Andhra Pradesh High Court - Amravati
D.Anjaneyulu Dongara Anjaneyulu ... vs The State Of Andhra Pradesh, on 1 April, 2021
Bench: M.Satyanarayana Murthy
HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
W.P.Nos.16218, 15611 of 2019, W.P.Nos.172, 2376, 16990,
2412, 12149, 24946, 14214, 23873 of 2020 and W.P.Nos.5136,
4825, 1316, 825, 3528, 4412 of 2021
W.P.No.16218 of 2019
Between:
V.Sadasiva
... Petitioner
And
The State of Andhra Pradesh,
Represented by its Principal Secretary,
Home Department,
Secretariat,
Velagapudi,
Guntur District and 2 others
... Respondents.
JUDGMENT PRONOUNCED ON 01.04.2021
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? -No-
2. Whether the copies of judgment may be
marked to Law Reporters/Journals -Yes-
3. Whether Their Ladyship/Lordship wish to
see the fair copy of the Judgment? -Yes-
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* THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
+ W.P.Nos.16218, 15611 of 2019, W.P.Nos.172, 2376, 16990,
2412, 12149, 24946, 14214, 23873 of 2020 and W.P.Nos.5136,
4825, 1316, 825, 3528, 4412 of 2021
W.P.No.162181 of 2019
% 01.04.2021
# V.Sadasiva
....Petitioner
v.
$ The State of Andhra Pradesh,
Represented by its Principal Secretary,
Home Department,
Secretariat,
Velagapudi,
Guntur District and 2 others
.... Respondents
! Counsel for the Petitioners : Sri K.Srinivasa Prasad
Counsel for Respondents: Sri N.Aswartha Narayana.
Government Pleader for
Services - I
<Gist :
>Head Note:
? Cases referred:
1. 2012 (4) ALT 324
2. 1967 SLR 228
3. 2012 (3) ALT 571
4. AIR 1967 SC 884
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5. AIR 1977 SC 1677
6. AIR 2006 SC 1165
7. AIR 1981 SC 53
8. AIR 1965 SC 360
9. AIR 1956 Pat 398
10. AIR 1955 Nag 175
11. AIR 1971 SC 2111
12. AIR 1981 SC 53
13. 1998 (3) AWC 1622
14. AIR 1955 Cal 56
15. AIR 1955 Pat 353
16. AIR 1951 All 793
17. 1953 (57) WM 767
18. (1955) 2 SCR 1331
19. (1955) 1 CCR 1427
20. 1963 SCR 669
21. 1997 (1) AWC 376
22. 1986 UPLBEC 1130
23. 2003 (4) AWC 3046
24. 2018 (11) ADJ 453
25. 2016(7)ADJ728
26. (2010) 13 SCC 88
27. AIR 1958 SC 36
28. AIR 1986 SC 555
29. AIR 1985 SC 1416
30. (1959)ILLJ167SC
31. [1969]1SCR317
32. AIR 1984 SC 1227
33. AIR 1976 SC 1785
34. AIR 1979 SC 1918
35. (1979) 2 SCC 368
36. (1979) 4 SCC 642
37. W.A.No.1995 of 2018 dated 03.09.2019 (unreported)
MSM,J
WP No.16218_2019 and batch
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
W.P.Nos.16218, 15611 of 2019, W.P.Nos.172, 2376, 16990,
2412, 12149, 24946, 14214, 23873 of 2020 and W.P.Nos.5136,
4825, 1316, 825, 3528, 4412 of 2021
COMMON ORDER:
All these writ petitions are filed by the terminated/removed
Home Guards under Article 226 of the Constitution of India for
issue of Writ of Mandamus to declare the proceedings issued by the
respondents either terminating or removing them from Home
Guards Organisation as illegal, arbitrary, and violative of Articles 14
and 21 of the Constitution of India and principles of natural justice;
consequently set aside those proceedings and direct the respondents
to reinstate the petitioners into Home Guards Organisation along
with other consequential benefits.
W.P.No.16218 of 2019:
The petitioner herein challenged the proceedings D.O.No.07 of
2012, Rc.No.B7/HGs/1295/2012 dated 19.06.2012 issued by
respondent No.3.
The petitioner was deputed to work at Kuppam RTC Bus
Depot. While discharging his duties, the petitioner allegedly
misbehaved with ladies during Jatharas in intoxicated condition
and collected money from the villagers styling himself as police
constable, thereupon a letter was addressed by A.P.Road Transport
Corporation for surrendering the petitioner to the Home Guards
Organisation. Later, a show cause notice was issued on 02.02.2016
calling for explanation and on receipt of explanation, considering the
same, the petitioner was removed from service. However, the
removal of the petitioner on the said ground without conducting any
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enquiry is illegal. Therefore, the removal of the petitioner is contrary
to the law declared by the High Court of Judicature at Hyderabad in
"the State of Andhra Pradesh v. P.Prasad Rao1"
The respondents filed counter reiterating the reason assigned
in the impugned proceedings i.e. the petitioner while working on
deputation at Kuppam Bus Depot, he used to misbehave with ladies
during Jatharas in intoxication condition and only on the letter
addressed by the RTC, the petitioner was removed after following
necessary procedure. It is further contended that the appeal filed by
the petitioner before the Additional Director General of Police, Home
Guards, Vijayawada was dismissed as there is no merit,
consequently, the removal of the petitioner is in accordance with
law, supported the impugned order.
W.P.No.15611 of 2019:
The petitioner herein challenged the proceedings
C.No.3823/H1/2017 and D.O.No.11/2018 dated 11.04.2018 issued
by respondent No.4.
The petitioner was removed from Home Guards Organisation
on the ground that he was collecting bribe from lorry drivers while
discharging his duties at Y.V.Rao Estate Beat Point i.e. 12.00 noon
to 16.00 hours, and 20.00 hours to 23.00 hours on 01.08.2017, the
same was published in Eenadu daily newspaper. Thereupon, a
show-cause notice was issued on 24.11.2017 calling for
explanation. On submission of the explanation, considering the
same, the order impugned in the writ petition was passed. However,
the same is challenged on the ground that the no enquiry was
conducted, thereby denied an opportunity to the petitioner to
2012 (4) ALT 324
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explain the same and that no crime was registered against the
petitioner for indulging in corrupt practices, therefore, the impugned
proceedings are liable to be set aside, the petitioner requested to set
aside the same basing on the principle laid down by the Apex Court
in "State of Madhya Pradesh v. Syed Quamar Ali2" and the law
declared by the High Court of Judicature at Hyderabad in "the
State of Andhra Pradesh v. P.Prasad Rao" (referred supra).
Respondents filed counter denying all the material allegations,
supported the order on the ground that the petitioner indulged in
corrupt practices on the date and time referred in the writ petition.
A news item was published in Eenadu Daily Amaravathi City edition
at page No.20 with photographs "ting.... ting.... padithe right
right...", wherein it was specifically alleged that police allowing the
hundreds of heavy transport vehicles through CVR Fly over during
the diversion period by taking Rs.100/- from each vehicle. A show-
cause notice was issued calling for explanation and only considering
the explanation, the impugned proceedings were issued, thereby it
is not contrary to any of the procedures contemplated under law,
requested to dismiss the writ petition.
W.P.No.172 of 2020:
The petitioner herein challenged the proceedings
C.No.1719/H1/2013 and D.O.No.08/2015 dated 25.02.2015 issued
by respondent No.3.
The case of the petitioner is that, a case in Crime No.191 of
2013 was registered against him on 05.03.2013 for the offence
punishable under Section 497 of Indian Penal Code (for short
1967 SLR 228
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"I.P.C.") and there are discrepancies both in the compliant and the
charge sheet. However, it was settled before the Lok Adalat and an
award was passed by the Lok Adalat on 18.03.2014 as the offence
punishable under Section 497 of I.P.C. is compounded, thereby
acquitted the petitioner for the offence punishable under Section
497 of I.P.C.
Respondents filed counter contending that the petitioner is
guilty of moral turpitude and that he is acquitted for the offence
punishable under Section 497 of I.P.C. by an award. A preliminary
enquiry was ordered. The Inspector of Police, City Special Branch,
Vijayawada city enquired into the matter and submitted his report
about the involvement of the petitioner in the above crime and
acquittal for the offence punishable under Section 497 of I.P.C. and
that the petitioner was circulating Call money about Rs.25,00,000/-
to Rs.30,00,000/- in the city for high interest rates, acquired three
stairs building in the city and also doing telemarketing business and
that the petitioner also participated in gambling and cricket betting,
thereby such conduct of the petitioner amounts to misconduct and
liable for removal, requested to dismiss the writ petition.
W.P.No.2376 of 2020:
The petitioner herein challenged the proceedings
C.No.6070/H1/2009 and D.O.No.06/2009 dated 04.12.2009 issued
by respondent No.3.
While the petitioner was working as member of Home Guards
Organisation in East Godavari District, he was removed from service
by issuing impugned proceedings on the ground that the petitioner
was involved in Crime No.116 of 2009 of Sappavaram Police Station
for the offence punishable under Section 170 and 384 of I.P.C. After
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completion of investigation, police filed charge sheet, the same was
registered as C.C.No.322 of 2009 on the file of learned Special
Mobile Judicial Magistrate of First Class, Kakinada. The petitioner
was found not guilty after full-fledged trial. Though the petitioner
was found not guilty, removal from service is an illegality and that
the petitioner is a public servant and entitled to claim protection
under Article 311 (2) of the Constitution of India. But the
respondents removed the petitioner from service without following
various provisions of Madras Home Guards Act, 1948, more
particularly Section 7 of the said Act and Rules framed thereunder.
It is further contended that failure to issue show-cause notice as
required under Section 7 (4) of the Act is violation of statutory rule
and also violation of principles of natural justice, thereby removal of
the petitioner from Home Guards Organisation is contrary to the
principles of natural justice, requested to set aside the impugned
proceedings.
Respondents filed counter denying material allegations while
admitting that the petitioner was a member of Home Guards
Organisation and contended that while he was performing duties in
Sarpavaram police station on the night 17.06.2009 the complainant
Gudiwada Kameswara Rao along with his friends Vaitla Uday Kiran
Sai, Kancherla Atchiraju, Duggirala Sreenivasa Rao went to the
house of Vegesina Ramaraju. While the complainant Gudiwada
Kameswara Rao along with Vaitla Uday Kiran Sai, Kancherla
Atchiraju, Duggirala Sreenivasa Rao playing cards in the house of
Vegesina Satyanarayana Raju for time pass, the accused Burra
Ramesh and 5 others including the petitioner went there at about
22.00 hours in plain dress, informed that they are police personnel
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and demanded Rs.20,000/- for not booking case against them,
accordingly they paid Rs.20,000/-. Later, when the accused
informed the complainant over cell phone to meet them near II Town
Police Station, Kakinada, the complainant along with his friends met
the accused Burra Ramesh and petitioner, they demanded payment
of Rs.20,000/- and forcibly took Bajaj Pulsar Motor Cycle bearing
No.AP 05 BE 1010 informing to take back the bike after giving
Rs.20,000/-, otherwise threatened to book case against them. On
the night of 18.06.2009, when the accused Burra Ramesh informed
the complainant Gudiwada Kameswara Rao to bring money to
Nagamallithota junction and collect bike after giving money, the
complainant met the accused Burra Ramesh and paid Rs.10,000/-
to him and taken his bike. Later, the complainant Gudiwada
Kameswara Rao came to know that the accused are not police
personnel and thereby lodged a complainant in Sarpavaram Police
Station, the same was registered as a case in crime No.116 of 2009
for the offence punishable under Sections 170 and 384 read with 34
of I.P.C. After completion of investigation, police filed charge sheet
against the petitioner and others. As the petitioner involved in such
serious case involving moral turpitude, he was removed from
service. It is further contended that the petitioner is not a
government servant, he is only member of Home Guards
Organisation and that the Home Guards Organisation is a wholly
voluntary organisation working on daily remuneration vide order
No.935 (2), (4), (8) and 937 (1) of A.P.Police manual. If any Home
Guard without sufficient cause neglects or refuse to obey the orders
of any superior authority or officer, or fails to discharge any other
duty, or deserts his post, or is guilty of any wilful breach or neglect
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of any provision of the Act or any rule or lawful order made or
issued by a competent authority, he shall be punished with simple
imprisonment for a term which may extend to three months or with
fine, which may extend to Rs.250/- or with both. Therefore, the
petitioner was removed after following the procedure prescribed
under law and that the respondents did not violate any law,
requested to dismiss the petition.
