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Tukaram Bhau Mane Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case Number O.S. Appeal No. 437 of 1982
Judge
Reported in(1983)85BOMLR115; 1983MhLJ317
AppellantTukaram Bhau Mane
RespondentState of Maharashtra
DispositionApplication dismissed
Excerpt:
constitution of india, articles 311(2) second proviso clause (c), 310, 163, 166 - satisfaction of governor under clause (c) of second proviso to article 311(2) whether justiciable--satisfaction whether personal and requires giving of reasons--expression 'security of the state'--meaning of-inciting police-constabulary to revolt and indulge in violent activities and endangering public order whether acts endangering security of state--limits and extent of judicial review of governor's satisfaction under clause (c) of second proviso to article 311(2).;the satisfaction of the governor in the exercise of his power or function under clause (c) of the second proviso to article 311(2), is to be exercised by him on the aid and advice of his council of ministers or the minister to whom a particular.....d.p. madon, c.j.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.....
Judgment:

D.P. Madon, C.J.

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. The said writ petition reached hearing for admission before the learned Judge on August 31, 1982. An affidavit of the Joint Secretary to the Government, Home Department, Ravi Shankar Mishra, was filed to oppose the admission. The learned Advocate-General, who appeared on behalf of the respondents, while filing the said affidavit made it clear as appears from the order of the learned Judge made on that day, that he was not filing a detailed affidavit on facts but only filing the said affidavit for the purpose of opposing the admission of the said petition. After the matter was heard for some time and several authorities cited, learned Counsel for the appellant applied for time to file an affidavit in rejoinder. The learned Judge observed in her order that when the petition was at the stage of admission, elaborate affidavits in reply and rejoinder were not required. She also pointed out the statement made by the learned Advocate-General while filing the affidavit to oppose the admission. However, in order to leave no ground for grievance, she gave the appellant time till the next day to file an affidavit in rejoinder and further directed that a copy of the said affidavit should be given to the respondents before 6 p.m. that day. The directions of the learned Judge were not complied with and no affidavit in rejoinder was filed. It may also be mentioned that no writ petition at all was filed on behalf of the other 22 police constables mentioned in the said police notice dated August 21, 1982. After hearing both learned Counsel, the learned Judge by a speaking order rejected the said petition. She further passed an order vacating the ad interim stay granted by her on August 23, 1982 recording the circumstances under which she came to pass the said order. She, however, directed, so far as the appellant himself was concerned, that steps to evict him should not be taken until September 3, 1982.

4. 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.

5. The trial Court rejected the said petition filed by the appellant on the ground that the satisfaction of the Governor under Clause (c) of the second proviso to Clause (2) of Article 311 of the Constitution of India was not justiciable. The trial Court, however, further went into the facts of the case and came to the conclusion that the impugned order of dismissal was not passed mala fide. In arriving at the conclusion that the said order was not justiciable, the learned Judge relied upon the decision of a Division Bench of this Court in Jagdish Dajiba v. The Accountant-General of Bombay : (1959)ILLJ117Bom . Mr. Bhonsale, learned Counsel for the appellant, submitted at the hearing of this appeal that the said decision was no longer good law in view of the subsequent decisions of the Supreme Court and, therefore, the Court has the power to review the Governor's order made under the said Clause (c) of the second proviso to Clause (2) of Article 311 of the Constitution even though the satisfaction may be the subjective satisfaction of the Governor. Mr. Bhonsale further submitted that the satisfaction of the Governor under the said Clause (c) of the second proviso was not satisfaction to be arrived at by the Governor in his discretion but was satisfaction to be arrived at by him on the advice tendered to him by the Council of Ministers or the Minister who is in-charge of the concerned Department, in this case, the Home Department, and therefore the satisfaction of the Governor mentioned in the said Clause (c) of the second proviso was really an executive act of the Government and was open to challenge like any other executive act of the Government. Mr. Bhonsale, however, conceded that justiciability to which such an order under the said Clause (c) of the second proviso was subject was in a very limited field or area as laid down by the various decisions to which we will presently prefer. In Mr. Bhonsale's contention, in the present case all the grounds which would invoke the Court's power of interference with such an order were present and the said impugned order of dismissal must be set aside, and consequently also, the order of eviction passed against the appellant.

