SCA/432/1989 1/78 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 432 of 1989 with CIVIL APPLICATION No.9810 of 2001 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= GUJARAT RAJYA POLICE INSPECTORASSOCIATION - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ================================================= Appearance : MR MUKUL SINHA for Petitioner(s) : 1 - 4. MR KAMAL TRIVEDI, Addl.AG with MS SANGITA VISHAN AGP for Respondent(s) : 1 - 2. RULE SERVED for Respondent(s) : 1 - 2. ================================================= SCA/432/1989 2/78 JUDGMENT CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 09/03/2006 ORAL JUDGMENT 1. The petitioners, in all four associations, namely, (1) Gujarat Rajya Police Inspectors' Association (2)Gujarat Rajya Police Sub Inspectors' Association (3) Gujarat Rajya Police Head Constable Mandal and (4) Gujarat Rajya Police Constable Mandal, have filed this petition under Article 226 of the Constitution of India praying for declaration that the show cause notice dated 28.12.1988 issued to the petitioner associations is illegal and contrary to the Act and the Rules and, therefore, requires to be quashed and set aside. The petitioners have also asked for the stay against the respondents restraining them from acting upon the show cause notices dated SCA/432/1989 3/78 JUDGMENT 28.12.1988 and from taking any action pursuant thereto. The petitioners have also asked for the stay against the respondents from cancelling or withdrawing the recognition of the petitioner associations without giving reasonable opportunity to the associations to show cause against the said purported act. 2. During the pendency of this petition, the respondent has passed an order on 18.3.1989 revoking the recognition of the associations, and, therefore, amendment was made to the petition as well as in the prayer clause. As per the amended prayer, the petitioners have sought for declaration that the impugned orders of revocation dated 18.3.1989 are ex-facie, illegal, unconstitutional and violative of principles of natural justice and, therefore, are null, void and ab-initio and that the associations and their members would suffer SCA/432/1989 4/78 JUDGMENT irreparable hardships if the said orders are not stayed. The petitioners have, therefore, prayed for the ad interim relief restraining the respondents from enforcing, implementing, executing or taking any action in pursuance of the impugned orders dated 18.3.1989 and further prayed for the interim relief restraining them from interfering with the activities of the associations and further directing them to permit the associations to work and function according to law and the Constitution. 3. This Court has passed an order on 20.1.1989 and it was observed therein that in the matter of derecognition of the associations in question, decision would not be taken without hearing the associations. In view of the said statement made by the learned counsel appearing on caveat on behalf of the respondent, the matter was adjourned on that day. This Court SCA/432/1989 5/78 JUDGMENT has, thereafter, passed further order on 10.11.2000 and it was observed therein that the petitioners have been advised to make an application for recognition of their associations under Rule-8 of the Police Force (Restriction of Rights) Amendment Rules, 1970 made in exercise of the powers conferred by Sub Section (1) of Section-6 of the Police Forces (Restriction of Rights) Act, 1966. The matter was, therefore, adjourned so as to enable the petitioners to make an appropriate application under the above referred Rule-8. The Court has, thereafter, passed further order on 20.4.2001 and it was observed therein that an application for permitting the holding of a meeting for passing a resolution to make an application for recognition was made and that the same was yet not replied. The Court has directed the State Government to make its stand clear on the next date of hearing. Thereafter, SCA/432/1989 6/78 JUDGMENT the State Government has rejected the said application on 21.4.2001. Even further application for reconsideration of its decision was also rejected n 9.5.2001. 4. Being aggrieved by the said order the petitioners have filed Civil Application No.9810 of 2001 praying for the direction to the respondent No.2 to permit the applicants to hold the meeting to discuss and pass appropriate resolution for filing the fresh application for recognition. The said Civil Application was ordered to be heard alongwith the main petition. 5. As far as main petition is concerned, it is the case of the petitioners that the petitioners associations are sincerely and bona fide committed to the lawful and constitutional means permissible under the Constitution and SCA/432/1989 7/78 JUDGMENT the law for the furtherance of interest of their members. The petitioner associations have never acted and have no intention to act and will never act in any manner which is prejudicial to the Constitution, the law and people's interest. The petitioner associations also keep the discipline of the police force as their highest consideration and do not believe in considering their personal interest above public interest or above discipline. The petitioner associations have so far never acted in any manner which is unconstitutional, unlawful, immoral, improper, unjustified or destructive of discipline or prejudicial to the interest of the people. 