The main legal point established is that the authority to dismiss Home Guards for misconduct lies with the Commandant General under Section 8(1) of the Act, and no order can be passed without providing an opportunity of hearing.

ORDER :

1. These writ petitions have been filed by the petitioners aggrieved against the impugned discharge cum termination order dated 19/2/2020 passed by the respondent no.4, whereby, the petitioners have been discharged as Member of the Home Guards.

2. It is inter alia indicated in the writ petition that the petitioners were appointed as members of the Home Guards under the provisions of the Rajasthan Home Guards Act, 1963 ('the Act, 1963') and Rajasthan Home Guards Rules, 1962 ('the Rules, 1962') in the year 1998 and 1992, respectively. The petitioners came to be deputed/promoted as Hawaldar Platoon Commander (HPC) in the year 2006 and 2004, respectively.

3. On 10/4/2017, the petitioners were reverted from the post of Hawaldar Platoon Commander (HPC) to Home Guards, which was challenged by the petitioner Rajendra Sharma by filing CWP No. 13294/17, which petition came to be allowed on 21/5/2019, whereby, the order of reversion of petitioner Rajendra Sharma was set aside and promotion to the post of Hawaldar Platoon Commander was restored.

4. The petitioner Rajendra Sharma was served with a notice dated 15/1/2020 followed by another notice dated 24/1/2020 for initiating disciplinary proceedings under Section 8(2) of the Act, 1963 with the allegations that the petitioner contracted second marriage during subsistence of his first marriage and that he had made false complaints against the department.

5. Petitioner Surendra Singh was issued a notice dated 15/1/2020 for initiating disciplinary proceedings by alleging that the petitioner misbehaved with other home guards and made false complaints against the authorities of Home Guard Department.

6. Both the petitioners filed reply and denied the allegations & demanded copy of relevant record but it is alleged that nothing was provided, on account of which the petitioners submitted representations to D.G., Home Guards and sought his intervention. On 15/4/2020 the petitioners were informed to appear along with copying charges to receive desired documents and were provided certain documents which contained impugned discharge/termination order dated 19/2/2020 passed by the respondent no. 4 by which the membership of the petitioners of Home Guards had been dispensed with.

7. It is inter alia claimed that by the impugned order the power has been exercised under Section 8(2) of the Act, 1963, which is illegal and contrary to the settled procedure.

8. Submissions have been made that the petitioners were not provided any opportunity of hearing before passing the orders impugned and that the orders which have been issued by the respondents are contrary to the record. It was emphasized that Section 8 of the Act, 1963, which provides for punishment for neglect of duty etc. envisages opportunity of hearing, however, no such opportunity of hearing was provided to the petitioners.

9. The show cause notice dated 15/1/2020 issued to the petitioners inter alia indicated that the disciplinary inquiry would be initiated against the petitioners, to which the petitioners filed their response, whereafter, no disciplinary proceedings were initiated and instead the orders impugned were passed exercising powers under Section 8(2) of the Act, 1963, which are wholly illegal and, therefore, same deserve to be quashed and set aside.

10. Several submissions have been made on merits of the charges indicated in show cause notice and it was submitted that only on account of the fact that petitioner Rajendra Sharma had approached this Court against his reversion, which was quashed by this Court, action has been initiated and, therefore, the orders impugned deserve to be quashed and set aside.

11. Learned counsel for the respondents submitted that the petitioners were afforded adequate opportunity of hearing and that action was taken by the respondents on account of misbehaviour on part of the petitioners. The documents have been produced in the case of Rajendra Sharma to indicate that there was material to take action against