SHIVAJI ATMAJI & ANR. versus STATE OF MAHARASHTRA AND ORS.

SHIVA.JI A'.IHl.JI SAllAHr & Allll..

FEBRUARY 14, 1986

[A.P, SEN AND D.P. MADON., JJ.]

Bombay Poli~e Act, 1951 :

Sections 25 anci 27 -Bombay Police Strike of constabulary - Appellants - Members of police force - Inciting others to commit violence - Dismissed from service -Charge sheet not served, enquiry not held - 'Reasons' why not practi-cable to hold enquiry - Served separately - Dismissal order -Whether valid. . .

The appellants were llll!llbers of the Bombay Police Force and office-bearers of the Maharashtra Police Karucllari Y Sanghtana. They were diallissed. from service without iaauing any charge-sheet and without holding any iuquiry into the act• of alleged miscouduct committed by them under silb-sa. (l) and (2) of a. 25 of the Bombay Police Act, 1951 reacl with cl.(b) of the secoud proviso to Art. 311(2) of the Constitutiou. It was stated that they slong with other members of the llomllay Police Force had been instigating others in acts of iusubordi-natlon and iudiscipline and to withdraw from their lawful duties, inciting thea to violence any 1111tiny, joining rioting mobs and participating in arson, looting and other criaiaal acts, wilfully disobeying orders of superior officers and that these acts had created situation in lloabay whereby the -\-normal functioning of the police force had been rendered difficult and impossible and that in view of these facts and circumstances, any attempt to bold departments! inquiry by serving .a written charge-sheet and following the procedure laid ,down in the Bombay Police (Punishments & Appesl) Rulea, 1956 would be frustrated by the collective action of these persons and it was therefore not practicable to bold such an enquiry. The appellants assailed their disllissal from aervice in the High Court by petitions under Art· 226 of the Consti;_ tution but the High Court declined to interfere. In appesl, it 'rl was conteuded on behslf of the appellants that ~be hlpngned ' orders of dismissal suffered from tots! non-application of

~ mind inasmuch as (a) identical orders were passed against 43 other members of the Constabulary and all ·the orders were cyclostyled; and (b) the reasons for dispensing with the enquiry did not accompany the order of dismissal.

lllWl: 1.1 The recording of reasons for dispensing with an inquiry is condition precedent_ to the applicability of cl. (b) of the second proviso to Art. 311(2) of the Consti-tution; and, if such reasons are not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. If the order of dismissal under cl.(b) of the second proviso to Art. 311 (2) imposes penalty without furnishing reasons, it would be bad and would be required to be struck down. [308 D-E; F]

Satyavir Singh and Ors. etc. v. Union of India & Ors., [1985] 4 s.c.c. 252 and Union of India & Aar. v. Tnlsiraa Patel & Ors. connected 11&tters, [ 1985] 3 s.c.c. 398, followed.

1.2 In the instant case, however, the impugned ord11rs of dismissal served on each of the appellants itself sets out the reasons why it was not reasonably practicable to hold an inquiry; and, the "reasons" served separately merely amplified and elaborated what had been stated in the impugned order. There· is therefore no substance in the contention that the reasons for dispensing with the inquiry did not accompany the order. [308 G; 309 B; 308 D]

2.1 Normally, the passing of several cyclostyled orders would, prims facie, imply non-application of mind but this is not rule of universal application and it would depend upon the facts and circumstances of each case whether the impugned order suffers from such infirmity. [307 E-F]

2.2 In situation where the acts alleged were of large group acting collectively with the common object of coercing the authority, and it is not possible to parti-cularize the acts of each individual member of the group, !Ill' cyclostyled orders passed against the members of the group would not be vitiated by non-application of mind. (308 A-Bl

3.1 The appellants were not without remedy against the • impui;ned order of dismissal from servic~. They had the remedy of an appeal under s. 27 of the Bo11bay Police Act, which under r. 11 of the Bombay Police (Punishments & Appeal) Rules had to be preferred within two months· from the service of the order of dismissal. (310 A-Bl

3.2 Further, they also had the right to prefer revision to the Inspector-<;eneral of Police, Maharashtra under sub-r. ( 1) of r. 17 within period of two months as· prescribed under sub-r.(2) thereof. (310 C-E]

3,3 Looking to the circumstances that the appellants had been dismissed from service as punitive measure for their activating insurrec;tion among the Bombay Police Force, the Court as special case directed the Inspecto~neral of Police to entertain revision under sub-r.(2) of a. 17, although the period of limitation for filing such revision had expired, and to condone the delay and hear and dispose of such .,., revision on merits. [310 F-G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4041 of 1982.

