JUDGMENT (PER J.N.PATEL, J.):

1. Heard the learned counsel for the parties.

2. We propose to dispose of the three petitions by a common judgment and order as it raises common issues, the facts are not much disputed and it raises identical questions for decision.

3. The State of Maharashtra has impugned the orders passed by the Maharashtra Administrative Tribunal in Original Application No.512 of 1994 filed by Mr.Vinayak Raosaheb Patil, Ex. Inspector of Police and Original Application No.590 of 1994 filed by Mr.Suhas P. Kalamkar, Ex. Inspector of Police which has been disposed of by a common judgment and order dated 3rd December 1997. The third one relates to an order passed by the Maharashtra Administrative Tribunal in Original Application No.280 of 1996 filed by Ashok Hari Khedkar, Ex.Inspector of Police which came to be disposed of by a judgment and order dated 27th March 1997.

4. The then Commissioner of Police, Mumbai, in the case of all the three Police Officers, who were at the relevant time working as Sr.Inspector of Police, exercising his powers under clause (1) and Proviso (b) of Clause (2) of Article 311 of the Constitution of India removed all the three Police Officers from service.

5. Mr.Vinayak Raosaheb Patil and Mr.Suhas P.Kalamkar challenged the order before Maharashtra Administrative Tribunal which held that the State having failed to comply with the provisions of section 26 of the Bombay Police Act, 1951, the impugned order of removal of Police Officers who were serving as Senior Police Inspectors came to be quashed and set aside. The State has challenged the order of the Maharashtra Administrative Tribunal in both the matters by passing a common judgment / order.

6. Another ground on which the Tribunal interfered with the order of removal of Ashok Hari Khedkar was that the impugned order removing the Officer concerned is passed by the Commissioner of Police whereas the order of promotion of the concerned Officer as Police Inspector was issued by the Director General of Police. The Tribunal has considered the issue by examining Rule 3 of the Bombay Police (Punishment and Appeals) Rules, 1956 which include the penalty of dismissal on all officers of the rank of Inspectors and below and these powers are subject to the provision that “Punishment of compulsory retirement, removal or dismissal shall not be inflicted by any authority lower in rank than by which the Police Officer was appointed' and the impugned order of removal was also held to be vitiated on that ground.

7. In the case of Ashok Hari Khedkar, the Tribunal did not feel it necessary to examine the issue as to whether the order under Article 311 (2) (b) of the Constitution of India can be issued without giving the concerned Police Officer an opportunity of showing cause, although such an obligation has been cast on the State Government by section 26 of the Bombay Police Act, as it was brought to their notice that the issue was pending in the Supreme Court in S.L.P. preferred by the State relating to interpretation of section 26 of the Bombay Police Act having vis-a-vis the respective provision of the Constitution and, therefore, the Tribunal held that they so not propose to probe into the aspect inasmuch as the matter is subjudice in the Supreme Court and inasmuch as the factual position was mentioned above.

8. The learned A.G.P. appearing on behalf of the State submitted that section 12A of the Bombay Police Act, 1951 is very clear on the issue that the Inspectors appointed within the area under control of Commissioner of Police, the said Inspectors' appointing authority is the Commissioner of Police. Thus, the Commissioner of Police is empowered to award the penalty as provided under Rule 3 of the Bombay Police (Punishment and Appeals) Rules, 1956, in respect of the Inspectors working within the area of Commissioner of Police and, therefore, the Commissioner of Police for Greater Mumbai is empowered to dismiss or remove a person or to reduce in ran

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