Bombay High Court
Janardan Vasant Patil And 4 Ors vs Director General Of Police And Anr on 16 September, 2016
Bench: S.C. Dharmadhikari
Judgment-WP 1525.2011.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1525 OF 2011
1. Janardan Vasant Patil }
Age 49 years, }
Police Sub Inspector }
presently working at Byculla }
Traffic Section, Mumbai. }
}
2. Uday Harischandra }
Salgaonkar }
Age 49 years, }
Police Naik, at present }
working at Borivali Railway }
Police Station. }
}
3. Pankaj Shivaji Thorat }
Age 44 years, }
Police Naik, at present }
working at Naigaon Head }
Quarters. }
}
4. Mohan Baburao Todkar }
Age 54 years, }
Asst. Sub Inspector }
at present working at }
Shivaji Nagar Police Station, }
Mumbai. }
}
5. Raman Raghunath Mahale }
Age 40 years, at present }
working as Police Hawaldar }
Alibaug Police Head Quarters }
District Raigad. } Petitioners
versus
1. Director General of Police }
State of Maharashtra, }
Maharashtra Rajya Police }
Mukhyalaya, Shaheed }
Bhagat Singh Marg, Colaba, }
Mumbai 400 039 }
Page 1 of 60
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Judgment-WP 1525.2011.doc
2. State of Maharashtra }
through advocates for the }
State of Maharashtra. } Respondents
Mr. Arshad Shaikh with Mr. Sanjay
Udeshi, Mr. Mahesh Londhe and Mr.Netaji
Gawde i/b. M/s. Sanjay Udeshi and Co. for
the petitioners.
Ms. Purnima Kantharia - Government
Pleader with Ms. Deepali M. Patankar for
respondent nos. 1 and 2.
CORAM :- S. C. DHARMADHIKARI &
DR. SHALINI PHANSALKAR-JOSHI, JJ.
ig Reserved on 4 th August, 2016
Pronounced on 16 th September, 2016
JUDGMENT :- (Per S. C. Dharmadhikari, J.)
1. This writ petition under Article 226 of the Constitution of
India raises a question of great significance and importance. That
question is whether the respondents to this writ petition were
justified in rejecting the application of the petitioners before us
requesting for grant of permission to form an association of police
personnel for the rank of Assistant Superintendent of Police and
below.
2. Though the petitioners have understood the controversy as
above, there are other issues involved. That is arising out of a
refusal of the then Director General of Police, vide the impugned
order, to the concerned police officials to establish an association
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of policemen. It is the permission to establish such association
which itself is rejected. This rejection is challenged on the ground
that it violates the freedom guaranteed vide Article 19 of the
Constitution of India and particularly Article 19(1)(c). That right
to freedom and in the subject case of forming association or union
cannot be denied only on the ground that the applicants or
persons seeking to establish the association are policemen. It is
stated that clause 4 of Article 19 does not in any manner permit
the State from refusing the permission as sought or to make any
law imposing a restriction of this nature. This rejection is much
beyond the parameters of clause (4) of Article 19 of the
Constitution of India. The refusal is a threshold action. It is at the
inception that the policemen have been prohibited from coming
together and form an association. This refusal, therefore, violates
the mandate of Article 14 of the Constitution of India. Equally,
the refusal cannot be justified on the touchstone of Article 33
clause (b). It is urged that the restriction or abrogation is not
justified even on the touchstone of the said clause of Article 33.
That is because it is the prerogative of the Parliament and the
Parliament alone could determine to what extent any of the
rights, conferred by para 3 shall, in their application, to the
members of the force charged with maintenance of public order,
be restricted or abrogated. It is thus claimed that the impugned
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order is, therefore, ultra vires this constitutional provision,
wholly illegal and deserves to be quashed and set aside.
3. The above issues are raised in the backdrop of the following
facts and circumstances:
4. The petitioners are citizens of India. Petitioner No. 1 is
Police Sub Inspector, presently working at Byculla Traffic Station,
Petitioner No. 2 is Police Naik presently working at Borivali
Railway Police Station. Petitioner No. 3 is Police Naik at present
working at Naigaon Police Headquarters, Petitioner No. 4 is
Assistant Police Sub Inspector and is presently working at Shivaji
Nagar Police Station, Mumbai and Petitioner No. 5 is Police
Hawaldar at present working at Alibaug Police Headquarters.
5. Respondent No. 1 is Head of the police force in the State of
Maharashtra and is responsible for the functioning and welfare of
the police personnel within the State of Maharashtra. The second
respondent is the State of Maharashtra.
6. The petitioners state that the police force is the backbone of
any society and society's security and maintenance of law and
order depends almost entirely upon the police force. As with
other State employees, the police personnel are human beings
and form such point of view, it is essential that their service
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conditions are protected and that their welfare is not neglected.
In order to maintain and increase their alertness, efficiency,
integrity and morale, it is necessary that they are given the
necessary facilities and that their legitimate grievances are
looked into. Indeed, looking after their welfare and needs would
ensure that the police personnel can perform their duties
efficiently and sincerely.
7. The petitioners state that as per the provisions of the Police
Forces (Restriction of Rights) Act, 1966, certain restrictions are
imposed with respect to rights of police personnel to form an
association and freedom of speech. The petitioners state that
therefore, the petitioners cannot form an association freely
without consent of and express sanction from Central
government or in this case without sanction of respondent no. 1.
8. The petitioners state that in the present petition, the
petitioners are concerned about the grievances of Police Sepoys,
Naiks, Hawaldars, Assistant Police Sub-Inspectors including those
in the Traffic Branch, C. I. D., Crime Branch etc. The petitioners
state that the total number of police personnel in these categories
in Mumbai are approximately 44,437 and their number in the
areas of Maharashtra is about 1,62,552. Thus, there are about
2,04,798 policemen in the State of Maharashtra, which include
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37230 Police Naiks, 39297 Police Hawaldars, 16940 Assistant
Sub Inspectors, 9385 Police Sub Inspectors and 768 Assistant
Commissioner of Police. The petitioners state that though the
population and crime rate have increased substantially but there
is no corresponding increase in the strength of the police
personnel.
9. The petitioners state that the entire police force consisting
of the above mentioned categories is without any association to
represent their
ig aspirations and legitimate grievances.
Significantly, the senior police officers such as officers belonging
to the I. P. S. category have their association, namely, IPS
Association Maharashtra State, which takes up the cause of their
welfare with the Government as and when the situation arises. It
is only the lower categories mentioned above who are being
denied the opportunity to form their association.
10. The petitioners state that the police personnel belonging to
the aforesaid categories, for whom petitioners are seeking reliefs,
had their association in the past, which was granted recognition
by the Government on 9th October, 1980. The petitioners state
that the permission granted to form an association pursuant to
the express sanction of the Inspector General of Police imposed
necessary conditions upon the said association. The petitioners
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state that upon perusal of the said conditions imposed while
forming of association, it is clear that the association, which was
formed by the police personnel, is not association such as union
registered under the Trade Union's Act or labour union engaged to
agitate the grievances of employees of private organisations. The
said recognition was withdrawn in the year 1983 for three
months after an alleged rebellion of a few police personnel and the
said withdrawal is in force even today. Thus, as on today the
police personnel of the above mentioned categories i.e. weaker
sections of police force have no association of their own, nor any
means of peacefully ventilating their grievances in a
constitutional manner consistent with the police discipline. The
petitioners understand and believe that there are associations of
police personnel in the States of Haryana, Karnataka, Kerala,
West Bengal, Andhra Pradesh and also Railway Protection Force.
The said associations have been duly recognised by the respective
State Governments and are functioning in the interest of police
within the four corners of law. Annexure 'D' is a copy of order
dated 6th August, 1979 issued by Secretary to government of
Andhra Pradesh and Annexure 'E' is a copy of an order of the
Joint Director/R. P. F. Railway Board dated 17 th February, 1999,
inter alia, granting permission to form an association.
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11. The petitioners state that the hierarchy in the Police
Department is as follows:-
1. Director General of Police
2. Additional Director General of Police
3. Inspector General of Police/Special Inspector General of
Police
4. Deputy Inspector General of Police
5. Superintendent of Police/Deputy Commissioner of Police
(Selection Grade)
6. Superintendent of Police/Deputy Commissioner of Police
(Junior Management Grade)
7. Additional Superintendent of Police/ Deputy
Commissioner of Police (Less than 10 years of service)
8. Additional Superintendent of Police/Deputy
Commissioner of Police (State Police Service)
9. Assistant Superintendent of Police
10. Deputy Superintendent of Police/SDPO
11. Assistant Commissioner of Police (A. C. P.)
12. Police Inspector (P. I.)
13. Assistant Police Inspector (A. P. I.)
14. Police Sub Inspector (P. S. I.)
15. Assistant Police Sub Inspector (A. S. I.)
16. Head Constable (H. C.)
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17. Police Naik (P. N.)