6. On behalf of the respondents, the learned Advocate-General did not contest that the said act of the Governor was not immune from judicial review. He, however, submitted that the grounds on which it could be reviewed were very limited and as in the present instance the question is of an act of the highest constitutional functionary in the State, the Court should not lightly presume or act on the basis that the satisfaction of the Governor was not rightly arrived at. The learned Advocate-General did not also contest the position that the Governor in arriving at his satisfaction under the said Clause (c) of the second proviso would have to act on the advice of the Council of Ministers or the Minister to whom the particular portfolio was assigned by the rules of business. What he submitted was that the advice tendered to the Governor by the Council of Ministers or the Minister concerned was not open to the Court's review under Clause (3) of Article 163 of the Constitution. On the merits the learned Advocate General submitted that no case whatever had been made out in the petition for invoking the Court's interference with the impugned orders.

7. The said impugned order of dismisal is in the following terms:

WHEREAS the Governor of Maharashtra is satisfied vide proviso (c) of Clause (2) of Article 311 of the Constitution of India that in the interest of the security of State, it is not expedient to give Shri T.B. Mane Unarmed Police Constable, B. No. 18806 Bombay City Police Force, an opportunity of showing cause against, the action proposed to be taken in regard to him, as envisaged in subclause (2) of the said Article;

AND WHEREAS the Governer of Maharashtra is satisfied that the conduct of Shri T.B. Mane, as displayed by his various acts of commission and omission is such that his continuance in the service is not desirable and he needs to be dismissed from the service:

Now, therefore, the Governor of Maharashtra in exercise of powers vested in him vide article 311 Clause (2) proviso (c) read with Article 310 of the Constitution of India does hereby dismiss Shri T.B. Mane, Unarmed Police Constable, B. No. 13906 of Bombay City Police Force from the service with immediate effect.

By order and in the name of the Governor of Maharashtra, Bombay.

S E A L Sd/-16 AUG. 1982 Secretary to the Government of Maharashtra, Home Department, Bombay.

The said order expressly states that it has been made by the Governor of Maharashtra in exercise of 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. Under Clause (1) of Article 311 of the Constitution a person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State cannot be dismissed or removed by an authority subordinate to that by which he was appointed. Under Clause (2) of that article before such a person is dismissed or removed or reduced in rank, an inquiry as provided in the said clause has to be held. There are certain exceptions provided to this clause under which such an inquiry is dispensed with. It is necessary to reproduce in extenso Clauses (2) and (3) of Article 311 of the Constitution. These clauses are as follows:

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:

Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty maybe imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:

Provided further that this clause shall not apply-

(a) Where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing , it is not reasonably practicable to hold such inquiry; or

(c) Where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in Clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.

It will be convenient, at this stage, also to refer to Articles 163 and 166 of the Constitution. Article 163 is in the following terms:

163. Council of Ministers to aid and advise Governor-

(1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.

(3) The question whether any, and if so what, advice was tendered by ministers to the Governor shall not be inquired into in any Court.

This article corresponds, so far as the Union executive is concerned, to Article 74 except that in Article 74 the exception to be found in Clause (1) of Article 163 does not occur in it. Article 166 deals with the conduct of business of the Government of a State. Under it all executive action of the Government of a State is to be expressed to be taken in the name of the Governor and all orders and other instruments made and executed in the name of the Governor have to be authenticated in such manner as may be specified in rules made by the Governor and the validity of an order or instrument which is so authenticated is not to be called in question on the ground that it is not an order or instrument made or executed by the Governor. Clause (3) of the said article provides that the Governor is to make rules for the more convenient transaction of the business of the Government of the State, and for the allocation amongst Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion. It is thus clear that except in matters in which by or under the Constitution the Governor is required to exercise his functions or any of them in his discretion, his other functions are to be exercised by him with the aid and advice of the Council of Minister with the Chief Minister at the head or by virtue of Article 166 with the aid and advice of the Minister in-charge of a particular portfolio. It is not in dispute that the portfolio of the Home Department, so far as the State of Maharashtra is concerned, is headed by the Chief Minister assisted by the Minister of State for Home. The question which arises is whether in exercising his power under Clause (c) of the second proviso to Clause (2) of Article 311, the Governor, in the instant case, acted in his discretion or with the aid and advise of the Council of Ministers or of the Chief Minister and the Minister of State for Home who were and are in charge of this portfolio and whether the satisfaction reached by the Governor under the said Clause (c) is justiciable.

