Bibhuti Narayan Singh v. State of U. P — 1979 DIGILAW 770 (ALL)

JUDGMENT A.N. Varma, J. - This is a plaintiff's second appeal arising out of a suit filed by the plaintiff-appellant for a declaration that an order passed by the defendant-respondent purporting to terminate the petitioners services as a Company Commandant in the Home Guard is null and void, and that the plaintiff legally continues in service. 2. The question to be determined in this case is whether the plaintiff was, as a Company Commandant in the Home Guard, holding a Civil Post in the context of Article 311 of the Constitution of India. Both the courts below have answered this question against the plaintiff and have dismissed his suit. Hence, this second appeal. 3. Facts relevant for the determination of the above controversy are not in dispute. At the material time, the plaintiff was serving as a Company Commandant in the Home Guards, a force created as an auxiliary to the U.P. Police. By the impugned order, the plaintiff's services were terminated. The plaint case is that the plaintiff was selected and employed as a Company Commandant in the Home Guards. He applied and was granted some leave to do the course for the degree of Bachelor of Education. The plaintiff alleges that his immediate superior, namely, defendant No. 2 the Staff Officer, Home Guards assured him that he could do so, and that the leave would be sanctioned to him for that purpose. The allegation is that instead of sanctioning leave, the defendant No. 2 terminated the services of the petitioner. The plaintiff asserts in the plaint he was holding a civil post, that the order of termination amounted to removal from service, and that inasmuch as the plaintiff was given no opportunity to show cause against his removal, the constitutional guarantee embodied in Article 311 of the Constitution of India was violated by the defendant and, consequently, the order of termination was liable to declared void. 4. The defendants contested the suit and asserted that the plaintiff was not holding a civil post under the State, that he was a Commandant in the Home Guard drawing only an honorarium and that his services could be terminated at any moment. The defence was that Article 311 of the (Constitution was not applicable to the plaintiff. 5. The trial court framed various issues. The defence was that Article 311 of the (Constitution was not applicable to the plaintiff. 5. The trial court framed various issues. One of them was whether the order date 20-12-65 terminating the petitioner's services was illegal and void for the reasons set forth in paragraph 9 of the plaint. In paragraph 9 of the plaint, the plaintiff had asserted that he was given no opportunity or notice to show cause against the proposed removal prior to to the passing of the impugned order. 6. The trial court held that provisions of Article 311 of the Constitution were not attracted to the present case as, in its opinion, the plaintiff was holding only an honorary post as a Home Guard under the U. F. Home Guards Act, 1963 and not any civil post under the State. This view has been affirmed by the lower appellate court. Hence, this second appeal. 7. Learned counsel for the plaintiff has urged, relying on the provisions of U.P. Home Guards Act, 1963 (hereinafter referred to as the Act) as well as the decisions both of the Supreme Court of India end of other High Courts that the plaintiff was clearly holding a civil post within the meaning of Article 311 of the Constitution of India, and the view of the courts below to the contrary is manifestly erroneous. 8. Having heard learned counsel for the parties, I have not the least doubt that the contention of the learned counsel for the petitioner is right, and that the view taken by the courts below is plainly unsustainable in law. 9. The expression 'civil post' as occurring in Articles 310 and 311 of the Constitution of India has not been defined. However, the term 'civil post' has been subject of scrutiny by the Supreme Court of India as well as other High Courts on several occasions. What meaning has to be assigned to these words, namely, 'civil post' has therefore, to be culled out from these judicial pronouncements. The leading case on the subject appears to be that of the Slate of Assam and others v. Kanak Chand Dutt reported in AIR 1967 SC 884 . The question which arose for determination was whether a Mauzadar in the Assam Valley held a 'civil post' under the State of Assam and was entitled to the protection of Article 311(2) of the Constitution of India. The question which arose for determination was whether a Mauzadar in the Assam Valley held a 'civil post' under the State of Assam and was entitled to the protection of Article 311(2) of the Constitution of India. Their Lordships of the Supreme Court have held that a Mauzadur is the holder of a 'civil post' under the State in the context of Article 311 of the Constitution of India The tests which their Lordships have laid down in determining the question whether a person holds a civil post in the context of Article 311 of the Constitution, are whether there is relationship of Master and Servant between the State and the person claiming to be holding a post under it ; whether the State has a right to select, appoint, suspend dismiss or discharge him, that is, the State exercises administrative control over his