the Constitution.

5. It is to be remembered that the law governing the relationship between an employee and an employer must apply equally to the case of an employee whose employer happens to be the Government. Under Section 243, Government of India Act, 1935, the conditions of service of the subordinate ranks of the Police Force were governed by the Police Act and the rules made thereunder and these ranks could not take advantage of Section 240(3) of the 1935 Act. Under the present Constitution this distinction has been wiped out and every member of the civil service of the Union or the State is entitled to the protection of Article 311(2). Therefore this Constitution has made a serious departure from the applicability of general rules governing employees and employers.

If, however, it is held that Article 311(2) is not applicable to a particular case then the employer could be dismissed for drunkenness without observing the provisions of this article: vide Shrinivas Ganesh v. Union of India. (S) AIR, 1956 Bom 455 (A). Now the Constitution makes Article 311(2) inapplicable to any Government employee who has been convicted of a criminal charge. It is not laid down that such a conviction must involve moral turpitude. There is no reason to limit the operation of the Proviso in the way urged by the learned counsel for the petitioner. If a Government employee is convicted of a technical offence, then it is open to the authorities to ignore it or impose nominal punishment.

If, however, the authorities decide to dismiss or remove or reduce in rank any Government employee even if the offence is a technical one then the case may be a hard one but it would not justify the Courts of law to add words to this Proviso and thus to limit its operation to eases of offences involving moral tuipitude. After all the term 'moral turpitude' is a rather vague one and and it may have different meanings in different contexts. The term has generally been taken so mean to be a conduct contrary to justice, honesty, modesty or good morals and contrary to what a man owes to a fellow-man or to society in general. It has never been held that gravity of punishment is to be considered in determining whether the misconduct involves moral turpitude or not. Even if the words 'involving moral turpitude' are held to be implied in 'conviction on a criminal charge' in Proviso to Article 311(2) it appears to me clear that if a member of the Police Force is guilty of having been found drunk at a public place or to have become habituated to liquor and if he Is convicted by a criminal Court, then his conviction should be held as involving moral turpitude. It appears to me rather incongruous that persons who are habituated to liquor and are found drunk in public places should be allowed to remain in Police Force to bring such persons to book. I have, therefore, no hesitation in rejecting this contention on behalf of the petitioner. 'I accordingly hold that the petitioner in the present casewas not entitled to protection under Article 311(2) of the Constitution.

6. This brings me to the argument of Shri Bhagat Singh Chawla on the basis of Article 310 of the Constitution. The Superintendent of Police, Simla appointed the petitioner on 13-9-1949 as a Foot Constable. He was dismissed by the Superintendent of Police, Simla, on 18-10-1954., Admittedly under the. Police Act he could be appointed and then dismissed by the Superintendent of Police. It is, however, contended that after coming Into force of the present Constitution the Governor alone could have dismissed him because of Article 310(1) which lays down that an employee of the State Government holds office during the pleasure of the Governor. There is no force in this contention.

It is true that under Article 310(1) a person holds a civil post under a State during the pleasure of the Governor but this only means that the service is terminable at any time that the Government chooses: vide Mahesh Prasad v. State of Uttar Pradesh, (S) AIR 1955 SC 70 (B). This proviso, to my mind, docs not exclude the dismissal of a Government employee by the appointing authority. This is implicit in Article 311(1) which enables an appointing authority to dismiss a Government employes. If it is held otherwise then it would be impossible for any employee to be dismissed by an appointing authority and the order of dismissal must be made by the Governor himself. This could create an impossible and highly inconvenient situation from the administration point of view and such an intention cannot be easily ascribed to the Constitution-makers.

In this connection it must be remembered that the general common law is that the power of appointment carries with it the power to dismiss an employee arid this rule is recognised in Section 16 of the General Clauses Act, 1897. There is nothing in the Constitution to lead to the inference that this general rule has been abrogated expresily or by necessary implication by Article 310(1). The Federal Court in Secy. of State v. I. M. Lall, AIR 1945 FC 47 (C) had rejected a similar contention of I. M. Lall under Section 240(2) of the 1935 Act. For these reasons this contention of the learned counsel also falls.

7. Finally it was urged on behalf of the petitioner that in the present case the order of dismissal was not passed after consulting the State Public Service Commission and thus provisions of Article 320(3) were not observed. It is contended that oil this ground the order of dismissal should be held to be illegal and inoperative. Now, it is correct that in the present case the State Public Service Commission was not consulted by the authorities but it cannot be said that this omission necessarily invalidates the order of dismissal. Article 320(3) appears to me to be clearly directory in nature even though it lays down that the Public Service Commission 'shall' be consulted. There is no provision in the Constitution which makes the acceptance of the advice when tendered after consultation to be necessary. In fact, Article 320(3) indicates that the Constitution-makers contemplated the possibility of its advice not being accepted by the Government concerned. Moreover under the Proviso to Article 320(3) the Union or a State Government may make regulations specifying the matters in which the Commission may not be consulted. It necessarily follows from this provision that the directions in Article 320(3) are not mandatory in nature. Therefore the failure of consultation with the Commission does hot render the order of dismissal invalid. In this connection, however, there is one matter which, in my opinion, cannot be ignored. Under Section 266(4)of the 1935 Act consultation of Public Service Commission in disciplinary matters relating to persons holding subordinate rants in the Police Forca was excluded.

Like Section 243 of the 1935 Act this provision of law also does not figure in the present Constitution. Therefore now in matters like the present one the Commission should be consulted. Regulations have been made by the Punjab Government as contemplated in Article 320(3) but it is admitted that these regulations do not exclude the consultation of the Commission in a case like the present one. It has come to my notice in a number of cases that the Government does not consult the Commission in such cases. It appears to me that it is most improper that the directory mandate of our Constitution in Article 320(3) should be completely ignored by the Government. The authorities should not make it a habit of ignoring this provision of law in the Constitution merely because the Constitution-makers have made the provision directory.

The idea underlying this provision is that the Commission should be consulted as a matter of course and if in some particular case it is not consuited then the disciplinary order passed by the authorities need not be considered to be inoperative on that ground. I am distinctly of the opinion that it is not open to the authorities to avoid the letter and spirit of this provision of the Constitution as a matter of practice. If the authorities consider that it is not advisable to consult the Commission in disciplinary matters relating to persons holding subordinate ranks in Police Force then the necessary regulation in accordance With law should be made.

8. Lastly, it was half-heartedly argued that the Superintendent of Police in the exercise of his powers under Police Rule 16.2(2) should not have dismissed the petitioner but should have imposed some lesser penalty. This is, however, a matter which rests entirely with the Superintendent of Police and it is not open to this Court to interfere in the exercise of Its jurisdiction under Article 226. The case of Durga Singh went up to the Deputy Inspector-General and to the Inspector-General of Police and both these authorities have upheld the order, of dismissal passed by the Superintendent of Police. After all the high police authorities know what is required to maintain discipline and efficiency in the Police Force, and it would be most improper for this Court to interfere even if such a course was open to it.

9. The result is that this petition fails and is dismissed. No order as to costs.


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