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2011 DIGILAW 733 (AP)

State of Andhra Pradesh v. P. Prasad Rao

2011-09-07

K.G.SHANKAR, V.V.S.RAO

body2011
Judgment : V.V.S. RAO, J. 1. The short but significant question that would arise in these eleven writ petitions is as to whether a Home Guard (HG) appointed under the Andhra Pradesh Home Guards Act, 1948 (the Act) whose conditions of service are regulated by the Madras Home Guards Rules, 1949 (the Rules), as applicable in the State of Andhra Pradesh, can be removed from the rolls of the Home Guards Organization (HGO) without giving adequate opportunity to answer the allegations of misconduct and, if the answer is in the negative, what is the extent and measure of adequacy of opportunity that should be provided to a delinquent HG? As the issue is common in all the matters it would be expedient to dispose of all the matters by a common order. Illustratively the factual background in two writ petitions need to be highlighted in brief for better appreciation of the controversy. 2. The writ petition, being W.P.No.21661 of 2011, is filed by the State, Commissioner of Police, Joint Commissioner of Police and the Commandant, Home Guards, Hyderabad City, against the order in O.A.No.2583 of 2008, dated 01.10.2010, of the Andhra Pradesh Administrative Tribunal, setting aside the order dated 12.03.2008 issued by the Commandant removing the first respondent (hereafter called, the applicant) from the rolls of the HGO, Hyderabad. The applicant was appointed as HG on 03.02.2000. He was detailed for duty at the Office of the Joint Commissioner of Police, Special Branch, Hyderabad, and was asked to work under the control of the Sub Inspector. When the Sub Inspector was on leave from 26.01.2008 to 03.02.2008, the applicant was required to maintain the attendance register of Class IV employees of the Special Branch. After coming back from his leave, the Sub Inspector found that the applicant allowed the absentee Class IV employees to sign the attendance register as if they worked in the Office. On the said allegation, the Commandant issued order dated 12.03.2008 removing the applicant from the rolls of the HGO, which was assailed in the Original Application, being O.A.No.2583 of 2010. By impugned order, the learned Tribunal set aside the order of the Commandant as violative of principles of natural justice and further directed the Commandant to take back the applicant on the rolls of the HGO. 3. By impugned order, the learned Tribunal set aside the order of the Commandant as violative of principles of natural justice and further directed the Commandant to take back the applicant on the rolls of the HGO. 3. In Writ Petition Nos.7656, 10704, 11595 and 12585 of 2011 which are alsofiled against separate orders of the Administrative Tribunal, the HGs who were removed from the rolls of the HGO were not given any prior notice for which reason the learned Tribunal allowed the Original Applications and directed the Commandant to take back those applicants also on the rolls of the HGO. 4. The writ petition, being W.P.No.28875 of 2010, is filed by the State, the Director General and Inspector General of Police, the Commissioner of Police, Visakhapatnam, and the Commandant, against the order in O.A.No.9058 of 2009, dated 04.02.2010. By impugned order, the learned Tribunal set aside the order dated 26.05.2009 of the Commissioner removing the applicant as HG. The applicant was appointed as HG on 20.04.1998. On 23.03.2009 the Commandant issued a show cause notice alleging that the applicant was involved in a criminal case, being C.C.No.225 of 2009 (arising out ofCrime No.99 of 2009 of II Town P.S, Visakhapatnam) on the file of the II Additional Metropolitan Magistrate, Visakhapatnam, under Sections 384 and 34 of the Indian Penal Code, 1860. He and another HG (first respondent in W.P.No.29382 of 2010) are alleged to have extorted money from one Bandi Kanakaraju at 20.00 hrs on 07.03.2009 on the pretext that the said Kanakaraju went to brothel and the applicant threatened him with dire consequences, as a result of which the complainant gave his purse containing Rs.500/- and fled away. The applicant submitted explanation on 20.04.2009 denying the allegations. Considering the same, the Commissioner passed orders on 26.05.2009 removing the applicant from the rolls of HGO. This order was assailed in the Original Application. The same was heard along with O.A.No.9494 of 2009 filed by another HG. By a common order, the learned Tribunal allowed Original Applications holding that subsequently the applicant was acquitted by the criminal Court for the offence for which he was removed from service and hence he is entitled for reinstatement. 5. The facts in Writ Petition No.29382 of 2010 are also similar. 6. By a common order, the learned Tribunal allowed Original Applications holding that subsequently the applicant was acquitted by the criminal Court for the offence for which he was removed from service and hence he is entitled for reinstatement. 5. The facts in Writ Petition No.29382 of 2010 are also similar. 6. In Writ Petition Nos.5814, 7142, 13240 and 16969 of 2011the order of removal from the rolls of HGO was in fact preceded by a show cause notice, and explanation was obtained before passing the order of removal. The allegations in all these matters are either absenteeism, attempt to collect money, consumption of liquor or involvement in criminal cases. All the allegations were denied by the HGs, who are applicants before the Tribunal. The Tribunal allowed the Original Applications and directed the Commandant to reinstate the applicants as HGs. Submissions & Issues The Government Pleader for Services-I submits that the HGs are appointed on honorarybasis. They are not members of regular Police force nor can be equated to Government/public servants. Therefore, enquiry is not contemplated before directing the removal of the HGs from the rolls of HGO. Alternatively, he submits that the learned Tribunal was in error in directing reinstatement. He would urge that when there is a violation of principles of natural justice, as alleged by the applicants, the Tribunal ought to have remitted the matters to the Commandant to follow the procedure contemplated in law instead of ordering reinstatement. He relies on State of Punjab v Dr.Harbhajan Singh Greasy (1996) 9 SCC 322 . 