employment and work. Another test laid down by their Lordships is to find out whether the post in question is an office or a position to which duties in connection with the at fairs and a activities of the State are assigned or attached. Their Lordships have further added that in order that a person may be held to hold a civil post, it is not necessary that the holder of the post must be a whole-time employee of State, nor even is it necessary that the employee must draw a salary from the State. In their Lordships Judgment a person may be holding a civil post even though he may merely be getting a commission from the State for his work. 10. Again, in the case reported in AIR 1965 SC 300, their Lordships, of the Supreme Court had occasion to consider the question. There the question was whether a tahsildar appointed to assist the Government Treasurer could be said to be holding a 'civil post' within the meaning of Article 311 of the Constitution. Answering the question in the affirmative, their Lordships of the Supreme Court said that in as much a tahsildar were appointed for the purpose of carrying out the work of the State connected with revenue and were subject to the control of the Distt. Officer as regards their transfer, removal and disciplinary action, they were clearly holders of 'civil post' within the meaning of Article 311 of the Constitution. 11. These, then, are the relevant considerations for determining the controversy. Officer as regards their transfer, removal and disciplinary action, they were clearly holders of 'civil post' within the meaning of Article 311 of the Constitution. 11. These, then, are the relevant considerations for determining the controversy. In my view, there are broadly two tests for determining the question whether a person holds a 'civil post', one, whether the person is employed to perform duties and functions which fall within the sphere of activities, duties, and functions of the State, an two, 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. 12. I have, therefore, to see whether the plaintiff in the present case was holding a post under the State and was appointed to discharge duties which fell within the sphere of the duties and affairs of the State, and secondly, whether he was under the administrative control of the State. 13. It is not denied that the plaintiff was appointed as the Company Commandant in the Home Guards. 'Home Guards' have been defined in the aforesaid Act under Section 2(e). The definition reads thus : "Home Guard' mean a person who is enrolled as such, and includes an officer appointed under this Act." 14. The plaintiff was an officer appointed under the Act. Section 5 of the aforesaid Act says that the State Government shall appoint a Commandant General of Home Guards, hereinafter called the Commandant General, and other officers on such terms and conditions as may be prescribed. Section 6 of the Act lays down how the Superintendence and Administration of Home Guards shall be carried out. It provides that the administration of the Home Guards shall vest in and be exercised by the Commandant General. Subsection 3 of Section 6 provides that subject to the overall control and directions of the Distt. Magistrate in any area within the district, the administrative control of the Home Guards shall vest in such officers as may be prescribed. Section 7 of the said Act lays down how the 'Home Guards' enrolled. It lays down the procedure for the enrolment of 'Home Guards' in the force Section 8 then provides that the District Magistrate of any Distt. shall have powers to call out any Home Guard for duty by an order. Section 7 of the said Act lays down how the 'Home Guards' enrolled. It lays down the procedure for the enrolment of 'Home Guards' in the force Section 8 then provides that the District Magistrate of any Distt. shall have powers to call out any Home Guard for duty by an order. We then find Section 9 which is very important for the present controversy. It lays down that a Home Guard when called out under Section 8 to serve as auxiliary to the police or to help maintaining public order or internal security, shall have the same powers privileges and protection as a member of the police force, and shall be subject to the provisions of Police Act, 1861. 15. I may then reproduce Section 10 upon which the lower appellate court has placed reliance : "10. Home Guards to be Public servants but not civil servants : A Home guard acting in the discharge of his functions under this Act shall be deemed to be a public servant within the meaning of Section 11 of the Indian Penal Code. Explanation. - a home guard shall not be deemed to be holder of a civil post merely by reasons of his endorsement as hone guard." 16. Section 11 of the Act enjoins that a Home Guard shall be bound to serve in any unit of the Home Guard in which he is for the time being attached and that Civil Home Guard, shall be liable to serve when called out for duty in any part of the State. Section 13 of the Act provides for penalty if a Home Guard fails to report himself when called out for duty under Section 8. 17. Section 12 of the Act says that the Commandant General or any other officer prescribed in this behalf shall have the authority to discharge or suspend any member of the Home Guard in accordance with the rules made in this behalf. 