Judgment

SIKRI, CJI.: - The respondent, Ram Kishan, Head Constable, (hereinafter referred to as the Plaintiff) filed a suit challenging the order of dismissal passed against him on 3rd September, 1957 by Shri D. C. Sharma, Superintendent of Police (Central). The main attack was twofold. First it was alleged that Shri D. C. Sharma was not a District Superintendent of Police and, therefore, not entitled to dismiss the plaintiff. Secondly it was alleged that as the procedure prescribed by Rule 16.38 of the Punjab Police Rules was not followed, the departmental action taken against the plaintiff was illegal.

2. The version of the plaintiff as to what happened on 22nd June, 1957 was this. On 22nd June, 1957 he was on duty for the prevention of crime and while on his round he received information that some gamblers were gambling in a public place on Rouse Avenue. Consequently, he organised a raiding party. The gamblers, who were Harijans, outnumbered the police party and inflicted some injuries on the members of the party. Fearing that they would be hauled up, they approached a Harijan member of the Corporation as well as a Harijan Member of the Parliament, who telephoned to the plaintiff s officers, at the police station, before the plaintiff reached the police station from the scene of affray in order to lodge his report.

3. The version of the Government was that the plaintiff was deputed for the checking of cycle theft duty near Employment Exchange, Darya Ganj, and he had not been posted at Rouse Avenue, Harding Bridge. It was denied that the plaintiff received any information regarding gambling at a public place in Rouse Avenue. On the contrary it was alleged on behalf of the Government that the plaintiff along with other constables wanted to implicate Mohan Lal, Nathu, etc., and a scuffle took place between the plaintiff and his other associates on the one hand and Mohan Lal and others on the other hand.

4. The Sub-Judge dismissed the suit.

5. The plaintiff filed an appeal before the Additional District Judge, who accepted the appeal and granted the plaintiff a decree for a declaration that the order dated 3rd September, 1957 dismissing him from service is illegal and ultra vires. He also passed a decree for Rs. 1926/10/- on account of pay and allowances.

6. The Government filed an appeal in the High Court. The case came up before Mahajan J., who observed that there was a breach of R. 16.38 of the Punjab Police Rules but as it was contended that the Police Rule 16.38 was directory and not mandatory, he referred the case to a Division Bench.

7. Mehar Singh, J. speaking for the Bench held that "in view of Babu Ram Upadhaya s case, AIR 1961 SC 751 this rule must be held to be mandatory, though even otherwise, on the language of the rule itself I am of the opinion that it is a rule mandatory in nature." He further observed that "in this case it is an admitted fact that there was no reference of the information to the District Magistrate and he had no opportunity to take a decision first under sub-rule (1) and then under sub-rule (2)" He agreed with the first appellate Court that the charge in the statement of allegations was an information indicating the commission by the respondent of a criminal offence in connection with his official relations with the public, as not only Batto was injured in the incident but also some Foot constables.

8. It was contended before us that the first part of Rule 16.38 does not apply because the plaintiff went to the scene of occurrence without any uniform and that the question of commission of a criminal offence by a police officer in connection with his official relations with the public can only arise if he commits the offence when he is in a uniform. It was further urged that before an offence can be said to have been committed by a police officer it must be not in exercise of purported authority but real authority. We are unable to see any force in these contentions. On the facts of this case it is quit