7. Counsel for the first respondent in W.P.Nos.7656, 10704, 11595, 12585 and 21661 of 2011 would submit that the removal of HG without giving notice or without affording a reasonable opportunity violates the principles of natural justice, and therefore, the learned Tribunal was well within powers to direct reinstatement after setting aside the order of removal. 8. Whether the issue of prior notice is mandatory? 9. The Act was enacted to constitute a voluntary organization for use in emergencies. Section 3 contemplates the constitution of HGO. Every member of such Organization, “shall have … powers and discharge … duties in relation to the protection of persons, the security of property, and the preservation of public order or tranquility as may be assigned under the Act” (Section 3 of the Act). Section 3 contemplates the constitution of HGO. Every member of such Organization, “shall have … powers and discharge … duties in relation to the protection of persons, the security of property, and the preservation of public order or tranquility as may be assigned under the Act” (Section 3 of the Act). A person possessing the prescribed qualifications and willing to serve may be appointed as HG. On such appointment, every HG will receive a certificate of appointment, whereupon he shall have the powers, privileges and protection conferred and discharge the duties imposed on a HG (Section 4 of the Act). As per Section 7 of the Act a HG shall have the same powers, privileges and protection as an Officer of the Police appointed under the Hyderabad City Police Act, 1348 Fasli, or the Andhra Pradesh (Andhra Area) District Police Act, 1859, and every HG shall be bound to serve the State Government for such period and in such areas as may be prescribed. Every HG who is subject to the conditions as may be prescribed can be suspended, dismissed or removed by the prescribed authority and in such eventuality, the certificate of appointment shall cease to have effect. All the HGs shall be under the control of the Officers of the Police Force as stipulated in Section 8 of the Act. 10. In addition to Section 4(3) of the Act which empowers the prescribed authority to suspend, dismiss or remove any HG, Section 9 of the Act deals with penalties for the cognizable offences committed by the HGs. If any HG 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 the Act or any rule, 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. Section 9(2) of the Act, however, imposes a bar of prosecution unless it is previously sanctioned by the Officer empowered by the State Government. Section 11 of the Act declares that all the HGs acting in exercise of their powers under the Act shall be deemed to be public servants within the meaning of Section 21 of IPC. 11. Section 9(2) of the Act, however, imposes a bar of prosecution unless it is previously sanctioned by the Officer empowered by the State Government. Section 11 of the Act declares that all the HGs acting in exercise of their powers under the Act shall be deemed to be public servants within the meaning of Section 21 of IPC. 11. In exercise of the powers conferred by Section 10 of the Madras Home Guards Act, 1948, the Rules were made by the then Madras Government which have been made applicable in the State of Andhra Pradesh. Rule 3 thereof prescribes the qualifications and eligibility criteria for recruitment and appointment as HG; Rule 4 deals with Organization of HGO; and Rule 5 requires every HG to undergo training for a period of not more than three months to acquire certain skills referred to therein; and Rule 6 contains the duties to be performed by HG. As per Rule 10 of the Rules, the service in HGO will be entirely honorary, and no pay shall be admissible to its members, nor they are entitled to any allowance during the period of training. Rule 7 of the Rules 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. (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 t he 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. (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 Presidencey-town and through the Special Officer for the special armed police Units and the District Superintendent of Police concerned elsewhere. 12. Rule 7 of the Rules stipulates that for the purpose of administration and discipline, the HGs 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 HG 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 HG 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 HG for good and sufficient reasons. 13. From the conspectus of the provisions of the Act and the Rules, there cannot be any doubt that though the members of HGO hold Office on a honorary basis, they discharge very important sovereign functions. 