W.P.No.16990 of 2020:
The petitioner herein challenged the proceedings
C.No.13015/HG-1/2019 and D.O.No.229/2019 dated 07.03.2019
issued by respondent No.3.
While the petitioner was discharging his duties in Gurazala
Sub-Unit, Guntur, he involved in Crime No.95 of 2017 of Macherla
Urban Police Station registered for the offence punishable under
Sections 307, 385, 324, 427 read with 34 of I.P.C. After completion
of investigation, charge sheet was filed and the same was registered
as S.C.No.448 of 2017 on the file of Assistant Sessions Judge,
Gurazala, but he was found not guilty by calendar and judgment
dated 28.01.2020 after full-fledged trial. Immediately, the petitioner
made a representation to reinstate him setting aside the impugned
order, but no action was taken. Thereby, the order is violative of
principles of natural justice, contrary to the law laid by the High
Court of Judicature at Hyderabad in "Government of Andhra
Pradesh v. Bolupadra Krishna Rao3" wherein it was held that
when the accused in a criminal case has been honourably acquitted
on merits, it cannot be said that he is involved in an offence
involving moral turpitude. Therefore, the impugned order is illegal,
2012 (3) ALT 571
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requested to set aside the same.
No counter is filed by the respondents.
W.P.No.2412 of 2020:
The petitioner herein challenged the proceedings
C.No.16316/HG-1/2015 and D.O.No.582/2015 dated 15.05.2015
issued by respondent No.3.
It is the case of the petitioner that he was suddenly fell ill on
16.08.2014, underwent treatment at Renuka Devi Hospital, Guntur.
After conducting necessary medical investigation, the Doctor
revealed that he was suffering from Jaundice and advised him to
take bed rest for three months. In the above circumstances, he was
constrained to go to his native village in East Godavari District,
where his parents resides. Therefore, his absence was due to ill-
health. After recovery from ill-health, the petitioner was reported to
duty, but he was not permitted to join duty. He was directed to
report before the Deputy Superintendent of Police (AR), in turn he
directed the Reserve Inspector to take him to duty. Since the
Reserve Inspector is on leave, the petitioner waited till he resume to
duty. Meanwhile, a show-cause notice was issued to him calling for
explanation. Accordingly, he submitted his explanation, but he was
removed from Home Guards Organisation as he was absent for
substantially long period. The same was challenged on the ground
that it was contrary to the principles of natural justice and the
principle laid down by the High Court of Judicature at Hyderabad in
"the State of Andhra Pradesh v. P.Prasad Rao" (referred supra).
On this ground, the order is liable to be set aside.
No counter is filed by the respondents.
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W.P.No.12149 of 2020:
The petitioner herein challenged the proceedings
C.No.344/HGs.Esst/2019-5 dated 27.01.2020 issued by respondent
No.2.
While the petitioner is working as member in Home Guards
Organisation in the unit of West Godavari District, he was removed
on the ground that he collected money from local Diwali Fireworks
by name Avutapalli Musalaiah, Gadi Guravaiah through Jeep driver
K.Hussain, Home Guard No.161 and that the said incident was
witnessed by Suryanarayana, Head Constable, Srinivasarao, police
constable, D.N.Prasad, police constable. Thereupon, the petitioner
submitted his explanation, but without considering the same, the
impugned order was passed. It is further contended that the
impugned order is passed in violation of A.P. Civil Service (CCA)
Rules, 1961 and that the removal of the petitioner without
conducting any enquiry is a grave illegality and contrary to the law
laid down by the Division Bench of the High Court of Judicature at
Hyderabad in "the State of Andhra Pradesh v. P.Prasad Rao"
(referred supra). The petitioner made a representation to reinstate
him into service, but it was not considered. Finally, it is contended
that the removal of the petitioner is violative of Article 14 and 21 of
the Constitution of India, requested to set aside the same.
The respondents did not file counter.
W.P.No.24946 of 2020:
The petitioner herein challenged the action of respondent No.3
in not allowing him to perform his duties as Home Guard without
considering his explanation/reply dated 25.07.2020 submitted to
the show-cause notice in C.No.3574/G5/2020 dated 13.07.2020.
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While the petitioner was serving in Home Guards Organisation
of West Godavari District unit, he was removed from service on the
ground that he involved in a criminal case. It is the case of the
petitioner that he received a phone call from his maternal uncle that
his wife is suffering from pain in abdomen and asked him to come to
home immediately to provide treatment to her. On receipt of such
information, he obtained permission from the in-charge of Fire
Station, Chintalapudi to go to his wife at Burugugudem. While he
was proceeding to Burugugudem along with his friend by name
Chalamala Srinivasa Rao and when they reached Burugugudem, a
Swift Dzire care bearing No.AP 37 PA 3195 was stopped, and a
known person B.Ramana Kishore Reddy got down the car and while
he was taking to the petitioner, respondent No.4 came there and
questioned the driver of the car why the car was stopped and the
driver of the car stated that he was the brother-in-law of the said
B.Ramana Kishore Reddy. Respondent No.4 verified the car and
found liquor bottles in the car and seized the liquor bottles allegedly
transported from Khammam District of Telangana State.
Respondent No.4 asked the petitioner and his friend Chalamala
Srinivasa Rao to come to police station, for which he refused and
stated that he was no way concerned with the illegal transportation
of liquor bottles. However, they appeared before respondent No.4 on
20.06.2020 and on appearance, respondent No.4 insisted the
petitioner to sign on certain papers without going through the
contents of the papers, the petitioner signed on those documents,
which is styled as occurrence report and came to know that he was
falsely implicated in Crime No.252 of 2020 dated 20.06.2020
registered for the offence punishable under Sections 341, 384 read
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with 34 of I.P.C. and under Section 34 (A) of A.P.Excise Act. On the
basis of said registration of crime, the petitioner was removed from
service after issuing show-cause notice dated 13.07.2020.
Accordingly, the petitioner submitted explanation, but the impugned
order was passed without conducting any enquiry. Therefore, the
impugned order is in violation of principles of natural justice,
requested to set aside the same.
The plea of the respondents is that the petitioner was
transporting liquor in contravention of A.P.Excise Act and liable for
punishment under Section 34 (A) of the Excise Act and that a crime
was registered in Crime No.252 of 2020 dated 20.06.2020 for the
offence punishable under Sections 341, 384 read with 34 of I.P.C.
and under Section 34 (A) of A.P.Excise Act. Therefore, the petitioner
had indulged in illegal activities, which amounts to moral turpitude
as he is required to maintain high degree of discipline; as such the
petitioner is guilty of misconduct. After following necessary
procedure, the services of the petitioner were terminated.
W.P.No.14214 of 2020:
The petitioner herein challenged the proceedings
Rc.No.B1/3266/2020 dated 09.07.2020 issued by the respondents.
The petitioner was removed from service on the ground that
the petitioner had involved in Crime No.5/2020-Guntur-II-71 dated
30.05.2020 registered for the offence punishable under Section 56
of A.P.Excise Act. As the petitioner was involved in such serious
crime, a show-cause notice was issued to the petitioner in
Rc.No.B1/3266/2020 calling for his explanation. Accordingly, the
petitioner submitted his explanation, but without considering the
explanation, the impugned order was passed removing the petitioner
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from service. It is specifically contended that the procedure under
Section 7 of the Andhra Pradesh Home Guards Act, 1948 (for short
"the Act") was not followed and no enquiry was conducted, thereby
the punishment of removal is illegal and arbitrary, requested to set
aside the impugned order.
Respondents filed counter admitting passing of impugned
orders while contending that the alternative remedy to prefer an
appeal is available against the impugned order, but no appeal was
preferred. Without exhausting the alternative remedy, the writ
petition is filed, therefore, the writ petition is liable to be dismissed.
It is further contended that as the notice was mandatory,
show-cause notice was issued calling for explanation. As the
petitioner is guilty of misconduct and failed to discharge his duties,
imposed penalty of removal, consequently it is not in contravention
of any of the provisions, more particularly Section 7 (4) of the
A.P.Home Guards Act, requested to dismiss the writ petition.
W.P.No.23873 of 2020:
The petitioner herein challenged the proceedings
D.O.No.317/A4/2019/C.N.282/H1/HGs/Knl/2018-19 dated
11.03.2019 issued by respondent No.5.
The main ground for removal of the petitioner is that he was
absent from duty for a long period, the same is explained by the
petitioner alleging that he received swelling injury to his left hand on
07.12.2018. As the same was not cured, he went to General
Hospital, Kurnool. In the Hospital, the doctors diagnosed fracture to
Ulna of shaft of left hand and the Doctor advised him to take bed
rest. Thus, he completely recovered after treatment. Therefore, he
was absent from duties for 23 days. It is neither intentional nor
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wanton and it is only after oral intimation to superior officers. Thus,
removal of the petitioner on the ground that he was absent from
duty is illegal, arbitrary and contrary to Article 311 (2) of the
Constitution of India and the law declared by the High Court of
Judicature at Hyderabad in "the State of Andhra Pradesh v.
P.Prasad Rao" (referred supra), requested to set aside the
impugned proceedings.
Respondents filed counter admitting the removal of the
petitioner under impugned proceedings after following necessary
procedure i.e. issue of show-cause notice. It is specifically alleged
that the petitioner was absent from 09.04.2018 to 03.10.2018 (total
178 days) without leave or prior permission from the superior
officers. Further, the Deputy Superintendent of Police, Home
Guards, Kurnool served a memo vide Rc.No.231/H1/HGs/Knl/2018
dated 27.09.2018 for attending the oral enquiry on 03.10.2018
before the Additional.SP (ADMN), DPO, Kurnool for unauthorised
absence for duties. In this connection, the petitioner submitted
undertaking affidavit that he will not absent from duty in future and
agreed for removal in case he is absent to duty. Thereupon, the
Superintendent of Police, Kurnool permitted him to duty by order
Rc.No.231/H1/HGs/Knl/2018 dated 30.10.2018. Further, the
petitioner again absent from duty for a period of 41 days from
07.12.2018 without prior permission or leave. Consequently, a
memo vide Rc.No.02/H1/HGs/Knl/2019 dated 04.01.2019 was
issued directing him to appear before the concerned authorities for
enquiry. He attended oral enquiry and submitted explanation, which
was found not satisfactory. Thereupon, the petitioner was removed
from Home Guards Organisation. Therefore, the respondents
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followed the procedure, issued impugned orders, requested to
dismiss the writ petition.
