TUKARAM BHAU MANE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal against an order passed by Mrs. Justice Sujata Manohar sitting singly on the Original Side rejecting the writ petition under Article 226 of the Constitution of India filed by the appellant. The appellant was an unarmed police constable in the Bombay City Police Force. By an order dated August 16, 1982 passed by the Governor of Maharashtra in exercise of the powers vested in him under Clause (c) of the second proviso to Clause (2) of Article 311 read with Article 310 of the Constitution of India the appellant was dismissed from service with immediate effect. The appellant was arrested on August 18, 1982 at about 1 a.m. and detained under Section 151 of the Code of Criminal Procedure, 1973. On the same day, the said order of dismissal was served upon him. An application was presented on August 18, 1982 to the Metropolitan Magistrate, 23rd Court, Esplanade, by the Inspector of Police, Detection of Crime Branch, C.I.D., Bombay, requesting that the appellant and 64 other persons mentioned in the said application should be detained in police custody for a period of fifteen days. The said application was granted by the learned Magistrate. Thereafter, the appellant along with the said other persons filed an application being Criminal Application No. 203 of 1982 in the Court of Sessions for Greater Bombay. The said application was filed under Section 151(3)(c) of the Code of Criminal Procedure and in the nature of a representation made against the detention of the applicants therein under the said Section 151. The learned Additional Sessions Judge by his order dated August 23, 1982 allowed the said application on the ground that the provisions of Clause (c) of Sub -section (3) of Section 151 of the Code of Criminal Procedure had not been complied with inasmuch as the learned Magistrate had not communicated to the detained persons the grounds on which his order authorising detention for a period of fifteen days was made. The appellant was thereafter released and on August 24, 1982 in the evening at about 6,25 p.m. the appellant received an order dated August 18, 1982 made by the Deputy Commissioner of Police directing him to vacate the police quarters occupied by him within two days from the date of the receipt of the said order. He was further warned by the said order that his failure to vacate as directed would expose him to action under Sub -section (2) of Section 31 of the Bombay Police Act, 1951. The appellant thereupon filed the writ petition on the Original Side of this High Court, out of which the present appeal arises, seeking to quash both the said order of dismissal as also the said order of calling upon him to vacate the police quarters occupied by him.

(2.) IN view of one of the grounds taken in the memorandum of appeal and an application for amendment made to us during the course of hearing of this appeal, it becomes necessary for us, before we refer to the rival contentions advanced at the bar, to set out what transpired after the petition was filed by the appellant. On August 21, 1982 the writ petition was mentioned before Mrs. Justice Sujata Manohar for an order that it should be directed to be circulated to be placed on Board for admission. The learned Judge directed the petition to be placed on Board for admission on August 31, 1982. It appears that on August 21, 1982 the Commissioner of Police had issued a notice in which it was stated that 23 policemen mentioned in the said notice had been dismissed from the Bombay City Police Force by the Government of Maharashtra with effect from August 18, 1982 by an order under Section 25(2) of the Bombay Police Act read with Clause (c) of the second proviso to Article 311(2) of the Constitution of India and that further orders for their eviction from the quarters occupied by them also had been issued. The appellant was one of the persons mentioned in the said notice. A copy of this notice was annexed as exh. 'C' to the petition. At the time when the said writ petition was mentioned before Mrs. Justice Sujata Manohar for urgent circulation, as it appears from the order passed on September 1, 1983, it was mentioned to her that the 22 other police constables were present in Court but owing to the urgency of the matter and paucity of time it had not been possible to file 23 writ petitions but that the remaining 22 police constables would file the petitions immediately. In view of the said statement made to the Court, the learned Judge stayed the execution of the orders of eviction referred to in the said exh. 'C' to the petition, that is, the order of eviction of the said 23 police constables.

(3.) ON September 3, 1982 the matter was mentioned to us for urgent circulation and we directed the appeal to be placed on Board for admission on Monday, September 6, 1982. At that time, the learned Advocate -General, who appeared on behalf of the respondents, made a statement that the appellant would not be evicted until September 7, 1982 in case the appeal was dismissed by this Court. This appeal reached hearing before us on September 6, 1982. It remained part -heard on that day. It was further heard on September 7, 1892. It, however, could not conclude that day by reason of extensive power failure in the city for a number of hours which rendered this Court Room too dark for work to be done. Yesterday (September 7,1982), however, looking to the nature of the arguments advanced we felt that instead of hearing the matter at such length at the admission stage, it would be better to hear and dispose of it finally and we accordingly admitted the appeal and on the learned Advocate -General waiving service of the notice of appeal, we proceeded to finally hear and dispose of this appeal. It was when the hearing was resumed on September 8, 1982 that Mr. Bhonsale, learned Counsel for the appellant, made an application for amendment of the writ petition by way of Chamber Summons. It may be mentioned that ground (p) of the memorandum of appeal is that the trial Court erred is not allowing the amendments to the petition setting out the material facts and grounds as submitted by the appellant. This ground implies that the application for amendment which was made before us had also been made before the trial Court and was rejected. As the order passed by the learned Judge shows, no application for amendment was at any time made before the trial Court. It is equally significant that though time was given to the appellant to file an affidavit in rejoinder, none was filed before the trial Court. We rejected this application for amendment stating that we would record our reasons for doing so in our judgment. It will, however, be convenient to deal first with the arguments advanced at the bar and then to set out our reasons for rejecting the application for amendment of the writ petition.