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2020 DIGILAW 85 (AP)

A. Ravi Kumar v. Government of Andhra Pradesh

2020-02-03

D.V.S.S.SOMAYAJULU

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JUDGMENT : D.V.S.S. Somayajulu, J. This Writ Petition is filed by the petitioner, who was working as Home Guard, to issue Writ of Certiorari, call for the records connected with removal order passed by the 3rd respondent in proceedings C.No.1863/H.I/2017 and D.O.No.33/2017, dated 31.10.2017, without conducting an enquiry as per the provisions of the Home Guard Act, 1948 and Madras Home Guard Rules, 1949 and to set aside the same. 2. This Court has heard the learned counsel for the petitioner and the learned Government Pleader for Home appearing for the respondents. 3. Learned counsel for the petitioner argues that the petitioner was working as Home Guard, he was absent from duties from 28.12.2016 to 10.04.2017. The ground furnished by the petitioner for his absence from duties is the sickness of his mother, who has been bed ridden. Thereafter the petitioner alleges that he was served with a show cause notice, dated 17.06.2017, to which an explanation was given. However, without considering the same, without conducting an enquiry and without following the procedure prescribed under Section 7 (4) of the Home Guards Act, 1948 (in short "the Act"), petitioner was removed from services. This action of the respondents that is being challenged by the petitioner. Learned counsel for the petitioner relies upon the removal order dated 31.10.2017 and argues that this order is totally contrary to the provisions of Section 7 (4) of the Act, which provides that before the punishment is imposed a notice should be given of the proposed penalty. He relies upon the Division Bench Judgment in a Batch of Writ Petitions bearing W.P.No.35460 of 2013 and Batch, wherein the said provisions of the Act were considered with regard to the Home Guards and prays for an order in the above lines. 4. In reply to this learned Government Pleader for services-I states that the petitioner in this case is a chronic delinquent. He points out that the earlier in 2011 itself he had absented himself from the duties unauthorisedly; that there are criminal cases pending against him; that he is also well aware of the legal proceedings and the procedures. Lastly, it is submitted that the petitioner is an accused in a crime and that he was suspended in 2014 itself. He points out that the earlier in 2011 itself he had absented himself from the duties unauthorisedly; that there are criminal cases pending against him; that he is also well aware of the legal proceedings and the procedures. Lastly, it is submitted that the petitioner is an accused in a crime and that he was suspended in 2014 itself. Learned Government Pleader for Services points out that the large number of cases are pending against the petitioner and that he is constantly chronic absent from duties. It is his contention that earlier also the petitioner approached the Andhra Pradesh Administrative Tribunal and secured orders which lead to his reinstatement after dismissal. Learned Government Pleader for Services relying upon the counter and the various documents annexed thereto argues that as the petitioner is a member of a uniform unit he had a duty to be responsible and that his chronic absenteeism and delinquency in other areas prohibits him from seeking the relief. He points out that the impugned order was also passed after giving him an opportunity to show cause about his absence. Learned Government Pleader also points that the impugned order was passed by a duly constituted disciplinary committee. Therefore, learned Government Pleader for Services argues that this is not a case in which this Court should interfere. 5. After hearing the submissions and considering the facts this Court notices that the facts mentioned in this case are in a narrow compass. The issue is whether the process under Section 7(4) of the Act has been followed or not? In the Division Bench Judgment, which is relied upon by the learned counsel for the petitioner (W.P.No.35460 of 2013 and Batch) similar issues fell for consideration. A batch of writ petitions were filed by the Home Guards themselves. Some of the writ petitioners were removed from service on the ground of unauthorised absenteeism. The Division Bench of the High Court of the Judicature for the State of Telangana and the State of Andhra Pradesh considered Rule 7(4) of the Madras Home Guard Rules, 1949 (in short "the Rules, 1949"). The same is extracted hereunder: "7. Discipline- ................. ........................ ........................ (4) The Commandant may, for good and sufficient reasons, impose on any Home guard any of the following penalties: (a) reprimand; (b) extra duty; (c) withholding of payment of duty allowance; (d) suspension; (e) reduction of rank; (f) removal; and (g) dismissal. The same is extracted hereunder: "7. Discipline- ................. ........................ ........................ (4) The Commandant may, for good and sufficient reasons, impose on any Home guard any of the following penalties: (a) reprimand; (b) extra duty; (c) withholding of payment of duty allowance; (d) suspension; (e) reduction of rank; (f) removal; and (g) dismissal. No appeal shall lie against any of these punishments. In all 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." 6. The Division Bench noticed that this rule was interpreted in another Division Bench Judgment in the case of State of Andhra Pradesh v P. Prasad Rao, (2012) 1 ALD 76 . In that judgment also the Division Bench held that a show cause notice against the penalty should contain clear and categorical details of the charges, imputations levelled against the petitioner, so that the delinquent will have a chance to make an appropriate and proper representation against the charges and the punishment. The Division Bench held that mere issuance of show cause notice is not sufficient if it merely indicate a penalty to be imposed. 7. If the present case is examined against the backdrop of this Division Bench judgment and also the judgment reported in Prasad Rao case (2 supra) it is clear that the procedure prescribed under Rule 7 (4) of the Rules has not been followed at all. The rule is clear and categorical. It prescribed that before the punishment is issued a show cause notice must be issued to the delinquent Home Guard to show cause against the penalty to be imposed against him. The rule is clear and categorical. It prescribed that before the punishment is issued a show cause notice must be issued to the delinquent Home Guard to show cause against the penalty to be imposed against him. The case on hand, therefore, runs foul of the two Division Bench Judgments, which are relied upon. The prayer is also specific and clear. It is alleged that Section 7 (4) of the Act has not been followed. 8. This Court while appreciating the effort made by the learned Government Pleader for Services in trying to convince the Court that the petitioner is a chronic delinquent, cannot lose sight of the fact that the two Division Benches of this Court have held that Rule 7 (4) of the Rules is mandatory. It is clearly held that issuance of a mere show cause notice is not enough and that the show cause notice should be a detailed show cause notice. In the case before the Division Bench, the orders were passed by the Andhra Pradesh Administrative Tribunal to conduct fresh disciplinary proceedings in accordance with the procedure. In spite of doing so the State approached the High Court and filed a batch of Writ Petitions. Ultimately, the Division Bench held after the passage of so much of time holding fresh inquiries is not really called for and therefore, certain directions were issued. In the case on hand this Court notices that the impugned order was passed in 2017 and the Writ Petition was filed in September, 2019, that is almost after a lapse of two years. Therefore, this Court is of the opinion that as the procedural impropriety that has been alleged is only the alleged breach of Section 7 (4) of the Act, the relief should be appropriately moulded. The petitioner has approached this Court stating that he has rendered services without any remarks. A reading of the counter affidavit which show that the petitioner was a chronic absentee and he was absent for 161 days in 2011 and reinstated in service in 2013 is involved in a criminal case. The relevancy of the cases or its pendency is a different fact, however, it remains that between December, 2016 to April, 2017 he was absent from duty. The relevancy of the cases or its pendency is a different fact, however, it remains that between December, 2016 to April, 2017 he was absent from duty. As mentioned by learned Government Pleader for Services, the petitioner is also aware of the implications of his absence from duty in view of his earlier conduct, the filing of O.P. etc. Therefore, this court is of the opinion the setting aside of the entire proceedings at this stage is not called for. The delay, in filing the Writ Petition, committed by the petitioner also does not entitle him to relief. For all these reasons, this Court holds that the Writ Petition should be disposed of with the following directions: (1) The impugned order dated 31.10.2017 is set aside. (2) The respondents are directed to issue a show cause notice to the petitioner of the proposed penalty and seek his explanation in terms of Section 7 (4) of the Act. (3) The report of the disciplinary committee dated 31.08.2017 should also be furnished once again to the petitioner. (4) The entire exercise of giving show cause notice against the proposed penalty, inviting explanation etc., and finalising the same should be completed within a period of 60 days from the date of receipt of a copy of this order. 9. With the above observations, the Writ Petition is allowed in part. There shall be no order as to costs. 10. As a sequel, Miscellaneous Applications, if any, pending in this Writ Petition shall stand closed.