6. It is also the case of the petitioner associations that there was wide spread discontent and dis-satisfaction among the members of the police forces in the State of SCA/432/1989 8/78 JUDGMENT Gujarat and the petitioner associations were trying to bring about the satisfactory and peaceful resolution of the grievances and problems by negotiating with the Government. The major grievance of the police force was with regard to the pay scales of the 4th Pay Commission of the Government of India. The associations effectively intervened and as a result thereof the compromise was arrived at between the Government and the four petitioner associations. It was specifically mentioned in the compromise that the government would not victimize anybody. Even after the said compromise, the Government did not show readiness and willingness to redress the various grievances of the different classes of members of the police force. Wide discontent and disaffection spread among the members of the police force. The Gujarat Rajya Police Karmachari Sanklan Samiti was also formed SCA/432/1989 9/78 JUDGMENT representing the different classes of the police force and it was this Sanklan Samiti which was carrying on negotiations with the government and also made efforts to channelise the discontent of the police force in a peaceful, legal and constitutional manner. Thereafter various incidents happened which led to further tension between the government and the police force. There was also the threat of strike by the police force. A meeting was held at Gandhinagar on 12.7.1988 between the government and the Sanklan Samiti and the government asked for 6 months time for the redressal of the grievances and a peaceful atmosphere was created. However, immediately thereafter the government took a summer-salt and started issuing statements that no compromise has been arrived at and the government has not given any assurance. The associations and its members, therefore, feared SCA/432/1989 10/78 JUDGMENT that the government was determined to victimise the leaders and the members of the police force and to take various coercive and repressive measures against the police. Apprehending the large scale repression by the government, a petition was filed in this Court by the petitioner associations alongwith the other officers with a prayer to restrain the government from harassing victimising, dismissing, suspending the officers etc., and ad-interim relief was also granted. Inspite of that the government did not respect the interim stay and hence a contempt petition was filed. As a part of the further repression, the respondent No.2 issued an order dated 23.7.1988 suspending the recognition of the petitioner associations for a period of 3 months. After expiry of the 3 months the respondent No.2 again issued an order dated 19.10.1988 extending the suspension of the recognition of SCA/432/1989 11/78 JUDGMENT the associations for a further period of 3 months with effect from 24.10.1988. 7. Dr. Mukul Sinha, learned advocate appearing for the petitioner associations has submitted that a bare reading of the orders passed by the respondent No.2 will show that the recognition of the associations was suspended with the result that the associations could not carry out any of their activities nor the office bearers or other members could do so. Not only this, but if any such activities are conducted they would be illegal. A writ petition being Special Civil Application No.3941 of 1988 was filed challenging the suspension of recognition and ad-interim relief was granted in respect of the properties and premises of the associations. After the suspension of the recognition of the associations, the petitioner associations could not function. Most of the SCA/432/1989 12/78 JUDGMENT office bearers were dismissed and many of them were detained under the National Security Act. Various petitions challenging the said order were stated to be pending in this Court. 8. Dr.Sinha further submitted that as a result of the suspension of the recognition the petitioner associations could not function according to their Constitution, no meeting could be held, most of the office bearers were not there and no business could be transacted. He has submitted that all these would be illegal and would subject the persons to criminal proceedings. He has further submitted that the respondent No.2 issued a Memorandum dated 28.12.1988 to all the petitioner associations informing them that the government has decided to cancel the recognition of the associations and asking the petitioner associations to show cause against the same. SCA/432/1989 13/78 JUDGMENT As the associations could not continue their activities because of the order of the government, it was legally impossible for the associations and their office bearers to reply effectively to the show cause notices. He has further submitted that inspite of the reply given by the associations to the show cause notices on 17.1.1989 the government has determined to cancel or withdraw the recognition of the associations. Dr.Sinha further submitted that under the Police Forces (Restrictions of Rights) Rules, 1970, a reasonable opportunity is required to be given to the associations before withdrawing or cancelling the recognition. As the respondents have suspended the recognition of the associations, the associations could not function and could not conduct their proceedings. No business could be transacted, no meeting could be held and no decisions could SCA/432/1989 14/78 JUDGMENT be taken. Some of the office bearers were dismissed and some were in jail. Under these circumstances, the petitioner associations were made legally disabled from filing their effective reply to the show cause notices. 9. Dr.Sinha further submitted that the show cause notices dated 28.12.1988 were addressed to the petitioner associations whose recognition was under the suspension at the relevant time. The petitioner associations were not in a position to function at all. Not only that its functioning would itself be illegal, but even a calling meeting of the associations would be illegal and the participants in the meeting would be guilty of an offence under the Police Force (Restrictions of Rights) Act, 1966 and the rules thereunder. He has, therefore, submitted that in such a situation, it was legally impossible for the SCA/432/1989 15/78 JUDGMENT associations to reply to the show cause notices of 28.12.1988. Moreover, it was only the associations and their competent bodies which could give reply to the show cause notices, but they were not permitted to function and, therefore, the question of giving official replies did not arise. However, certain individuals without any authority under the constitution of the associations replies to the show cause notices. 