W.P.No.5136 of 2021:
The petitioner herein challenged the proceedings
C.No.10142/H1/2019 and D.O.No.62/2019 dated 06.02.2019
issued by respondent No.3.
It is the case of the petitioner that a case in Crime No.245 of
2018 was registered for the offence punishable under Section 284 of
I.P.C. of Arundalpet Police Station, Guntur Urban. After completion
of investigation, a charge sheet is filed against the petitioner.
However, he was acquitted due to compounding of offence before the
Lok Adalat in case No.513 of 2018 in L.A.No.1355 of 2018 dated
08.09.2018, thereupon the petitioner made a representation to
reinstate him to the Home Guards Organisation on account of
acquittal in Criminal case, but the respondents issued impugned
proceedings without following the procedure and that the removal of
the petitioner is contrary to the law declared by the High Court of
Judicature at Hyderabad in "Government of Andhra Pradesh v.
Bolupadra Krishna Rao" (referred supra), therefore, the impugned
proceedings are liable to be set aside.
No counter is filed by the respondents.
W.P.No.4825 of 2021:
The petitioner herein challenged the proceedings
C.No.20360/HG-2/2009 dated 04.01.2010 and D.O.No.30/2009
issued by respondent No.3.
It is the case of the petitioner that the impugned order was
passed without following the procedure prescribed under law and in
violation of principles of natural justice. The petitioner was removed
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from service on the ground that he was absent from duty. However,
the same was explained in the petition alleging that on 20.07.2009
he was suddenly fell sick and he was hospitalized, underwent
treatment in local hospital at Guntur. Meanwhile, his father, who
was retired Head Constable had suffered from paralytic stroke and
he was forced to look after him as no other member in the family to
take care of him. He informed the said fact to the higher authorities,
requested to allow him to join duty, but they denied the same that
they received instructions from higher authorities not to permit him
to join duty. Thereafter, all of sudden without considering his
request, impugned removal order dated 04.01.2010 was issued. The
respondents did not follow the procedure prescribed under law and
removed the petitioner from service in violation of principles of
natural justice without issuing any notice calling for explanation
and that the impugned order is contrary to the principles laid down
by the High Court of Judicature at Hyderabad in "the State of
Andhra Pradesh v. P.Prasad Rao" (referred supra).
Respondents did not file any counter.
W.P.No.1316 of 2021:
The petitioner herein challenged the proceedings
C.No.34/OEPR/2012 dated 22.05.2013 issued by respondent No.4,
as confirmed in appeal by respondent No.3 vide proceedings
C.No.C2/Appeal-22/2013 dated 26.11.2014, and further confirmed
in revision petition by respondent No.2 vide proceedings in
Rc.No.296/IGP/SZ/RR-III/2015 and ROO.No.110/2015 dated
02.06.2015.
The petitioner was discharging his duties as Home Guard to
the satisfaction of his superiors. While so, the impugned order was
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passed removing the petitioner from Home Guards Organisation on
the ground that he exhibited grave dereliction of duties,
reprehensible misconduct by absenting from duty on 21.09.2012 at
09.00 a.m. and consumed Alcohol and abused the public in filthy
language causing nuisance in public place and thereby violated Rule
3 (1) of A.P.Civil Services (Conduct) Rules, 1964. The appeal and
revision preferred by the petitioner were ended against the
petitioner. Now, the petitioner contended that no enquiry was
conducted as required under Rule 20 of the A.P. Civil Services (CC
and A) Rules, 1991. The impugned order passed by the respondents
is in violation of principles of natural justice, requested to set aside
the same.
No counter is filed by the respondents.
W.P.No.825 of 2021:
The petitioner herein challenged the proceedings
C.No.3518/H1/2019 dated 17.10.2020 issued by respondent No.3.
The petitioner was removed on the complaint lodged against
the petitioner for the offence punishable under Section 341, 323 and
506 of I.P.C. and also on account of pendency of C.C.No.198 of 2014
on the file of Judicial Magistrate of First Class, Yelamanchali under
Section 353 and 506 of I.P.C. Both the cases were ended in acquittal
by judgment dated 11.12.2017. However, Superintendent of Police,
Visakhapatnam issued show-cause notice dated 06.12.2013 alleging
that the petitioner's behaviour is cheap and collecting money from
sand transporting lorry driver. Immediately, the petitioner submitted
explanation, but without conducting any enquiry and without
affording an opportunity to the petitioner, the impugned order was
passed. Aggrieved by the same, an appeal was preferred, but
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considering the contentions, the impugned order was confirmed.
Therefore, the punishment of removal is disproportionate to the
charges levelled against the petitioner, requested to set aside the
impugned orders and reinstate the petitioner on humanitarian
grounds also.
Respondents did not file counter.
W.P.No.3528 of 2021:
The petitioner herein challenged the proceedings
D.O.No.18/H1/2004 and C.No.2337/H1/2004 dated 06.10.2004
issued by respondent No.3.
It is the case of the petitioner that he was removed from the
service on the ground that a Crime No.49 of 2004 was registered
against him on the file of Kothacheruvu Rural Police Station of
Anantapur District for the offence punishable under Sections 452,
353, 323 and 510 of I.P.C. After completion of investigation, charge
sheet was filed, and the same was registered as C.C.No.30 of 2005.
After full-fledged trial, the Judicial Magistrate of First Class,
Penukonda found him not guilty and acquitted him vide calendar
and judgment dated 15.09.2009.
When once the petitioner was acquitted, he requested the
respondents to reinstate him into service and submitted a
representation on 23.03.2015, but without considering the claim of
the of the petitioner, the impugned order was passed. The petitioner
approached the Andhra Pradesh Administrative Tribunal by filing
Original Application along with delay condonation petition vide
M.A.No.1819 of 2015. The same was allowed by order dated
02.11.2017 on payment of costs of Rs.5,000/- payable to the
Andhra Pradesh State Legal Services Authority. The petitioner
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complied with the order of the Tribunal dated 02.11.2017 and
deposited Rs.5,000/- by way of D.D. bearing No.234791 dated
28.11.2017 and the application was registered as O.A.No.3257 of
2017, but the same was dismissed after full-fledged enquiry,
without deciding the O.A. on merits, on the ground that the order of
removal was not challenged by way of appeal. Thereupon, the
petitioner preferred an appeal, but no order was passed. However,
inaction of the authorities was challenged in W.P.No.19512 of 2017,
this Court held that the order was passed contrary to Rule 7 (4) of
the Home Guards Act, 1948, which makes it clear that the filing of
appeal is not mandatory. It is further contended that the removal of
petitioner without conducting enquiry and without affording an
opportunity is a serious illegality, requested to set aside the same.
No counter is filed by the respondents.
W.P.No.4412 of 2021:
The petitioner herein challenged the proceedings
Rc.No.391/HGs.Estt/2019-3 dated 18.11.2020 issued by
respondent No.3.
The petitioner was removed from Home Guards Organisation
on the ground that while he was discharging duties in the unit
attached to B.S.N.L., Penugonda, West Godavari District, he was
implicated in Crime No.153 of 2006 of Penugonda Police Station
registered for the offence punishable under Section 379 of I.P.C.
Based on registration of crime, respondent No.5 removed the
petitioner from Home Guards Organisation. After conducting
investigation, police filed charge sheet and the same was registered
as C.C.No.65 of 2007 on the file of the II Additional Judicial First
Class Magistrate, Tanuku, West Godavari District. After full-fledged
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trial, the petitioner was found guilty for the offence punishable
under Section 379 of I.P.C., convicted and sentenced him to
undergo simple imprisonment for six months on 22.01.2010.
Aggrieved by the same, the petitioner preferred an appeal in
Criminal Appeal No.28 of 2010 on the file of the IV Additional
District and Sessions Judge (Fast Track Court) Tanuku. The said
appeal was allowed setting aside the conviction and sentence passed
by the learned II Additional Judicial First Class Magistrate, Tanuku,
and he was acquitted. But the petitioner was not reinstated into
service despite the request made by the petitioner to reinstate him
into service.
Thereupon, the petitioner submitted a representation dated
23.10.2019, but the same was not considered. As the respondents
failed to pass appropriate order on the representation, the petitioner
filed W.P.No.7501 of 2020 seeking writ of Mandamus to reinstate
the petitioner into service considering the representation dated
23.10.2019, the said writ petition was disposed of directing
respondents to consider the representation of the petitioner dated
23.10.2019 and pass appropriate orders within four (4) weeks from
the date of receipt of copy of the order. The petitioner made a
representation to the authorities again in pursuance of the order in
W.P.No.7501 of 2020 annexing copies of the judgment and calendar
in C.C.No.65 of 2007 and Crl.A.No.28 of 2010, but without following
procedure in accordance with law, the representation of the
petitioner was rejected by order in Rc.No.391/HGs.Estt/2019-3
dated 18.11.2020, which is against the principles of natural justice
and A.P.State and Subordinate Service Rules, 1996, requested to set
aside the same.
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The respondents did not file counter.
In all these petitions, the grievance of the petitioners and the
respondents is one and the same. Therefore, I find that it is
expedient to decide all these petitions by common order.
During hearing, learned counsel for the petitioners in all the
petitions raised the following specific contentions.
(a) Removal/termination/dismissal of Home Guard cancelling
their enrolment from the Home Guards Organisation on
the basis of registration of crime though ended in acquittal
is an illegality. Similarly, when explanation is given for
their absence, removal/termination/dismissal on the
ground of absence from duty is a serious illegality.
(b) Home Guard is a public servant within the meaning of
Section 21 of the I.P.C.; as per the provisions of the
A.P.Home Guards Act, 1948, they cannot be removed from
service except by affording an opportunity to explain the
reason for their absence and without conducting an
enquiry in view of the protection provided under Article
311 (2) of the Constitution of India.
(c) The petitioners are holding civil post though they are
allegedly enrolled as members of Home Guards
Organisation and failure to follow the procedure prescribed
under rules and Article 311 (2) of the Constitution of India
vitiates the termination/removal/dismissal of the Home
Guard from service. On this ground alone, the petitioners
are liable to be reinstated into service setting aside the
impugned orders of removal/termination/dismissal and
they placed reliance on various judgments, which will be
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referred at appropriate stage.
Sri N.Aswartha Narayana, learned Government Pleader for
Services - I strenuously contended that the services conditions of
Home Guards are governed by Chapter 52 of A.P.Police Manual. In
all the orders while removing the petitioners from service, the
respondents strictly complied with the rules for taking disciplinary
action against the Home Guards. Apart from that Home Guards
services are only voluntarily services on payment of honorarium and
they cannot be considered as members of Civil services, thereby,
they cannot claim any protection under Article 311 (2) of the
Constitution of India. Chapter 52 of the A.P.Police Manual not only
deals with service conditions of Home Guards, but also deals with
discipline and administration. The officers of the police who are in
charge of home guards and the civilians who hold ranks in the home
guards organisation should treat the home guards as volunteers
and not as subordinates and that they can be removed by strictly
following the procedure prescribed under the Home Guards Act. The
main requirement is reasonable opportunity be afforded to the Home
Guard before removal by competent authority. Therefore, the
petitioners cannot claim that they are holding civil post to claim
protection under Article 311 (2) of the Constitution of India and
their services are totally governed by A.P.Police Manual. In all the
cases, petitioners were served with notice to explain the reason
either for their absence or for their alleged involvement in criminal
cases etc, though they were ended in acquittal. Thereby, the
procedure prescribed under Home Guards Act and rules adopted,
the procedure prescribed under A.P. Police Manual is strictly
complied with, therefore, the petitioners are disentitled to claim any
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relief in the present petitions and prayed for dismissal of the writ
petitions.