18. Police Constable (P. C.)
12. It is pertinent to note that rank 1 to 10 above has their own
association (IPS Officers) which looks after their difficulties and
collective aspirations and/or redress their grievances.
13. The petitioners state that due to non availability of any
channel to communicate their difficulties and collective
aspirations and/or redress their grievances, the morale of the
police personnel has become weak and most of them are working
under severe stress and pressure. This is evident from the cases
of police personnel going berserk as well as increasing cases of
suicides. Due to substantial increase in crime rates and the
resultant load on bandobast duties for one after another public
festivals, protecting V.I.Ps and law and order problem, the
workload on police force has increased without any
commensurate increase in benefits and facilities and without a
corresponding increase in the total number of policemen. This
work pressure and tension had direct bearing on efficiency and
alertness in discharge of duties by the policemen.
14. The petitioners have, thereafter, set out some of the
collective grievances of the police personnel of the above
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categories. It is stated that these are peculiar to the State of
Maharashtra. They have been set out extensively in para 11.
15. The petitioners further state that likewise there are other
legitimate collective grievances but there is no forum through
which the policemen can ventilate their grievances in a peaceful
and constitutional manner. The petitioners state that there are
some procedures under which it is claimed by the Respondents
that the problems, aspirations and grievances of the aforesaid
categories of Police are solved. These procedures/ forums by
which the aspirations and/or grievances are claimed to be
redressed are as under :-
(i) State Police Staff Councils.
(ii) District Police Staff Councils.
(iii) Orderly Rooms, Open Assembly (Darbars),
Grievances Cells.
16. However, the petitioners submit that it is pertinent to
mention here that all these forums are totally ineffective and
have not helped redress grievances of Police personnel of lower
cadre. These meetings, Darbars are held merely as formalities,
wherein in front of senior-most officers of the department a
constable etc. who represents himself does not get free and fair
opportunity to put up his complaints. The petitioners states that
they have gathered some data through an application made under
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the Right To Information Act, 2005 to demonstrate as to how the
aforesaid forums are redundant and unworkable.
17. The petitioners state that on 26th May 1997, one Mr.
Sakharam Yadavde, a Constable sent a letter to the then Director
General of Police to consider his request for grant of permission to
form an association. However, the said letter was neither replied
nor permission to form an association was given to the
petitioners.
18.
The petitioners state when despite repeated requests and
reminders, respondents failed and denied permission to form an
association, hence, a Writ Petition No.405 of 1997 came to be filed
in this Court. The said writ petition came up for hearing before
the Division Bench on 18th June, 1997. At the said hearing, the
learned Advocate General appearing on behalf of the State made a
statement that the request to form an association would be
considered if the petitioners make an application in this regard.
Upon the said assurance, the said writ petition came to be
withdrawn. The Division Bench recorded the assurance of the
learned Advocate General and allowed the petitioners to
withdraw the writ petition.
19. The petitioners state that in view of the observations of the
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Division Bench, the petitioners submitted a fresh representation
on 4th August, 1997, to the Director General of Police requesting
him to grant permission to form an association under Rule 8 of
the Police Forces (Restriction of Rights) Rules, 1966. The said
representation was signed by more than 1600 policemen
employed in the State of Maharashtra. The first respondent was
assured that if the permission was granted the Association will
work strictly in accordance with the law and function within the
parameters of the Circular No.XXI/3699 dated 9 th October, 1980,
issued by the first respondent. However, vide letter dated 6 th
November, 1997, the first respondent straight away rejected the
request on the ground that he was personally looking into the
grievances of the policemen and further if an association is
granted permission or allowed to be formed, it may cause
indiscipline among police personnel and in this regard, he invited
the attention at events, which took place in the year 1982.
20. Being aggrieved by the said refusal of the first respondent
and rejecting the demand/request to form a democratic
association, the said Mr. Sakharam Yadawde filed the writ
petition No. 420 of 1998. The petitioners state that said writ
petition was admitted by this Court and came for hearing and
final disposal in July, 2009.
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21. By an order dated 16th July, 2009, a Division Bench of this
Court disposed of the said writ petition directing the petitioners
therein to submit a fresh application before the respondent /
Director General of Police for permission to form an association
within a period of six weeks. The Director General was directed
to consider the application in accordance with law and without
being influenced by the order dated 6th July, 1997, which was
impugned in the writ petition and make a fresh order on that
application as expeditiously as possible and, in any case, within a
period of six months.
22. In pursuance of the order as noted above, several
applications were made by even the Police Constables and Sepoys
etc. to the respondents seeking permission to form an association.
Annexures 'J' to 'M' are copies of these applications. Then, it is
complained that the Police Commissioner issued a letter and
suddenly, without giving sufficient time, called upon only two
applicants, namely, Mohan Baburao Todkar and Raman
Raghunath Mahale for a hearing on 8 th January, 2010 at 11.00
a.m.
23. It is claimed that these two applicants could not properly
and effectively represent the need to form association and
therefore, the hearing was nothing but a formality. It is in these
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circumstances that the impugned order has been passed rejecting
the application on the ground that the grievances of the police
personnel can be resolved adequately by the existing mechanism.
That is how the conclusion to reject the application was reached
in the impugned order dated 15th January, 2010, copy of which is
at Annexure 'O'.
24. Aggrieved and dissatisfied with this order, the instant
petition has been filed.
25.
Mr. Arshad Shaikh learned counsel appearing for the
petitioners submitted before us that the impugned order is wholly
illegal and unconstitutional, null and void. This order not only
ignores the mandate of the several provisions of the Constitution
of India but brushes aside the direction of this court in the order
dated 16th July, 2009 in Writ Petition No. 429 of 1998. The
impugned order also violates the principles of natural justice,
inasmuch as, firstly, there has been no effective opportunity of
hearing prior to the refusal or rejection of the petitioners'
application. Secondly, the hearing was a complete farce and
formality. Thirdly, just on the eve of the hearing, the respondents
could not have communicated to the petitioners that they would
be allowed to be represented for the oral hearing only by two
representatives and even the petitioners' representatives would
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be chosen by the respondents themselves. In other words, the
representation by the two representatives, allegedly of the
petitioners, was thrust upon them. They were forced and coerced
to accept the fact that it is a representative chosen by the
respondents alone who would be heard and none else. Lastly, for
that as well, sufficient time was not given. Thus, it is a case of the
hearing being concluded and order passed in undue haste. The
principles of equity, fairness and natural justice have also been
flouted.
26. Mr. Shaikh would submit that the first respondent failed to
appreciate the reasons and grounds in support of the petitioners'
application for permission to form an association by members of
State Police Force. Mr. Shaikh submitted that the association was
to comprise the lower hierarchy of policemen, who are weak and
have no bargaining power at all. Their grievances and complaints
are far too serious to be ignored. Since they have been ignored for
years together, now this category of policemen is up in arms
against their seniors. These persons have to work by the whims
and fancies of their superiors. They control their activities
completely. They have assumed total control and command and
therefore, the so called redressal forums and manned by these
very officers and superiors would not be a real and genuine
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redressal mechanism. Thus, basic constitutional guarantee and
freedom is denied to the petitioners.
27. Mr. Shaikh would submit that just because a particular
applicant or one of the petitioners is a policemen does not mean
he ceases to be a ordinary citizen of India. The constitutional
scheme does not deprive him of any of the rights to freedom and
enshrined in the Constitution of India itself. The understanding of
the first respondent is that once you join a disciplined force and
become a part of it would mean all the restrictions automatically
apply irrespective of whether they are incorporated in the law
made by the Parliament. Mr. Shaikh, therefore, submits that the
impugned order contains a fundamental flaw or defect of legal
character. In that, it assumes that anybody who joins police force
cannot enjoy any freedom under the Constitution of India. The
joining by itself puts restrictions on his activities and prohibits
him from indulging in some other. This approach has resulted in
the first respondent not applying his mind to vital and crucial
issues concerning the working conditions of the policemen at the
ground level. In such circumstances and when there is no
material indicating lack of discipline on the part of the applicants
nor there is anything to indicate that these policemen have not
properly discharged their duties their application could not have
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been rejected. Thus, they are neither indisciplined nor
incompetent.
28. Mr. Shaikh, however, submits that what has influenced the
first respondent in passing the impugned order to a great extent
is that there was an incident, which took place and popularly
styled as police rebellion in Mumbai. However, barring that
alleged incident, there was no material indicating the
involvement of the present petitioners in any alleged riotous act.
