G.Rajesh Simon, vs The State Of Andhra Pradesh
2023 Latest Caselaw 4920 AP

       THE HON'BLE SMT JUSTICE V. SUJATHA

                   Writ Petition No.3747 of 2022
ORDER:

This writ petition came to be filed under Article 226 of the

Constitution of India seeking the following relief:

"...to issue appropriate writ, directions or orders more

particularly in the nature of Writ of Mandamus declaring the

action on the 3rd respondent in imposing a penalty of „Removal

from Service‟ on the petitioner vide

D.O.No.11/2021,C.No.B9/178/42/HGs/2020, dated

30.10.2021 as illegal, arbitrary, without authority, unjust and

against the principles of natural justice, apart from being

violative of Art 14, 21 and 311(2) of the Constitution of India as

well as being contrary to the provisions of the AP Home Guards

Act, 1948 and also judgments of the Hon‟ble High Court

passed in W.P.No.16218 of 2019 and batch and W.P.No.35460

of 2013 and batch and to consequently set aside the same and

direct the respondents to reinstate the petitioner into service as

Home Guard and to pass...."

2. The brief facts of the case are that the petitioner herein

was appointed as Home Guard vide D.o.No.16/2018,

Rc.No.B7/HGs/3395/16/2017, dated 17.04.2018 in Chittoor District

and was assigned Home Guard General No.486 of Chittoor HG Unit

that is attached to MT Section and has been discharging his duties with

utmost sincerity. While the matter being so, a criminal case was

registered against certain persons vide Cr.No.8/2020 of CCS Chittoor

Police Station, Chittoor District u/S 188, 269, 270 of IPC and Section 3

of EDA, Section 9(1) of AP Gaming Act, 1974. In the said criminal case,

the petitioner was falsely implicated stating that he has acted as an

agent for collecting mamools from the accused. Basing on the said

allegation, the petitioner was kept under suspension vide

D.o.No.18/2020,C.No.B9/178/42/HGs/2020, dated 02.09.2020 by the

3rd respondent. Subsequently, the petitioner was served with a show

cause notice bearing No.C.No.B9/178/42/HGs/2020, dated

21.09.2020, wherein, he was asked to submit his explanation for the

allegations levelled against him. In reply to the same, the petitioner has

submitted his response stating that his name was not referred by any

of the accused in the criminal case and that he is innocent of all the

allegations framed against him. It was further stated in the reply that

he had attended the driving work allotted to him and was never

indulged in acting as an agent for collecting mamools from gambling

organisers within Puthalapattu Police Station limits.

3. The grievance of the petitioner is that the 3rd respondent,

without conducting any enquiry, without giving an opportunity of

hearing and without considering the response submitted by the

petitioner to the show cause notice dated 21.09.2020 had imposed a

penalty of „Removal from Service‟ vide D.O.No.11/2021,

C.No.B9/178/42/HGs/2020, dated 30.10.2021. Aggrieved by the

penalty imposed on the petitioner, he filed the present writ petition.

4. The 3rd respondent has filed a counter affidavit admitting

the fact that the petitioner has been enrolled as Home Guard Driver

vide order dated 17.04.2018 and was assigned Home Guard General

No.486 of Home Guards Unit, Chittoor and thereafter was attached to

Motor Transport Officer, District Armed Reserve (DAR), Chittoor

District. The Reserve Inspector/Motor Transport Officer, DAR, Chittoor

attached the petitioner to a police vehicle Tata Sumo No.AP9P8059 at

Puthalapattu police station on 05.02.2019 and since then, the

petitioner has been continuing to discharge his duties as the driver of

the aforesaid police vehicle till he was removed from the Home Guard

organization.

