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HIGH COURT OF ALLAHABAD
R.H. Zaidi, J.
Dasrath Singh Parihar - Appellants
Versus
State of U P - Respondents
Decided on : Dec 04, 1996
HOME GUARDS - REMOVAL FROM SERVICE - ARTICLE 311 OF THE CONSTITUTION OF INDIA - APPLICABILITY - POST HELD BY HOME GUARD IS A CIVIL POST - REMOVAL FROM SERVICE WITHOUT AFFORDING AN OPPORTUNITY OF HEARING IS VIOLATIVE OF ARTICLE 311 OF THE CONSTITUTION OF INDIA.
Fact of the Case:
Petitioner, a Home Guard, was removed from service without being given a charge sheet or an opportunity to be heard. He challenged the order of removal, arguing that he held a civil post and was entitled to the protection of Article 311 of the Constitution of India.
Finding of the Court:
The court held that the petitioner was holding a civil post within the meaning of Article 311 of the Constitution of India and that the order of removal was passed in violation of the principles of natural justice.
Issues: Whether the petitioner held a civil post within the meaning of Article 311 of the Constitution of India.
Ratio Decidendi: The court relied on the decision of the Supreme Court in State of Assam and others v. Kanak Chand Dutt, which held that the fact that the petitioner was drawing only an honorarium of Rs. 50/- per month would make no difference to the question of whether he held a civil post.
Final Decision: The court allowed the petition and quashed the order of removal. The respondents were directed to reinstate the petitioner on the post he was holding at the time of removal and to pay him honorarium for the period he remained out of job.
R. H. Zaidi, J.
1. By means of this petition, under Article 226 of the Constitution of India, petitioner prays for a writ, order or direction in the nature of certiorari quashing the order, dated 16-6-1981, where by the petitioner has been removed from the post of Company Commander.
2. IT has been stated that it was in the year 1963 that the petitioner was appointed as Home-Guard. Thereafter, he was promoted to the post of Commandant. On 23-8-1963, the petitioner was promoted to the post of Battalian Quarter Master Ser-gent and as Assistant Company Commander on 8-8-1996. IT was on 12-12-1974 that the petitioner was promoted to the post of Company Commander City. While he was holding the post of Company Commander, the impugned order, dated 16-8-1981 removing him from service was passed in wholly arbitrarily manner and without affording him an opportunity of being heard. The petitioner, therefore, filed the present petition challenging the validity of the said order.
On behalf of the respondents a counter-affidavit has been filed in which the facts stated in the writ petition have been denied. It has further been stated that the inquiry was conducted against the petitioner, but since his work and conduct was not found satisfactory, therefore, he was removed from service. It has also been stated that the petitioner was not holding the civil post, therefore, it was not necessary to frame the charge sheet and afford him in opportunity of hearing as provided under Article 311 of the Constitution of India.
3. LEARNED Counsel for the petitioner vehemently argued that the petitioner was holding a civil post and, therefore, provision of Article 311 of the Constitution of India were fully attracted in the present case. He urged that admittedly in the present case neither any charge sheet was framed nor served upon the petitioner nor the disciplinary proceedings were conducted and the petitioner was not afforded an opportunity of hearing in any form that the order of removal has been passed in wholly arbitrarily and the said order was, therefore, liable to be quashed.
4. LEARNED counsel for the petitioner in support of his submission that the post held by the petitioner was a civil post referred to and relied upon the decision in Vibhuti Narain Singh v. State of U. P. and others, 1986 UPLBEC 1130.
On the other hand, learned Standing Counsel reiterated the stand taken in the counter-affidavit and that in the present case Article 311 of the Constitution of India was not attracted.
5. THE appointments and service conditions of the Home-Guard are governed by U. P. Home Guards Act, 1963. This Court in Vibhuti Narain Shingh 's case (supra) after considering the Ss. 2 (a), 4, 5, 6, 7, 8, 10, 11 and 12 of the Act was pleased to hold as under:
"18. An examination of the aforesaid provisions leave no manner of doubt that a Home Guard is employed by the State and is under its direct Administrative Control. THE State regulates every aspect of his employment and work such as a appointment, functions and duties, powers, privileges and protection when called out to serve as auxiliary to the Police in times of emergency and for maintenance of public order and internal security. THE Home Guard is under a liability to serve when so called out by the District Magistrate, the Commandant General and other officers appointed in that behalf by the State and, on his failure to do so, he is liable to be penalised including imprisonment for a term which may extend to three months. THE State also has the power to discharge and suspend a Home Guard. It would thus be seen that the State exercises complete administrative control over a 'home Guards'.
6. IN paragraph Nos. 20 and 24 of the judgment, it was held as under:
"20. Applying the aforesaid test, in my judgment, the plaintiff was Nearly holding a civil post under the State in the context of Article 311 of the Constitution of India. The fact that the plaintiff was drawing only an honorariam of Rs. 50/-
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