From the Judgement and Order dated 1.12.1982 of the Bombay High Court ill W.P. No. 1976 of 1982.

AND

Civil Appeal No. 4363 of 1985.

From the Judgment and Order dated 13.10.1982 of the Bombay High Court in Writ Petition No. 501 -A of 1982.

V.N. Ganpule for the Appellant in C.A. No. 4041 of 1982.

V.M. Tarkunde, V.N. Ganpule for the Appellant in C.A. No. 4363 of 1985.

S.B. Bhasme, M.N. Shroff and A.S. Respondents.

Bhasme for the

The Judgment of the Court was delivered by

.; MADON, J. The Appellant in Civil Appeal No. 4041 of 1982, Shivaji Atmaji Sawant, was Police Constable in the Bombay City Police Force attached to the Bandra Police Station in Bombay. He was governed by the Bombay Police Act, 1951 (Bombay Act No.XXII of 1951). By an. order dated August 22, 1982, passed by the Commissioner of Police, Greater Bombay, he was dismissed from service, without charge-sheet having been issued to him and without any inquiry being held with respect to the misconduct alleged against him. The said order of dis--I missal was passed under section 25(1) of the Bombay Police Act read with clause (b) of the second proviso to Article 311(2) of the Constitution of India. The writ petition filed by Sawant challenging the said order of dismissal was dismissed by the Bombay High Court. He has thereupon approached this C<>urt in appeal by way of Special Leave granted by this Court.

The Appellant in Civil Appeal No.4363 of 1985, Namdeo Jairam Velankar, was Head Constable in Armed Batch No.645 and was posted at Aurangabad. He too was governed by the Bombay Police Act. He was also dismissed in the same way as Sawant by an order dated August 22, 1982, passed by the Superintendent of Police, Aurangabad, under section 25(2) of the Bombay Police Act read with clause (b) of the second proviso to Article 311(2) of the Constitution. He had also filed writ petition before the Aurangabad Bench of the Bombay High Court which was dismissed and he too has approach-ed this Court in appeal by way ·of Special Leave granted by this Court.

Section 25 of the Bombay Police Act specif !es the · officers who are entitled to punish the members of the Bombay Police Force. Under clause (b) of the second proviso to Article 311(2) of the Constitution, an authority empowered to dismiss or remove civil servant or reduce him in rank is authorized to dispense with the inquiry provided in clause (2) of Article 311, if it is satisfied that for some reason to be recorded by it in writing, it is not reasonably practicable to hold such inquiry. In the case of Union of India and Anr. v. Tulsiram Patel lllld other c:olllli!cted matters, [1985] 3 s.c.c. 398, Constitution Bench of this Court has considered in great detail the scope and effect of Articles 309, 310 and 311 ,...( of the Constitution and particularly of the second proviso to Article 311(2). The conclusions reached by this Court in

Tulsiram Patel's Case have been summarized in Satyavir Singh i. and others etc. v. Union of India and Ors., [1985] 4 s.c.c. 252. In view of this decision the only contention raised before us at the hearing of these Appeals was that the impugned orders of dismissal suffered from total non-appli-cation of mind. The facts on the record, however, completely belie this contention and we will now proceed to narrate them.

Article 33 of the Constitution empowers Parliament by law to determine to what extent any of the rights conferred by Part III of the Constitution (that is, the Fundamental Rights), shall in their application inter alia to the Forces charged with the maintenance of public order be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them. In pursuance of this power Parliament has enacted the Police Forces (Restriction of Rights) Act, 1966 (Act No.33 of 1966). As shown by the Statement of Objects and Reasons and the long title of the Act, the object of the Act is to provide for the y restriction of certain Fundamental Rights in their application to the members of the Forces charged with the maintenance of public order so as to ensure the proper discharge of their duties and maintenance of discipline among them. Under section 1(3), the said Act is to come into force on such date as may be appointed in this behalf by notification in the Official Gazette, in Union Territory, by the Central Government and in State, by the Government of that State. It was brought into force in the State of Maharashtra with effect from July 15, 1979, by Notification No. PPF. 0229-PLO-III dated July 10, 1979, published in the Maharashtra Government Gazette dated July 26, 1979, Part IVA at page 502. Clause (a) of section 2 of the said Act defines the expression "member of police-force" as meaning "any person appointed or enrolled under any enactment specified in the Schedule". Aioong the enactments so specified is the Bombay Police Act, 1951. Under section 3 of the said Act of 1966, no member of Police Force is, without the express sanction of the Central Government or of the pres-cribed authority, to be member of, or be associated in any way with, any trade union, labour union, political associa-tion, or with any class of trade union, labour unions or political associations, or be member of, or be associated in any way with any other society, institution, association or )"I organization that is not recognized as part of the Force of