Apart therefrom, those accused of being involved in such acts
were acquitted. They were directed to be reinstated in their
services. Therefore, in the absence of any material on record
enabling respondent no. 1 to reach this satisfaction and
conclusion that grant of permission would be contrary to the
discipline required to be maintained in the force and to enable
proper discharge of duties of policemen, the permission could not
have been refused. Mr. Shaikh has taken us through the entire
petition and all its annexures. He has also taken us through the
constitutional provisions. Mr. Shaikh submits that when this
court passed the earlier orders on the petitions containing similar
issues, it did not opine or conclude that the so called police riots
were too serious for denying the permission. The 1993 riots are a
thing of the past. An association may be allowed to be formed
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with some conditions. The refusal could not be justified in the
light of some stray incidents and of the remote past. Lastly, Mr.
Shaikh would submit that the amendments to the Maharashtra
Police Act, 1951 or directions of the Hon'ble Supreme Court of
India in the case of Prakash Singh and Ors. vs. Union of India and
Ors.1 are not reasons enough to reject the permission. These
directions or the steps taken thereafter have no relevance. These
directions are in the nature of suggestions or guidelines. They
have no bearing on the controversy at hand.
29. In support of his contentions, Mr. Shaikh has relied upon
the following judgments:-
(i) Sengara Singh and Ors. vs. The State of Punjab and
Ors., AIR 1984 SC 1499.
(ii) Narendrakumar and Ors. vs. The Union of India and
Ors., AIR 1960 SC 430.
30. On the other hand, Ms. Kantharia learned Government
Pleader submitted that the writ petition has no merit and must be
dismissed. The petitioners have no right to insist on establishing
an association of policemen and its recognition. She would submit
that the petitioners are aware that they are part of a disciplined
force. They are aware of the Police Forces (Restriction of Rights)
Act, 1966. She would submit that police force includes any force
in charge of the public order. The restrictions respecting right to
1 (2006) 8 SCC 1
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form association, the right to freedom of speech as set out in
section 3 of this Act are clear. Therefore, to urge that the Act
does not prohibit the policemen from forming an association and
seeking recognition thereto would be improper and incorrect
reading of the Act. That would render the Act redundant and
nugatory. No interpretation, which makes such enactment
meaningless or redundant, should be placed on its provisions.
The restriction in this case is placed in order to serve larger
public interest. Maintenance of public order is a sovereign duty.
The policemen, therefore, perform a salutary function and duty.
They are in-charge of maintenance of law and order and it is a
regal function. In these circumstances, without express sanction
of the Central Government or of the prescribed authority, no
member of a police force shall be a member of or be associated in
any way with any trade union, labour union, political association
or with any class of trade unions, labour unions or political
associations. Therefore, no policemen can claim any right to form
association and insist on recognition of any association or union.
31. Alternatively and without prejudice, she submits that the
order under challenge does not suffer from any perversity or
error of law apparent on the face of the record, inasmuch as it
assigns cogent and satisfactory reasons in arriving at the
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conclusion that the permission cannot be granted. The order
recites as to how the Director General considered the application.
There is no prejudice which can be said to be established and
proved by the alleged restriction of representation and confining
it to only two policemen. The Director General of Police has
concluded that no useful purpose would be served by granting any
permission. Further, what has been emphasised by Ms.
Kantharia is that the writ petition is rendered infructuous. The
impugned order also enumerates as to how a comprehensive
redressal mechanism is created to redress the grievances and
address the complaints of the policemen and particularly lower
down in the hierarchy. She submits that this mechanism has
been put in place as part of a statutory framework. In that
regard, she invites our attention to the Maharashtra Police Act,
1951. She submits that the amendment to the same redresses all
the grievances of the policemen. She relies upon section 22F(1)
and (2) and submits that the Police Establishment Board No. 2
contemplated thereby has to be created. Its functions are
comprehensive. Now, there is no need for any union or
association. She also invites our attention to section 22Q of this
Act to submit that grievances against the superiors about
sanction of leave, posting, duties etc. can now be redressed by this
Board. She, therefore, submits that in this mechanism, the
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remedies available to such employees holding civil posts of
approaching the Maharashtra Administrative Tribunal etc. are
available to the policemen and they have availed of the same from
time to time. In such circumstances, she would submit that the
writ petition be dismissed as infructuous. It is so rendered by
subsequent developments. When the permission to form an
association was sought, no such mechanism was in place. Now
there is a complete measure and forming part of the statute.
32.
Apart therefrom, she would submit that in such matters,
none can insist on an oral or personal hearing, however, that has
been granted admittedly. There is no guarantee in law that
hearing should be to a particular official or representative.
Merely because the association was represented not by the
desired employee or representative does not mean that principles
of natural justice are violated. The petitioners have not
established any prejudice by this alleged insistence or omission of
the Director General of Police. She would submit that the order
cannot be termed as arbitrary, discriminatory and perverse so as
to warrant interference in writ jurisdiction. Rather writ
jurisdiction is not meant to interfere with the internal working of
the authorities in charge of maintenance of law and order and
public order. The police force is disciplined and if those in-charge
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feel that on ground of discipline and to sub-serve the larger public
interest, a permission of the present nature should not be
granted, then, this court cannot substitute its views with that of
the authorities. It cannot interfere with their orders of the nature
passed in the present petition merely on some sympathetic
grounds or in its opinion, another view is possible. Therefore, she
submits that the writ petition be dismissed.
33. Ms. Kantharia relied upon an order passed by this court
(Nagpur Bench) on 23rd October, 2015 in the case of Umesh
Uttamrao Marodkar and Ors. vs. Director General of Police and
Anr.2.
34. For properly appreciating the rival contentions, we must
make a reference to the Act styled as The Police Forces
(Restriction of Rights) Act, 1966. It is an Act made by the
Parliament to provide for the restriction of certain rights
conferred by Part III of the Constitution of India in their
application to the members of the force charged with the
maintenance of public order so as to ensure the proper discharge
of their duties and the maintenance of discipline among them.
Neither is the competence of the Parliament to make such a law
nor the legality and validity of the same or any of its provisions is
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challenged. It is common ground that by List I Union List, the
Parliament can make laws as regards the entries therein. By List
III, styled as Concurrent List, the Parliament as also the State can
make laws, particularly concerning the matters governed by the
entries therein. Therefore, it is not as if such a law cannot be
made. The law is traceable to Article 33 of the Constitution of
India.
35. In this backdrop, if one peruses the Act, it has only six
sections.
36. Sections 2 and 3 thereto read as under:-
"2. Definitions. - In this Act, unless the context
otherwise requires, -
(a) "member of a police force" means any person
appointed or enrolled under any enactment specified
in the Schedule;
(b) "police force" includes any force charged with
the maintenance of public order;
(c) "prescribed" means prescribed by rules made
under this Act."
3. Restrictions respecting right to form
associations, freedom of speech etc. - (1) No member
of a police force shall, without the express sanction of the
Central Government or of the prescribed authority, -
(a) be a member of, or be associated in any way
with, any Trade Union, Labour Union, Political
association or with any Class of Trade Unions,
Labour Unions or Political associations, or
(b) be a member of, or be associated in anyway
with any other society, institution, association or
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organisation that is not recognised as part of the
force of which he is a member or is not of a purely
social, recreational or religious nature; or
(c) communicate with the press or publish or
cause to be published any book, letter or other
document except where such communication or
publication is in the bona fide discharge of the duties
or is of a purely literary, artistic or scientific
character or is of a prescribed nature.
Explanation. - If any question arises as to whether any
society, institution, association or organisation is of a
purely social, recreational or religious nature under clause
(b) of this sub-section the decision of the Central
Government thereon shall be final.
(2) 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 for any political
purposes or for such other purposes as may be
prescribed."
37. A bare perusal of this section would reveal as to how police
force is considered to be disciplined and entrusted with the
maintenance of public order. The restrictions placed on them
regarding right to form association, freedom of speech are
couched in such language and in clear words to indicate that
without the express sanction of the Central Government or of the
prescribed authority, no member of police force shall be a
member of or be associated in any way with any trade union,
labour union, political association or with any class of trade
unions, labour unions or political associations or be a member of
or be associated in any way with any other society, institution,
association or organisation that is not recognised as part of the
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force of which he is a member or is not of a purely social,
recreational or religious nature. It is the Central Government,
which has been empowered by the Explanation to decide as to
whether the nature of any society, institution of association is
purely social, recreational or religious, if such a question is to
arise. Therefore, a bare perusal of these provisions, which have
to be read harmoniously and together, would indicate that it is not
open to a member of a police force to become a member of or be
associated with ig the trade union, labour union, political
association or with any class of trade unions, labour unions or
political associations etc. There is a bar for his association with
any of the organisations, associations etc. that are not recognised
as part of the force of which he is a member or is not of a purely
social, recreational or religious nature.
