M. Sekhar vs The State Of Ap
2021 Latest Caselaw 2290 AP

        HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU


                          WP.No.5537 of 2021
O R D E R:

This writ petition is filed for the following reliefs:

"To issue any writ order or direction more particularly one in the nature of writ of Mandamus to declare the action of the Respondent No.5 in imposing major punishment of removal vide Order Proceedings D.O.No.324/A4/2019/C.N.282//H1/HGs/Knl/2018-19 dated 11.03.2019 without following due process of law laid down in Article 311(2) of Constitution of India and Rule 7(4) of the Madras Home Guards Rules, 1949 which is applicable to Andhra Pradaesh Home Guards which is mandatory to be followed before imposing Major Punishment as illegal, arbitrary and violation of Rule 7(4) of the Madras Home Guards Rules, 1949 and Article 311(2) of the Constitution of India and consequently direct the 5th Respondent

1. to reinstate me into the service as Home Guard by setting aside the impugned D.O.No.324/A4/2019/C.N.282/H1/HGs/Knl/2018-19 dated 11.03.2019

2. to consider me deemed to be on duty form 01.01.2019 and pay all my salary benefits till today and

3. to pass any other order or to grant such other relief or reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case.

The petitioner before this Court is a Home Guard

removed as per the cause title and averments in the affidavit.

He is challenging the removal order dated 11.03.2019 as

being contrary to the Rules of law on the subject. The

petitioner was absent from duties for some time in 2018 and

the proceedings were initiated by the respondents

culminating in the order of dismissal. The petitioner was

absent for 97 days and odd. In the writ affidavit, it is really

very clearly mentioned basing upon case law which is

reproduced etc., that the procedure stipulated under the

Rules etc., was not followed and that the petitioner was

denied an opportunity of pleading his case.

Many of the factual aspects are not in dispute.

Similarly, the law on the subject relied upon by the learned

counsel for the petitioner and also the rule position is not in

dispute. Apart from the judgments cited and filed with the

writ affidavit, learned counsel for the petitioner filed a memo

with USR.No.29446 of 2021, enclosing the judgment of the

learned single Judge in W.P.Nos.16218 of 2019 and batch.

This is also pertains to Home Guards, who were removed from

service etc. This is a very detailed order which is relied upon

by the learned counsel for the petitioner in support of his

case. With the order, a prayer is made for the writ of

Mandamus.

The Government Pleader for Services-I appeared for the

State and argued in line with the counter that has been filed.

The counter affidavit has been filed on behalf of the

respondents by the 5th respondent. According to this counter,

the petitioner did not submit proper documentation or a leave

letter. The Medical Certificate which is supposedly submitted

after the absence is also not in order. It is reiterated that the

petitioner was away without leave and did not give an

intimation. He is also submitted that the Medical permit

urged is not so serious as to justify the long absence. The

order of removal is stated to be legal and valid. It is also

argued that Home Guard is not a Government servant and a

member of the regular force and is merely appointed on

honorary basis. As per the learned Government Pleader, the

procedure stipulated has been followed.

This Court is of the opinion that there is no dispute

about the case law. A number of judgments are there on the

subject. Many of the issues raised by the respondents in

their counter affidavit about the status of the petitioner

holding a civil post etc., about the disciplinary procedure to

be followed are also answered in the batch of writ petitions

which has been disposed by learned single Judge

(W.P.No.16218 of 2019 and batch). The learned single Judge

held that the Home Guards are governed by the Police

Manual, and that they are public servants, that the Article

311(2) of the Constitution of India will apply; that the orders

of the removal, dismissal and termination should be

supported by reasons etc. Thus, these legal issues are

already decided by a coordinate Bench.