18. An examination of the aforesaid provisions leave no manner of doubt that a Home Guard is employed by the State and is under its direct Administrative Control. The State regulates every aspect of his employment and work such as appointment, functions and duties, powers, privileges and protection when called out to serve as auxiliary to the Police in times of emergency, and for maintenance of public order and internal security. The State regulates every aspect of his employment and work such as appointment, functions and duties, powers, privileges and protection when called out to serve as auxiliary to the Police in times of emergency, and for maintenance of public order and internal security. The Home Guard is under a liability to serve when so called out by the District Magistrate, the Commandant General and other officers appointed in that behalf by the State, and, of his failure to do so, he is liable to be penalised including imprisonment for a term which may extend to three months The State also has the power to discharge and suspend a Horae Guard. It would thus be seen that the State exercises complete administrative control over a 'Home Guard'. 19. The other test laid down by the Supreme Court is also fulfilled in the present case, namely, that Home Guards are employed to discharge functions and duties, which all within the sphere of duties and activities of the State. As Section 4 of the aforesaid Act will bear but, the Home Guards are raised as force with the object of serving as auxiliary to the police and their duty is to help in maintaining public order and infernal security. The Home Guards are also required to help the community in air raids, fires, floods, epidemics and other emergencies. It can scarcely be gains aid that these are all essential and primary functions activities and duties of State. 20. Applying the aforesaid tests, in my judgment, the plaintiff was clearly holding a civil post under the Slate in the context of Article 311 of the Constitution of India. The fact that the plaintiff was drawing only an honorarium of Rs. 50/- per month would make no difference, in my judgment, to the question as was held by their Lordships of the Supreme Court in the case of State of Assam and others v. Kanak Chand Butt(supra). 21. In C. P. Ffancies v. State of Kerala reported in 1961(1) Criminal Law Journal 657., even an honorary Magistrate was held to be holding a civil post. 22. In the case of Slier Singh Malhan, Petitioner v. State of Madhya Pradesh, Respondent reported in AIR 1955 Nag. 175. the Nagpur High Court concerned with the interpretation of provisions analogous to those contained in the U.P. Home. Guards Act held, that a Horne Guard holds a civil post. 22. In the case of Slier Singh Malhan, Petitioner v. State of Madhya Pradesh, Respondent reported in AIR 1955 Nag. 175. the Nagpur High Court concerned with the interpretation of provisions analogous to those contained in the U.P. Home. Guards Act held, that a Horne Guard holds a civil post. It appears that Section 6(3) of the corresponding Act applicable to that State contained a provision which was in pari material with Section 9 of the U.P. Act. Relying on the said provision, the Nagpur High Court held that a Home Guard holds a civil post. In Brojo Gopal Sarkar v. Commissioner of Police reported in AIR 1955 Cal 556 . the Calcutta High Court has held that a member of the Special Police force has the status of a holder of a 'civil post' entitled to the protection of Article 311 of the Constitution. These decisions fully support the conclusion I have reached, namely that a Home Guard holds a civil post. 23. The lower appellate court has placed reliance on the Explanation to Section 10 of the aforesaid Act. In my judgment, the Explanation is of no assistance in the determination of the controversy. Section 10 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 of India has to be determined with reference to the connotation of these words as appearing in the Constitution of India. The meaning of a term as appearing in the Constitution cannot be controlled or whiled down by any ordinary law. If a person holds a civil post as contemplated by our constitution, be 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. Section 10, can therefore, be of no assistance to the defendants. 24. The result, therefore, is that the plaintiff was clearly holding a 'civil post' within the meaning of Article 311 of the Constitution of India. Whether on the facts of this case, tire provisions of Article 311 of the Constitution of India are otherwise attracted or have been violated or has not been considered by the courts below. 24. The result, therefore, is that the plaintiff was clearly holding a 'civil post' within the meaning of Article 311 of the Constitution of India. Whether on the facts of this case, tire provisions of Article 311 of the Constitution of India are otherwise attracted or have been violated or has not been considered by the courts below. The courts below will now consider this question and other issues arising in the case. 25. In the result, the appeal succeeds and is allowed. The judgments and decrees of the courts below are set aside. The case is remanded to the trial court for decision of the suit according to law having regard to the observations made by me here in above. The plaintiff will be entitled to his costs from the respondents.