which he is member or is not of purely social. recrea-'! tional or religious nature. Further, member of Police Force is prohibited from participating in or addressing any meeting or taking part in any demonstration organized by any body of persons for any political purposes· or for such other purposes as may be prescribed by rules made under the said Act. Rule 3 of the Police Forces (Restriction of Rights) Rules, 1966, provides as follows :

"3. Additional purposes for which lll!lllber of police-force mt to participate in, or address, 1111'1 meting, etc.

No member of police-force shall participate in, or address any meeting or take part .in any deioons-tration organised by any body of persons -

(a) ror the purpose of protesting against any of the provisions of the .\ct of these rules or any other rules made under the Act; or

(b) for the purpose of protesting against any disciplinary action taken or proposed to be taken against him or against any other member or members of police-force; or

(c) for any purpose connected with any matter per-taining to his rem.ineration or other conditions of service or his conditions of work or his living conditions or the remuneration, other conditions of service, conditiol)S of work or living conditions, or any other member or members of police-force;

Provided that nothing contained in clause (b) shall pre-clude member of police-force from participating in meet-ing convened by an association of which he is member and which has been accorded sanction under sub-section (1) of section 3 of the Act, - where such meeting is in pursuance of, or for the furtherance of the object of such association."

Under section 4, any person who contravenes the provi-~ions of se.ction 3 commits an offence and is liable, without prejudice to any other action that may be taken against him,

to be punished with imprisonment for term which may extend " to two years or with fine which 11111y extend to Rs.2000 or with both.

With view to give members of the Bombay Police Force an opportunity to ventilate their grievances with respect to service conditions and allied matters the Government of Maharashtra announced that it would permit the nembera of the Force to form associations at the State level as well as at Unit level. The authority to grant recognition to such asso-ciations was the Inspector General of Police,' Maharashtra ~ State. Before any recognition was given, associations were formed and office-bearers elected.. The association at the State level was the Maharashtra. Police Karamchari Sanghtana and at the Greater Bombay level was the Maharashtra Police Karamchari Sanghtana, Greater Bombay. The Inspector-General of Police granted recognition to these associations ty his order dated March 20, 1982, on conditions en that the members should not resort to strike or withhold their services or otherwise delay the performance of their duties in any manner, "' (2) that the Association should not resort to any coercive nethod of agitation for obtaining redressal of grievances, and (3) that the Association should not do anything whl.ch may affect the efficiency of the Force or undermine its discipline.

Sawant is alleged to have · taken the lead along with one S.D. l!ohite in forming the Greater Bombay Association and starting its activities. It is further alleged that from the inception of the activities of this Association, the principal off ice-bearers and leaders started spreading an atmosphere of indiscipline, culminating in the members of the Police Force, .ji... _ including Sawant, wearing black bands and badges on the Independence Day of 1982, namely, August 15, 1982. Consequent-ly, the State Government suspended the recognition of the said Association for period of three mo11ths· This resulted in 'Bombay in strike of the police constabulary and widespread rioting, arson, lotting and other acts amounting to nutiny from August 18, 1982. The situation became so serious that on the very day of the outbreak of these incidents, namely, August 18, 1982, military and para-military forces had to be summoned to deal with .the nembers of the Police Force who had~ rioted and mutinied and even then it took some days for

• normalcy to be restored. The events which took place on and from August 18, 1982, are not disputed. In fact, in his Petition for· Special Leave to Appeal Sawant has himself described them as "deplorable incidents".