38. These provisions have been, in their opinion, rightly
understood by the petitioners as preventing them from forming
an association and of the nature contemplated by them. It is in
these circumstances that they rely upon some of the sanctions,
orders issued in the past and the circulars of the Inspector
General of Police.
39. However, Mr. Shaikh relies upon Rules styled as Police
Forces (Restriction of Rights) Rules, 1966 and the Amendment
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thereto made in 1970. In particular, he relies upon Rule 8 of the
Amended Rules. It reads as under :
"8. Recognition.- Members of a police
belonging to the same rank desiring to form an
Association make an application for the grant
of recognition under clause (b) of sub-section
(1) of section 3 and such application shall be in
writing under the hand of a representative of
such Association addressed to the Inspector
General of Police who shall be the authority to
grant, refuse or revoke such recognition :
Provided that before refusing or
revoking recognition, the Association shall be
given a reasonable opportunity of making
representation against proposed action."
A perusal of the same reveals that firstly it refers to
the Act of 1966. Secondly, it refers to Section 3(1)(b) of the Act
of 1966 and pertinently employs the words "make an application
for grant of recognition". Thirdly, there words and expressions
are inserted with reference to the language of the Section 3(1)(b)
of the Act of 1966. Lastly and importantly, it is the formation and
recognition of an Association or Organisation that is not
recognised as part of the force of which the applicant is a member
or is not of a purely social, recreational or religious nature.
Therefore, a member of a police force cannot be associated, in any
manner, with a Association or Organisation which is not of the
character referred above unless he obtains sanction of the
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prescribed Authority. How, that application has to be made and
for formation, recognition is set out in Rule 8, to whom and what
the powers of the prescribed Authority are and in what manner
they shall be exercised is all that can be read in this Rule. Mr.
Shaikh reads it without reference to the Act and in isolation. It is
well settled that a Rule cannot travel beyond the Act. It must be
read subject to the Act. So read, no independent much less
absolute right to form an Association of the policemen below the
rank as above can be claimed.
ig Thus, the Constitutional
provisions, the Act of 1966 and the Rules thereunder make a
consistent law or legislative Scheme which cannot be ignored.
40. All these enlist as to how formation of police association
after the Act of 1966 was brought into force in Maharashtra State
w.e.f. 15th July, 1979 would be covered by that enactment. The
circulars, memos emphasise that having regard to the paramount
need of maintaining conditions for proper discharge of duties by
the policemen and the maintenance of the discipline amongst
them, the Government also decided that certain conditions should
be laid down governing the formation and working of such
associations. These conditions are contained in Appendix I-C to
the Circular Memo dated 9th October, 1980. Thus, there are
several restrictions placed and the State Government has rightly
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urged before us that the right if at all and flowing from the Act
and the rules is not absolute in terms.
41. Mr. Shaikh, however, relies upon these very conditions and
the model rules, which are to be found from pages 38 to 43 of the
paper book. He also relies upon certain orders and which seek to
regulate what is purely termed as the election or mode of
succession. Mr. Shaikh has, therefore, relied upon certain
permissions and orders granted in the State of Andhra Pradesh.
He has also relied upon the Railway Board's permissions.
42. We are of the firm opinion that the orders passed by this
court, particularly in Writ Petition No. 405 of 1997 Annexure 'F'
at page 52 read as a whole do not in any manner deviate or are
contrary to the above constitutional and statutory mechanism.
Rather, the order, copy of which is at Annexure 'F' at pages 52 to
53 recognises the power of the Government and particularly the
prescribed authority to restrict and regulate the forming of
associations. All that this first order enables the petitioners
therein is to make an application for recognition of the
association, namely, Akhil Bhartiya Kamgar Sena and the same
would be considered on merit, if made so in accordance with law.
43. The writ petition was allowed to be withdrawn and one does
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not know whether at all that Kamgar Sena sought any
permission.
44. Reliance is then placed on Annexures 'G', 'G-1', 'H' and 'H-1'
to the writ petition, which is nothing but copy of representation
dated 4th August, 1997. This application was made by individuals
and whose names are to be found at pages 56 to 57 of the paper
book. This application was rejected and by assigning reasons.
That says that earlier some attempts were made to form an
association and a request was made in that behalf. However, it
was found that when efforts are made and to redress the
grievances raised from time to time and at various levels, then,
permission to form such an association and particularly desired
in terms of this application should not be granted. It is only in the
passing that the events of 1982 have been mentioned. The
reasons assigned were sought to be then questioned by filing a
writ petition being Writ Petition No. 420 of 1998 by the applicant
Sakharam Rama Yadawade. That writ petition was decided on
16th July, 2009. This court, did not go into the legality and
validity of the order dated 6th November, 1997, as the writ
petition was placed for hearing and final disposal after 12 years.
Rather, this court proceeded on the footing assuming that in
the situation existing in the year 1997 when the order was made,
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the Director General of Police was justified in making the order.
The Division Bench opined that a question whether permission to
form association is to be granted will have to be considered by the
situation that exists presently. Therefore, liberty was granted to
the petitioner in that petition to submit an application to the
Director General of Police seeking permission to form an
association and if such application is made to consider it
expeditiously.
45.
It is in these circumstances that the application dated 14th
August, 2009 was filed. Rather, different staff members filed
applications containing similar prayers. They cited some
instances of how the members of the police force at constable
level suffered at the hands of their superiors during the course of
work and on duty. How these employees suffered injustice and at
times injuries when mobs attacked them. These and several
instances were cited to emphasise that even policemen are
human beings and they have several grievances which remain
unattended. They are never redressed. Policemen are aware that
they are members of a disciplined force, but they cannot suffer
and endlessly.
46. It is on this application that the Director General of Police
was of the opinion that it would be better to hear some of these
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applicants. We are in complete agreement with Ms. Kantharia
that each of the applicant/petitioner or policemen could not have
been heard and personally by the Director General of Police.
Given his busy schedule and enormous duties and functions
assigned to him, he took out some time and he indicated to these
applicants that two representatives can place before him their
case. That can be placed effectively. Even otherwise, he had
perused all the applications and the contents of the same were
known to him. He had before him the relevant and necessary
records. There is absolutely no prejudice demonstrated and
proved merely because the chosen representatives of the
petitioners were not heard. Merely because some of them and
chosen by the Director General of Police were heard and briefly by
itself and without anything more does not mean any prejudice is
caused. The order of the Division Bench of this court must be
read in its entirety and not in part. So read, it is apparent that it
grants liberty to the policemen in service to submit an application
to the Director General of Police for permission to form an
association and requires the Director General of Police to consider
that application in accordance with law. All that is observes is
that he should consider the application in the light of the situation
existing and prevailing at the time when the order was passed.
He should not be influenced by any earlier orders. When this was
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the mandate flowing from the order of the Division Bench, we do
not think that the Director General was obliged to grant a
personal hearing to all the petitioners or applicants and
individually. He considered the representative grievance or
representative request. That request or prayer in the
applications was common and concerns the plight of the
policemen, is admitted. Therefore, two of them were chosen by
the Director General in order to assist him in deciding that
application does not mean that he had prejudged the issue or that
his decision is vitiated by bias or premeditation. It cannot be
termed that the proceedings before him were a farce. We do not
think that Mr. Shaikh is right in contending that the impugned
order is contrary to the principles of natural justice. Going by the
language of the Proviso to Rule 8 all the more the petitioners or
applicants could not insist on a personal hearing to all. The first
respondent has adhered to its mandate by granting an
opportunity of making representation against the proposed
action.
47. As far as the merits are concerned, if the impugned order is
perused, it is evident that it records the presence of the
representatives and their submissions. As far as the grievance
that the policemen on duty are attacked by members of the public,
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miscreants and gundas and such instances and incidents are
increasing, the Director General of Police observes that for these
reasons alone would it be justified to grant the applications or
permission to form an association was the query posed by him to
the appearing representatives. They could not give any
satisfactory answer and particularly that the situation will
improve or the attacks will be reduced or political interference in
their duties are concerned, will cease and stop merely because
they are organised or form an association. The Director General
has taken a overall view of the matter and observed that merely
because such permissions are granted and associations of
policemen are permitted to be formed in some States, there has
been no noticeable change nor have the above incidents reduced.