8. In Jagdish Dajiba v. The Accountant-General of Bombay (supra), a Division Bench of this High Court at Nagpur held, with reference to the power of the President under the said Clause (c) that it was not justiciable for to hold otherwise would be to substitute the satisfaction of the Court for that of the President. Since that judgment was delivered the position in law has much changed by reason of the subsequent decision of the Supreme Court in Samsher Singh v. State of Punjab : (1974)IILLJ465SC . The seven Judge Bench of the Supreme Court had to consider in that case in which area the Governor acts on the aid and advice of his Council of Ministers and in which in his discretion. The following passage in the judgment of the Supreme Court is relevant for our purpose and requires to be extracted. The passage runs as follows (at page 2198):

In all cases in which the President or the Governor exercises his functions conferred on him by or under the Constitution with the aid and advice of his Council of Ministers he does so by making rules for convenient transaction of the business of the Government of India or the Government of the State respectively or by allocation among his Ministers of the said business in accordance with Articles 77(3) and 166(8) respectively. Wherever the Constitution requires the satisfaction of the President or the Governor, as the case may be, as for example in Articles 128, 213, 311(2) proviso (e), 317, 352(1), 356 and 360 the satisfaction required by the Constitution is not the personal satisfaction of the President or of the Governor but the satisfaction of the President or the Governor in the constitutional sense under the Cabinet system of Government. The reasons are these. It is the satisfaction of the Council of Ministers on whose aid and advice the President or the Governor generally exercises all his powers and functions. Neither Article 77(8) nor Article 166(3) provides for any delegation of power. Both Articles 77(3) and 166(3) provide that the President under Article 77(3) and the Governor under Article 166(8) shall make rules for the more convenient transaction of the business of the Government and the allocation of business among the Ministers of the said business. The rules of business and the allocation among the Ministers of the said business all indicate that the decision of any Minister or officer under the rules of business made under these two Articles viz. Article 77(3) in the case of the President and Article 166(3) in the case of the Governor of the State is the decision of the President or the Governor respectively.

(The emphasis has been supplied by us.) [herein indicated in italics-Ed.]

The Court then proceeded to consider the provisions of the Constitution which require the Governor to act in his discretion. We are not concerned with that part of the judgment. What is relevant for our purpose is that the Supreme Court has held that satisfaction of the Governor in the exercise of his power or function under inter alia, Clause (c) of the second proviso to Article 311(2), is to be exercised by him on the aid and advice of his Council of Ministers or the Minister to whom a particular portfolio is assigned under the rules of conduct of business and that the satisfaction required by the said clause is not the personal satisfaction of the Governor but is the satisfaction of the Governor in the constitutional sense under the Cabinet system of Government and that this act of satisfaction on the part of the Governor is the taking of an executive action by the Government within the meaning of Article 166 of the Constitution.

9. We will now consider to what extent such an act is justiciable by the Courts. It is unnecessary to refer to all the decisions on this subject. The question arose before the Supreme Court in the case of M.A. Basheed v. State of Kerala : [1975]2SCR93 and the SupremeMinocherCourt held as follows (pages 2251-2252):

Where powers are conferred on public authorities to exercise the same when 'they are satisfied' or when 'it appears to them', or when 'in their opinion' a certain state of affairs exists; or when powers enable public authorities to take 'such action as they think fit' in relation to a subject-matter, the Courts will not readily defer to the conclusiveness of an executive authority's opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power is predicated.

Where reasonable conduct is expected the criterion of reasonableness is not subjective, but objective. Lord Atkin in Liversidge v. Andersen 1942 A.C. 206 said: 'If there are reasonable grounds the judge has no further duty of deciding whether he would have formed the same belief any more than, if there is reasonable evidence to go to a jury, the judge is concerned with whether he would have come to the same verdict.' The onus of establishing unreasonableness however, rests upon the person challenging the validity of the acts.

Administrative decision in exercise of powers even if conferred in subjective terms are to be made in good faith on relevant consideration. The courts inquire whether a reasonable man could have come to the decision in question without misdirecting himself on the law or the facts in a material respect. The standard of reasonableness to which the administrative body is required to conform may range from the courts' own opinion of what is reasonable to the criterion of what a reasonable body might have decided. The courts will find out whether conditions precedent to the formation of the opinion have a factual basis.