13. From the conspectus of the provisions of the Act and the Rules, there cannot be any doubt that though the members of HGO hold Office on a honorary basis, they discharge very important sovereign functions. The protection of persons, security of property and preservation of public order or tranquility are, without any doubt, important State functions. The HGs who are appointed to discharge these functions are also conferred with the powers and privileges of an Officer appointed under the Hyderabad City Police Act or the District Police Act. In our considered opinion, though they work on honorary basis, by reason of Sections 3 and 7 of the Act they are appointed in connection with affairs of the State and as a necessary corollary hold civil posts. This view is also supported by an unreported decision of the Division Bench of this Court in V.Rajuluv The Superintendent of Police W.A.No.1005 of 1998, dated 25.12.2001, wherein it was held that, the provisions of Sections 3, 4, 5, 7, 8 and particularly Section 11 of the Act make it abundantly clear that the HGs are in the service under the State. 14. There is no quarrel with the purport of Rule 7(4) of the Rules, which mandates that every order imposing penalty passed by the Commandant shall be preceded by a “reasonable opportunity” and the delinquent HG shall be asked to show cause why the penalty should not be imposed on him/her. When the Rules themselves prescribe the issue of show cause notice so as to provide reasonable opportunity to delinquent HG, any breach thereof must lead to invalidation of the order of punishment imposed by the Commandant. Therefore, we cannot find fault with the orders passed by the learned Tribunal which are subject matter of W.P.Nos.7656, 10704, 11595, 12585 and 21661 of 2011. These writ petitions are, therefore, liable to be dismissed. Reasonable opportunity Whether issue of show cause notice calling upon the delinquent HG to submit explanation against penalty proposed to be imposed would satisfy the principles of natural justice? We are afraid, it would not. These writ petitions are, therefore, liable to be dismissed. Reasonable opportunity Whether issue of show cause notice calling upon the delinquent HG to submit explanation against penalty proposed to be imposed would satisfy the principles of natural justice? We are afraid, it would not. Though Rule 7(4) of the Rules speaks of issue of show cause notice only against the penalty proposed to be imposed, having regard to settled rules of interpretation we do not hesitate to hold that the show cause notice contemplated under Rule 7(4) of the Rules must also spell out the allegations/charges or contraventions levelled against the HG, proposed for removal/dismissal. Such show cause notice may contain the imputations and the material which is the basis for them. As otherwise, mere issue of show cause notice calling upon for the explanation against penalty proposed would be futile, and unless and until the delinquent HG is aware of charges/imputations levelled against him, he cannot effectively put forth his case even for reduction of the punishment proposed. The principle of legality is well settled. The Legislature never intends the enforcer of the law or the executive to act arbitrarily or unreasonably. The Legislature is presumed never to have intended the decision maker to arrive at a decision in an unfair manner. It should be the endeavour of the Court to read adherence to fairness and compliance with the principles of natural justice in every action taken under the statute or otherwise unless and until the statute itself specifically excludes the compliance with the rules of natural justice. 15. In Dr.RashLal Yadav v State of Bihar (1994) 5 SCC 267 the validity of the order of removal of Chairman of the Bihar School Service Board constituted under the provisions of the Bihar Non-Government Secondary Schools (Taking-over of Management and Control) Act, 1981, was considered. The High Court of Patna repelled the challenge rejecting the plea that principles of natural justice are to be read into Section 10(7) of the State Act, which empowered the Government to remove the Chairman/Member of Board without the need to comply with the requirements of giving an opportunity to show cause. The High Court of Patna repelled the challenge rejecting the plea that principles of natural justice are to be read into Section 10(7) of the State Act, which empowered the Government to remove the Chairman/Member of Board without the need to comply with the requirements of giving an opportunity to show cause. The Supreme Court held that, “…unless the law expressly or by necessary implication excludes the application of the rule of natural justice, courts will read the said requirement in enactments that are silent and insist on its application even in cases of administrative action having civil consequences”. The relevant observations are as follows 16. The concept of natural justice is not a static one but is an ever expanding concept. In the initial stages it was thought that it had only two elements, namely, (i) no one shall be a judge, in his own cause and (ii) no one shall be condemned unheard. With the passage of time a third element was introduced, namely, of procedural reasonableness because the main objective of the requirement of rule of natural justice is to promote justice and prevent its miscarriage. Therefore, when the legislature confers power in the State Government to be exercised in certain circumstances or eventualities, it would be right to presume that the legislature intends that the said power be exercised in the manner envisaged by the statute. If the statute confers drastic powers it goes without saying that such powers must be exercised in a proper and fair manner. Drastic substantive laws can be suffered only if they are fairly and reasonably applied. In order to ensure fair and reasonable application of such laws courts have, over a period of time, devised rules of fair procedure to avoid arbitrary exercise of such powers. True it is, the rules of natural justice operate as checks on the freedom of administrative action and often prove time-consuming but that is the price one has to pay to