Considering rival contentions, perusing the material available
on record, the points that arose for consideration are:
(1) Whether the appointment, qualification and service
conditions are governed by A.P.Police Manual? If not,
what is the procedure to be followed for taking
disciplinary action?
(2) Whether the Home Guards are holding civil post in
State Service? If so, whether the impugned
proceedings to terminate/removal/dismissal of Home
Guards cancelling their enrolment in the Home
Guards Organisation without conducting any enquiry,
is violative of Article 311 (2) of the Constitution of
India?
(3) Whether the involvement and acquittal of the
petitioners in W.P.Nos.172, 2376, 24946, 14214 and
16990 of 2020, W.P.Nos.825, 3528, 5136, and 4412
of 2021 is a ground to reinstate the petitioners into
Home Guards Organisation restoring their enrolment
setting aside the impugned proceedings issued by the
respondents terminating/dismissal/removing the
petitioners?
(4) Whether the explanation offered by the petitioners in
W.P.No.16218, 15611 of 2019, W.P.Nos.2412, 23873,
12149 of 2020 and W.P.No.1316, 4825 of 2021 for
their absence or misconduct is sufficient to reinstate
them into service as Home Guards setting aside the
impugned orders of the respondents
terminating/dismissing/removing the petitioners? If
so, whether the enrolment of the petitioners be
restored in the Home Guards Organisation?
(5) Whether the Commissioner of Police/Superintendent of
Police is competent to pass the impugned orders in
terms of Rule 7 of the Madras Home Guards Rules,
1949 (adopted by the State by the A.P.Adaptation of
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Laws Order 1957)? If not, whether the order passed by
the Commissioner of Police/Superintendent of Police is
liable to be set aside?
P O I N T No.1:
Undisputedly, the petitioners were enrolled as Home Guards
in the A.P.Home Guards Organisation on different dates and
working in different units. The enrolment of Home Guards is
governed by the Madras Home Guards Act, which was adopted by
the State of Andhra Pradesh after its bifurcation from Madras State.
Therefore, the service conditions and disciplinary proceedings
against those Home Guards enrolled in the Home Guards
Organisation are governed by A.P.Home Guards Act, 1948.
Though the State of Andhra Pradesh adopted Madras Home
Guards Act on its separation from Unified State of Madras, the rules
were deemed to be adopted by virtue of the A.P. Adaptation of Laws
Order, 1957. The Division Bench of the High Court of Judicature at
Hyderabad in W.P.No.35460 of 2013 and batch held that the Rules
of 1949 were framed in exercise of the power conferred by Section
10 of the parent Act. These rules were applicable to the erstwhile
State of Andhra Pradesh and in consequence, they are presently
applicable in the newly formed State of Telangana.
The judgment of the Division Bench (referred above) attained
finality, consequently, it can safely be concluded that in the present
batch of cases, the Home Guards are governed by A.P.Home Guards
Act and the rules framed under Madras Home Guards Act.
The major contention of the petitioners is that they are
governed by the Home Guards Act, whereas Sri Ashwartha
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Narayana, learned Government Pleader for Services-I contended that
the Home Guards Act and rules framed under the Madras Home
Guards Act has no application, but they are governed by A.P.Police
Manual chapter 52. Chapter 52 of the A.P.Police Manual deals with
Home Guards Organisation. However, these rules are framed
under the A.P.Police Act, but the police Act has no application to
the Home Guards Organisation. Merely because, the State has
framed A.P.Police Manual governing the service conditions of Home
Guards incorporating Chapter 52 without framing any rules
separately under the A.P.Home Guards Act would not enure any
benefit to the State. Though the Home Guards are under control of
police officials, they cannot be considered to be part of police
organisation, it is a separate organisation consisting of volunteers,
who are called as Home Guards. All the volunteers with prescribed
qualifications are given initial training of such nature and duration
as laid down in the A.P.Police Manual. But very framing of
guidelines governing enrolment of volunteers in the Home Guards
Organisation fixing strength, enrolment and eligibility for
recruitment of Home Guards, categories for the purpose of selection
of Home Guards and the procedure for selection, discipline and
administration, they have nothing to do with the Home Guards Act
and these rules were not framed exercising power under Section 10
of the A.P.Home Guards Act.
Therefore, the standing orders in A.P.Police Manual are not
the rules framed by exercising power under Section 10 of the
A.P.Home Guards Act. Thereby, Chapter 52 of the A.P.Police Manual
cannot be applied to govern the conditions of enrolment and
discipline in the Home Guards Organisation. Hence, the contention
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of the learned Government Pleader for Services - I is hereby rejected
while holding that the petitioners are not governed by Chapter 52 of
the A.P.Police Manual. Accordingly, the point is held in favour of the
petitioners and against the respondents.
P O I N T No.2:
The major contention of the petitioners is that the petitioners
are public servants in terms of Section 11 of the Andhra Pradesh
Home Guards Act. Conditions of enrolment, discipline, etc. are
governed by the Act and rules framed thereunder. Apart from that
they are holding civil post in the organisation, their enrolment
cannot be cancelled and they cannot be removed or terminated from
Home Guards Organisation without conducting necessary enquiry
and if Home Guards are removed from the Home Guards
Organisation cancelling their enrolment, it is violative of Article 311
(2) of the Constitution of India. Removal without conducting
necessary enquiry is a serious illegality, thereby the orders passed
by the respondents in all the petitions without conducting any
enquiry is a serious illegality and violative of Article 311 (2) of the
Constitution of India.
As seen from the Chapter 52 of the A.P.Police Manual or from
the A.P.Home Guards Act and Madras Home Guards Rules, the
civilians can be enrolled as volunteers to serve the State on payment
of remuneration. Their enrolment was initially for three years, which
can be extended from time to time till attaining the age of 60 years.
Therefore, the objection raised before this Court is that when the
members of the Organisation serving to the State on receipt of
remuneration, they can be considered as persons holding Civil post
though they are civilians as they undergone necessary selection
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process and enrolment certificates were issued to them and that
they are governed by the A.P.Home Guards Act and rules framed
thereunder or rules impliedly adopted by the State. No doubt, Home
Guards are public servants for the purpose of Section 21 of the
I.P.C. and as per Section 11 of the A.P.Home Gurads Act, they are
deemed to be public servants for all purposes in view of the specific
contention raised by the learned counsel for the petitioners in all
these petitions that the petitioners are persons holding civil post
and the same is denied by the learned Government Pleader for
Services - I contending that the service of the Home Guards is
voluntary service rendered by the civilians on their enrolment in the
Home Guards Organisation and only requirement to remove them is
to issue of show-cause notice, calling for explanation and passing of
final order and the competent authority can remove them by passing
appropriate reasoned order, against which an appeal lies to the
D.G.P. of the State.
The word "civil post" is not defined anywhere both in the
Home Guards Act or in the A.P.Police Manual or in any law.
There is no formal definition of the word "post" or "civil post". A
post denotes an office. A post under the State is an office or position
to which duties in connection with the affairs of the State are
attached; an office or a position to which a person is appointed and
which may exist apart from and independently of the holder of the
post. (Vide: State of Assam v. Kanak Chandra Dutta4,
Superintendent of Post Offices v. P.K.Rajamma5, U.P.S.C. v.
Girish Jayantilal Vaghela6)
AIR 1967 SC 884
AIR 1977 SC 1677
AIR 2006 SC 1165
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The Supreme Court also laid down certain tests to determine
whether the person is holding Civil post or not. The true test for
determination of the question whether a person is holding a civil post
or is a member of Civil Service is the existence of a relationship of
master and servant between the State and the person holding the
post under it and the existence of such relationship is dependent
upon the right of the State to select and appoint the holder of the
post, its right to suspend and dismiss him, its right to control the
manner and method of his doing the work and the payment by it of
its wages and remuneration as held by the Apex Court in "State of
Gujarat v. Ramanlal Keshavlal7" and "State of U.P. v.
A.N.Singh8"
The expression "civil post" under a State means that the post
is under the control of the State, that is, the State can abolish the
post if it so desires or the State can regulate the conditions subject to
which the post is or will be held. The real test is the immediate or
ultimate control which is exercised by the State with regard to the
post in question. (Vide: Lachmi v. Military Secretary to Governor
of Bihar9)
The expression "civil post" means an appointment to an office
or employment on the civil side of the administration as
distinguished from the military side. (Vide: Sher Singh v. State of
M.P.10)
Even a civilian, holding a post in a department connected with
defence such as Military Engineering Service""or Military Farm or an
AIR 1981 SC 53
AIR 1965 SC 360
AIR 1956 Pat 398.
AIR 1955 Nag 175
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ordnance factory or a naval base" cannot claim any right under
Article 311 (2) of the Constitution of India, even if he is not governed
by the laws of armed forces because he is not a member of civil
service of the Union or holding a civil post under the Union as held
by the Apex Court in "Lekh Raj Khurana v. Union of India11"
A civil post outside the regularly constituted service does not
carry a definite rate of pay; he may be paid on commission basis; the
post need not be whole time, it may be part time and the holder may
be free to engage himself in other activities. What is important is the
existence of the master--servant relationship. (Vide: State of
Gujarat v. Ramanlal Keshavlal (referred supra) and Mathurdas v.
S.D.Munshaw12)
Keeping in view the test laid down by various Courts including
the Apex Court in the judgments (referred supra) I shall now
examine whether the petitioners would fall within the meaning of
"holders of civil post".
The test laid down in State of Gujarat v. Ramanlal
Keshavlal and Lachmi v. Military Secretary to Governor of
Bihar (referred supra) are relevant for deciding this issue.
There must be existence of relationship of 'master' and
'servant' between the holder of the post and the person, who
engaged him/her. The existence of such relationship is depending
upon the right of the State to select and appoint the holder of the
post, its right to suspend and dismiss him, right to control the
manner of doing work and payment for it, etc. Thus, the ultimate
control, which is exercised by the State with regard to the post in
AIR 1971 SC 2111
AIR 1981 SC 53
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question, is a relevant factor to decide the present issue.
Home Guards Organisation is constituted under Section 3 of
the Act, and appointment of officers. According to Section 3 of the
Act, the State may constitute for each or the areas specified in
Section 1 (3) (b), and for each of the other areas notified under
Section 1 (3) (c), a volunteer body called the "Home Guards",
every member of which shall have such powers and discharge
such duties in relation to the protection of persons, the security
of property, and the preservation of public order or tranquillity
as may be assigned to him by or under this Act. The State
Government or any person empowered by them in this behalf may
appoint as many officers as the State Government may consider
necessary for the proper governance and conduct of the Horne
Guards; one of the officers so appointed may be Commandant for
all the Home Guards of the State.