The above decision of the Supreme Court establishes that the Courts will not readily defer to the conclusiveness of an executive authority's opinion as to the existence of a matter of law or fact upon which the validity of the exercise of the power upon the satisfaction of a public authority is predicated. It further establishes that where the conduct expected of a public authority is judged by the criterion of reasonableness, the question of reasonableness is not subjective but objective. It also establishes that administrative decisions in exercise of powers even if conferred in subjective terms are to be made in good faith and on relevant considerations. Thus if an act of a public authority in exercise of the power, even though such authority may be empowered to exercise such power on its own satisfaction, is unreasonable or not in good faith or not based on relevant considerations, the Court will interfere and strike down the action taken by the public authority. Yet, another decision of the Supreme Court to which reference may usefully be made in State of Rajasthan v. Union of India : [1978]1SCR1 . The question before the Court was of the exercise by the President of his power under Article 356 of the Constitution under which the President if satisfied on receipt of a report from the Governor of a State that a situation had arisen in which the Government of that State could not be carried on in accordance with the provisions of the Constitution may by proclamation assume to himself all or any of the functions of the Government of the State or all or any of the powers vested in or exercisable by the Governor or any body or authority of the State and also declare that the powers of the legislature of the State should be exercisable by or under the authority of Parliament. Bhagwati J. speaking on behalf of himself and A.C. Gupta J. held that the satisfaction of the President under Article 356(1) was a subjective one and could not be tested by reference to any objective tests. He further held that it was deliberately and advisedly subjective because the matter in respect to which the President to be satisfied was of such a nature that its decision must necessarily be left to the executive branch of Government and could not, by its very nature, be a fit subject-matter for judicial determination and the Court could not, in the circumstances, go into the question of correctness or adequacy of the facts and circumstances on which the satisfaction of the Central Government was based, because if the Court did so, it would enter the political thicket. Bhagwati J. further pointed out that if the satisfaction reached by the President was mala fide or was based on wholly extraneous and irrelevant grounds, the Court would have jurisdiction to examine it because in that case there would be no satisfaction of the President in regard to the matter in which he was required to be satisfied, for in such a case the satisfaction of the President which was a condition precedent to the exercise of the power under Article 356(1) would not amount to the satisfaction of the President. To the extent, therefore, that it held that the satisfaction of the Governor under Clause (c) of the second proviso to Article 311 was not justiciable, the decision in Jagdish Dajiba v. The Accounted-General of Bombay (supra) cannot be said to be any longer good law.

10. The limits of judicial review with respect to an action of a public authority on subjective satisfaction has been the subject-matter of several decisions both in England, and in this country by the Supreme Court as well as different High Courts. It is unnecessary to refer to all these decisions, because they have already been considered by a Division Bench of this Court in the case of Binod Rao v. Minocher Rustom Masani : (1976)78BOMLR125 and the principles deducible therefrom have been set out at pages 160-161 of the report. In that case, Court held:

The principles deducible from the above decisions are : -

(1) The Court's scrutiny and review are not totally barred is a case where in the exercise of statutory powers an authority is empowered to make an order in its discretion on, its subjective satisfaction.

(2) An order made by an authority on its subjective satisfaction can be set aside by the Court on the following grounds :

(a) where the authority has not applied its mind, (ft) where the power is exercised dishonestly.

(c) where the power is exercised mala fide.

(d) where the power is exercised for a purpose not contemplated by the statute, that is to say, where it is exercised for a collateral purpose.

(e) where the authority has acted under the dictate of another body or authority.

(f) where the authority has disabled itself from applying its mind to the facts of each individual case by self-created rules of policy or is other manner.

(g) where the satisfaction of the authority is based on the application of a wrong test.

(h) where the satisfaction of the authority is based on the misconstruction of a statute.

(i) where the grounds on which the satisfaction is based are irrelevant to the subject -matter of the inquiry and extraneous to the scope and purpose of the statute.

(j) where the authority has failed to have regard to matters which the statute expressly or by implication requires it to take into consideration, and

(k} where the decision based on subjective satisfaction is such that no reasonable person could possibly arrive at it, that is to say, the satisfaction of the authority is not real and rational.

(3) If one of the several grounds relied upon by the authority to support as order passed on subjective satisfaction is vague or irrelevant or bad, the whole order must fall because it would not be possible for the Court to say whether the impugned order would have been passed in the absence of such ground, though if it were a case of an order passed on subjective satisfaction the Court might endeavour to uphold the order on surviving grounds.