ensure fairness in administrative action. And this fairness can be ensured by, adherence to the expanded notion of rule of natural justice. Therefore, where a statute confers wide powers on an administrative authority coupled with wide discretion, the possibility of its arbitrary use can be controlled of checked by insisting on their being exercised in a manner which can be said to be procedurally fair. And this fairness can be ensured by, adherence to the expanded notion of rule of natural justice. Therefore, where a statute confers wide powers on an administrative authority coupled with wide discretion, the possibility of its arbitrary use can be controlled of checked by insisting on their being exercised in a manner which can be said to be procedurally fair. Rules of natural justice are, therefore, devised for ensuring fairness and promoting satisfactory decision-making. Where the statute is silent and a contrary intention cannot be implied the requirement of the applicability of the rule of natural justice is read into it to ensure fairness and to protect the action from the charge of arbitrariness. Natural justice has thus secured a foothold to supplement enacted law by operating as an implied mandatory requirement thereby protecting it from the vice of arbitrariness. Courts presume this requirement in all its width as implied unless the enactment supplies indications to the contrary as in the present case. (emphasis supplied) 17. Section 4(3) of the Act empowers the prescribed authority to suspend, dismiss, remove any HG subject to such conditions as may be prescribed. Rule 7(4) of the Rules contemplates a show cause notice only with regard to the penalty proposed to be imposed. No such show cause notice or prior opportunity is contemplated under the Act for the Rules before a HG is removed. But, having regard to the language used in Rule 7(4) of the Rules that the show cause notice should be to afford a reasonable opportunity before passing an order of penalty, and having regard to the ratio in Dr.RashLal Yadavwe are inclined to read Rule 7(4) of the Rules as mandating a show cause notice containing the charges/imputations or instances of misconduct so as to give a reasonable opportunity to the delinquent HG to meet the charges and effectively plead defence for exoneration. A show cause notice merely indicating the penalty to be imposed would not answer the test of fairness in administrative action. Any notice calling upon to submit explanation only against penalty imposed would certainly not comply with the principles of natural justice. An order of authority exercising judicial or quasi-judicial functions passed in violation of principles of natural justice is procedurally ultra vires and suffers from a jurisdictional error (Ravi S.Naik v Sanjay Bandekar AIR 1994 SC 1558 . Any notice calling upon to submit explanation only against penalty imposed would certainly not comply with the principles of natural justice. An order of authority exercising judicial or quasi-judicial functions passed in violation of principles of natural justice is procedurally ultra vires and suffers from a jurisdictional error (Ravi S.Naik v Sanjay Bandekar AIR 1994 SC 1558 . Therefore, in all the cases only where a show cause notice is issued as a post-decisional exercise and without a reasonable opportunity to the delinquent HG at a pre-decisional stage would certainly violate the principles of natural justice. In that view of the matter, in the other group of writ petitions, we do not find any error in the orders of learned Tribunal. 18. Whether the issue of show cause notice containing charges/imputations and the instances of misconduct should be followed by an enquiry as contemplated under Article 311(2) of the Constitution of India is an issue which was not argued before the Tribunal or before us. Therefore, we leave the question open to be decided in an appropriate case. 19. The decision in Dr.HarbhajanSingh Greasydoes not support the contention of the Government Pleader that the matter should have been remitted to the Commandant. It was a case where the delinquent Officer was removed after a regular departmental enquiry. The High Court found the enquiry to be defective, but directed the reinstatement of the delinquent Officer while setting aside the removal order. This was faulted by the Supreme Court on the holding that when the enquiry was found to be faulty, it would not be proper to reinstate with consequential benefits and that the matter requires to be remitted to the authority to follow the procedure at which the fault was pointed out. In none of these cases any such enquiry was conducted, and therefore, we are not persuaded with the submission. Indisputably, the HGs are paid the honorarium (Rule 10 of the Rules) only for the period during which they discharge the duty. In all the matters, the applicants were not detailed as HGs after their removal and therefore the question of payment of wages would not arise. It is needless to mention that as the orders of removal passed by the Commandant have been set aside for violation of principles of natural justice, it is for the competent authority to take necessary action as deemed fit in law. It is needless to mention that as the orders of removal passed by the Commandant have been set aside for violation of principles of natural justice, it is for the competent authority to take necessary action as deemed fit in law. We, however, are not inclined to make any observations which may prejudice the parties. 20. In view of this, the writ petitions, being W.P.Nos.28875, 29382 of 2010, and 5814, 7142, 13240 and 16969 of 2011 are also liable to be dismissed. 21. The writ petitions, with the above observations, stand dismissed without any order as to costs.