Full Judgment Text
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PETITIONER:
SHIVAJI ATMAJI SAWANT & ANR.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA AND ORS.
DATE OF JUDGMENT14/02/1986
BENCH:
MADON, D.P.
BENCH:
MADON, D.P.
SEN, A.P. (J)
CITATION:
1986 AIR 617 1986 SCR (1) 300
1986 SCC (2) 112 1986 SCALE (1)193
CITATOR INFO :
RF 1991 SC 385 (4)
ACT:
Bombay Police Act, 1951:
Sections 25 and 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 practicable to hold enquiry - Served separately -
Dismissal order - Whether valid.
HEADNOTE:
The appellants were members of the Bombay Police Force
and office-bearers of the Maharashtra Police Karamchari
Sanghtana. They were dismissed from service without issuing
any charge-sheet and without holding any inquiry into the
acts of alleged misconduct committed by them under sub-
ss.(1) and (2) of s. 25 of the Bombay Police Act, 1951 read
with c1.(b) of the second proviso to Art. 311(2) of the
Constitution. It was stated that they along with other
members of the Bombay Police Force had been instigating
others in acts of insubordination and indiscipline and to
withdraw from their Lawful duties, inciting them to violence
any mutiny, joining rioting mobs and participating in arson,
looting and other criminal acts, wilfully disobeying orders
of superior officers and that these acts had created a
situation in Bombay 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 hold a departmental inquiry by serving a written charge-
sheet and following the procedure laid down in the Bonbay
Police (Punishments & Appeal) Rules, 1956 would be
frustrated by the collectice action of these persons and it
was therefore not practicable to hold such an enquiry. The
appellants assailed their dismissal from service in the High
Court by petitions under Art. 226 of the Constitution but
the High Court declined to interfere. In appeal, it was
contended on behalf of the appellants that the impugned
orders of dismissal suffered from a total non-application of
301
mind inasmuch as (a) identical orders were passed against 43
other members of the Constabulary and all the orders were
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cyclostyled; and (b) the reasons for dispensing with the
enquiry did not accompany the order of dismissal.
Dismissing the appeals,
^
HELD: 1.1 The recording of reasons for dispensing with
an inquiry is a condition precedent to the applicability of
cl. (b) of the second proviso to Art. 311(2) of the
Constitution; 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 a 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 & Anr. v. Tulsiram
Patel & Ors. connected matters, [1985] 3 S.C.C. 398,
followed.
1.2 In the instant case, however, the impugned orders
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, prima facie, imply non-application of mind but this
is not a 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 a situation where the acts alleged were of a
large group acting collectively with the common object of
coercing the authority, and it is not posible to
particularize the acts of each individual member of the
group, cyclostyled orders passed against the members of the
group would not be vitiated by non-application of mind. [308
A-B]
302
3.1 The appellants were not without remedy against the
impugned order of dismissal from service. They had the
remedy of an appeal under s. 27 of the Bombay 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-B]
3.2 Further, they also had the right to prefer a
revision to the Inspector-General of Police, Maharashtra
under sub-r.(1) of r. 17 within a period of two months as
prescribed under sub-r.(2) thereof. [310 C-E]
3.3 Looking to the circustances that the appellants had
been dismissed from service as a punitive measure for their
activating insurrection among the Bombay Police Force, the
Court as a special case directed the Inspector-General of
Police to entertain a revision under sub-r.(2) of s. 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]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4041 of
1982.
From the Judgement and Order dated 1.12.1982 of the
Bombay High Court in W.P. No. 1976 of 1982.
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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. Bhasme for the
Respondents.
The Judgment of the Court was delivered by
303
MADON, J. The Appellant in Civil Appeal No. 4041 of
1982, Shivaji Atmaji Sawant, was a 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 a 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 dismissal was passed under section
25(1) of the Bombay Police Act read with clause (b) of the
second proviso to Acticle 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 Court in appeal by
way of Special Leave granted by this Court.
The Appellant in Civil Appeal No.4363 of 1985, Namdeo
Jairam Velankar, was a 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 a writ petition before the Aurangabad Bench of the
Bombay High Court which was dismissed and he too has
approached this Court in appeal by way of Special Leave
granted by this Court.
Section 25 of the Bombay Police Act specifies 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 a 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 and other
connected matters, [1985] 3 S.C.C. 398, a 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
304
Tulsiram Patel’s Case have been summarized in Satyavir
Singh 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 a 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
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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 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 a Union Territory,
by the Central Government and in a 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 a police-force" as meaning "any
person appointed or enrolled under any enactment specified
in the Schedule". Among the enactments so specified is the
Bombay Police Act, 1951. Under section 3 of the said Act of
1966, no member of a Police Force is, without the express
sanction of the Central Government or of the prescribed
authority, to be a member of, or be associated in any way
with, any trade union, labour union, political association,
or with any class of trade union, labour unions or political
associations, or be a member of, or be associated in any way
with any other society, institution, association or
organization that is not recognized as part of the Force of
305
which he is a member or is not of a purely social,
recreational or religious nature. Further, a member of a
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 a member of a
police-force not to participate in, or addresa,
any meeting, etc. -
No member of a police-force shall participate in,
or address any meeting or take part in any
demonstration organised by any body of persons -
(a) ror the purpose of protesting against any of
the provisions of the Act 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 a police-force; or
(c) for any purpose connected with any matter
pertaining to his remuneration or other conditions
of service or his conditions of work or his living
conditions or the remuneration, other conditions
of service, conditions of work or living
conditions, or any other member or members of a
police-force;
Provided that nothing contained in clause (b) shall
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preclude a member of a police-force from participating in a
meeting convened by an association of which he is a 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
provisions of section 3 commits an offence and is liable,
without prejudice to any other action that may be taken
against him,
306
to be punished with imprisonment for a term which may extend
to two years or with fine which may extend to Rs.2000 or
with both.
