Dasrath Singh Parihar v. State of U P — 1996 DIGILAW 1391 (ALL)

Judgment : R. H. Zaidi, J. 1. By means of this petition, under Article 226 of the Constitution of India, petitioner prays for a writ, order or direction in the nature of certiorari quashing the order, dated 16-6-1981, where by the petitioner has been removed from the post of Company Commander. 2. IT has been stated that it was in the year 1963 that the petitioner was appointed as Home-Guard. Thereafter, he was promoted to the post of Commandant. On 23-8-1963, the petitioner was promoted to the post of Battalian Quarter Master Ser-gent and as Assistant Company Commander on 8-8-1996. IT was on 12-12-1974 that the petitioner was promoted to the post of Company Commander City. While he was holding the post of Company Commander, the impugned order, dated 16-8-1981 removing him from service was passed in wholly arbitrarily manner and without affording him an opportunity of being heard. The petitioner, therefore, filed the present petition challenging the validity of the said order. On behalf of the respondents a counter-affidavit has been filed in which the facts stated in the writ petition have been denied. It has further been stated that the inquiry was conducted against the petitioner, but since his work and conduct was not found satisfactory, therefore, he was removed from service. It has also been stated that the petitioner was not holding the civil post, therefore, it was not necessary to frame the charge sheet and afford him in opportunity of hearing as provided under Article 311 of the Constitution of India. 3. LEARNED Counsel for the petitioner vehemently argued that the petitioner was holding a civil post and, therefore, provision of Article 311 of the Constitution of India were fully attracted in the present case. He urged that admittedly in the present case neither any charge sheet was framed nor served upon the petitioner nor the disciplinary proceedings were conducted and the petitioner was not afforded an opportunity of hearing in any form that the order of removal has been passed in wholly arbitrarily and the said order was, therefore, liable to be quashed. 4. LEARNED counsel for the petitioner in support of his submission that the post held by the petitioner was a civil post referred to and relied upon the decision in Vibhuti Narain Singh v. State of U. P. and others, 1986 UPLBEC 1130. 4. LEARNED counsel for the petitioner in support of his submission that the post held by the petitioner was a civil post referred to and relied upon the decision in Vibhuti Narain Singh v. State of U. P. and others, 1986 UPLBEC 1130. On the other hand, learned Standing Counsel reiterated the stand taken in the counter-affidavit and that in the present case Article 311 of the Constitution of India was not attracted. 5. THE appointments and service conditions of the Home-Guard are governed by U. P. Home Guards Act, 1963. This Court in Vibhuti Narain Shingh 's case (supra) after considering the Ss. 2 (a), 4, 5, 6, 7, 8, 10, 11 and 12 of the Act was pleased to hold as under: "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 a 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, on 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 Home Guard. It would thus be seen that the State exercises complete administrative control over a 'home Guards'. 6. IN paragraph Nos. 20 and 24 of the judgment, it was held as under: "20. Applying the aforesaid test, in my judgment, the plaintiff was Nearly holding a civil post under the State in the context of Article 311 of the Constitution of India. The fact that the plaintiff was drawing only an honorariam 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 Dutt (supra ). 24. The result, therefore, is that the plaintiff was clearly holding a civil cost' with in the meaning of Article 311 of the Constitution of India. 24. The result, therefore, is that the plaintiff was clearly holding a civil cost' with in the meaning of Article 311 of the Constitution of India. Whether 311 of the Constitution of India are otherwise artracted or have been violated or has not been considered by the courts below". In view of the law laid down by this Court and Apex Court in the case of State of Assam and others v. Kanak Chand Dutt, the petitioner was holding civil post with in the meaning of Article 311 of the Constitution of India. Therefore, the provisions of said Article were fully attracted in the present case. 16. In paragraph No. 12 of the writ petition it has been stated as under: "that it would not be out of place to state here that neither any charge sheet was served upon the petitioner nor any opportunity of show cause was afforded to the petitioner for his removal and, as such, the impugned order is violative of the principles of natural justice. " 11. In the counter-affidavit, it has not been denied that no charge sheet was prepared and supplied to the petitioner and that the petitioner was not afforded an opportunity of hearing in any manner, thus, the order of removal was passed in utter disregard and violating of Article 311 of the Constitution of India. The same is, there fore, liable to be quashed. 12. The writ petition succeeds and is allowed with costs. The order dated 16-6-81 is here by quashed. The respondents are directed to re-instate the petitioner on the post he was holding at the time of removal and further directed to pay honorarium to him for the period he remained out of job on the basis of impugned order at the rate admissible to a Company Commander. Petition allowed.