State of Maharashtra and ors. Vs. Ganesh Narayan Gadekar

State of Maharashtra and ors. vs Ganesh Narayan Gadekar

Disposition Appeal dismissed Court Mumbai Decided Nov 25, 1999

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Citation: sooperkanoon.com/360217
Court: Mumbai High Court
Judge: B.P. Saraf and ;D.K. Deshmukh, JJ.
Decided On: Nov 25, 1999
Case Number: O.O.C.J. Appeal No. 665/1980
Subject: Labour and Industrial
Disposition: Appeal dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974]. Section 41: [ Swatanter Kumar, CJ, Smt Ranjana Desai & D.B. Bhosale, JJ] Arrest of accused - Held, A Police Officer or a person empowered to arrest may arrest a person without intervention of the Court subject to the limitations specified under the provisions of ...

Key legal issue: Labour and Industrial
Outcome / disposition: Appeal dismissed

Parties & Advocates

Appellant / Petitioner

State of Maharashtra and ors.

Respondent

Ganesh Narayan Gadekar

Legal References

Reported In: (2000)IIILLJ690Bom

Excerpt

.....desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not ..........judge in relation to sick leave and half: pay leave. according to the learned counsel the findings recorded by the learned single judge that conditions of service in this regard prescribed by the respondent no. 2 are not less favourable to the conditions of service, which were in existence in 1975, when the petitioners were in service of the government of maharashtra. therefore, we asked the learned counsel for the appellants to point out to us the rules, which were in force in 1975 governing the conditions of service of the employees of the state government on the above referred aspect so that those rules can be compared with the rules framed by the respondent no. 2, which were subject matter of challenge before the learned single judge. however, the learned counsel appearing for the appellants was not able to point out to us the rules, which were in force in 1975. he expressed his inability to do so. it is to be seen that in order to find out whether the learned single judge was justified in striking down the rules on the above referred two aspects of the matter framed by the respondent no. 2, we will have to compare the rules governing the conditions of service of the employees of the government of maharashtra as in force in the year 1975 with the rules framed by the respondent no. 2. as the learned counsel for the appellants is not in a position to point out those rules to us, we cannot compare the two rules. in this view of the matter, therefore, we find no fault with the judgment of the learned single judge, which is impugned in this appeal.4. in the result, the appeal fails and is dismissed with costs.

Full Judgment

ORDER

D.K. Deshmukh, J.

1. By this appeal, the appellants challenge the judgment dated July 3/4, 1980 given by the learned single Judge of this Court in Miscellaneous Petition No. 656 of 1976. That petition was filed by the petitioners, who were employees of the respondents Nos. 2 & 3 to the original petition, challenging the rules framed by the respondents Nos. 2 & 3 governing the conditions of service of their employees. The petitioners were initially in the service of the Government of Maharashtra. However, after the formation of 2nd and 3rd respondents, they were absorbed in the service of the respondents Nos. 2 & 3. At that time, the Government of Maharashtra had issued a resolution that on their absorption by the 2nd and 3rd respondents, their conditions of service would be governed by the rules and regulations of the respondents Nos. 2 and 3. However, those terms shall not be less favourable than their existing terms and conditions of service. It was the case of the petitioners that in the rules that have been framed by the second respondent, their conditions of service are less favourable than the conditions of service which were in existence when they were in the service of the Government of Maharashtra.

2. The learned single Judge by his judgment, which is impugned in this appeal, allowed the petition. It was directed that the respondents should apply to the petitioner No. 2 and the employees represented by them, the conditions of service which are not less favourable than those available to them till, August 31, 1975. The respondent no. 1 was directed to enforce the resolution dated April 30, 1975 against the respondent No. 2. Some other directions were also given.

3. At the hearing of the appeal, the learned: counsel for the appellants submitted that the grievance of the appellants is restricted to the provision that has been made in the rules that have been declared to be invalid by the learned single Judge in relation to sick leave and half: pay leave. According to the learned counsel the findings recorded by the learned single Judge that conditions of service in this regard prescribed by the respondent No. 2 are not less favourable to the conditions of service, which were in existence in 1975, when the petitioners were in service of the Government of Maharashtra. Therefore, we asked the learned counsel for the appellants to point out to us the rules, which were in force in 1975 governing the conditions of service of the employees of the State Government on the above referred aspect so that those rules can be compared with the rules framed by the respondent No. 2, which were subject matter of challenge before the learned single Judge. However, the learned counsel appearing for the appellants was not able to point out to us the rules, which were in force in 1975. He expressed his inability to do so. It is to be seen that in order to find out whether the learned single Judge was justified in striking down the rules on the above referred two aspects of the matter framed by the respondent No. 2, we will have to compare the rules governing the conditions of service of the employees of the Government of Maharashtra as in force in the year 1975 with the rules framed by the respondent No. 2. As the learned counsel for the appellants is not in a position to point out those rules to us, we cannot compare the two rules. In this view of the matter, therefore, we find no fault with the judgment of the learned single Judge, which is impugned in this appeal.

4. In the result, the appeal fails and is dismissed with costs.

Same Court & Year Mumbai · 1999 Same Parties State of Maharashtra and ors. vs Ganesh Narayan Gadekar Same Subject Labour and Industrial Same Judge B.P. Saraf and ;D.K. Deshmukh, JJ.

Labour and Industrial