10. Dr.Sinha has further submitted that show cause notice was issued to the Gujarat Rajya Police Head Constables Mandal and the notices were handed over to Shri Manubhai C. Bhatt. He submitted a representation dated 6.1.1989 to the respondent No.2 stating the condition of the association under suspension and explaining the difficulties which would render it impossible to give replies to the show cause SCA/432/1989 16/78 JUDGMENT notices. In response to the notice for oral hearing to the Gujarat Rajya Police Constable Karmachari Mandal, one Mr.Govindsinh Dabhi, Police Constable, Vatva Police Station appeared before the respondent No.2 and submitted an application for giving time of one month for hearing so that the association after following procedure could properly reply. Inspite of this application, he was asked to give a statement and he gave a statement. In the statement, he also explained the difficulties faced by the associations to give reply. He was then asked to state anything on behalf of the City unit. He has further submitted that various replies were filed on behalf of the different associations. It would be obvious that none of the persons to whom the notices for oral hearing were handed over had the authority to speak on behalf of the associations. SCA/432/1989 17/78 JUDGMENT 11. Dr.Sinha further submitted that after the suspension period of the recognition of the associations came to an end on 23.1.1989 the associations were highly disorganised and could not organise themselves properly. They could not hold meetings of the Executive Committee till the date of oral hearing. It was only on 5.3.1989 that the associations could hold a meeting and submitted a Memorandum to the Governor and the Chief Minister praying for judicial enquiry into the incidents and withdrawal of the dismissal of its office bearers. Even before the revocation of the recognition of the associations, the respondents have created such an atmosphere of fear and panic that none of the members of the associations could act freely and could work in associations. All of them were afraid of reprisals and repressive measures from the SCA/432/1989 18/78 JUDGMENT government and the government has already determined not to allow the associations to work. Dr.Sinha has further submitted that the impugned orders of the respondent No.2 are arbitrary, irrational and were passed as a result of non-application of mind and, therefore, violative of Articles 14 and 16 of the Constitution of India and also of the provisions of the Police Forces (Restrictions of Rights) Act, 1966 and the rules framed thereunder and are also mala fide and violative of Article-21 of the Constitution of India and also in breach of the principles of natural justice. 12. Dr.Sinha further submitted that Police Forces (Restrictions of Rights) Act, 1966, the Police Forces (Restrictions of Rights) Rules, 1966, the Police Forces (Restrictions of Rights) Amendment Rules, 1967 and the Police Forces SCA/432/1989 19/78 JUDGMENT (Restrictions of Rights) Amendment Rules, 1970, are relevant for deciding the issue raised by the petitioners in this petition. 13. Rule-8 says that members of a police force belonging to the same rank desiring to form an association may by an application apply 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 the proposed action. Dr.Sinha therefore submitted that this rule clearly provides for a reasonable opportunity of making representation against the proposed SCA/432/1989 20/78 JUDGMENT action to be given to the association. Similarly at the time of hearing of the petition it was stated by the learned Advocate General that in the matter of derecognition of the association in question decision would not be taken without hearing the associations. 14. Dr.Sinha has further submitted that all the petitioner associations' recognitions were suspended from 23.7.1988 to 23.1.1989 i.e for a period of six months permissible under the Rules. During this period of suspension, the associations could not and were not permitted to carry on any activities either individually or through collectively, their office bearers could not work, their meetings could not be held, nobody was in a position to accept any communication from the Government, when the suspension orders were challenged by Special Civil Application No.3941 of 1988, ad-interim SCA/432/1989 21/78 JUDGMENT relief was granted to the effect that the respondents were restrained from interfering with the peaceful possession, enjoyment and use of the premises and properties of the associations. Dr.Sinha has further submitted that the associations were and are fully and legally recognised by the government and have always been working in a legal and constitutional manner. Their only duty was to ventilate the grievances of the members. The members of the Police Forces belonging to one of the most exploited groups in the State and their living and working conditions have always remained most deplorable inhuman and unjust. On the one hand, the police force is used by the government and the politicians for their narrow purposes to suppress the people's movements and as a result the police force losses sympathy of the people who would not support their cause. On the other hand, the SCA/432/1989 22/78 JUDGMENT State would not agree for the movement of the living and working conditions of the police force. The result is that the members of the police suffered great injustice, inequalities and hardships. Not only this but their grievances would also not be properly considered. 