(4) The authority cannot avoid the scrutiny of the Court by failing to give reasons. In such a case the Court can compel the authority to state its reasons,

(5) Where the reasons given are bad and the authority has not taken into consideration the relevant matters or real grounds on which the order could have been passed, the Court can direct the authority to reconsider the matter in the light of such relevant matters.

(6) Where, however, all the reasons which can be given for upholding the validity of the order have been found by the Court to be bad and unsustainable, the Court will not direct the authority to reconsider the matter, for then there is nothing for the authority to reconsider, but the Court will direct the authority to carry out what it has by the impugned order refused to do.

11. It was the contention of Mr. Bhonsale that the impugned order of the Governor was bad by reason of non-application of mind also because the Governor has exercised his power mala fide and for a purpose not contemplated by the relevant constitutional provisions but for a collateral purpose, and there was no material whatever before the Governor to reach any satisfaction that it would be in the interest of the security of the State that an inquiry as contemplated by Article 311(2) should not be held. It was also contended that as the order contained no reasons at all that itself was a ground to show that the Governor had not applied his mind.

12. It will be convenient to dispose of the last of those contention first. We have already reproduced above Clause (2) of Article 311. It will be noticed that the said Clause (2) in the second proviso provides for three exceptions. The first is Clause (a), where a person is dismissed or removed or reduced in rank on the ground of conduct which had led to his conviction on a criminal charge. It is obvious that where the conduct for which he is punished, under Article 311, when it was the same conduct which had been the subject-matter of a criminal prosecution in which the Government servant was convicted, nothing remains to be done in any disciplinary inquiry. The second exception is Clause (b) where the authority empowered to dismiss or remove a person or reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold an inquiry, and the third exception is Clause (c), where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such an inquiry. The difference in the language of Clause (b) and Clause (c) of the second proviso is striking and the reason for such difference is obvious. Under Clause (b) the order is to be passed by the appointing authority if it is satisfied that it is not reasonably practicable to hold an inquiry as provided by Article 311(2). For arriving at this conclusion the appointing authority is required to give its reasons. Under Clause (c) the satisfaction which is to be reached is by the President who is the constitutional head of the country or by the Governor who is the constitutional head of a State, as the case may be, and the question on which the President or the Governor is to be satisfied is whether the interest of the security of the State would in any manner be prejudiced or jeopardised if an inquiry provided for in Article 311(2) were held. The reasons for arriving at such satisfaction obviously cannot be given where the question involved is the security of the State, because in the giving these reasons themselves the very purpose of not holding an inquiry would be defeated and the object underlying the said Clause (c) would be rendered nugatory. The satisfaction of the President or the Governor under the said Clause (c) can, therefore, only be expressed in general terms. In fact, the impugned order in terms states what led to the satisfaction of the Governor was the conduct of the appellant as displayed by his various acts of commission and omission which was such that his continuance in the service was not desirable. Now, if the acts of commission or omission of a deliquent Government servant were such as would affect or were likely to affect the security of the State, it would be too much to expect that a detailed account of such acts or conduct should be set out in the order passed by the Governor. Nonetheless, the Courts are entitled to see whether there was any material before the Governor for arriving at his satisfaction and that this was not a mechanical reproduction of the language of the said Clause (c). In para. 9 of the affidavit filed by the Joint Secretary, Home Department, in order to oppose the admission of the petition, it has been stated as follows:

I say that after considering the report of the Inspector-General of Police, the Joint Secretary, Home Department, the Secretary, Home Department, the Chief Secretary, the Minister of State for Home, the Chief Minister (incharge of Home, Portfolio) and after perusing the related papers the Governor of Maharashtra had satisfied himself that in the interest of the security of the State it was not expedient to hold an enquiry and has passed an order to that effect.

The learned Advocate-General contended that the reports referred to in the said para. 9 constituted advice tendered to the Governor by the Chief Minister and the Minister of State for Home and that by reason of Clause (3) of Article 163 of the Constitution the question whether any and if so what, advice was tendered by the Ministers to the Governor could not be enquired into in any Court. The said affidavit, however, does not categorise these reports or any of them as the advice tendered by the Chief Minister or the Minister of State for Home to the Governor. The learned Advocate General offered to show to the Court the said reports to satisfy the Court that what was mentioned in the said affidavit was loosely expressed and what in substance it meant was that this was the advice tendered to the Governor. The learned Advocate General has shown us the relevant file which is marked 'Top Secret', and on perusing it we are satisfied that the learned Advocate-General was right in his submission that this was the advice tendered by the Ministers incharge of Home portfolio to the Governor.