These observations are made by him in the context of the duties
and obligations of the senior police officials towards fellow
policemen particularly towards those lower in hierarchy. They
would have to stand by them, support them in the event there is
undue interference in their duties or that they are prevented by
indisciplined and unruly mobs or members of the public from
discharging their duties of maintenance of public order. It is in
these circumstances that he observes that there are grievances
but purely individual in nature. They pertain to the problems
faced by individual employees and particularly of postings,
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transfers, day to day duties, awards and special rewards. The
second grievance pertains to the administrative or other matters,
namely, weekly off, holidays, allowances etc. If the grievances are
only of the above nature, then, considering them broadly, it would
not be proper to grant permission for there is a redressal
mechanism in place. One of the mechanisms is what is popularly
termed as "Darbar". This monthly Darbar is held predominantly
for redressing the grievances of employees. They can be raised
during the course of such Darbar by individuals. The Director
General is sympathetic when he observes that there are some
emergent problems and issues on which expeditious decision is
required to be taken. Some of them require a decision forthwith.
He was agreeable to issue directions to all the concerned officials
and to those reporting officers to attend to such grievances and
by exhibiting the required sensitivity. They would be reminded
that regular Darbars should be held. At the same, some
meaningful discussion and deliberation should take place. He also
opined that directions can be issued so as to place a complaint
box, in which the employees concerned can put their grievances
in writing. It is in the above circumstances he comes to the
conclusion that by forming an association and allowing it to be
formed or established, none of the issues and individual
grievances, as projected, can be addressed or satisfactorily
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redressed. Such individual complaints and grievances and
arising from time to time can be attended to if required degree of
sensitivity and urgency is demonstrated. For that, the policemen
need not organise themselves. If the permission is granted, then,
it would not be conducive to the paramount obligation of the
policemen. Eventually, he is appointed in a disciplined force and
placed in charge of maintenance of law and order. For his
grievances and complaints, there is sufficient redressal
mechanism already in place.
48. We do not, therefore, consider these reasons to be totally
extraneous or irrelevant as is projected. The reasons and the
ultimate conclusion are not influenced in any manner by any
incident or police riots of 1982-83. That is not how the order will
have to be read. Mr. Shaikh is not right in complaining that it is
only this incident which has influenced the conclusion in the
impugned order.
49. Mr. Shaikh would not like to read the order as a whole and
in the backdrop of the requests which are contained in the
applications. These applications were made by individuals and
they were highlighting individual grievances primarily. When the
Director General of Police had contents of such applications
before him, then, on hearing the representatives, he found that
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the mechanism presently available is sufficient and is
satisfactorily working. The situation will not change or improve
drastically merely because permission to form an association is
granted. In these circumstances, we do not think that the
conclusion can be termed as perverse or vitiated by any error of
law apparent on the face of the record. The order also cannot be
termed as arbitrary and discriminatory. There cannot be any
malafides attributed for the application has to be made and
decided by the prescribed authority.
50. We do not agree with Mr. Shaikh that the impugned order
suffers from non application of mind or is vitiated to such an
extent as would require interference in our jurisdiction under
Article 226 of the Constitution of India. That we are dealing with
police force and applications being of the above nature, we do not
think that the discretionary exercise of the Director General of
Police requires our interference in writ jurisdiction. We are also
not in agreement with Mr. Shaikh that the association could have
been allowed to be formed with conditions and restrictions. We
are nobody to interfere with the wisdom of the police authorities
and particularly the Director General of Police of the State of
Maharashtra. If on the consideration of relevant matters, he does
not deem it fit and proper to grant the permission or exercise his
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discretion in favour of allowing the application and granting
permission to form an association of policemen, then, we cannot
substitute our views with that of the Director General of Police.
Our jurisdiction is limited and restricted as well. We cannot,
merely because another view is possible in these matters,
overturn or reverse the order of the Director General of Police.
We cannot also probe into the justification or otherwise grant
these requests as contained in the applications of the petitioners.
If the existing mechanism to address the complaints or redress
the grievances of individual policemen, particularly at the
subordinate level, in the opinion of the Director General of Police
is sufficient and requires only marginal change or improvement,
then, that is a view taken by a expert. That is a view taken by the
in-charge and fully aware so also conversant with the problems
faced by the policemen. He is also a policeman. We cannot
presume that he is unsympathetic and unmoved by the plight of
some of the policemen. The policemen at times risk their lives
and for protection of the public. They are not rewarded or
awarded, but beaten brutally and at times killed. Similarly, some
insensitive, impolite and rude seniors do not treat the
constabulary or middle level policemen with respect and dignity.
Whenever such instances are brought to light, the State, through
its Department of Home and by intervention of senior
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functionaries of the police force, can be requested to take steps.
Such measures are initiated and taken in accordance with law.
Those guilty are brought to book. Sometimes, they are discharged
from their services or transferred. Even individual policemen
and when facing disciplinary action have several mechanisms in
the form of appeals etc. They have also a remedy to approach the
tribunal under the Administrative Tribunals Act, 1985 or
approach this court in its writ jurisdiction. It is not as if
individual policemen suffer silently and endlessly. It is, therefore,
not proper to assume that every police constable, every police
inspector is always harassed by the seniors and suffers at their
hands. He is not necessarily treated mercilessly. We cannot
presume that he is not extended the necessary courtesy. We
cannot go by some stray or individual instances to assume that a
disciplined force does not treat its members with the requisite
respect, regard and dignity.
51. We are in agreement with Ms. Kantharia that the situation
has improved and after the Hon'ble Supreme Court has stepped in
and expedited the police reforms. One of the directions issued by
the Hon'ble Supreme Court and as highlighted in the affidavit in
reply is setting up of boards and grievances redressal mechanism.
The State has taken due note of these recommendations in the
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various reports of the Police Reforms Commission and directions
of the Hon'ble Supreme Court of India. If some of the directions
have not been implemented by itself and without anything more
will not enable us to interfere with the impugned order.
52. With the assistance of Ms. Kantharia we have perused some
of the amended provisions of Maharashtra Police Act, 1951, the
entire Chapter, which is now introduced, namely, Chapter II-A
and inserted by Maharashtra Police (Amendment and
Continuance) Act, 2014 contains provisions regarding State
Security Commission, Police Establishment Boards and Police
Complaints Authorities. Our attention is invited to the functions
of the Police Establishment Board No. 1 and Police Establishment
Board No. 2. The Police Establishment Board No. 2 has been
empowered to make proper recommendations to the competent
authority concerned regarding the service conditions of police
officers excluding salary and allowances and the competent
authority shall normally act upon them. Sections 22E and 22F
read thus:-
"22E Police Establishment Board No. 2. - (1) The
State Government shall, by notification in the Official
Gazette, constitute for the purposes of this Act, a Board to
be called the Police Establishment Board No. 2.
(2) The Police Establishment Board No. 2 shall consist of
the following members namely:-
(a) Director General and Inspector General of
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Police - Chairperson
(b) Director General, Anti-Corruption Bureau -
Member
(c) Commissioner of Police, Mumbai - Member
(d) Additional Director General and Inspector
General of Police - Member
(e) Secretary or Principal Secretary, as the case
may be (Appeal and Security) - Member
(f) Additional Director General and Inspector
General of Police (Establishment) - Member-Secretary
Provided that, if none of the aforesaid members is from the
backward Class, then the State Government shall appoint
an additional member of the rank of the Additional
Director General and Inspector General of Police belonging
to such Class.
Explanation. - for the purposes of this sub-section, the
expression "Backward Class" means the Scheduled Castes,
Scheduled Tribes, De-notified Tribes (Vimukta Jatis),
Nomadic Tribes, Special Backward Category and Other
Backward Classes.
22F. Functions of Police Establishment Board No.
2. - The Police Establishment Board No. 2 shall perform
the following functions namely -
(1) Subject to the provisions of this Act, the Board
constituted under sub-section (1) of section 22E may,
make appropriate recommendations to the Competent
Authority concerned, regarding the service conditions of
Police Officers excluding salary and allowances. The
Competent Authority shall shall normally act upon them.
(2) In particular and without prejudice to the
generality of the foregoing functions, the Board may
perform all or any of the following functions, namely:-
(a) to decide posting and transfer of Police
Officers;
(b) to make appropriate recommendations
to the Competent Authority concerned
in respect of the grievances received by
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the Board from Police Officers regarding
their promotions, disciplinary
proceedings and other service matters;
(3) Notwithstanding anything contained in
clauses (1) and (2), the State Government may, from time
to time, give directions in public interest and
administrative exigencies in respect of postings, transfers
and disciplinary matters relating to the Police Officers and
such directions shall be binding on the Board.
