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2019 Supreme(All) 258
ALLAHABAD HIGH COURT
SUDHIR AGARWAL, J.
Rajendra Singh - Appellant
Versus
Staff officer Commandant General and Others - Respondent
Writ-A No. 24831 of 2003
Decided On : 30-01-2019
Madan Singh, Adv.
The main legal point established in the judgment is the mandatory observance of principles of natural justice in cases of termination of a Home Guard's appointment, even if the Home Guard is not a holder of a civil post.
Headnote:
Home Guard - Termination of Appointment - U.P. Home Guards Act, 1963, Section 2(e), Section 10, Section 12, Section 13 - The court discussed the provisions of the U.P. Home Guards Act, 1963, including the definition of 'Home Guard', the powers of discharge, suspension, and resignation, and the penalties for failure to report on duty. The court emphasized the distinction between volunteers and permanent establishment within the Home Guard and highlighted the relevance of principles of natural justice in cases of termination.
Fact of the Case:
The petitioner, appointed as a Company Commander in the Home Guard, had his appointment terminated based on allegations of misconduct without a proper inquiry. The petitioner challenged the termination on the grounds of arbitrariness and violation of principles of natural justice.
Finding of the Court:
The court found that the termination of the petitioner's appointment was arbitrary and in violation of principles of natural justice, as the petitioner was not given an opportunity to respond to the allegations before the termination.
Issues: The issues involved the termination of a Home Guard's appointment, the applicability of principles of natural justice, and the distinction between volunteers and permanent establishment within the Home Guard.
Ratio Decidendi: The court held that even if a Home Guard is not a holder of a civil post, a writ petition would be maintainable if an action is challenged on the ground of arbitrariness or violation of principles of natural justice. The court emphasized the mandatory observance of principles of natural justice in cases of termination based on stigmatic allegations.
Final Decision: The impugned order terminating the petitioner's appointment was set aside, and the respondents were given the opportunity to pass a fresh order in accordance with the law. The petitioner was entitled to all allowances if assigned duties again.
SUDHIR AGARWAL, J.
1. Heard Dr. S.B. Singh, Advocate, holding brief of Sri Madan Singh, learned counsel for petitioner and learned Standing Counsel for respondents.
2. This writ petition has been filed under Article 226 of the Constitution by the sole petitioner Rajendra Singh assailing order dated 14.5.2003 (Annexure 6 to the writ petition) passed by District Commandant, Home Guard, District Moradabad, cancelling appointment letter of petitioner.
3. The facts in brief giving rise to the present dispute are as under:
4. The petitioner was appointed as Company Commander, Camp No.1 City Moradabad by District Commandant, Home Guards, Moradabad. Para 8 of appointment letter says that appointment is temporary and without any salary and instead it is a social service and on honorarium basis. It further says that appointment can be terminated at any point of time without any notice.
5. It appears that a complaint was made against petitioner and some others whereupon a fact finding inquiry was conducted by Division Commandant, Home Guard, Moradabad. He found that petitioner working as Company Commandeer, Company-1, Home Guard drew daily allowances by making fraudulent entry in the duty register of March/April, 2002. On the instructions of District Commandant, Incharge Inspector, Police Station Civil Lines, Moradabad informed that one Munshi Singh, Home Guard in the Company of petitioner had not attended duty from 17.03.2002 to 29.03.2002 though he was shown on duty and paid honorarium/daily allowances as specified. For this reason, District Commandant, Home Guard, issued impugned order cancelling petitioner's appointment made on the post of Honorary Company Commander of Home Guards.
6. The writ petition was entertained by learned Single Judge on 05.06.2003 and an interim order was passed staying operation of order dated 14.05.2003. Thereafter, on 08.05.2018, this writ petition was dismissed for want of prosecution and restored on 25.07.2018.
7. Learned counsel for petitioner submitted that termination of petitioner is arbitrary; by way of punishment; without holding inquiry and in utter violation of principles of natural justice, therefore it is liable to be set aside.
8. Learned Standing Counsel, on the contrary, submitted that a Home Guard is not a holder of 'Civil Post', therefore, protection under Article 311 of Constitution of India is not available. He submitted that appointment of petitioner was in a "social service" on honorarium basis, confers no right upon him either to hold the post or to continue in service, therefore no interference is called for.
9. The issue relating to termination of a member of Home Guard has drawn attention to this Court time and again. The question raised therein was "whether a Home Guard is holder of a Civil Post and if not, whether petition is maintainable and if maintainable, to what extent".
10. Before coming to relevant judicial authorities, it may be appropriate to have a bird eye view of the provisions of U.P. Home Guards Act, 1963 (hereinafter referred to as "Act, 1963").
11. Act, 1963 was promulgated to raise a Volunteer Force for aiding State Police Services as an auxiliary force. Section 2(e) of Act, 1963 defines "Home Guard"; Section 2(g) defines the word "Prescribed" and Section 2(j) defines the word "Service under the State", and read as under :
"(e) "Home guard" means a person who is enrolled as such, and includes an officer appointed under this Act."
"(g) "Prescribed" means prescribed by rules framed under this Act."
"(j) "Service under the State" means service under the "State" as defined in Article 12 of the Constitution of India, and includes service under any statutory corporation."
12. Functions of Home Guard are enumerated in Section 4 of Act, 1963 and reads as under :
"4. Functions. - The Home Guards will have the following functions:-
(a) they will serve as auxiliary to the police, and, when required, help in maintaining public order and internal security;
(b) they will help the comm