Section 4 of the Act deals with appointment and removal of
Home Guards. Section 5 of the Act deals with period of service and
discharge. Section 6 of the Act deals with 'calling out of Home
Guards'. Powers, privileges and protection of Home Guards are
governed by Section 7 of the Act. Section 8 of the Act conferred
power on the State officers or the police officers to have control on
the Home Guards, when called out under Section 6 in aid of the
police force. 'Penalties' to be imposed against Home Guards for their
failure to discharge any of the duties entrusted to them are specified
in Section 9 of the Act. Thus, the Act itself is a complete code deals
with constitution, appointment and removal of Home Guards,
control of Home Guards etc. Rules were required to be framed by the
State Government, but no rules were framed separately, but at the
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same time not specifically adopted the rules framed under the
Madras Home Guards Act. The State is empowered to frame rules
without prejudice without prejudice to the generality of the
foregoing power, such rules may provide for or regulate all
matters required or allowed by this Act to be prescribed; the
exercise by any police officer or any officer of the Home
Guards of the powers conferred by Section 6 on
the Commissioner of Police, or the District Superintendent of
Police concerned, as the case may be; the exercise of control by
officers of the police force over Home Guards when acting in
aid of the police force; the organisation, appointment,
discipline, training, arms, accoutrements and clothing,
conditions of service, powers and duties of Home Guards; the
exercise by Home Guards of any of the powers exercisable under
sub-section (1) of Section 7 of the Act. Here it appears that
the State did not notify any rules in the A.P. Gazette, but the rules
were adopted by the A.P. Adaptation of Laws Order, 1957. Therefore,
the Madras Home Guards Rules will hold the field governing the
service conditions, discipline etc.
A bare look at the provisions of the Act and Rules framed
under the Madras Home Guards Act adopted by the A.P.Adaptation
of Laws Order, 1957, it is clear that Home Guards are under the
direct control of the State though it is styled as Home Guards
Organisation consisting of volunteers, who enrolled their names as
Home Guards. However, they are being paid remuneration and
being provided uniform, including discipline and administrative
control.
A similar question came up before the Allahabad High Court
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in "Suraj Prasad Tiwari v. Zila Commandant, Home Guards,
Hamirpur13". The learned Single Judge discussed about the
position of the Home Guards held as follows:
"The expression 'civil post', as occurring in Articles 310 and 311 of the
Constitution of India, has not been denned. This connotation, however, has
been subject to scrutiny by the Supreme Court as well as other High Courts
on several occasions. The expression 'civil post', prima facie, means, an
appointment or office on the civil side of the administration as distinguished
from, a post under the Defence Forces. The only persons, who are excluded
from the purview of Article 311(1) {which is in the nature of an exception to
the general provisions under Article 310(1) are--(a) members of the Defence
Services, and (b) persons holding any post connected with defence. All
persons, excepting the above two classes, who hold any post under the Union
or a State, hold a 'civil post'. There are broadly two tests for determining the
question whether a person holds a 'civil post'-- (1) whether the person is
employed to perform duties and functions which fall within the sphere of
activities, duties and functions of the State and (2) whether the person
claiming to be the holder of a 'civil post' is under the employment and
administrative control of the State, as regards his appointment and other
terms of employment, as well as his work and conduct. It is immaterial
whether the employee is a member of any of the Civil Service or whether the
Civil Services Rules are applicable to him or not. This aspect of the matter
has been elaborately discussed in "Nagendra v. Commissioner14" and "Brij
Nandan v. State of Bihar15". Similarly, whether remuneration is paid or
not, is immaterial as has been held in "Jayanti Prasad v. State of U. P.16"
and "Rems v. Province of Bengal17". provided the person has been
employed by the Union or State to a post for the discharge of public duties,
not connected with defence. A 'post', in this context, denotes an office. A post
under the State is an office or a position to which duties, in connection with
the affairs of the State are attached, an office or position to which a person is
appointed and which may exist apart from and Independently of the holder of
the post. A 'post' under the State means a 'post' under the administrative
control of the State. Sometimes, a question for determination arises whether
a relationship of 'master and servant' exists between the Government and
employee in question and this fact is to be determined on a consideration of
all the relevant circumstances in each case. In "Pradyat v. Chief Justice18".
It was observed that, in general, selection by the employer coupled with
1998 (3) AWC 1622
AIR 1955 Cal 56
AIR 1955 Pat 353
AIR 1951 All 793
1953 (57) WM 767
(1955) 2 SCR 1331
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payment by him or remuneration or wages, the right to control the method of
work and power to suspend or remove from employment . are Indicative of
the relation of master and servant. But, co-existence of all the Indicia is not
predicated in every case to make the relation one of master and servant.
Ordinarily, the right of an employer to control the employee of doing the work
and the power of superintendence and control may be treated as strongly
Indicative of the relation which Imports the power not only to direct the doing
of some work but the power to direct the manner tn which the work is to be
done. In "Shiv Nandan v. Punjab National Bank19" and "Piyare Lal v.
Commissioner of Income Tax20". It was held that if the employer has that
power, prima facie, the relation is that of master and servant as
distinguished from that of an Independent contractor. On the other hand, if
the test of administrative control and the relationship of master and servant
is established, a fact that the holder does not enjoy a definite rate of pay, but
works on commission or is a part time employee or that he is protected by
Industrial and Labour law, does not exclude him from the category of the
holder of a 'civil post' under the Government.
Without burdening this judgment with the plethora of rulings on the
point, suffice it to make a reference to a celebrated decision of the
Constitution Bench of the Supreme Court in "State of Assam and others v.
Kanak Chandra Dutta" (referred supra). In that case, the question was
whether a Mauzadar in Assam who is known as a revenue contractor. Is the
holder of a 'civil post' and consequently, a public servant. The primary duty
of a Mauzadar was to collect land revenue and other governmental dues with
the collection of which he is entrusted. He is responsible for the collection of
toll tax, house tax, Tahabazarl, grazing fees and forest dues. He undertook to
pay into the Treasury the full amount of all Instalments of land revenue and
local rates Included in the zamabandl and all the house tax, toll tax and
grazing fees, within one month of the date on which they fall due for
payment. In regard to land revenue, house dues are confined to collection
and he is not concerned with Us assessment, the settlement of land and the
checking of maps or assessment papers. There are executive instructions
contained in Assam Land Revenue Manual providing for method of selection,
appointment and dismissal of a Mauzadar. the dues and emoluments of the
office and the registers to be kept and maintained by him. A Mauzadar is
generally an influential and well-to-do resident of the Mauza. He may be
appointed or dismissed by Deputy Commissioner subject to the
Commissioner's approval and suspended by Deputy Commissioner on his
authority. A Mauzadar's successor is ordinarily selected from amongst the
members of his family. If a suitable heir of deceased Mauzadar is a minor,
the post may be kept open for him for a period not exceeding three years and
an agent being appointed in the meantime to carry on the duties of
(1955) 1 CCR 1427
1963 SCR 669
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Mauzadar. Remuneration of a Mauzadar is generally by way of commission
on the revenue local rates and grazing dues collected by him but he may also
be paid a fixed salary. Judged in the light of the above facts, the Supreme
Court held that the Mauzadar is a person holding a 'civil post' under the
State within the meaning of Article 311 and there is a relationship of master
and servant between the State and a person acting as a Mauzadar. A
Mauzadar was held to be entitled to the protection of Article 311 of the
Constitution of India."
In the backdrop of the above legal position, learned Single
Judge examined the provisions of the U.P. Home Guards Act to
determine whether the Home Guards are the persons holding 'civil
post', concluded that a close examination of the above provisions
would make it abundantly clear that a Home Guard is employed by
the State and is under its direct administrative control. There is no
sphere of his employment and work, such as, appointment,
function, duties, powers and privileges, which is left untouched and
uncontrolled by the State Government. Due protection has been
provided which is available to every public servant in the
performance of his public duty. The primary function of a Home
Guard is to serve as auxiliary to the police in times of emergency
and for maintenance of public order and internal security. There is,
thus, complete control over the work, function and duties of a Home
Guard. It is not that any person who volunteers himself to work as
Home Guard may be enrolled. There has to be scrutiny before
making an appointment or enrolling a Home Guard. The power of
suspension, termination or removal vests in the State Government.
A Home Guard cannot disobey the orders of the State Government
or desert his duties. In view of the various provisions contained in
the Act, the position of a Home Guard is not that of a volunteer but
of a public servant as has been specifically mentioned in Section 10
of the U.P.Home Guards Act (corresponding to Section 11 of the
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A.P.Home Guards Act) and as the position flows from the various
other provisions of the Act.
The learned Single Judge also adverted to earlier judgments of
Division Bench and finally concluded that Section 10 of the U.P.Act
appears to have been enacted to include a Home Guard within the
ambit of Section 21 of the Indian Penal Code. However, any question
under Article 311 of the Constitution has to be determined with
reference to the connotation of these words as appearing in the
Constitution itself. The meaning of a term as appearing in the
Constitution cannot be controlled or whittled down by any ordinary
law. If a person holds a civil post, as contemplated by our
Constitution, he cannot be excluded from the protection or privilege
conferred upon him by a constitutional provision by the, simple
expedient of excluding him from the definition of holder of 'civil post
by an ordinary statutory provision. Therefore, learned single Judge
concluded that the petitioner who is Company Commander is
holding a civil post, therefore, entitled to protection under Article
311 of the Constitution of India.
Two conflicting judgments were also considered in the "Suraj
Prasad Tiwari v. Zila Commandant, Home Guards" (referred
supra), i.e. "Dashrath Singh Parihar v. State of U. P.21", in which
the Court placed reliance on "Vibhuti Narain Singh v. State22" and
concluded that the post of Company Commander is a 'civil post'
within the meaning of Article 311 and Company Commander cannot
be removed from service without serving him a proper charge-sheet,
without giving him an opportunity of hearing and since the order of
removal of a Company Commander was in utter disregard and in
1997 (1) AWC 376
1986 UPLBEC 1130
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violation of Article 311 of the Constitution of India, the order of
removal was liable to be quashed.
Another Division Bench of the same High Court in "Abdul
Hameed v. State of U. P. (Civil Misc. Writ No. 9028 of 1990)" and in
"Gulam Mohd. v. State of U.P. (Civil Misc. Writ Petition Nos. 29824
of 1992 and 27675 of 1992)" have not noted the principle laid down
in "Dashrath Singh Parihar v. State of U. P." and "Vibhuti
Narain Singh V. State" (Referred Supra).
In view of the conflict between two division bench judgments
of the High Court of Allahabad, namely, "Riasat ali v. State of
U.P.23" and an unreported judgment of another Division Bench in
the case of "Ram Kumar v. State of U.P." Special Appeal No.143 of
2012 decided on 5th April, 2012, a reference was made to full bench
of Allahabad High Court (consisting of Amreshwar Pratap Sahi,
Abhinava Upadhya and Harsh Kumar) in "Rajveer Singh v. State
of U.P.24" to set right the legal position on the issue whether the
Home Guards are holding civil post, the full bench adverted to
U.P.Home Guards Act, 1963, held as follows:
"On a close scrutiny, the provisions relating to voluntary enlistment and
enrollment under section 7 of the 1963 Act are clearly aimed at providing a
supplementary help and to act as an accessory to the police forces of the
state. One who gets enrolled, he stands enlisted as a part-timer as per
section 11 of the 1963 act. A home guard so enlisted is a public servant as
defined under section 21 of the IPC and the Acts performed during duty are
protected under section 9(2) of the 1963 Act. On enlistment, a home guard
receives a certificate of appointment as per section 7(2) thereof. A home
guard is bound to serve whenever called upon to perform duties. It is thus a
performance of public duty by someone who voluntarily applies for the same
which is subject to enrollment and then being called upon to perform a
prescribed duty."