Explanation. - For the purpose of this section, the
expression "Police Officer" means a Police Officer of and
below the rank of the Police Inspector."
53. A bare perusal of these provisions would indicate as to how
apart form these Establishment Boards, the State Government
has been empowered to issue directions from time to time in
public interest and administrative exigencies in respect of
postings, transfers and disciplinary matters relating to the police
officers and such directions shall be binding on the Board. The
explanation to section 22F as reproduced above clarifies that this
mechanism is created for a police officer of and below the rank of
the Police Inspector. Thus, a high powered body has been
established and conferred with definite powers. These powers
conferred on the Board No. 2 are coupled with a duty. They must
make proper recommendations to the competent authority
concerned, if the matters regarding service and conditions of
policemen covered by this provision are brought before them.
Every complaint, whether individual or collective, should be
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attempted to be redressed and appropriate recommendations be
made so that the conditions of service of the policemen are
improved. They should be safe, secure and feel no pressure or
force while discharging their duties. Their independence should
not in any manner interfered with. Even when they are harassed
by superiors, more particularly the female staff, there is sufficient
redressal mechanism. If the functions of these Police
Establishment Boards are taken into consideration, then, they are
all pervasive. In matters where there are directions required
from the State, then, the State Government can always be
approached and we have no doubt in our mind that the State
Government will evolve a permanent mechanism so that timely
directions are issued for the protection of the members of the
police force. It is true that the incidents of attacks on the
policemen are alarming. There is continuous threat to their life.
There is reluctance by public to abide by or follow the rule of law.
The members of public have now the audacity to attack
policemen, who have been posted for their protection. If such
incidents are increasing and the policemen feel insecure, unsafe
and threatened during the course of and while discharging their
duties, then, the State must -realise that the law and order
situation is going out of its control. The management and
administration of the police force ought to be such that none
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should attack a policeman on duty. Therefore, certain measures
will have to be immediately taken. The seniors will have to take
review of the situation at the ground level and personally try to
improve the lot of these poor and unarmed policemen on duty. It
is time we realise that mobs come out and attack policemen
merely because they are enforcing and implementing the law.
The citizens have forgotten their fundamental duties. The
citizens and residents forget that every right has a corresponding
duty. Therefore, a dialogue or communication channel would
have to be opened with the public and they would have to be
continuously educated about the need to respect policemen,
especially the traffic constables or security guards on duty. These
and other measures, so as to assure these policemen that they
and their families will not suffer in such a situation, must be
undertaken and implemented. We are sure that this order will be
a reminder to the State in this regard.
54. While we say nothing more, we do not think that reliance
placed by Mr. Shaikh on the judgments of the Hon'ble Supreme
Court of India is well placed. Way back, in the case of M/s.
Raghubar Dayal Jai Prakash and Ors. vs. Union of India and Anr. 3,
the Hon'ble Supreme Court of India had the following to observe
with regard to freedom enshrined in Article 19(1)(c) of the
3 AIR 1962 SC 263
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Constitution of India. The Hon'ble Supreme Court of India held as
under:-
(11) Briefly stated, the argument regarding these
provisions infringing the freedom to "form associations"
was as follows: The Constitution guarantees to every
citizen the right to form an association. The only
limitation which might legally be imposed on this right
to form an association is that set out in cl. (4) of Art. 19,
viz., bye-laws which place restrictions based on public
order or morality. Where the object of the association is
lawful, the citizen, through that association, and the
association itself are entitled, by virtue of the
guaranteed right, to freedom from legislative
interference in the achievement of its object except on
grounds germane to public order or morality. In other
words, the freedom guaranteed should be read as
extending not merely to the formation of the association
as such, but to the effective functioning of the
association so as to enable it to achieve its lawful objects.
Unless sub-cl. (c) of el. (1) of Art. 19 were so read the
freedom guaranteed would be illusory and the Court
should, in construing a freedom guaranteed to the
citizen, so read it, as to give him an effective right which
could be used for the purpose for which the Constitution-
framers intended. The further submission, which was in
the nature of a corollary from the above was that the
freedom guaranteed by sub-cl. (c) of cl. (1) of Art. 19
carried with it a right in the association to determine its
internal arrangements in the matter of selecting the
personnel who shall manage it, the framing of the bye-
laws and regulations which shall govern the relationship
between the association and its members as also
between its members without any interference by the
State unless the law providing for such interference
were grounded on morality or public order. In effect the
submission was that the right guaranteed under sub-cl.
(c) of cl. (1) of Art. 19 was not merely, as its text would
indicate, the right to form an association but would
include the functioning of the association without any
restraints not dictated by the need for preserving order
or the interests of morality. On these premises it was
urged that while the Constitution had guaranteed the
freedom to form an association-including inter alia one
for fostering or regulating forward trading, still the
Central Government had taken upon themselves the
right to determine the rules and bye laws under which
the association could function and had, by the provisions
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in Ch. III of the Act, in every way interfered in the
matter of internal management and it was urged that
this was violative of the right guaranteed by sub-cl. (c) of
cl. (1) of Art. 19 since the restrictions in Ch. III of the
Act could not be held to have been dictated ,on grounds
of public order or morality.
(12) We consider this argument is without, force. In
the first place, the restriction imposed by S. 6 of the Act
is for the purpose of recognition and no 564 association
is compelled to apply to the Government for recognition
under that Act. An application for the recognition of the
association for the purpose of functioning under the
enactment is a voluntary act on the part of the
association and if the statute imposes conditions subject
to which alone recognition could be accorded or
continued it is a 'little difficult to see how the freedom to
form the association is affected unless, of course, that
freedom implies or involves a guaranteed right to
recognition also. Could it be contended that there if, a
right in the association guaranteed by the Constitution
to obtain recognition? It was not disputed before us that
forward trading might sometimes assume undesirable
forms and become akin to gambling which might have
deleterious consequences on lawful trade and on the
general public by causing violent fluctuations in prices.
It would follow that the control of forward trading is a
legitimate subject of legislative interference and
regulation and we might add that this was not disputed
before us. The manner in which this regulation is
effected and the machinery employed for achieving it
are matters of legislative policy which could be
determined only by taking into account the Organisation
of the market, the manner of trading and other relevant
factors. The impugned enactment in its Ch. III proceeds
on the basis that organisations of tradesmen might be
entrusted with the task of regulating these transactions,
so that while legitimate trade would be furthered, the
evil consequences of undesirable speculation might be
avoided. It was, therefore, necessary, that the
instrument chosen should be subject to control so as
effectively to further the policy of the scheme of
regulation and that is the ratio underlying the
provisions in is. 6 of the Act and those which follow it in
Ch. III. In this connection it is necessary to add that the
restrictions which are impugned as unconstitutional &re
imposed only on "recognised" associations. Parliament
could well have chosen to effect the regulation directly
through an official agency instead of through the
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medium of a voluntary association. In such an event,
neither the traders nor their associations could
complain of any violation of the law. The mere fact
therefore that Parliament chose to utilise the machinery
of voluntary trades associations for the purpose of
enforcing regulatory control could not invalidate the
provision of laws which are designed to ensure effective
control over the mechanism of forward trading.
(13) So far we have dealt with the argument about
sub-cl. (c) of cl. (1) of Art. 19 in relation to the trades
associations under the Act. As regards the wider
question argued before us regarding the scope of sub-cl.
(c) of cl. (1) of Art. 19, this Court has, in All India Bank
Employees' Association v. National Industrial Tribunal,
Civil Appeal No. 154 of 1961 : (AIR 1962 SC 171)
examined the content of this "freedom of association" in
the light of the other freedoms guaranteed by the other
sub-clauses of cl. (1) of Art. 19, in which judgment has
been rendered recently and it is therefore unnecessary
to go over the ground again."
There is all the more reason to be cautious and circumspect,
when the right claimed is of formation of Association of policemen
and its subsequent recognition. Any such association cannot be
formed without the express consent of the prescribed Authority is
thus a correct understanding of the provision. If the petitioners
admit of such a legal position, then, they should not forget that
they are part and parcel of a Regal and Sovereign function of the
State. That must be performed at all cost and cannot be
outsourced by the State. The petitioners on joining a force meant
for assisting the State in maintaining law and order have to follow
its discipline and strict standards. Even the Director General of
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Police is expected to adhere to the above and not compromise
with the same. Thus, this force is a class by itself and members
thereof cannot equate themselves with the organised labour and
employees ordinarily associated with industry and commercial
world. In true sense of the term the superiors in the police
hierarchy are not masters of those below. They cannot and are
expected not to treat the subordinates as their servants. There is
a Directorate of the entire force and each one of them right from
the police constable to the Director General is part and parcel of
the disciplined policing set-up. The superior officers must realise
that the constabulary is the foundation on which the entire
structure stands and if that is weakened, the whole edifice will
collapse. It will come crashing down to the detriment of
maintaining peace and order in the society. Hence, none of the
members of this disciplined force, of which we are all proud of,
should feel isolated, lonely, dejected and frustrated. Those in-
charge must act swiftly to maintain and preserve the morale,
unity of the force especially the constabulary.
