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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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