Three contentions were urged on behalf of Sawant in order to substantiate the contention that the impugned• order of dismissal passed against him was without any application of mind. The first contention was that Sawant was arrested in the early hours of August 18, 1982, and, therefore, did not and -· could not have taken part in the incidents of violence, arson, looting and D1Jtiny which took place on and from that date. Assuming it is so, Sawant is alleged to have been one of the active instigators and leaders who were responsible for. the creation of such serious situation which .rendered all normal functioning of the Police Force and normal life in the City of Bombay impossible. As pointed out by this Court in Satyavir Singh and. Ora. v. Union of India and others (at page 287) . it is not necessary that the disciplinary authority should wait ... until incidents take place in which ·physical injury is caused to others before taking action under clause (b) of the second proviso. to Article 311(2). person who incites others to coomit violence is as guilty, if not more so, than the one who indulges in violence, for the one who indulges in violence may not have- done so without the instigation of the other. The second contention was that identical orders were passed against forty-three other members of the constabulary and that all these orders , including the one served upon Sawant , were cyclostyled. Where several cyclostyled orders are Pl!SSed, it would prims facie show non-application of mind but this is not ~··a universal rule and would depend upon the facts and circwn-_,... . stances of ·each case. In Tolsir1111 l'at;el 's Case cyclostyled · orders were served upon several members of the Unit of the ) Central Industrial Security Force posted at Bokaro with the names of the individual members filled in •. Rejecting similar contention raised in that case, this Court observed (at page · 520) :

"It was said that the impugned orders did not set out the particular acts done by each of the members of the CIS Force in.respect of whom dismissal order was made, and these were merely cyclostyled orders with the names of individual members of the CIS

Force filled in. Here was case very much like • case under Section 149 of the Indian Penal Code. The acts alleged were not of any particular individual acting by himself. These were acts of large group acting collectively with the comnon object of coercing those in charge of the adminis-' tration. of the CIS Force and the Government in order to obtain recognition for their association and to concede their demands. It is not possible in situation such as this to particularize the acts ~ of each individual member who participated in the commission of these acts. The participation of each individual may be of greater or lesser degree but the acts of each individual contributed to the creation of situation in which security force itself became security risk."

The third contention was that the reasons for dispensing with the inquiry did not accompany the order. In 'l'alsiram Patel's· ,.. Case this Court held that the recording of the reason for ·dispensing with the inquiry is condition precedent to the application of clause (b) of the second proviso and if such reasons are not recorded in writing, the order dispensing with the inquiry and the order of penalty following thereupon would both be void and unconstitutional. The Court also held that though it was not necessary that the reasons should find place in the final order imposing penalty, it would be. advis-able to record them in the final order ,so as to avoid an alle-gation that the reasons were not recorded in writing before passing the final order but were subsequently fabricated. What had happened in Sawant's Case was that either along with the a... order or soon thereafter reasons in writing for dispensing with the inquiry were served upon Sawant. perusal of the reasons shows that they were recorded later. Were the impugned order of dismissal one which merely imposed penalty, it would have been bad and would require to be struck down in view of the decisions in 'l\llsiram Patel's Case. The position is, however, different. The impugned order of dismissal itself sets out the reasons why it was not reasonably practicable to hold the inquiry. It is stated in the said order that some members of the Bombay City Police Force, including Sawant, had been instigating others to indulge in acts of insubordinati~ and indiscipline and were instigating them to withdraw from their lawful duties, inciting them to violence and 1111tiny, ~· joining rioting mobs and participating_ in arson, looting and other criminal acts and were willfully disobeying orders of . their superior officers and that these acts had created situation whereby the normal functioning of the Force in Bombay had been rendered difficult and impossible, and that in view of these facts· and circumstances, any attempt to hold departmental inquiry by serving written charge-sheet and following the procedure laid down l.n the Bombay P0lice (Punishments and Appeals) Rules, 1956, would be frustrated by the collective action of those persons and it was, there(ore, not practicable to hold .guch an inquiry. The "reasons_" served separately merely amplified and elaborated what had been stated in the impugned order. There is thus no substance in any of the contentions· advanced in the case of Sawant and it must be held that clause (b) of the second proviso to Article 311 (2) was rightly applied in his case. We now turn to the case of Velankar. He was the President ·--, of the Aurangabad Branch of the said Association. He was dismissed along with four other members of the Force posted,at Aurangabad. The order of dismissal in his case sets 011t in detail the acts of misconduct alleged against him, the situation which was prevailing in Aurangabad and the reasons why it was not reasonably practicable to hold disciplin1uy inquiry against him. Briefly summarized, when the violence broke out in Bombay on August 18, 1982, .similar situation was attempted to be brought about in Aurangabad by Velankar and the four others who were dismissed along with him. Velankar is said to have led procession on August 21, 1982, ~ which procession shouted provocative slogans, detnanding the release of these policemen in Bombay who had been arrested and demanding their reinstatement and revocation of orders of suspension passed against others in Bombl\Y• Apart from these acts being in contravention of clause (b) of· Rule 3 of the · Police Forces (Restriction of Rights) Rules, 1966, swift action .was necessary were the history· of Boinbay not .to be repeated in Aurangabad. The authorities could not be expected to. wait until houses and. shops in Aurangabad were looted and set on fire before taking steps to , put down the threatened insurrection. In these circumstances, it cannot be saie that ~in the case of Velankar clause (b) of the second proviso to