With a 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 members of
the Force to form associations at the State level as well as
at Unit level. The authority to grant recognition to such
associations 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 by his order dated March 20, 1982, on
conditions (1) 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 method of
agitation for obtaining redressal of grievances, and (3)
that the Association should not do anything which may affect
the efficiency of the Force or undermine its discipline.
Sawant is alleged to have taken the lead along with one
S.D. Mohite in forming the Greater Bombay Association and
starting its activities. It is further alleged that from the
inception of the activities of this Associations, the
principal office-bearers and leaders started spreading an
atmosphere of indiscipline, culminating in the members of
the Police Force, including Sawant, wearing black bands and
badges on the Independence Day of 1982, namely, August 15,
1982. Consequently, the State Government suspended the
recognition of the said Association for a period of three
months. This resulted in Bombay in a strike of the police
constabulary and widespread rioting, arson, lotting and
other acts amounting to mutiny 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 members of the Police Force who had rioted and
mutinied and even then it took some days for
307
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 mutlny which took place on and
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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 a 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 Ors. 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). A person who incites others to commit
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
passed, it would prima facie show non-application of mind
but this is not a universal rule and would depend upon the
facts and circumstances of each case. In Tulsiram Patel’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 a 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
308
Force filled in. Here was a case very much like a
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 a
large group acting collectively with the common
object of coercing those in charge of the
administration 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 a 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 a
situation in which a security force itself became
a security risk."
The third contention was that the reasons for dispensing
with the inquiry did not accompany the order. In Tulsiram
Patel’s Case this Court held that the recording of the
reason for dispensing with the inquiry is a 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 a place in the final order imposing
penalty, it would be advisable to record them in the final
order so as to avoid an allegation 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 order or soon thereafter
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reasons in writing for dispensing with the inquiry were
served upon Sawant. A perusal of the reasons shows that they
were recorded later. Were the impugned order of dismissal
one which merely imposed a penalty, it would have been bad
and would require to be struck down in view of the decisions
in Tulsiram 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
insubordination and indiscipline and were instigating them
to withdraw from
309
their lawful duties, inciting them to violence and mutiny,
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 a
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 a departmental inquiry by serving a written charge-
sheet and following the procedure laid down in the Bombay
Police (Punishments and Appeals) Rules, 1956, would be
frustrated by the collective action of those persons and it
was, therefore, not practicable to hold such 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 out 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 a
disciplinary inquiry against him. Briefly summarized, when
the violence broke out in Bombay on August 18, 1982, a
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 a
procession on August 21, 1982, which procession shouted
provocative slogans, demanding 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 Bombay. 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 Bombay 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 said that
in the case of Velankar clause (b) of the second proviso to
Article 311 (2) was wrongly applied.
310
It is contended that both these Appellants are innocent
of the misconduct charged against them. If 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 a 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
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Schedule II 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 authority, for good reasons shown, to extend
the term for flling the appeal by six months. Rule 17
confers revisional jurisdiction upon the Inspector-General
of Polcie. Under sub-rule (1) of Rule 17, the Inspector-
General of 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 made by any authority subordinate to
him in the exercise of any power conferred on such authority
by the said Rules and in which an 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 revision is to be made within two months of
the date on which the applicant was 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 a departmental remedy provided by the said
Rules. The period for filing 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 a Circular No. PSA
0283/POL- 5A dated July 5, 1984, the Government of
Maharashtra, on humanitarian grounds as a part of the
rehabilitation programme
311
of police personnel dismissed from service or whose services
were terminated in the wake of the police agitation which
took place in August 1982, has decided that they would be
considered for absorption in security jobs such as watchmen
etc. under the Maharashtra State Electricity Board,
Maharashtra State Road Transport Corporation, Maharashtra
Agro-Industries 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-policemen for
making their appointments which would be treated as fresh
appointments.
In the result, we dismiss both these Appeals, but
direct that in case either of these two Appellants file an
application for revision to the Inspector-General of Police,
Maharashtra State, by April 15, 1986, the Inspector-General
of Police shall condone the delay and hear and dispose of
the said application on the merits. The Appellant in each of
these Appeals may also, either without filing any
application for revision or after such application fails,
apply to take advantage of the said Circular No. PSA
0283/POL5A dated July 5, 1984, issued by the Government of
Maharashtra. All interim orders, if any, passed in these two
Appeals will stand vacated.
The parties will bear and pay their own costs of these
two Appeals.
A.P.J. Appeals dismissed.
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