55. Mr. Shaikh's reliance upon the judgment in the case of
Sengara Singh and Ors. vs. The State of Punjab and Ors. 4 is
misplaced. There, the matter regarding termination of policemen
by the State of Punjab was sought to be challenged, including the
4 AIR 1984 SCC 1499
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action of launching criminal prosecution. A committee consisting
of members of the superior rank of the police force was
constituted by the State Government to review the cases of the
dismissed agitators and reinstatement followed on the
recommendations of the committee. Out of 1100 dismissed
employees, 1000 were reinstated and rest were not. It is in these
circumstances that the Hon'ble Supreme Court interfered with
the orders of dismissal of such 100 remaining employees and
reversed the judgment of the High Court.
56. The documents, which have been tendered also do not carry
the case any further. We are not here to examine the ambit and
scope of the provisions of the Act of 1966 or the contours of the
freedom or right guaranteed by Article 19(1)(c) of the
Constitution of India or the reasonable restrictions placed thereon
by Article 19(4) thereof.
57. We are of the firm opinion that Ms. Kantharia is right in
relying on the judgment of the Hon'ble Supreme Court of India in
the case of Delhi Police Non-Gazetted karmachari Sangh and Ors
vs. Union of India. The Hon'ble Supreme Court of India construed
the provisions of the 1966 Act in the light of a challenge to their
constitutional validity and legality. The Hon'ble Supreme Court in
somehow similar situation held as under:-
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"4. The appellants' case is that the Act
referred to above violates Article 19(1)(c) of the
Constitution of India and that the restrictions
imposed by it, being arbitrary, violates Article14
of the Constitution. The Non-Gazetted members
of the Delhi Police Force wanted to form an
organisation of their own and for that purpose
constituted the Karmachari Union in 1966 and
applied for its registration under the Trade
Union Act, 1926. Initially the registration asked
for was declined. Then Act 33 of 1966 was
enacted. It came into force on December 2,
1966. An application for recognition was again
made on December 9, 1966. Recognition was
granted by the Central Government on
December 12, 1966. The Non-Gazetted members
of the Delhi Police Force were permitted to
become members of the Sangh. On December 12,
1966, the Central Government made rules under
the Act which were amended in December, 1970.
The circular in question was issued under these
rules. The circular attempts to derecognise the
Sangh. This occasioned the filing of th writ
petition.
5. Before considering the rival contentions
urged before us, it would be useful to refer to the
salient features of the Act to appreciate its ambit
and the restrictions imposed by its provisions.
The Act was enacted to delineate the restrictions
imposed on the rights conferred by Para III of
the Constitution, 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 the
maintenance of discipline among them. The
Parliament obviously has this power under
Article 33 of the Constitution of India. The
provisions of the Act seek to place certain
restrictions on members of the police force in
exercise of their fundamental rights guaranteed
by Article 19(1)(c) to form Association or
Unions. Section 3 of the Act reads as follows :
"3(1) No member of a police
force shall, without the express
sanction of the Central Government
or of the prescribed authority -
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(a) be a member of, or be associated in
any way with, any trade union,
labour union, political association or
with any class or trade unions,
labour unions, or political
associations; or
(b) be a member of, or be associated in
any way with, any other society,
institution, association or
organisation that is not recognised
as part of the force of which he is a
member or is not of a purely social,
recreational or religious nature ; or
(c) communicate with the press or
public or cause to be published any
ig book, letter or other document
except where such communication
or publication is in the bona fide
discharge of his duties or is of a
purely literary, artistic or scientific
character or is of a prescribed
nature.
Explanation.- If any question arises
as to whether any society,
institution, association or
organisation is of a purely social,
recreational or religious nature
under clause (b) of this sub-section,
the decision of the Central
Government thereon shall be final.
(2) 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 for any political
purposes or for such other purposes
as may be prescribed.
Section 4 of the Act provides for penalties if
section 3 is contravened by any person.
Section 5 gives power to the Central
Government by notification in the official
gazette, to amend the schedule by including
therein any other enactment relating to a
force charged with the maintenance of
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public order or omit therefrom any
enactment already specified therein.
Section 6 gives the rule-making power to
the Central Government.
6. The only contention that now
survives is whether the impugned statute,
rules and order are violative of the rights of
the appellants guaranteed under Article
19(1)(c) of the Constitution of India. This
appeal could be disposed of by a short
order. Appellants 2 to 7 are no longer in
service. They have been dismissed. As
such they do not have the necessary locus
standi to sustain this petition. But the
appellants' counsel submitted that the first
petitioner - the Sangh, was still interested
in perusing this appeal and that persuaded
us to hear the appeal on merits.
7. It is true that recognition was given
to the Sangh originally. Subsequently, by
order dated April 1, 1971, the Sangh was
derecognized. This was pursuant to the
amended rules. Rule 3 provided that :
No member of the police force shall
participate in, or address, any meeting or
take part in any demonstration organised
by any body of persons -
(a) for the purpose of protesting against
any of the provisions of the Act or
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
J.V.Salunke,PA
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conditions of any other member or
members of a police force :
Provided that nothing contained in
clause (b) shall 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 objects of
such association.
8. The above rules were amended by a
notification dated December 19, 1970, the
material change for our purpose being an
amendment in the proviso to clause (c) was
substituted by another proviso which reads
as follows :
Provided that nothing contained
in clause (c) shall preclude a
member of a police force from
participating in a meeting -
(i) which is convened by an
association of police officers of the
same rank of which he is a member
and which has been granted
recognition under clause (b) of sub-
section (1 of section 3 of the Act ;
(ii) which has been specifically provided
for in the article of association of /
and has been, by general or special
order, permitted by the Inspector-
General of Police having regard to
the object of such meeting and other
relevant factors; and
(iii) which has been convened to
consider the agenda circulated to all
concerned according to the relevant
provisions of the articles of
association, after giving intimation
in advance to the Inspector-General
of Police or an officer nominated by
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him.
Rule 5 was added to the Rules by virtue of
which minutes had to be recorded if the
meetings of a recognised association. The
Inspector-General of Police could send
observers by virtue of Rule 6 to such
meetings. Outsiders were prohibited from
attending the meetings of the association
without permission of the Inspector-General
of Police by Rule 7. Rules 8, 9 and 11 may
also be usefully read:
8. Recognition - Members of police
force belonging to the same rank
desiring to form an association may
make an application for the grant of
ig recognition under clause (b) of sub-
section (1) of section 3 and such
application shall be in writing under
the hand of a representation of such
association addressed to the
Inspector-General of Police who
shall be the authority to grant,
refuse or revoke such recognition ;
Provided that before refusing or
revoking recognition, the
Association shall be given a
reasonable opportunity of making
representation against the proposed
action.
9. Suspension of recognition: The
Inspector General of Police may in
the interests of the general public or
for the maintenance of discipline in
the police-force and with the prior
approval of the Central Government,
the State Government or as the ease
may be the Administrator of the
Union Territory suspend the
recognition granted under rule 8 for
a period not exceeding three months
which may be extended for a further
period of three months by the
Central Government, State
Government or as the case may be
the Administrator of the Union
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Territory so however that the total
period for which such recognition
may be suspended shall, not, in any
case, exceed six months."
11. Special provision regarding
recognition already granted.-
Recognition granted prior to the
commencement of the Police Forces
(Restriction of Rights) Amendment
Rules, 1970, to any association the
articles of association of which are
not in conformity with these rules
shall, unless the said aridest of
association are brought in
conformity with the provisions of
these rules within a period of thirty
ig days, stand revoked on the expiry of
the said period."
9. It is the change effected by the new
Proviso to Rule 3(c) which has come in for
attack at the hands of the appellants.
Previously all non-gazetted officers of the
Delhi Police Department could be members
of the Sangh. Now, the amended proviso to
rule 3(c) mandates that only members of
the Police Force having the same rank could
constitute themselves into one Association.
The effect of this amended rule is that the
Sangh will have to be composed of various
splinter associations consisting of members
holding different ranks. This according to
the appellants violates not only Article
19(1)(c) which protects freedom of
association, but also the provisions of the
Act.
