ORDER : 1. These writ petitions have been filed by the petitioners aggrieved against the impugned discharge cum termination order dated 19/2/2020 passed by the respondent no.4, whereby, the petitioners have been discharged as Member of the Home Guards. 2. It is inter alia indicated in the writ petition that the petitioners were appointed as members of the Home Guards under the provisions of the Rajasthan Home Guards Act, 1963 ('the Act, 1963') and Rajasthan Home Guards Rules, 1962 ('the Rules, 1962') in the year 1998 and 1992, respectively. The petitioners came to be deputed/promoted as Hawaldar Platoon Commander (HPC) in the year 2006 and 2004, respectively. 3. On 10/4/2017, the petitioners were reverted from the post of Hawaldar Platoon Commander (HPC) to Home Guards, which was challenged by the petitioner Rajendra Sharma by filing CWP No. 13294/17, which petition came to be allowed on 21/5/2019, whereby, the order of reversion of petitioner Rajendra Sharma was set aside and promotion to the post of Hawaldar Platoon Commander was restored. 4. The petitioner Rajendra Sharma was served with a notice dated 15/1/2020 followed by another notice dated 24/1/2020 for initiating disciplinary proceedings under Section 8(2) of the Act, 1963 with the allegations that the petitioner contracted second marriage during subsistence of his first marriage and that he had made false complaints against the department. 5. Petitioner Surendra Singh was issued a notice dated 15/1/2020 for initiating disciplinary proceedings by alleging that the petitioner misbehaved with other home guards and made false complaints against the authorities of Home Guard Department. 6. Both the petitioners filed reply and denied the allegations & demanded copy of relevant record but it is alleged that nothing was provided, on account of which the petitioners submitted representations to D.G., Home Guards and sought his intervention. On 15/4/2020 the petitioners were informed to appear along with copying charges to receive desired documents and were provided certain documents which contained impugned discharge/termination order dated 19/2/2020 passed by the respondent no. 4 by which the membership of the petitioners of Home Guards had been dispensed with. 7. It is inter alia claimed that by the impugned order the power has been exercised under Section 8(2) of the Act, 1963, which is illegal and contrary to the settled procedure. 8. 4 by which the membership of the petitioners of Home Guards had been dispensed with. 7. It is inter alia claimed that by the impugned order the power has been exercised under Section 8(2) of the Act, 1963, which is illegal and contrary to the settled procedure. 8. Submissions have been made that the petitioners were not provided any opportunity of hearing before passing the orders impugned and that the orders which have been issued by the respondents are contrary to the record. It was emphasized that Section 8 of the Act, 1963, which provides for punishment for neglect of duty etc. envisages opportunity of hearing, however, no such opportunity of hearing was provided to the petitioners. 9. The show cause notice dated 15/1/2020 issued to the petitioners inter alia indicated that the disciplinary inquiry would be initiated against the petitioners, to which the petitioners filed their response, whereafter, no disciplinary proceedings were initiated and instead the orders impugned were passed exercising powers under Section 8(2) of the Act, 1963, which are wholly illegal and, therefore, same deserve to be quashed and set aside. 10. Several submissions have been made on merits of the charges indicated in show cause notice and it was submitted that only on account of the fact that petitioner Rajendra Sharma had approached this Court against his reversion, which was quashed by this Court, action has been initiated and, therefore, the orders impugned deserve to be quashed and set aside. 