13. It only remains to be considered whether the impugned order of the Governor was made mala fide or on extraneous grounds. The argument that the order was made without any application of mind does not survive, in view of the fact that various reports, relevant papers and advice were tendered to the Governor as mentioned above. In the petition general allegations of mala fides have been made without any particulars whatever. In fact, the petition, apart from mentioning a few basic facts which we have set out in the beginning of our judgment, consists only of legal submissions. It was further submitted at the bar that the appellant was on duty on August 16, 1982 as also on August 17, 1982. Nonetheless the order of dismissal was served upon him only after he was arrested in the early hours of August 18, 1982. He has further contended that the appellant had at no time indulged in any activity which can be termed as illegal or prejudicial to the security of the State or done acts which can be termed as criminal. We are unable to accept this submission in view of what is stated in para. 7 of the said affidavit of the Joint Secretary. In the said paragraph it is expressly stated that the appellant had withdrawn from duty in concert with other members of the police force and had further acted in defiance of authority and also instigated his fellow constables to withdraw from duty and to wilfully disobey the orders of the superior officers and had participated in illegal activities along with other members of the constabulary in the city of Bombay and that he had by his various acts of commission and omission disturbed public order and endangered the security of the State. In para. 9 of the said affidavit it is also stated that the appellant and others have been inciting the constabulary to revolt against the superior officers and to indulge in violent activities thereby endangering public order and threatening the security of the State. It was at first contended by Mr. Bhonsale that particulars of the conduct charged against the appellant in the said affidavit have not been given to him and these were merely general statements. In Mr. Bhonsale's submission the Government was bound to make an affidavit setting out detailed particulars of the conduct charged against the appellant. This Court exercising its jurisdiction under Article 226 of the Constitution of India does not function as a trial Court or even as a Court of first appeal. The question here is of the satisfaction of the Governor, the highest constitutional functionary in the State, before whom there were reports, as mentioned in the said affidavit, of the Inspector-General of Police, the Joint Secretary, Home Department as also the Secretary, Home Department and the Chief Secretary and the two Ministers incharge of Home portfolio and the sufficiency or adequacy of the materials for arriving at his subjective satisfaction, cannot be a ground for invoking judicial review. The averments made in the said affidavit clearly show that the considerations which weighed with the Governor in arriving at his satisfaction were not or cannot be characterised as extraneous. In Indulal K Yagnik v. State AIR[1960] Bom. 399 a Division Bench of this Court had to consider the expression 'security of the State' occurring in Clause (2) of Article 19 of the Constitution. The same expression has been used in Clause (c) of the second proviso to Article 311(2). The Court held that the expression 'security of the State' in Article 19(2) did not mean merely danger to the security of the entire country, nor could it be restricted to an upheaval or a rebellion endangering the security of the entire country. The Court further held that the security of the State can be undermined by danger both from within and without the State and that in that light, along with the armed forces, the constabulary also consists of persons specially engaged to avert danger arising from within the State although they might be expected to avert such danger in limited fields and on limited occasions. That was a case where the applicant was charged under Section 3 of the Police (Incitement to Disaffection) Act, 1922, with having intentionally caused or done an act which he knew likely to cause disaffection towards the Government established by law in India amongst the members of the police force or with inducing the members of the police force to withhold their service or commit a breach of discipline. The applicant filed an application in the High Court to quash the said prosecution. The said application was dismissed. The charge against the appellant of inciting the constabulary to revolt and to indulge in violent activities and to endanger public order are, according to the Division Bench judgment above referred to, all acts endangering the security of the State.