Thus, a home guard is liable to serve and in default is also
2003 (4) AWC 3046
2018 (11) ADJ 453
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subject to penal action. There are provisions of suspension and
discharge from services. Payment of allowances is also prescribed
with liberty to resign. Viewing the nature of the duties to be
performed, a closer look at Section 4 of the U.P.Home Home Guards,
1963 Act is necessary. It will deal with the functions of the home
guards. As per Section 4, they will serve as auxiliary to the police,
and, when required, help in maintaining public order and internal
security; they will help the community in air raids, fires, floods,
epidemics and other emergencies; they will function as an
emergency force for such special tasks as may be prescribed; they
will provide functional units for essential service; and they will
perform such other duties, relating to any measure of public welfare
as may be prescribed. A perusal thereof indicates that even though
section 3 of the Act describes the Uttar Pradesh Home Guards as a
volunteer force, yet their duties encompass a substantial area of
policing, emergency and essential public services and other duties of
importance as a measure of public welfare.
The question is, who can be described as the holder of a civil
post. This would be obviously dependent on the nature of
engagement, employment or appointment coupled with the nature of
the services or duties to be performed. In ordinary parlance, a
person, outside the defence services, engaged in the work of the
state is a civil servant and he is said to be in civil service. As to who
would be holder of a civil post, it would be apt to quote paragraph
No.9 and paragraph No.10 of the judgment in the case of "State of
Assam v. Kanak Chandra Dutta" (referred supra)
"9. The question is whether a Mauzadar is a person holding a civil post
under the State within Art. 311 of the Constitution. There is no formal
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definition of "post" and "civil post". The sense in which they are used in the
Services Chapter of Part XIV of the Constitution is indicated by their context
and setting. A civil post is distinguished in Art. 310 from a post connected
with defence; it is a post on the civil as distinguished from the defence side of
the administration, an employment in a civil capacity under the Union or a
State. See marginal notes of Art. 311. In Art. 311, a member of a civil service
of the Union or an all-India service or a civil service of a State is mentioned
separately, and a civil post means a post not connected with defence outside
the regular civil services. A post is a service or employment. A person holding
a post under a State is a person serving or employed under the State. See the
marginal notes - to Arts. 309, 310 and 311. The heading and the subheading
of Part XIV and Chapter I emphasise the element of service. There is a
relationship of master and servant between the State and a person holding a
post under it. The existence of this relationship is indicated by the State's
right to select and appoint the holder of the post, its right to suspend and
dismiss him, its right to control the manner and method of his doing the
work and the payment by it of his wages or remuneration. A relationship of
master and servant may be established by the presence of all or some of
these indicia, in conjunction with other circumstances and it is a question of
fact in each case whether there is such a relation between the State and the
alleged holder of a post.
10. In the context of Arts. 309, 310 and 311, a post denotes an office. A
person who holds a civil post under a State holds "office" during the pleasure
of the Governor of the State, except as expressly provided by the
Constitution. See Art. 310. A post under the State is an office or a position to
which duties in connection with the affairs of the State are attached, an
office or a position to which a person is appointed and which may exist apart
from and independently of the holder of the post. Article 310(2) contemplates
that a post may be abolished-and a person holding a post may be required to
vacate the post, and it emphasises the idea of a post existing apart from the
holder of the post. A post may be created before the appointment or
simultaneously with it. A post is an employment, but every employment is
not a post. A casual labourer is not the holder of a post. A post under the
State means a post under the administrative control of the State. The State
may create or abolish the post and may regulate the conditions of service of
persons appointed to the post."
An elaborate discussion of judgments of two earlier division
benches, the Full Bench also considered "Suraj Prasad Tiwari v.
Zila Commandant, Home guards, Hamirpur" (referred supra) and
finally concluded as follows:
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"Having considered respective contentions at the Bar as well as the
aforesaid judgments, we have no doubt that so long as Explanation attached
to Section 10 of the Act continues on the Statute, even if a service or post
has incidences, of 'civil service'/'civil post' as held by Supreme Court in the
case of State of Assam v. Kanak Chandra Dutta (referred supra) the statutory
declaration that post of Home Guard is not a civil post, cannot be ignored.
The said statutory provision (Explanation to Section 10 of the Act) has to be
given purposeful meaning and to be duly honoured. In our humble but
considered opinion, there is no conflict between Article 311, Constitution of
India and said Section 10 with its Explanation."
In "Suraj Prasad Tiwari v. Zila Commandant, Home Guards,
Hamirpur" (referred supra) adopted the reasoning given in the
earlier judgment in "Vibhuti Narain Singh v. State" (referred supra)
and referred to Article 311 and held that Home Guards under the
Act hold a civil post. However, in para 12 of the reported judgment
in the case of "Suraj Prasad Tiwari v. Zila Commandant, Home
Guards, Hamirpur" (referred supra) learned Single Judge did not
appreciate that even 'intents' and 'features' of service justify
declaration of it as a civil service or post, but it cannot be treated as
such if legislature specifically through legislative enactment declares
it not to be a civil service/civil post, and consequently, protection of
Article 311 cannot be taken resort to Article 311 of the Constitution
of India to treat it as a civil service or a civil post.
Thus, the reason for arriving at such conclusion by the full
bench is the statutory explanation to section 10 of U.P. Home
Guards Act, 1963, otherwise it would fall within the definition of
holder of civil post as observed above.
The Full Bench of the Allahabad High Court is clear that only
due to statutory provision, they gave purposeful meaning and
concluded that the home guard is not a civil post, otherwise it would
attract the principle laid down in State of Assam v. Kanak Chandra
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Dutta (referred supra). Thus, only on account of explanation to
section 10, the full bench concluded that the home guards are not
holders of civil post.
In "Sarojni Devi V. Deputy Commandant General, Home
Guards Head Quarter25", the High Court of Allahabad, concluded
that the Home Guards are holders of Civil Post.
In view of the judgment of the Full Bench Judgment of the
High Court of Allahabad in "Rajveer Singh V. State of U.P." (referred
supra), tough not binging precedent, it is appropriate to advert to
the provisions of Section 10 of the U.P.Home Guards Act, 1963 and
Section 11 of the A.P. Home Guards Act as they are corresponding
to one another.
Section 10 of The U.P.Home Section 11 of The A.P.Home
Guards Act, 1963 Guards Act, 1948
10. Home Guards To Be Public 11. Home Guards To Be Public
Servants But Not Civil Servants. Servants:
- A Home Guard acting in the Home Guards acting in
discharge of his functions under the exercise of their powers or
this Act shall be deemed to be a the discharge of their duties
public servant within the under this Act shall be deemed
meaning of Section 21 of the to be public servants within the
Indian Penal Code. meaning of Section 21 of the
Indian Penal Code (Central Act
Explanation - A Home Guard 45 of 1860).
shall not be deemed to be a
holder of a civil post merely by
reasons of his enrolment as
Home Guards.
A comparison of these two provisions of U.P.Home Guards,
1963 and the A.P.Home Guards Act, 1948 conspicuously,
explanation annexed to Section 10 of The U.P. Home Guards Act,
1963 is missing in A.P.Home Guards Act, 1948. Thus, in the
absence of statutory clarification by way of explanation to Section
11 of the A.P. Home Guards Act by applying principle laid down in
"State Of Assam V. Kanak Chandra Dutta" (referred supra), Home
2016(7)ADJ728
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Guards can be described as holders of civil post.
The main contention of the learned Government Pleader for
Services - I is that services of Home Guards is voluntary in nature.
As seen from the provisions of the A.P.Home Guards Act,
1948, it appears that the services of home guards are voluntary in
nature, but State prescribed certain norms for selection, fixing
payment of salary etc., it is difficult to hold that their services are
voluntary in nature.
Recently, notification for recruitment of Home Guards was
issued in Y.S.R.Kadapa District specifying certain standards in
different trades. The following Home Guards posts are notified for
selection in different trades with the specific eligibility and
standards.
Sl.No. Details of Employment Number of Vacancies
The following conditions are prescribed for selection of the
said posts.
Age: Male and Female candidates must be in the age group of
18 to 50 years.
Educational qualifications: Must have passed S.S.C. or 7th
class.
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Physical standards:
(1) Male candidates must have height of 165 cms (SC/ST and
BC candidates must have height of 160 cms)
(2) Female candidates must have height of 150 cms (SC/ST
candidates must have 145 cms)
Qualifying test:
Male candidates must complete 800 meters running race in
200 seconds.
Thus, it is clear from the notification, anybody cannot join as
member of Home Guard Organisation, only who are qualified,
having standards specified in the notification are to be selected as
Home Guards or as member of Home Guards Organisation. The said
selection is based on open competition inviting applications from the
eligible candidates. Therefore, the respondents are following the
normal procedure for selection of Home Guards like police
recruitment. Therefore, it cannot be said to be a voluntary
enrolment of members in the Home Guards Organisation, but
strictly in accordance with the standards specified for selection of
Home Guards. Apart from the selection procedure specified in the
notification, they are being honorarium of Rs.600/- per day and the
same was enhanced to Rs.710/- per day as per G.O.Rt.No.876
Home (Budget) Department dated 12.10.2019. The Honorarium is
being paid at the end of every month in lump sum, that itself is
sufficient to conclude that the amount paid to the petitioners is a
salary in disguise. Hence, in view of the procedure for selection
stated above and payment of substantial amount at the end of every
month, though styled it as Honorarium, discharging duties as para
policing.
The Apex Court while considering the nature of services of
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Home Guards under the State of Panjab and Haryana Act in
"Davinder Singh V. State Of Punjab26" held as follows:
"Even without going into the question whether the appellants are eligible
for the protection under Article 311 of the Constitution, in our view, the
respondents seem to have acted in an arbitrary manner by terminating the
services of the appellants, who have been working as Home Guards for the
last 15-17 years. They are all over-aged. They may find it difficult to find
alternate employment. Therefore, in the facts and circumstances of this case
and in the interest of justice, we deem it proper to set aside the order of
termination passed by the respondents dated 02.12.2004 and direct the
respondents to reinstate the appellants as Home Guards without back
wages.
In "Parshotam Lal Dhingra v. Union of India27" the removal
of members of Railway Board came up for consideration before the
Apex Court and the Apex Court concluded that protection under
Article 311 (2) of the Constitution of India is applicable.
In "Satyavir Singh v. Union of India28", the Apex Court
dealt with removal of members of Research and Analysis Wing
(RAW), noted the principles laid down in "Union of India v.
Tulsiram Patel29" concluded that they are holders of Civil Post.
According to the principle laid down in the above judgment,
persons who are holding civil post i.e. members of the RAW services
cannot be removed except by conducting enquiry. Enquiry under
clause (2) of Article 311 gives a Constitutional mandate to the
principle or natural justice and the audi alteram partem rule by
providing that a civil servant shall not be dismissed or removed from
service or reduced in rank until after an inquiry in which he has
been informed of the charge against him and has been given a
reasonable opportunity of being heard in respect of those charges.
