JUDGMENT - V.G. PALSHIKAR, J.:---By this petition, the petitioner has challenged the order of his dismissal from service as violative of provisions of section 26 of the Bombay Police Act and Article 311 of the Constitution of India.

2. Briefly stated the undisputed facts are that while the petitioner was working as Police Constable in Nashik Police Commissionarate, he was deputed to guard an accused named Bakhtiyar Khan, who was undergoing treatment in Civil Hospital at Nashik. While the accused was under the guard of the petitioner and some other Constables he was escaped from the Civil Hospital, Nashik. The responsibility, according to the police department, was with the petitioner and other Constables who acted obviously negligently and therefore they were suspended and thereafter on 11-3-1993 an order was passed discharging the petitioner from the police service. The order on the face of it is one passed under Article 311, Clause (2)(b) of the Constitution. The order of discharge states that holding of departmental enquiry is not possible because the only witness of the negligence of the petitioner is the prisoner who has ran away.

3. An application filed against this order of discharge before the Maharashtra Revenue Tribunal came to be dismissed. Hence after making arrangement to defend himself the petitioner has filed this petition in 1999. He has pleaded poverty, non-availability of fund and proper legal advise as the cause of the delay in approaching this Court.

4. The learned Counsel Ms. Karnik appearing on behalf of the petitioner submits that it is a case of violation of statutory and constitutional rights vested in the petitioner and the reasons given by the petitioner are sufficient enough to condone the latches, for which the petitioner is guilty due to the circumstances beyond his control. Looking to the fact that the petitioner is dismissed from duty and is facing starvation, we see no reason to reject this submission and dismiss the petition only on the ground of latches.

5. The learned Counsel Ms. Karnik submitted that there is violation of section 26 of the Bombay Police Act and that the explanation contained in the order of discharge for avoiding departmental enquiry is grossly inadequate and incorrect. The departmental enquiry can always be held in such conduct of negligence. Evidence could be led to show that the Police Constables were not vigilant on their duty, evidence could be led to show that there was conspiracy between the accused, who ran away, and the Police Constables on duty, conspiring the conflict and the accused to run away, and the petitioner would have constitutional right to be heard in the matter and could have established his innocence.

6. It is the submission of the learned Counsel that section 26 of the Bombay Police Act does impose the necessity of granting the hearing to any person before an order of punishment is made. The Bombay Police Act is the special legislature and therefore inspite of what is provided under Article 311(2)(b), an opportunity as contemplated under section 26 of the Bombay Police Act is liable to be given. According to the learned Counsel Article 311(2)(b) is a provision permitting the Disciplinary Authority to dispense with the departmental enquiry for which reasons to be recorded in writing. According to the learned Counsel, the reasons recorded by the Disciplinary Authority are grossly inadequate and it cannot be said that for that reasons, it is not reasonably practicable to hold such enquiry. It is the submission of the learned Counsel that the reasons to be recorded in writing for dispensing with the disciplinary enquiry are justifiable because the principle of natural justice and the basic right of audience is being taken away from a citizen and therefore the courts can question the correctness of the reason for recording in writing as also the question regarding dispensing with the enquiry and in particular can also be adjudicated all the reasons why

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