JUDGMENT Aloke Chakrabarti, J.
1. The petitioner, a constable, was prosecuted for an offence under Section 384 of the Indian Penal Code giving rise to Crime No. 120 of 1988 and the same culminated in conviction of the petitioner under Section 384 of the Indian Penal Code by Judgment and order dated 19.8.1988 whereby punishment of imprisonment for three months was imposed which he had already undergone. The petitioner was served with an order of dismissal under para 493 (b) of the Police Regulations on 30.9.1988. The petitioner in this writ petition has challenged the said order of dismissal on the ground that as the petitioner was not punished with rigorous imprisonment, the dismissal order could not be passed without following the prescribed procedure.
2. The respondents filed counter-affidavit stating that the service record of the petitioner shows that he was punished with rigorous imprisonment and, therefore, the impugned order is valid and proper.
3. Heard the learned counsel for the petitioner as also the learned standing counsel.
4. The main contention of the petitioner is that the judgment in the criminal case shows that the petitioner was not punished with rigorous imprisonment. It is stated that the order itself indicates only imprisonment and, therefore, the word "rigorous" not being there, the imprisonment could not be a rigorous one. The law applicable herein, as admitted by the parties, is to this extent that if the imprisonment is rigorous, the impugned order cannot be questioned and if the punishment was not rigorous, the present impugned order cannot be sustained as procedure under the relevant Rule had not been complied with. The relevant rule, being Rule 493 of the Police Regulations runs as follows :
"493. It will not be permissible for the Superintendent of Police in the course of a departmental proceeding against a police officer who has been tried judicially to re-examine the truth of any facts in issue at his Judicial trial, and the findings of the Court on these facts must be taken as final.
Thus, (a) if the accused has been convicted and sentenced to rigorous imprisonment, no departmental trial will be necessary, as the fact that he has been found deserving of rigorous imprisonment must be taken as conclusively providing his unfitness for the discharge of his duty within the meaning of Section 7 of the Police Act. In such cases the Superintendent of Police will without further proceedings ordinarily pass an order of dismissal, obtaining the formal order of the Deputy Inspector General when necessary under paragraph 479 (a). Should he wish to do otherwise he must refer the matter to the Deputy Inspector General of the range for orders.
(b) If the accused has been convicted but sentenced to a punishment less than of rigorous Imprisonment a departmental trial will be necessary, if further action is thought desirable, but the question in issue at this trial will be merely (1) whether the offence of which the accused has been convicted amounts to an offence under Section 7 of the Police Act. (2) if so, what punishment should be imposed. In such cases the Superintendent of Police will (i) call upon the accused to show cause why any particular penalty should not be inflicted on him. (ii) record anything the accused officer has to urge against such penalty without allowing him to dispute the findings of the Court, and (iii) write a finding and order in the ordinary way dealing with any plea raised by the accused officer which is relevant to (1) and (2) above.
5. Therefore, simple order of dismissal without further proceeding is permissible in case of imposition of rigorous imprisonment and otherwise a departmental trial is necessary and sub-paragraph (b) prescribes procedure required in such a case. The impugned order admittedly was passed without following other procedure as the order itself recorded that the petitioner was punished with three months' rigorous imprisonment. It is also not in dispute that the judgment in the criminal case does not use the word 'rigorous'. Section 60 of the Indian Penal Code provides that in every case in which an offender is punishable with imprisonment which may be of either description, It shall be competent to the Court which sentences such offender to direct in the sentence that such imprisonment shall be wholly rigorous, or that such imprisonment shall be wholly simple, or that any part of such imprisonment shall be rigorous and the rest simple. The Judgment in the present case has not indicated that imprisonment would be rigorous.
6. But from the judgment itself it is available that the petitioner was released in view of the period already undergone. The imprisonment at the stage of investigation could not be rigorous, therefore, the imprisonment, which already was undergone, being simple, there cannot be a conclusion that the petitioner was punished with rigorous imprisonment. Moreover, the respondent also does not contend that the petitioner was punishable with rigorous imprisonment and instead of referring to the judgment or actual facts, the respondent has relied on service record of the petitioner. I am of the opinion that this stand is not correct and the nature of imprisonment cannot be found from the service record.
7. Therefore, I am of the opinion that in case of petitioner the punishment imposed was simple imprisonment which had already been undergone. In the circumstances, the impugned order cannot stand as requisite procedure was not followed and the order was passed treating the punishment as rigorous imprisonment.
8. Accordingly, the writ petition succeeds and is allowed. The impugned order dated 30.9.1988 at Annexure No. 2 to the writ petition is hereby quashed. But, I make it clear that this order will not prevent the respondent from passing any appropriate order in accordance with law.