(2010) 13 SCC 88
AIR 1958 SC 36
AIR 1986 SC 555
AIR 1985 SC 1416
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The nature of this inquiry has been elaborately set out by the Apex
Court in "Khem Chand v. The Union of India30" and even after the
Constitution (Forty-second Amendment) Act, 1976, the inquiry
required by Clause (2) of Article 311 would be the same except that
it would not be necessary to give to a civil servant an opportunity to
make a representation with respect to the penalty proposed to be
imposed upon him. As held in "Suresh Koshy George v. The
University of Kerala31" and "Associate Cement Companies Ltd.
v. T.C. Shrivastava32" apart from Article 311 prior to its
amendment by the Constitution (Forty-second Amendment) Act,
1976, it is not necessary either under the ordinary law of the land or
under industrial law to give a second opportunity to show cause
against the penalty proposed to be impose upon an employee. If an
inquiry held against a civil servant under Article 311(2) of the
Constitution of India is unfair or biased or has been conducted in
such manner as not to give him a fair or reasonable opportunity to
defend himself, the principles of natural justice would be violated.
In view of Article 311 (2) of the Constitution of India, an
inquiry shall be conducted to remove a person holding civil post,
from his service. In "Satyavir Singh v. Union of India" (referred
supra), it is observed as follows:
"The police are the guardians of law and order. They stand guard at the
border between the green valleys of law and order and the rough and hilly
terrain of lawlessness and public disorder, and if these guards turn law-
breakers and create violent public disorder and incite others to do the same,
one can only exclaim with Juvenal, "Quis custodietipsos! Custodes?"-
"Who is to guard the guards themselves?" (Satires, VI, 347). In such a
situation prompt and urgent action becomes necessary and the holding of an
inquiry into the conduct of each individual member of the police force would
(1959)ILLJ167SC
[1969]1SCR317
AIR 1984 SC 1227
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not be expedient in the interest of the security of the State.
When, therefore, a number of members of the Madhya Pradesh District
Police Force and the Madhya Pradesh Special Armed Force, in order to obtain
the release on bail of two of their colleagues who had been refused bail and
remanded into judicial custody because of an incident which took place at
the annual Mela held at Gwalior in which one man was burnt alive, indulged
in violent demonstrations and rioted at the Mela ground, attacked the police
station at the Mela ground, ransacked it and forced the wireless operator to
close down the wireless set and the situation became so dangerous that
senior district and police officers had to approach the Judicial Magistrate at
night to get the two arrested constables released on bail and, after discussion
at a Cabinet meeting, a decision was taken and the advice of the Council of
Ministers was tendered to the Governor of Madhya Pradesh who accepted it
and issued orders of dismissal of these persons by applying Clause (c) of the
second proviso to them, it cannot be said that the provisions of the said
Clause (c) were not properly applied.
Similarly, when after these members of the Madhya Pradesh District
Police Force and the Madhya Pradesh Special Armed Force were dismissed,
some other members of these Forces began carrying on an active propaganda
against the Government, visiting various places in the State of Madhya
Pradesh, holding secret meetings, distributing leaflets and inciting the
constabulary in these places to rise against the administration as a body in
protest against the action taken by the Government and, on such
information being received, they were also dismissed by applying Clause (c)
of the second proviso to them, it cannot be said that the said Clause (c) was
not properly applied.
XIII. Remedies available to a Civil Servant
A civil servant who has been dismissed, removed or reduced in rank by
applying to his case one of the Clauses of the second proviso to Article 311(2)
or an analogous service rule has two remedies available to him. These
remedies are:
(i) the appropriate departmental remedy provided for in the relevant
service rules, and
(ii) if still dissatisfied, invoking the court's power of judicial review."
Therefore, Civil servants who have been dismissed or removed
from service or reduced in rank by applying the second proviso to
Article 311(2) or an analogous service rule the right to a full and
complete inquiry, an appeal or revision unless a situation envisaged
by the second proviso is prevailing at the time of the hearing of the
appeal or revision application etc. Thus, the Civil Servants cannot
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be removed except by following the procedure contemplated under
rules; in the absence of any rules, by following the principles of
natural justice, an enquiry has to be conducted in view of the
protection available to the Civil Servants under Article 311 (2) of the
Constitution of India.
In the present facts of the cases, the main grievance of the
petitioners before this Court is that the petitioners are civil Servants
and their services are protected by Article 311 (2) of the Constitution
of India.
As held above, taking into consideration of nature of duties,
the procedure for appointment and selection process etc, in the
absence of explanation, as in Section 10 of The U.P.Home Guards
Act, 1963, to Section 11 of the A.P.Home Guards Act, they are
deemed to be civil servants for all practical purposes by applying the
tests laid down in "State of Assam v. Kanak Chandra Dutta"
(referred supra). When the petitioners are holders of civil post, the
respondents must necessary follow the procedure prescribed under
Rules specifically, but an enquiry is not contemplated under Rules
except issue of show-cause notice.
According to Section 7 of the A.P.Home Guards Act, 1948, a
Home Guard, when called out under Section 6, shall have the same
powers, privileges and protection as on officer of the police
appointed under the Hyderabad City Police Act or the A.P.District
Police Act, 1859 as the case may be. No prosecution shall be
instituted against a Home Guard in respect of any act done or
purporting to be done in the exercise of his powers or the discharge
of his duties as such except with the previous sanction of the
Commissioner of Police in the Cities of Hyderabad and
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Secunderabad and of the District Superintendent of Police in the
district concerned.
Even if, Section 7 of the A.P.Home Guards Act, is considered
they are entitled to claim protection like any other member of the
police service appointed under the District Police Act. This is
another distinct feature of services of Home Guards to consider their
service as civil post.
According to Section 4 of the A.P. Home Guards Act, any
person possessing the prescribed qualifications and willing to serve
may be appointed as a Home Guard by such authority and in such
manner as may be prescribed, thereupon he shall have the powers,
privileges and protection conferred and discharge the duties
imposed, on a Home Guard by or under this Act. The prescribed
authority may, subject to such conditions as may be prescribed,
suspend, dismiss or remove any Home Guard from his office and
thereupon the certificate received by him shall cease to have effect.
The powers are vested on the competent authority to place the
Home Guard under suspension, dismiss and remove him cancelling
the certificate of appointment under clause (3) of Section 4 of the
A.P.Home Guards Act. But the penalties prescribed under Section 9
of the A.P.Home Guards Act are relevant at this stage and it is
extracted hereunder.
(1) If any Home Guard, without sufficient cause, neglects or refuses to
obey the orders of any superior authority or officer, or fails to discharge any
other duty, or deserts his post, or is guilty of any wilful breach or neglect of
any provisions of this Act or any rule
or lawful order made or issued thereunder by a competent authority, he shall
be punishable with simple imprisonment for a term which may extend to
three months or with fine which may extend to two hundred and fifty rupees
or with both.
(2) No prosecution shall be instituted against any Home Guard for any
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offence punishable under sub-section (1), without the previous sanction of
an officer empowered by the [State] Government in this behalf.
(3) An offence punishable under sub- section (1) shall be cognizable.
There is little conflict between Section 4 and Section 9
regarding punishment to be imposed against a Home Guard.
Suspension or punishment of dismissal or removal is not for
dereliction of duty or desertion of duty or is guilty of any wilful
breach or neglect of any provisions of this Act. But what for such
power is vested on the competent authority to dismiss or remove the
Home Guard is not known.
In exercise of the powers conferred by Section 10 of Madras
Home Guards Act, the rules were framed by the then Madras
Government, which are made applicable in the State of Andhra
Pradesh. Rule 3 of the Madras Home Guards Rules, 1949 prescribes
recruitment and appointment as Home Guard. Rule 4 deals with
'organisation'. As per Rule 5, every home guard shall, on enrolment,
be required to undergo a course of training for a period of not more
than three months in physical exercise, arms drill, musketry, fire-
fighting, first aid and duties and powers of Home Guards to be
performed. As per Rule 10, service of Home Guard will be entirely
honorary and no pay shall be admissible to the members of the
Home Guard. Duty allowance will however be admissible to the
members of the Home Guard during the period of their training and
when called out for duty at such rates as may be fixed by the
Government from time to time.
Rule 7 deals with 'discipline". It reads as under.
7. Discipline:- (1) The Commandant shall comply with all orders in
regard to the training of Home Guards and their use in aid of the Police
issued by the Commissioner of Police or the District Superintendent of Police
concerned, as the case may be.
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(2) A Home Guard shall perform such duties and functions as may be
assigned to him and shall obey every order of his superior officers.
(3) For the purposes of administration and discipline, the Home Guards
shall, subject to the provisions of Sub-rule (5) be under the control of their
Commandant and, in his absence of the Adjutant or the other staff officers, if
any, appointed to assist the Commandant.
(4) The Commandant may, for good and sufficient reasons, impose on
any Home Guard any of the following penalties:-
(a) reprimand;
(b) suspension;
(c) reduction of rank;
(d) removal; and
(e) dismissal.
No appeal shall lie against any of these punishments. In all the cases of
disciplinary action, a reasonable opportunity shall ordinarily be given to the
delinquent Home Guard to show cause against the penalty proposed to be
imposed on him, but in exceptional cases, when this course is not possible, it
may be waived for special reasons to be recorded in writing.
(5) The Commissioner of Police in the Presidency-town and the District
Superintendent of Police concerned elsewhere may, for good and sufficient
reasons, direct the suspension, removal or dismissal of a Home Guard from
his office.
(6) The superintendence of the Home Guards shall be vested in the
Inspector General of Police and shall be exercised by him through the
Commissioner of Police in the Presidency-town and through the Special
Officer for the special armed police Units and the District Superintendent of
Police concerned elsewhere.
Rule 7 of the Rules stipulates that for the purpose of
administration and discipline, the Home Guards shall be under the
control of the Commandant, and in his absence, under the control
of the adjutant and other staff officers appointed if any. Sub-rule (4)
of Rule 7 of the Rules confers the power on the Commandant to
impose on any Home Guard the penalties, namely, reprimand,
suspension, reduction of rank, removal and dismissal. But, in all
such cases, a reasonable opportunity shall be given to the
delinquent Home Guard to show cause against the penalty proposed
to be imposed on him. In exceptional cases, however, the issue of
show cause notice can be waived for special reasons to be recorded
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in writing by the Commandant. If any penalty is imposed by the
Commandant, it is final and no appeal is provided. It may also be
mentioned that as per Rule 7(5) of the Rules, the Commissioner of
Police in the Presidency-town and the District Superintendent of
Police in Districts may direct the suspension, removal or dismissal
of a Home Guard for good and sufficient reasons.
On the basis of the said Rule 7, the Division Bench of the
High Court of Andhra Pradesh at Hyderabad in "the State of
Andhra Pradesh v. P.Prasad Rao" (referred supra), set aside the
dismissal/removal order of Home Guard for non-compliance of
mandatory procedure of show-cause notice.
Section 4, 9 of the of the A.P. Home Guards Act coupled with
Rule 7 of the Madras Home Guards Rules, deals with different types
of penalties, but in what circumstances the order of suspension,
dismissal or removal of Home Guard be imposed is not specified.
The only requirement is to issue show-cause notice. In the present
cases, show-cause notices were issued.
However, as discussed above, the Home Guards are holders of
Civil post by applying the principles laid down in "State of Assam
v. Kanak Chandra Dutta" and "Satyavir Singh v. Union of
India" (referred supra) as there is no explanation in the A.P.Home
Guards Act as contained in U.P.Home Guards Act. For removal of
Home Guard, necessary procedure prescribed under rules and Act is
to be adhered to strictly.