14. It was next submitted that the security of the State was not the test under the said Clause (c) of the second proviso to Article 311(2) and that what was required under the said clause was not to ascertain whether the conduct of the Government servant was such as would affect the security of the State but whether the holding of an enquiry against him would be against the interest of the security of the State and for that purpose all materials on which the Governor's satisfaction was based should be disclosed to the Court. We do not find any substance in this argument. The interest of the security of the State requires that certain facts should not be divulged and made public. To ask the Government to adopt a departmental enquiry and thereby put those appearing in the said enquiry in possession of such facts were to frustrate the very object for which the said Clause (c) was enacted by the Constitution-makers. There are cases in which an enquiry can be held even though it might be a case which would fall under the said Clause (c). But whether to hold such an inquiry or not depends upon the satisfaction of the Governor, and as long as the Governor has arrived at his satisfaction reasonably, bona fide and on relevant considerations, it is not open to the Government servant to challenge it. It was submitted by Mr. Bhonsale that the appellant has alleged mala fides in his petition and, therefore, the burden lay upon the Government to show that it acted bona fide. We are also unable to accept this submission. When a party comes to the Court charging mala fides or fraud, the burden of proof is upon the party charging such conduct and not upon the other side to prove either that it had acted bona fide or that there was no fraud. It is pertinent to note here that no facts whatever have been set out in the petition to make out even a faint case of mala fides. It is equally pertinent to remember that though the appellant had been given an opportunity to file an affidavit in rejoinder traversing what was stated in the said affidavit of the Joint Secretary, the appellant has failed to avail himself of that opportunity. Lastly, it was urged by Mr. Bhonsale that the Court should at least ask for the relevant file and satisfy itself that there were materials before the Governor for him to arrive at his satisfaction. Mr. Bhonsale expressly made it clear that he wanted only the Court to look into the file and that he did not want that the said file or any material contained therein should be disclosed in public or to the appellant or to any of his legal advisers, As mentioned earlier, the learned Advocate-General had himself shown us the file, and though this Court is not concerned with the question of sufficiency or adequacy of the materials, in view of the earnest request made by Mr. Bhonsale, we may mention that we have found more than ample materials for the Governor to arrive at his satisfaction and in our opinion no reasonable person could have arrived at any other decision in the circumstances of the case.

15. In the light of what we have stated above we will now turn to the amendment application made by the appellant which was rejected by us. The appellant had ample opportunity to ask for amendment of the petition in the trial Court. The appellant failed to do so. The amendments seek to add 25 paras, to the petition and to add seven more parties as respondents. Out of the 25 paras, which are sought to be added to the petition, all except two or three are in the nature of a legal thesis on justiciability. They merely contain legal submissions and reference to Supreme Court decisions. The only paras, which may be said to deal with any facts are the proposed paras. 31 to 34. These paras, merely set out that the appellant was a member of an association called the Maharashtra Rajya Police Karmachari Sanghatana and that he was being victimised for that even though the said association had been permitted by the Government of Maharashtra and even though assurances and promises had been given by the Government by its letter dated December 29, 1981 that no action would be taken against any member of the said association for any act of theirs done prior to that date. We do not find any basis for making these allegations. In fact, if it is the appellant's case in the proposed amendments that the Government had assured him and other constables that no action would be taken against them for any act of theirs, in respect of which action could be taken, committed prior to December 1981, the appellant's averment in his petition that he had never indulged in any activity which was criminal or which was against the security of the State or nation or which was illegal would be a false statement made by him on oath. There is nothing on the record to show that the appellant is being victimised or has been dismissed from service for being a member of the said Association. The reasons for the action taken against him under the said Clause (c) of the second proviso to Article 311(2) of the Constitution have been met out in the affidavit of the Joint Secretary. The original parties to the writ petition were the State of Maharashtra, the Secretary to Government, Home Department, who had authenticated the impugned order, the Commissioner of Police and the Deputy Commissioner of Police. The seven more parties sought to be added are the Governor of Maharashtra, the Chief Minister of the State, the Minister of State for Home, the Chief Secretary to Government, the Joint Secretary, Home Department, the Inspector General of Police and again the Commissioner of Police. All these seven are sought to be added by their personal names with their designations added. We are surprised that the Governor of the State and that too by name should be proposed to be joined to this petition inspite of the provisions of Article 361 of the Constitution of India. In fact, we are surprised why any of the other parties are sought to be added, because except a bare allegation of mala fides made against them there is no basis or foundation or facts pleaded in support of this allegation. We, therefore, rejected this application as not only being made at too late a stage of the proceedings considering the urgency of the matter which the appellant's Counsel himself had emphasized time and again, and also on the ground that the proposed amendments would be useless and of no substance in advancing the appellant's case in any way.

16. In our opinion, the learned single Judge was right in rejecting the petition filed by the appellant. In the result, this appeal fails and is dismissed with costs.

17. Mr. Parekh, on behalf of the appellant, orally applies under Article 134A of the Constitution for a certificate under Article 133(1)(a) to enable the appellant to file an appeal to the Supreme Court, We have decided this appeal purely on the law laid down by the Supreme Court and on the facts before us. We do not find that this case involves any substantial question of law of general importance. We, therefore, reject this application.


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