A. B. CHAUDHARI, J. :- By the present writ petition, the petitioner has challenged the order dated 10-12-2002 passed by the respondent No. 1 terminating his services as Commandant, Home Guards, Yavatmal.

Facts

2. The petitioner avers in his petition that he was appointed initially in the year 1986 as District Commandant, Home Guards, Yavatmal and subsequently by the order dated 5-1-1999 he was again appointed as District Commandant for a period of five years. The petitioner then states that the respondent No.1 issued an order on 10-12-2002 terminating the services of the petitioner as District Commandant, Home Guards, Yavatmal, by giving him one month's notice. The precise challenge to the said order of termination raised by the petitioner was that the principles of natural justice were not followed before dispensing with the services of the petitioner, inasmuch as neither any show cause notice was issued to him nor any personal hearing was granted before taking the impugned action.

3. The respondent No.1 has filed reply-affidavit and stated that during the inspection of the office of the District Commandant, Home Guards, Yavatmal, by the audit party on 12-7-2002, shortage of cash was found. The audit party found that the petitioner had misappropriated an amount of Rs. 1,42,238/- by misusing his official position as District Commandant. It is stated that out of the aforesaid amount the petitioner had deposited Rs. 37,348/- on 20-11-2002 and avoided to pay the balance amount. Therefore, an offence came to be registered against him and other concerned officers vide Crime No. 747 of 2002 and, as such, the Government decided to terminate his service by giving him one month notice.

A specific stand has been taken by respondent No. 1 that Sub-section 2A of section 2 of the Bombay Home Guards Act, 1947, as amended in 1978, (for short the Act) does not provide for issuance of either show cause notice or grant of personal hearing.

Submissions

The learned counsel for the petitioner urged before us that the petitioner was not given any show cause notice nor was offered any personal hearing before issuance of the impugned order of termination. The counsel for the petitioner assailed the provisions of sub-section (2) of the Act and contended that such a provision which does not provide for opportunity of hearing would violate Article 14 of the Constitution of India and, therefore, liable to be struck down. The learned counsel for the petitioner, therefore, urged that admittedly in the instant case neither any show cause notice was issued to the petitioner nor he was afforded an opportunity of hearing, and therefore the impugned order of termination is per se bad and illegal.

4. Per contra, learned A.G.P. argued that sub-section (1) of section 2A of the Act, and in particular its proviso, provides for appointment of a Commandant for such a period as the State Government may fix. He further urged that subsection (2) contains a non obstante clause and therefore the State Government has a right to terminate the services of a Commandant even before the expiry of the term fixed in the appointment order by giving one month's notice. He then contended that one month notice was given to the petitioner and there is no provision for affording an opportunity of hearing to the petitioner before terminating his services and what is provided is a notice of one month which was duly complied with, and as such, their action is in accordance with law.

Consideration

5. Having heard the learned counsel for the parties, at the outset, we find that the Commandant appointed under the provisions of Bombay Home Guards Act is not a Government servant for more than one reason.

Statutory Provisions

Before addressing the core issue, it is necessary to turn to the statutory provisions. In the first place, the Bombay Home Guards Act, 1947 was enacted to provide for a voluntary organization, i.e. the organization of Home Guards. The Preamble of the Act reads as u