In the case on hand, this Court after examining the case

notices that with the counter affidavit two show cause notices

are filed. One is dated 24.10.2018 and another is dated

20.11.2018. Both are served on the petitioner. Along with

the petitioner, many other Home Guards were asked to

appear on 10.01.2021 in the Home Guards Office, Kurnool for

an enquiry. From a reading of final show cause notice dated

24.01.2019, issued to the present petitioner, it appears that

Superintendant of Police did not find "the written explanation

satisfactory". The matter was referred to the removal

committee of Home Guards, who issued proceedings dated

09.03.2019. This three member committee found that the

explanation submitted by the petitioner was found to be

unsatisfactory. This is reiterated more than once in the

proceedings dated 09.03.2019. However, in the removal order

that was passed on 11.03.2019, in para 1, it is mentioned

that the explanation is not satisfactory. In para 3, it is

mentioned that the petitioner's conduct is "reprehensible" in

absenting from duties without taking prior permission or

intimation to the superior Officers and also for "not

submitting any written explanations" to the memo and final

show cause notice. This order dated 07.03.2019 is thus not

clear at all.

In the counter affidavit, it is reiterated again that on

10.01.2019, the petitioner attended the oral enquiry and

submitted an explanation which was not satisfactory. It is

mentioned in para 10 of the counter affidavit. It is reiterated

that even to the final show cause dated 31.01.2019, he

submitted an explanation which is not satisfactory. In para 7

of the counter affidavit, it is again mentioned that the

petitioner did not submit "credible Medical Certificate". Even

the said Medical Certificate that was submitted is long after

the unauthorized absence of the petitioner and at the time of

oral enquiry on the final notice issued. Therefore, this Court

finds that there are a lot of contradictions in the counter filed

by the respondents.

It is settled law that if an order has civil consequences,

it should be a reasoned order and should be passed after

giving an opportunity to the petitioner. In the case on hand,

while it appears that an opportunity was given, it is not clear

and from the current state of affairs as to what was the

Medical Certificate submitted by the petitioner. It is clear

from the reading of the three member committee and the

order of removal that the medical certificate not taken into

consideration. Even otherwise, a reading of the counter

affidavit and the documents filed show that the petitioner did

give a final explanation at the time of the enquiry on

10.01.2019. The proceedings of the said enquiry are not

before this Court nor or they explained in the counter. Why

the explanation submitted by the petitioner is "not

satisfactory" is also not clear from a reading of the counter

affidavit.

In view of the settled case law on the subject, this Court

does not wish to reproduce the same. As stated earlier, the

orders of the learned single Judge pertaining to a large

number of Home Guards in WP.Nos.16218 of 2019 and batch

dated 01.04.2021 are fully applicable to the case on hand.

The learned single Judge took great pains to explain the need

for reasons in such orders and reiterated that reasons are the

links between the facts and the conclusions. The applicability

of the Madras Home Guard Rules was also clearly reiterated

in the said judgment. The other judgments on the subject are

already filed with the writ petition.

After considering all the submissions made, this Court

is of the opinion that the petitioner is entitled to an order as

prayed for. The inherent contradictions and the lack of

"reasons" are clear from a reading of the impugned order. The

impugned order dated 11.03.2019 is set aside. The

respondents are directed to issue a fresh notice to the

petitioner calling for his attendance in line with what is

termed as the final show cause notice dated 22.01.2019 i.e.

proceedings from this stage must be commenced.

The procedure stipulated under the applicable

regulations/rules should be scrupulously followed. A

reasoned, speaking order should be passed after considering

the explanation and the documents, if any, that are

submitted by the petitioner. If the petitioner wishes to submit

any fresh documents, an opportunity should be given to him.

This entire exercise should be completed within a period of

four weeks from the date of receipt of a copy of this order.

The petitioner is also directed to cooperate in the remaining

enquiry. Needless to say that the final order should be on the

merits of the matter without being influenced by anything

said or mentioned by this Court. The reasoned speaking

order should be communicated to the petitioner.

With these observations, the writ petition is disposed of.

No order as to costs.

As a sequel, the miscellaneous petitions, pending if any,

shall stand closed.

_________________________ D.V.S.S.SOMAYAJULU, J Date: 07.07.2021 KLP