5. It is further submitted in the counter that the 3rd

respondent has suspended the petitioner under order No.936-7 of

APPM vide DO No.18/2020 (C.No.B9/178/42/HGs/2020), dated

02.09.2020 on the allegation that the petitioner has exhibited

misconduct by acting as an agent for collecting bribe(mamools) from

gambling organizers at Puthalapattu PS limits who were arrested in a

criminal case in Cr.No.8/2020 u/S 188, 269 & 270 IPC, Section 3 of

Epidemic Diseases Act, 1897 and Section 9(1) of A.P. Gaming Act of

Central Crime Station, Chittoor. Thereafter, the petitioner was served

with a show-cause notice dated 21.09.2020 calling for his explanation,

for which, the petitioner had submitted his written explanation praying

to revoke the suspension order and to reinstate him into duty on the

ground that his name was not referred by any one of the accused in the

above crime and that he is innocent and never indulged in acting as an

agent for collecting mamools. But, it is stated that on a perusal of the

statements of the accused Nos.1 and 8 in the above crime and the call

data records of the mobile number of the petitioner, it is clear that the

petitioner has received the bribe of Rs.50,000/- from one Sri.

Balapuram payani (Accused No.1 in Cr.No.8/2020) on 19.07.2020 on

the instructions of SI of Police, Puthalapattu PS at 11.00 A.M at Balaji

Kalyana Mandapam located at Puthalapattu Railway Station Circle.

6. It is also submitted that the petitioner contended that he

was removed from service illegally, but, the fact remains that the word

"service" does not apply to the petitioner, because the petitioner is not a

"Civil servant" and is not entitled to claim protection under Article 226,

14, 21 and 311 (2) of Constitution of India. The Petitioner is a "Public

Servant" and the Home Guard Organisation is a Voluntary

Organisation, similar to a Police force, where disciplined conduct and

integrity, as a body is more important than individual rights. The 3rd

respondent removed the petitioner vide office DO No.11/2021

(C.No.B9/178/42/HGs/2020), dated 30-10-2021 from the rolls of the

Home Guard Organisation by following all the required provisions that

come under Section 3 of the A. P. Home Guards Act, 1948, which

indicates that the Home Guards Organisation is a voluntary body. It is

further stated that Section 4 provides for the removal of any Home

Guard subject to the prescribed conditions and Rule 7(4) provides for

the removal of the Home Guard for good and substantial reasons and it

is specifically stated that it is not subject to appeal. However, it is

further provided that a reasonable opportunity shall be given to the

Home Guard to show cause before taking action and that the reasons

shall be recorded for that action. As such, there is no question of

applicability of Madras Home Guards' Act, 1945, more particularly,

Section 7. It is contended that by following the applicable A.P. Home

Guards Act, 1948, Rule 7(4), the 3rd respondent followed the due course

of procedure and law and since the petitioner is not a "CIVIL

SERVANT," the principle of natural justice is not applicable in

Voluntary Organization and further stated that the respondents have

followed the provisions laid down as per the Regulations of the A.P.

Home Guards Act, 1948. It is not a violation of the statutory provisions.

The Home Guard is always considered as a PUBLIC SERVANT and the

petitioner is not a CIVIL SERVANT and hence it cannot be said that the

impugned order is in violation of A.P. Civil Service (CCA) Rules, 1961.

7. The contention of the petitioner that the 3rd respondent

has not conducted any enquiry for the alleged reasons through the

Inspector of Police, CCS, Chittoor, is denied by the 3rd respondent in

the counter for the reason that it is in the statements of the accused

Nos.1 and 8 in Cr.No.8/2020 of CCS, Chittoor and it is also well

established in the call data records of the mobile number of the

petitioner that the petitioner has been in constant touch with the

aforesaid accused Nos.1 and 8 and thereby received the bribe of

Rs.50,000/- from accused No.1 of the above criminal case on

19.07.2020 upon receiving instructions of the SI of Police, Puthalapattu

PS. It is further stated that the recorded evidence and material available

against the petitioner has been placed before the Removal Committee of

Home Guards on 30.10.2021 and after full satisfaction of the Chairman

of the said committee and the members, it has been unanimously

decided to remove the petitioner from the Home Guards organization

and as such, the removal orders were passed. It is submitted that the

said removal of the petitioner was executed only after following the due

procedure and principles of the A.P. Home Guard Rules, 1948 wherein

it is held that the Home Guards Organisation is a voluntary body and

Section 4 provides for the removal of any Home Guard subject to the

prescribed conditions and Rule 7(4) provides for the removal of the

Home Guard for good and substantial reasons. It is specifically stated

in the rules that it is not subject to appeal, but, however, a reasonable

opportunity shall be given to the Home Guard to show cause before

taking action and that the reasons shall be recorded for that action.