~ <\rticle 311 (2) was wrongly applied.

It is contended that both these Appellants are innocent of the misconduct charged against them, lf so, they are not ~ Without any remedy. Under section 27 of the Bombay Police Act, 1951, an appeal lies: against an order of penalty. imposed upon member of the Police Force to such officer as the State Government may specify by general or special order. The appellate authorities have been specified in Schedule U to the Bombay Police (Punishments and Appeals) rules; 1956. Under Rule 11, an appeal is to be filed within two months of the date on which the Appellant was informed of the order appealed against. The said Rule 11 confers upon the appellate autho->-rity, for good reasons shown, to extend the term for filing the appeal by six months. Rule 17 confers revisional juris-diction upon the I11Spector-General of Polcie. Under sub-rule (1) of Rule 17, th<! Inspector-General oL Police may, of his own motion or otherwise, call for and examine the record of any case in which an order, whether an original order or an order in appeal, inflicting any punishment has been mode by any authority subordinate to him in the exercise of any power conferred on such authority by the said Rules and in which an Y appeal lies to him or an authority subordinate to him but such appeal has not been made in accordance with the provisions of the said Rules or if such appeal has been made, after the appeal is decided by the appellate authority. Under sub-rule . ( 2) of Rule 17, an application for revieion is to be made within two montha of the date on which the applicant wa& informed of the order complained against. The Inspector-General is, however, given the power, for good cause shown, to relax that period.

· Assuming for the sake of argument that Sawant and · Velankar were not guilty of the charges levelled against them, "' -.; they have departmental remedy provided by the said Rules. The period for fili1og an appeal has, however, expired and even the time for extending that period has also expired. The Appellants can, however, approach the Inspector-General of Police in. revision and the ends of justice would be met if we direct the Inspector-General of Police to entertain such applications for revision by relaxing the period of limitation and hearing such applications on the merits.

We may also mention that by Circular No. PSA 0283/POL~,. SA . dated July 5, 1984, the Government of Maharashtra, otl humanitarian grounds as ~ part of the rehabilitation programne

0283/POL~,.

4 ~f police personnel dismissed from service or whose services were terminated in the wake of the police agitation which took place in Allgust 1982, has. decided that they would be considered for absorption in security jobs such as watchmen etc. under the Maharashtra· State E~ectricity Board, Maharash-tra State Road Transport Corporatic:ln, Maharashtra Agro-Indust~ ries Development Corporation, Agricultural Universities, Research Stations, State Warehousing -Corporation, etc., and that Wherever necessary, the age limits would be relaxed. in ~ respect of .·these ex-police ... n for making their appoint ... nts which would be treated ail fresh appointments.

In the result, we dismiss both these Appeals, but direct that 1i1 case either of these two Appellants file an applicatfon for revision to the Inspector-General of .Police, Maharashtr:a State,. by Ajlril 15, .1986, the Inspector-General of Police · shall condone the delay and · hear and dispose of the said application on the ... rite. The Appellant in each of -, these Appeals may alao,. either without filing any application for revision cir after such application fails, apply to take advantage of the said Circular No. PSA 0283/POLSA dated July 5, 1984; issued by the Govern...nt of Maharashtra. All interim orders, if any; passed in these two Appeals wUl stand vacated •.