15. Dr.Sinha has further submitted that Rule-9 of the Police Forces (Restrictions of Rights) Amendment Rules, 1970, states about suspension of recognition. It says that 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 case 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 SCA/432/1989 23/78 JUDGMENT extended for a further period of 3 months by the Central Government, State Government or as the case may be the Administrator of the Union territory so however that the total period for which such recognition may be suspended shall not, in any case, exceed 6 months. Dr.Sinha has further submitted that this rule clearly provides for suspension of the recognition of the Union if the Inspector General of Police decides to do so in the interest of the general public or for the maintenance of the discipline in the police force. The State Government accordingly exercised this power and suspended the recognition of the associations by an order dated 23.7.1988 for a period of 3 months. This suspension order was allegedly in respect of and because of the allegations of misconduct, indiscipline etc, which were allegedly against them. He has further submitted that the action of the respondents in suspending the SCA/432/1989 24/78 JUDGMENT recognition of the associations was a penal action making all activities of the associations illegal and punishable with the imprisonment. This action was, however, an independent action by way of punishment against the Associations for their alleged activities before the date of the orders of suspension. 16. Dr.Sinha further submitted that the impugned order of 18.3.1989 revoking the recognition of the associations are absolutely without any basis and as a result of the clear non- application of mind because firstly for alleged acts of omission and commission before 24.7.1988 the associations were suspended and were adequately punished. Secondly after 24.7.1988 to 23.1.1989 the associations were not working at all and, therefore, could not be held guilty for any activities and thirdly after 23.1.1989 no illegal activity has been SCA/432/1989 25/78 JUDGMENT committed by the associations. Dr.Sinha further submitted that the impugned orders are clearly arbitrary, irrational and unreasonable and totally unjustified and are by way of double punishment and also based upon materials which ought not to have been taken into consideration and, therefore, are illegal, null and void. 17. Dr.Sinha further submitted that under Article 33 of the Constitution of India, the Parliament has got powers to curtail or restrict the fundamental rights of the police force and accordingly the Parliament has passed the Police Force (Restriction of Rights) Act, 1966 restricting and regulating certain basic rights of the police force but the said Act has not completely taken away the fundamental rights of the police force i.e, the right to form an association is subject to recognition to be SCA/432/1989 26/78 JUDGMENT granted by the authorities but once the recognition is granted, the members of the police force are entitled to avail of those rights and to enjoy them subject to the restrictions imposed by the Act. Similarly with respect to freedom of speech and expression and assembly, the fundamental rights of the police force are only restricted and regulated and are not totally abrogated. Subject to those restrictions and regulations the members of the police force are entitled to enjoy the fundamental rights under the constitution. Under the Act and the Rules, the enjoyment of the fundamental rights by the members of the police force is substantially made to depend upon the recognition of the associations by the authority. It follows, therefore, that in the matter of grant of recognition, the withdrawal of recognition or suspension of recognition, the authority must SCA/432/1989 27/78 JUDGMENT strictly comply with the conditions and the norms under which the fundamental rights can be taken away. He has, therefore, submitted that by the impugned order of revocation the fundamental rights of the police force to form association under Article-19 are totally abrogated. He has, therefore, submitted that it is necessary that the impugned orders of revocation must strictly be tested on the touchstone of constitutional requirements, namely, it must be a just decision and such a decision must be taken after following a just, fair and reasonable procedure. The impugned orders of revocation are absolutely unjust, improper and unjustified and passed by way of victimization only and without following the principles of natural justice. Therefore, the impugned orders of the respondent No.2 are clearly violative of Articles 14, 19 and 21 of the Constitution of India and are, therefore, SCA/432/1989 28/78 JUDGMENT liable to be quashed and set aside. 18. Dr.Sinha has relied on the decision of Madras High Court in the case of Tamil Nadu Electricity Board Engineers' Sangam vs Tamil Nadu Electricity Board, reported in 1996 (1) LLN 914, wherein it is held that the respondent has not given any opportunity to put forth the grievances of the petitioners by conducting an enquiry which will find whether the petitioner- union has indulged in any unlawful activities. There the Court was of the clear view that the withdrawal of the recognition of the petitioner – union without affording the requisite opportunity to the petitioners is bad in law and it is opposed to the principles of natural justice. The Court, therefore, held that the order impugned in the said writ petition was liable to be set aside. The Court further held that admittedly the respondent has granted SCA/432/1989 29/78 JUDGMENT recognition to the petitioner-union. When it wants to undo that recognition by derecognising it is incumbent upon the respondent to give opportunity to the petitioner-union and to state valid reasons for derecognition. In other words, the derecognition cannot be done in an arbitrary manner. Therefore, writ petition was allowed and the order impugned withdrawing the recognition granted to the petitioner-union was quashed. 19. As far as Civil Application No.9810 of 2001 is concerned, Dr.Sinha has submitted that the petitioners have originally filed the aforesaid petition challenging the action of the respondents of suspending the recognition of the petitioner associations without giving any fair opportunity of hearing to the associations and have prayed for various reliefs including declaration that the impugned notice dated SCA/432/1989 30/78 JUDGMENT 28.12.1988, issued to the associations are illegal, null and void. He has further submitted that