..... ..... .....
11. The appellants' counsel Submits that
recognition of the association carries with it
the right to continue the association as
such. It is a right flowing from the fact of
recognition. To derecognise the association
in effect of- fends against the freedom of
association. It is urged that once the
Government had granted recognition to the
Sangh and approved its constitution neither
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Judgment-WP 1525.2011.doc
the Parliament nor any delegated authority
can take away that recognition or dictate to
the association who could be its members.
The right available to the members of the
association at the commencement should
continue as such without any hindrance.
12. Before considering the questions of
law raised by the appellants' counsel with
reference to the decided cases, it would be
useful to bear in mind the fact that this
association consists of members of Police
Force who by virtue of this fact alone stands
on a different footing from other
associations. The Constitution of India has
taken care to lay down limitations on such,
associations from exercising rights under
Article 19(1)(c). Article 33 read with
Article 19(4) of the Constitution offers an
effective reply to the contention raised by
the appellants. Article 33 reads as follows:
"Parliament may, by law, determine to
what extent any of the rights
conferred by this Part shall, in their
application to the members of the
Armed Forces or the Forces charged
with the maintenance of public order,
be restricted or abroagated so as to
ensure the proper discharge of their
duties and the maintenance of
discipline among them."
Article 19(4) reads as follows:
"Nothing in sub clause (c) of the said
clause shall affect the operation of any
existing law in so far as it imposes, or
prevent the State from making any
law imposing, in the interests of the
sovereignty and integrity of India or
public order or morality, reasonable
restrictions on the exercise of the right
conferred by the said sub-clause."
13. That the Sangh and its members come
within the ambit of Article 33 cannot be
disputed. The provisions of the Act and rules
taking away or abridging the freedom of
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association have been made strictly in
conformity with Article 33. The right under
Article 19(1)(c) is not absolute. Article 19(4)
specifically empowers the State to make any law
to fetter, abridge or abrogate any of the rights
under Article 19(1)(c) in the interest of public
order and other considerations. Thus the attack
against the Act and rules can be successfully met
with reference to these two Articles as members
of the Police Force, like the appellants herein,
are at a less advantageous position, curtailment
of whose fights under Article 19(1)(c) comes
squarely within Article 33 in the interest of
discipline and public order. This conclusion of
ours is sufficient to dispose of this appeal.
However, we will deal with the submissions
made before us for the completeness of the
Judgment.
... ... ...
15. Here we have an entirely different
situation since we are dealing with a group
distinct in its nature and composition from
others. Here we are dealing with a force that is
invested with powers to maintain public order.
Article 33 enables Parliament to restrict or
abrogate the fundamental rights in their relation
to the Armed Forces including Police Force. In
Ous Kutilingal Achudan Nair & Ors. v. Union of
India & Ors., this Court had to consider two
questions; whether the employees of the defence
establishment such as cooks, barbers and like
civil employees were "members of the Armed
Forces" and if so whether they could be validly
deprived of their right to form unions in
violation of Article 19(1)(c). This Court held
that they fell within the category of members of
the Armed Forces and that the Central
Government was competent by notification to
make rules restricting or curtailing their right to
form associations, Article 19(1)(c) not
withstanding.
16. In Raghubar Dayal Jai Prakash v. The
Union of India and Ors., this Court had to deal
with this question in relation to the functions of
an incorporated body the objects of which were,
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inter alia, to regulate forward transactions in the
sale and purchase of various commodities,
Freedom of association is a fundamental right. It
was contended that if a law regulated the
recognition of an association under certain
conditions subject to which alone recognition
could be accorded or continued, such conditions
were bad. This Court had to consider whether
the freedom of association implied or involved a
guaranteed right to recognition also. The
contention was that if the object of an association
was lawful, no restriction could be placed upon it
except in the interest of public order and that
freedom to form an association carried with it
the right to determine its internal arrangements
also. Repelling this contention this Court held
that restrictions cannot be imposed by statute
for the purpose of regulating control of such
associations. While the right to freedom of
association is fundamental, recognition of such
association is not a fundamental right and the
Parliament can by law regulate the working of
such associations by imposing conditions and
restrictions on such functions.
17. It cannot be disputed that the
fundamental rights guaranteed by Article 19(1)
(c) can be claimed by Government servants. A
Government servant may not lose its right by
joining Government service. Article 33 which
confers power on the Parliament to abridge or
abrogate such rights in their application to the
Armed Forces and other similar forces shows
that such rights are available to all citizens,
including Government servants. But it is,
however, necessary to remember that Article 19
confers fundamental rights which are not
absolute but are subject to reasonable
restrictions. What has happened in this case is
only to impose reasonable restrictions in the
interest of discipline and public order.
18. The validity of the impugned rule has to be
judged keeping in mind the character of the
employees we are dealing with. It is true that the
rules impose a restriction on the right to form
association. It virtually compels a Government
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servant to withdraw his membership of the
association as soon as recognition accorded to
the said association is withdrawn or if, after the
association is formed, no recognition is accorded
to it within six months. In other words, the right
to form an association is conditioned by the
existence of the recognition of the said
association by the Government. If the association
obtains recognition and continues to enjoy it,
Government servants can become members of
the said association; if the said association does
not secure recognition from the Government or
recognition granted to it is withdrawn,
Government servants must cease to be members
of the said association. That is the plain effect of
the impugned rule. These rules are protected by
Articles 33 and 19(4) of the Constitution.
Besides, it is settled law that the right
guaranteed by Article 19(1)(c) to form
associations does not involve a guaranteed right
to recognition also.
19. The main grievance of the appellants is
that the first appellant-Sangh when recognised,
comprised of Police Officers of various ranks, the
common factor being that all its members were
non-gazetted police officers. This composition
was changed by the impugned rules. Not only is
the composition changed; the entire Sangh stood
derecognised for failure to alter its constitution
complying with the new rules. This attack
cannot be sustained. Section 3 of the Act
permits the rule making authority to define any
group of Police Force that can form an
Association. It also gives power to prescribe the
nature of activity that each' such association of
members can indulge in. It, therefore, fol- lows
that if rules can be framed defining this aspect, a
rule can also be framed enabling the authorities
to revoked or cancel recognition once accorded,
if the activities offended the rules.
20. The further grievance of the appellant is
that non- gazetted officers who once formed
one block have been further divided with
reference to ranks and that this again is an
inroad into their right under Article 19(1)(c).
This submission has been already met.
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Besides, this classification based on ranking
has its own rationale behind it. We are dealing
with a Force in which discipline is the most
important pre-requisite. Non-gazetted officers
consist of men of all ranks; the lowest cadre
and officers who are superior to them. If all the
non-gazetted officers are grouped together
irrespective of rank, it is bound to affect
discipline. It was perhaps, realising the need to
preserve discipline that the changes in the
rule were effected. We are not satisfied that
there has been violation of any law in doing
so."
This judgment is followed in a more recent
pronouncement of the Hon'ble Supreme Court. In the case of
Union of India vs. Ex. Flt. Lt. G. S. Bajwa 5 , the Hon'ble
Court held as under :
"23. Having regard to the authorities it must be held
that the provisions of the Act cannot be challenged on
the ground that they infringe the fundamental right
guaranteed to the respondent under Article 21 of the
Constitution of India. Since the Air Force Act is a law
duly enacted by Parliament in exercise of its plenary
legislative jurisdiction read with Art. 33 of the
Constitution of India, the same cannot be held to be
invalid merely because it has the effect of restricting
or abrogating the right guaranteed under Article 21 of
the Constitution of India or for that reason under any
of the provisions of Chapter III of the Constitution."
58. These observations also take care of the other argument of
Mr. Shaikh that higher level police officers have formed their
association and clubs and the State has never questioned these
acts. We do not think that police clubs or membership thereof
alone and by itself falls foul of the 1966 Act or the constitutional
5 AIR 2004 SC 808
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Articles and provisions. Secondly, these associations are not
found to be causing obstruction or interference with the proper
discharge of the duties nor have been held to be affecting the
discipline of the police force. If any of such instances are brought
to the notice in future, we are sure that the State will take
appropriate corrective action.
59. In the view that we have taken, it is not necessary to decide
any wider or larger controversy, particularly whether the
Division Bench order delivered at Nagpur lays down the correct
law or not. We are broadly in agreement with the conclusion in
that order, but for our independent reasons.
60. As a result of the above discussion, the writ petition fails. It
is accordingly dismissed. Rule is discharged. There would be no
order as to costs.
(DR. SHALINI PHANSALKAR-JOSHI, J.) (S.C.DHARMADHIKARI, J.)
J.V.Salunke,PA
