ON Criminal Appeal 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 DI of 1953
N section Bindra and P G Gokhale for the appellant
A N Chona and K L Mehta for the respondent 71 570 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 dated 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 Dharamsala 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 by the Superintendent of Police Kangra District in the Court of the 1laqa 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 pm the appellant was assigned the duty as sentry No 1 without rifle behind the Police Lines ArmouryDharamsalafrom9pmtollpm
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
Thereupon 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 pm a surprise roll call of the employees of the Police Lines was duly made by means 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 am after remaining absent from the Police Lines without offering any explana tion 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 pm on the 2nd February 1953 till 9 30 am 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 pm to 1 1 pm 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 pm on the 2nd February 1953 to 9 30 am 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 pm my duty was allotted to me and I signed at exhibit P DI
I then told Raghbir Singh PW that according to the Civil Surgeon Jullundur I could only be given sitting or 572 office duty
I showed him the copy Exhibit D E
I also told him that the Civil Surgeon Dharamsala had also examined that very day on 2nd February 1953
Thereupon Raghbir Singh PW 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 PE1
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
exhibit DW
ID 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 573 course and on the night in question and in the early morning he appears to have been not present at the time when he 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 be 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 appear 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 73 of the Act and as this question bad 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 73 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 482075
In exercise of the powers conferred by sub section 3 of section 7 of the East Punjab Essential Services Maintenance Act 574 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
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 No 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 decision 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
575 The learned Judge of the High Court has quoted 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 of 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 whoa disobeys any lawful order given to him in the course of such employment or bwithout 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 person 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  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 res pondent had absented himself from the Police Lines 576 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  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 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 him 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 had 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 dissmissed


Summary:
Section 73 of the East Punjab Essential Services Mainten ance Act 1947 provides that no 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
Held that the law does not require that the particular com plaint should 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 section 29 of the  is quite different from abandoning an employment or absenting oneself from work without reasonable cause within the meaning of section 5b 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 meaning of el
b of section 5 of the East Punjab Essential Services Maintenance Act
He absented himself from the Police Lines without permission
Held that his absence from Police Lines during the relevant time may have amounted to neglect of duty but he could not be convicted under section 5b