Article 311(2) of the Constitution does not apply to dismissal on conviction of a criminal charge, and Article 320(3) of the Constitution is directory, not mandatory, and failure to consult the Public Service Commission does not invalidate a dismissal 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 years 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 petitioners 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 petitioners counsel by urging that in this Proviso the Constitution intended to exclude the 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