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Himachal Pradesh High Court · body

2019 DIGILAW 1559 (HP)

State of H. P. v. Mohan Lal

2019-10-21

DHARAM CHAND CHAUDHARY, L.NARAYANA SWAMY

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JUDGMENT : DHARAM CHAND CHAUDHARY, J. 1. The State of Himachal Pradesh (respondent before erstwhile Administrative Tribunal) aggrieved by the order dated 31.5.2019 passed in OA No. 3401/2016 whereby the order dated 15.12.2015 qua removal of the respondent original applicant from service as Home Guard Volunteer has been quashed with a direction to the respondents-petitioners to reengage him in service without back wages has preferred this writ petition with a prayer to quash and set aside the same. 2. The respondent-original applicant, a home guard volunteer and deployed as such under 11/6 Company, Darlaghat, under Homeguards 11th Battalion, Solan during the period 1992-2015 was served with Annexure A-2 to show cause as to why he has failed to report for duty when deployed at Koti Apple Barrier on NH 22 during 2015 apple season w.e.f. 1.9.2015 to 15.10.2015. The notice Annexure A-2 was followed by reminder dated 16.11.2015 (annexure A-3). In reply (Annexure P-5), the respondent-original applicant informed the respondents that on account of ailment of his father, he being the only male member in the house to look after him, could not report for routine duty. The respondents-petitioners were further informed that until the recovery of his father it is not possible for him to attend the duties. Besides the above, Superintendent Modern Central Jail, Kanda (Shimla) has also made a complaint (annexure P-4) to Commandant, Home Guards 11th Battalion, Solan that during the posting of the respondent-original applicant in the jail, it is believed that he had provided banned articles to the inmates in the Jail. In reply Annexure P-5, the respondent-original applicant submitted that the Superintendent Jail has suspected him of providing banned articles to the inmates of the jail. He allegedly undertook not to repeat any such mistake in future. On consideration of the reply filed by the respondent-original applicant, he was discharged from service vide order dated 15.12.2015. He preferred an appeal Annexure P-7 on 22.1.2016 which was rejected by the Director General & Commandant General, Home Guards and Civil Defence, H.P. the second respondent vide order dated 30.3.2016. 3. Aggrieved by his discharge and dismissal of the appeal by the respondents-petitioners, he preferred Original Application which has been allowed by the erstwhile H.P. Administrative Tribunal vide order dated 31.5.2019, under challenge in this writ petition. 3. Aggrieved by his discharge and dismissal of the appeal by the respondents-petitioners, he preferred Original Application which has been allowed by the erstwhile H.P. Administrative Tribunal vide order dated 31.5.2019, under challenge in this writ petition. The impugned order has been assailed on the grounds inter alia that learned Tribunal has failed to appreciate that the petitioner as per his own admission failed to report for duties when deployed on NH 21 at Koti Apple Barrier during the apple season, 2015. Also that, while deployed in Model Central Jail, Kanda, he was suspected of having supplied articles banned in the Jail to the inmates. In view of such allegations against the respondent-original applicant, he according to the respondents-petitioners, has rightly been discharged from service and his appeal also rightly rejected. 4. On hearing learned Addl. Advocate General, for the petitioners and on going through the record, we find the present a fit case where the Writ petition can be disposed of in limine. 5. The stand of the petitioners against the respondent-original applicant before learned Tribunal was that he failed to report for duty at Koti Apple Barrier during the apple season of 2015. The H.P. Home Guard Rules, 1971 provides for imposition of penalty for mis-conduct. The said rules have been discussed in para 4 & 5 of the order passed in the Original Application. The penalty of dismissal from service has been imposed upon the respondent-original applicant on account of alleged misconduct which pertains to his failure to report for duty at Koti Apple Barrier. He explained his position. When he preferred the appeal to respondent No. 2, the same was dismissed on the grounds inter alia that the respondent-original applicant in the past had also indulged in grave misconduct of supplying banned articles to the jail inmates and that he did not respond to the calls for duties as reported by the Company Commander and Commandant, Home Guards, 11th Battalion, Solan. The supply of banned articles to the Prison inmates was not the basis to impose penalty of discharge from service upon the respondent-original applicant. The Company Commander has not initiated any action against him on the basis of the complaint dated 2.8.2014 (annexure P-4) herein. The supply of banned articles to the Prison inmates was not the basis to impose penalty of discharge from service upon the respondent-original applicant. The Company Commander has not initiated any action against him on the basis of the complaint dated 2.8.2014 (annexure P-4) herein. The discharge of the applicant on the basis of the allegation that the respondent-original applicant failed to respond to the calls for his duties alone is not only harsh but oppressive also. Otherwise also, vide impugned order the respondents-writ petitioners have been directed to reengage the services of the respondent-original applicant without back wages. In the given facts and circumstances, the Tribunal has not committed any illegality or irregularity while passing the impugned order. The same, rather is the result of proper appreciation of the facts and circumstances of this case and also the record. 6. We, therefore, find no merits in this petition and the same is accordingly dismissed, so also the pending applications, if any.