The petitioners raised a specific contention that they are
holding civil post and dismissal/removal/termination of their
services without conducting enquiry is hit by Article 311 (2) of the
Constitution of India. The respondents refuted the said contention,
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but did not convince this Court that the petitioners are not holding
civil post to fall within the definition of 'category of persons holding
civil post'. Therefore, analysing the law laid down by the Apex Court
in various judgments including constitutional bench judgment of
"State of Assam v. Kanak Chandra Dutta" (referred supra), I hold
that the petitioners/Home Guards are holding Civil Post, and no
punishment be imposed against them without conducting any
enquiry in view of Article 311 (2) of the Constitution of India.
Accordingly, the point is held against the respondents and in favour
of the petitioners holding that the Home Guards are holders of Civil
Post and they cannot be removed from service except by conducting
necessary enquiry.
P O I N T No.3:
The petitioners in W.P.Nos.172, 2376, 24946, 14214 and
16990 of 2020, W.P.Nos.825, 3528, 5136, and 4412 of 2021
contended that they were arrayed as accused and after full-fledged
trial, they were found not guilty; thereby removal/termination or
dismissal/cancelling their certificate of enrolment as Home Guards
is an illegality since there is every possibility of false implication in
criminal cases by disgruntled fellow opponents and when they were
found not guilty, they are entitled to be reinstated by renewing their
certificate of enrolment with consequential benefits.
The respondents denied the said contention while contending
that a show-cause notice was issued even before completion of
criminal cases. Having dissatisfied with the explanation submitted
by the petitioners, they were terminated/ removed from service.
When the petitioners were found not guilty for various
offences after full-fledged trial, acquitting them honourably, denial
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of reinstatement to serve as Home Guards would amount to
depriving their livelihood as guaranteed under Article 21 of the
Constitution of India. Dismissal/termination of the petitioners from
Home Guards Organisation on the ground that they involved in
criminal/calendar cases, without conducting any enquiry, is a grave
illegality, and arbitrary and violative of Article 14 of the Constitution
of India.
Even as seen from the impugned orders passed by the
concerned authority for removal/dismissal/termination or
cancellation of enrolment of petitioners, orders must be supported
by satisfactory reasons except passing a cryptic order. Therefore, the
removal of the petitioners on the ground that they were arrayed as
accused in calendar/ criminal cases is a grave illegality and those
orders are liable to be set aside. Accordingly, the point is held in
favour of the petitioners and against the respondents.
P O I N T No.4:
Enrolment of the petitioners was cancelled or they were
removed/terminated from the Home Guards on the ground that they
were absent for long period without applying for any kind of leave or
prior permission. They gave explanation to the show cause notice as
to what prevented from attending the duty. But the respondents,
under whom the petitioners are working, did not consider the
reason assigned by the petitioners for their absence and
terminated/removed the petitioners from service.
In the order of removal passed by the respondents, without
even adverting to the reason for their explanation and reason
mentioned therein, without recording their satisfaction that their
absence as wilful, thereby removal of petitioners by Superintendent
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of Police is against the principles of natural justice as the
respondents are required to record reasons adverting to the
explanation submitted by the petitioners to the show cause notice
and record reasons for removal from the Home Guards
Organisation, but none of the orders disclosed any reasons for
removal except reiteration of cause shown in the show-cause notice
for removal.
In "Siemens Engineering and Manufacturing Co. of India
Ltd. v. The Union of India33", the Apex Court held that it is far
too well settled that an authority who is in making an order in
exercise of its quasi- judicial function, must record reasons in
support of the order it makes. Every quasi- judicial order must be
supported by reasons. The rule requiring reasons in support of a
quasi- judicial order is as basic as following the principles of
natural justice and the rule must be observed in its proper spirit.
In "Rama Varma Bharathan Thampuran v. State of
Kerala34", the Apex Court held that the functioning of the Board
was quasi-judicial in character. One of the attributes of quasi-
judicial functioning is the recording of reasons in support of
decisions taken and the other requirement is following the
principles of natural justice and it requires reasons to be written
for the conclusions made.
In "Gurdial Singh Fijji v. State of Punjab35", the Supreme
Court, dealing with a service matter, held that "rubber-stamp
reason" is not enough and that reasons "are the links between the
materials on which certain conclusions are based and the actual
AIR 1976 SC 1785
AIR 1979 SC 1918
(1979) 2 SCC 368
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conclusions."
In "H.H. Shri Swamiji of Shri Amar Mutt v. Commr., Hindu
Religious and Charitable Endowments Department36",
Constitution Bench of the Supreme Court, while giving the majority
judgment, referred the principle in Latin, which runs as follows:
"Cessante ratione legis cessat ipsa lex."
The English version of the said is that:
. ... 'reason is the soul of the law, and when the
reason of any particular law ceases, so does the
law itself'."
Summarising the above discussion, in "The Collector v. K.
Krishnaveni37", the Division Bench of Madras High Court culled out
the following principles:
(a) In India the judicial trend has always been to record reasons, even in
administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its
conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of
justice that justice must not only be done it must also appear to be done as
well.
(d) Recording of reasons also operates as a valid restraint on any possible
arbitrary exercise of judicial and quasi-judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision-
maker on relevant grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a
decision-making process as observing principles of natural justice by
judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior courts.
(1979) 4 SCC 642
W.A.No.1995 of 2018 dated 03.09.2019 (unreported)
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(h) The ongoing judicial trend in all countries committed to rule of law and
constitutional governance is in favour of reasoned decisions based on
relevant facts. This is virtually the lifeblood of judicial decision-making
justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different as
the judges and authorities who deliver them. All these decisions serve one
common purpose which is to demonstrate by reason that the relevant factors
have been objectively considered. This is important for sustaining the
litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and
transparency.
(k) If a judge or a quasi-judicial authority is not candid enough about his/her
decision-making process then it is impossible to know whether the person
deciding is faithful to the doctrine of precedent or to principles of
incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A
pretence of reasons or "rubber-stamp reasons" is not to be equated with a
valid decision-making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint
on abuse of judicial powers. Transparency in decision-making not only
makes the judges and decision-makers less prone to errors but also makes
them subject to broader scrutiny. (See David Shapiro in Defence of Judicial
Candor.)
(n) Since the requirement to record reasons emanates from the broad
doctrine of fairness in decision-making, the said requirement is now virtually
a component of human rights and was considered part of Strasbourg
Jurisprudence. See Ruiz Torija v. Spain EHRR, at 562 para 29 and Anya v.
University of Oxford, wherein the Court referred to Article 6 of the European
Convention of Human Rights which requires, "adequate and intelligent
reasons must be given for judicial decisions".
(o) In all common law jurisdictions judgments play a vital role in setting up
precedents for the future. Therefore, for development of law, requirement of
giving reasons for the decision is of the essence and is virtually a part of "due
process"."
Even according to principles of natural justice, the authorities
must disclose reasons for arriving at such conclusion and it is only
to enable the person to know the reason for his termination or for
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passing any adverse order against him/her and it is a guide for the
Appellate Authority to decide such an issue. The orders impugned in
all the writ petitions attract serious penal consequences, which
deprived the petitioners of their livelihood. When the respondents
dealing with life of an individual, which is guaranteed under Article
21 of the Constitution of India, they have to deal with every
allegation in the explanation justifying their action or inaction and
answer the same. But, for one reason or the other, the respondents
did not consider the explanations submitted by the petitioners in
detail, but removed or terminated their enrolment in a routine
manner by just recording that the explanation is "not satisfactory."
Therefore, on this ground also, the impugned orders are liable to be
set aside.
In view of the law declared by the Apex Court in the
judgments referred supra, the removal of the petitioners from Home
Guards Organisation is against the principles of natural justice as
the impugned orders are cryptic without recording any reason, more
particularly explanation submitted by the petitioners. On this
ground also, the orders impugned in these petitions are liable to be
set aside. Accordingly, this point is held in favour of the petitioners
and against the respondents.
P O I N T No.5:
One of the contentions of the petitioners is that
Superintendent of Police or Commissioner of Police is incompetent
to pass such order of removal/dismissal/termination as it is in
violation of Section 4 of the Home Guards Act. Section 4 of the
Andhra Pradesh Home Guards Act, 1948 deals with appointment
and removal of Home Guards. According to Section 4, subject to the
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provisions of the Act and the rules made thereunder, any person
possessing the prescribed qualifications and willing to serve may be
appointed as a Home Guard by such authority and in such manner
as may be prescribed. Clause (3) of Section 4 conferred power on
prescribed authority to suspend, dismiss or remove any Home
Guard from his offices and thereupon the certificate received by him
shall cease to have effect, but who is prescribed authority is not
defined in the Act or Rules.
Whereas, sub-rule (4) of Rule 7 of the Madras Home Guards
Rules confers the power on the Commandant, for good and
sufficient reasons, to impose on any Home Guard the penalties,
namely, reprimand, suspension, reduction of rank, removal and
dismissal. But, in all such cases, a reasonable opportunity shall be
given to the delinquent Home Guard to show cause against the
penalty proposed to be imposed on him. If Section 4 of the Andhra
Pradesh Home Guards Act read with Rule 7 (4) of the Madras Home
Guards Rules is taken into consideration, it can safely be concluded
that the Commandant is competent to take appropriate action
against the Home Guards for their misconduct in discharging their
duties as Home Guards.
However, sub-rule (5) of Rule 4 of the Madras Home Guards
Rules, vested power on the Commissioner of Police in the Presidency-
town and the District Superintendent of Police concerned elsewhere
may, for good and sufficient reasons, direct the suspension, removal
or dismissal of a Home Guard from his office.
The language employed in sub-rule (5) of Rule 7 i.e. "direct the
suspension, removal, or dismissal" assumes importance. The
meaning of word "direct" is "to point to; guide; order; command;
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instruct, to advise, suggest, request". A close analysis of the
language used in Rule 7 (3) (4) and (5) of the Madras Home Guards
Rules, 1949, it is clear that the Commissioner in Presidency-town
and Superintendent of Police concerned in other areas for sufficient
and good reasons, "direct the suspension, removal, or dismissal" of
a Home Guards from his office. Therefore, the power of the
Commissioner of Police or Superintendent of police is
recommendatory in nature and on the recommendation of
Commissioner of Police in the presidency town and the District
Superintendent of Police direct the Commandant as referred in sub-
rule (4) of Rule 7 of the Madras Home Guards Rules for
suspension/removal or dismissal only, but the ultimate authority to
remove/suspension/dismiss is the Commandant not the
Superintendent of Police or Commissioner of Police. Hence, the
orders impugned in the petitioners are contrary to Rule 7 (3) (4) and
(5) of the Madras Home Guards Rules, on this ground also the
impugned orders are liable to be set aside.
In the show-cause notice, respondents referred to A.P.Police
Manual to issue such removal order. The A.P.Police Manual or Police
Standing Orders are not binding on the Home Guards since Home
Guards are governed by A.P. Home Guards Act, 1948 and rules
framed thereunder in view of the adoption of the enactment and
rules by virtue of A.P. Adaptation of Laws Order, 1957. At best, the
respondents can pass appropriate order subject to the Act and Rules
governing the service of Home Guards. The point is answered
accordingly.
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In the result, the writ petitions are allowed setting aside the
impugned proceedings while granting liberty to the respondents to
pass appropriate orders subject to the Andhra Pradesh Home Guards
Act and Rules governing the service of Home Guards. Consequently,
the respondents are directed to reinstate the petitioners into service
with immediate effect. No costs.
Consequently, miscellaneous petitions pending if any, shall
also stand dismissed.
_________________________________________
JUSTICE M. SATYANARAYANA MURTHY
01.04.2021
Note: Mark L.R. Copy.
B/o
Ksp