The 3rd respondent has further stated that the said procedure has been

followed without any deviation and there is no question of applicability

of Madras Home Guards Act, 1945. Thereafter, it is stated that the

petitioner has straight away approached this Court without availing the

next opportunity of filing an appeal before the Additional Director

General of Police, Home Guards, o/o Director General of Police, AP,

Mangalagiri and had requested to dismiss the writ petition.

8. Heard Mr. N.V. Sumanth, learned counsel for the

petitioner and learned Government Pleader for Services-1.

9. For better understanding of the case, this Court feels it

relevant to refer to Rule 7 which deals with „discipline" and is read 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. (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.

11. In Govt of Ap., Home Dept., Vs. M. Vishwanatham,

while discussing about the vagueness in a show cause notice, this

Court has held as under:

"Further, as per the edict laid down in P.PRASAD RAO, the show cause notice must not only mention the penalty proposed to be imposed but also detail the charges against the delinquent Home Guard and the imputations which form the basis thereof so that he would have reasonable opportunity to meet the same. This test is not adequately met even in the cases where show cause notices were issued. In one case, the show cause notices only called upon the delinquent Home Guard to report for duty but did not inform him of the impending disciplinary action or the proposed penalty of removal from service. In none of the show causes produced before us do we find sufficient details of the charges levelled

and the basis thereof. This vagueness in the show cause notices cannot benefit the authorities at this stage."

12. On a perusal of the show cause notice dated 21.09.2020

served on the petitioner, it is clear that the 3rd respondent has stated

that the petitioner has acted as an agent for collecting mamools from

gambling organizers from Puthalapattu PS limits, but, however, the

charges and the instances of misconduct should be followed by an

enquiry as contemplated under Art. 311(2) of the Constitution of India ,

which, in the case of the petitioner was not conducted. Also, both the

show cause notice as well as the impugned order dated 30.10.2021

does not specify as on who‟s behalf the petitioner had acted as an agent

to collect mamools from gambling organizers. From the above, it is

evident that the charges in the show cause notice issued by the 3rd

respondent are vague in nature. Apart from mentioning the penalty to

be imposed on the petitioner, the charges against the petitioner and the

imputations which form the basis thereof should also have been

mentioned in the show cause notice dated 21.09.2020, so that the

petitioner would have a reasonable opportunity to explain his case.

13. 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 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.

14. In the removal order of the petitioner dated 30.10.2021, it

is stated that the case of the petitioner was placed before the committee

and after discussions, the committee has decided to award the penalty

of "Removal from Service" to the petitioner as he has failed to render

service to public honestly and that he had became stigma to the

department and had caused embarrassment. But, as per the Sub-rule

(4) of Rule 7 of the Rules, the competent authority is the Commandant

to impose on any Home Guard the penalties, namely, reprimand,

suspension, reduction of rank, removal and dismissal but not the

Superintendent of Police-3rd respondent.

15. In view of the fact that the charges levelled against the

petitioner are vague in nature and in view of the fact that the removal

order dated 30.10.2021 is passed by the 3rd respondent who in fact is

not the competent authority, this Court feels it appropriate to allow the

writ petition by setting aside the removal order of the petitioner vide

D.O.No.11/2021,C.No.B9/178/42/HGs/2020, dated 30.10.2021.

16. Accordingly, writ petition is allowed. There shall be no

order as to costs.

Miscellaneous petitions, pending if any in the present writ

petition, shall also stand closed.

_________________________________ SMT. JUSTICE V. SUJATHA

GSS 12.10.2023