Punjab & Ors Vs. Nachhatfar Singh
 INSC 168 (30
L.M. (J) Sharma, L.M. (J) Punchhi, M.M.
1990 SCR (2) 822 1990 SCC (3) 585 JT 1990 (2) 431 1990 SCALE (1)110
Procedure Code, 1908: Section 100--Second Appeal-Serious question of law
involved--High Court not to dismiss the appeal in limine.
Police Rules, 1934: Rule 16.2(2)--Police Officer--Conviction of--Dismissal from
service--Suit chal- lenging dismissal--Period of limitation--What is.
respondent, a constable, convicted under sections 325/34 of the Indian Penal
Code along with another co-ac- cused constable and dismissed from service,
filed a suit challenging his dismissal, which was dismissed by the trial court
holding that it was barred by limitation. On appeal the First Appellate Court
decreed his suit by holding that the respondent-plaintiff was discriminated
because his co- accused was re-instated in service pursuant to the decision in
the suit filed by the co-accused; his dismissal was void on the ground of
arbitrariness, and the bar of limitation was not applicable.
defendant-appellant filed a regular second appeal against the aforesaid decree
before the High Court which was dismissed in limine.
appeal to this Court it was contended on behalf of the appellant that the High
Court erred in dismissing the second appeal in limine.
the appeal, this Court,
1. Serious questions of law are involved in this case and they should not have
been lightly brushed aside by the High Court in the manner it has been done.
Therefore the High Court erred in dismissing the second appeal in limine.
Rule 16.2 (2) of the Punjab Police Rules, 1934 manda- torily directs that a
police officer judicially sentenced to rigorous imprisonment exceeding one
month shall be dis- missed, and this mandate of law 823 cannot be ignored on
the ground that in the case of another member of the police force a mistake was
appellant's assertion that the respondent's co- accused who was .reinstated in
service pursuant to the Court's decision was subsequently dismissed has not
been denied by the respondent. The case is, therefore, remitted to the High
Court for fresh disposal. [824G; 825D]
APPELLATE JURISDICTION: Civil Appeal No. 4055 of 1987.
the Judgment and Order dated 11.8.1987 of the Punjab and Haryana High Court in R.S.A. No. 2092 of 1987.
for the Appellants.
and U.S. Prasad for the Respondent.
Judgment of the Court was delivered by SHARMA, J. This appeal of the State of Punjab by special leave arises out of a
suit filed by the respondent, Nachhat- tar Singh. The plaintiff-respondent was
serving the State Police as a constable when an incident took place on
17.2.1971, which led to the prosecution of the plaintiff along with the Head
Constable Kahan Singh and the Sub Inspector Baldev Singh. The charge made
against the plaintiff was that he physically assaulted and detained one Gurdial
Singh. The accused were tried and Baldev Singh was acquitted. So far the
plaintiff and Kahan Singh were concerned, they were found guilty under s. 325
read with s. 34 of the Indian Penal Code and several other sections, and were
sentenced to rigorous imprisonment for six months each.
conviction was maintained up to the Supreme Court stage.
Senior Superintendent of Police, Patiala, thereafter dismissed the plaintiff on 20.4.1976. This order of
dismiss- al was challenged as illegal in the present suit which was instituted
Besides taking several technical objections, the suit was defended on merits,
as well as on the ground of limita- tion. From the judgment of the trial court
it appears that only two questions were pressed by the parties, namely, whether
the suit was barred by limitation and whether the order of dismissal was
illegal on the ground that the plain- tiff was not served with a show cause
notice before the impugned order was passed. Both the issues were decided by
the learned 824 Subordinate Judge against the plaintiff and the suit was
plaintiff appealed against the decision. It appears that before the Additional
District Judge, who heard the appeal, it was contended on behalf of the
plaintiff that the other accused constable Kahan Singh, who was also con- victed
with the plaintiff, had also filed a separate suit against his dismissal from
service, which was decreed with an observation that it was open to the
competent authorities to pass fresh order of punishment in accordance with law,
but while no further punishment was awarded to Kahan Singh, the respondent's
service stands terminated.A plea of dis- crimination was taken on this basis
which was accepted by the first appellate court and the suit was decreed. On the
question of limitation the court after a very brief discus- sion in the
judgment held that the impugned order of dis- missal was void on the ground of
arbitrariness and, there- fore, the bar of limitation would not apply. It was
further observed that this decision would not preclude the authority to award a
minor punishment, provided such a punishment has been awarded to the other
police officials tried and con- victed along with him. The authority was also
permitted to take a decision in regard to the pay and allowance for the period
the plaintiff remained out of service because of his being in jail.
defendant-appellants filed a regular second appeal before the High Court
against the decree of the first appellate court which was dismissed at the admission
stage by merely saving:-- "HEARD. DISMISSED" It has been contended on
behalf of the appellants, and in our view correctly, that serious questions of
law are in- volved in this case and the High Court erred in dismissing the
second appeal in limine. It has been argued that Rule 16.2(2) of the Punjab
Police Rules, 1934 mandatorily directs that a police officer judicially
sentenced to rigorous imprisonment exceeding one month shall be dismissed, and
this mandate of law cannot be ignored on the ground that in the case of another
member of the police force a mistake was committed. Besides, it has been
asserted on oath before this Court and not denied by the respondent that the
aforesaid Kahan Singh had to be re-instated in service for a short time in pursuance
of the decision in the suit as the order of his dismissal had been passed by an
authority not compe- tent in this regard, and that later he was again
also been pointed out that another convicted consta- ble Surinder Singh was given
the 825 benefit of probation by the criminal court and his case, therefore, is
distinguishable. Even in the concluding por- tion of the last paragraph of the
judgment of the Additional District Judge, the possibility that "the other
police officials convicted with him" (that is, the plaintiff) might have
been later punished, is recognised.
has been further urged on behalf of the appellants that the finding of the
Additional District Judge on the question of limitation is patently illegal
inasmuch as the judgment assumes that no law of limitation is applicable to
suits where an order is impugned as being void. The High Court should have
examined the plaint for finding out the cause of action for the suit and then
in that light deter- mined the correct article of the Limitation Act applicable
to the case. Serious objection has been taken against the observations of the
first appellate court permitting the competent authority to inflict only minor
punishment on the plaintiff in certain conditions, and the direction about the
payment of the salary and the other emoluments. After heat- ing the learned
counsel for the parties, we agree with the appellants that the question
involved in this suit should not have been lightly brushed aside by the High
Court in the manner it has been done. We, therefore, set aside the judg- ment
of the High Court and remit the case to it for fresh disposal in accordance
with law. It will be open to the appellants to file an application for
admitting additional evidence in regard to the further orders passed against Kahan
Singh subsequent to the civil court's decree in his favour, and to argue before
the High Court that the case of the present plaintiff is distinguishable. The
High Court should call for the records and decide the case finally at the
motion stage itself as the case is an old one. In the event of admission of
fresh evidence, the High Court shall permit the plaintiff to file relevant
operation of the decree of the first appellate court shall remain stayed till
the final disposal of the second appeal by the High Court. The appeal is
will be no order as to costs.