11. Learned counsel for the respondents submitted that the petitioners were afforded adequate opportunity of hearing and that action was taken by the respondents on account of misbehaviour on part of the petitioners. The documents have been produced in the case of Rajendra Sharma to indicate that there was material to take action against the petitioner and, therefore, the orders impugned do not call for any interference. 12. It is further submitted that the petitioners have alternative remedy by way of appeal under Section 8(4) of the Act, 1963. 13. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 14. 12. It is further submitted that the petitioners have alternative remedy by way of appeal under Section 8(4) of the Act, 1963. 13. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 14. A perusal of the record indicates that a show cause notice dated 15/1/2020 (Annex.10) seeking the explanation of petitioner Rajendra Sharma with regard to the allegations made by him against the authorities of the department and calling upon him to respond was issued as under : ^^vkids fo:) gkse xkMZl ,DV 1962 ds fu;e 8 ds vUrxZr vuq'kklukRed dk;Zokgh dh tkuh çLrkfor gSaA vr% vki viuk Li"Vhdj.k i= çkfIr ds 30 fnol esa vko';d :i ls çLrqr djkosa vU;Fkk vkids fo:) ,d rjQk dk;Zokgh dh tk;sxh ftldh lEiw.kZ tokcnkjh vki Loa; dh gksxhA** 15. Another notice dated 24/1/2020 (Annex.11), which was purportedly issued under Section 8(2) of the Act, 1963, after alleging in the case of Rajendra Sharma regarding his having contracted second marriage, he was called upon to respond as under : ^^vkids fo:) gkse xkMZl ,DV 1963 dh /kkjk 8 ¼2½ ds rgr vuq'kklukRed dk;Zokgh dh tkuh çLrkfor gSaA vr% vki bl lac/k esa viuk fyf[kr Li"Vhdj.k i= çkfIr ds 30 fnol ds Hkhrj vko';d :i ls bl dk;kZy; esa çLrqr djkosa vU;Fkk vkids fo:) ,d rjQk dk;Zokgh dh tk;sxh ftldh lEiw.kZ tokcnkjh vki Loa; dh gksxhA** 16. A perusal of the above notices would reveal that the same only indicated that disciplinary proceedings against the petitioner was proposed and in case response was not given within the stipulated time, ex-parte action would be taken. 17. Petitioner Rajendra Sharma responded to the notices and also sought certain documents vide Annex.12 to 14. 18. In the case of petitioner Surendra Sharma, he was issued notice dated 15/1/2020 (Annex.8) pertaining to his having made false allegations against the authorities of Home Guards Department and he was called upon to respond as under : ^^vkids fo:) gkse xkMZl ,DV 1962 ds fu;e 8 ds vUrxZr vuq'kklukRed dk;Zokgh dh tkuh çLrkfor gSaA vr% vki viuk Li"Vhdj.k i= izkfIr ds 30 fnol esa vko';d :i ls izLrqr djkosa vU;Fkk vkids fo:) ,d rjQk dk;Zokgh dh tk;sxh ftldh lEiw.kZ tokcnkjh vki Loa; dh gksxhA** 19. In the case of Surendra Sharma, it would be seen that he was issued show cause notice regarding taking disciplinary proceedings against him under Section 8 of the Act. 20. Apparently, though the petitioners were given notices proposing disciplinary action against them, on 19/2/2020 (Annex.1 in both the writ petitions), following orders were passed : (in CWP No.4176/2020) ^^vr% Jh jktsUnz 'kekZ rnFkZ voSrfud ih0lh0 la[;k 684 dks Loa; lsodks dks xqejkg@Hkzfer dj LFkkbZ LVkQ dh >qBh] eux&#2338ar ,oa cscwfu;kn f'kdk;r djokus] ,d ifRu ds thfor jgrs gq, nqljh efgyk ls 'kknh djus] LFkkbZ LVkQ ij vuko';d fVdk&fVIi.kh djus Lo;a lsodks dks mdlkus] Hkzfer djus ,oa x`g j{kk dh M;qVh;ksa@ çf'k{k.k esa fujUrj Hkkx ugh ysus] iwoZ esa fu;ksftr M;qVh LFkkuksa ij vuq'kklughurk djus ds vkjksiks ds e/;utj j[krs gq, Jh jktsUnz 'kekZ rnFkZ voSrfud ih0lh0 684 dks jktLFkku gkse xkMZ ,DV 1963 dh /kkjk 8 ¼2½ ds rgr vkxs fujUrj lnL;rk tkjh ugha j[krs gq, rqjUr çHkko ls x`g j{kk lnL;rk ls i`Fkd fd;k tkrk gSA vkns'k rqjUr çHkko'khy gksxkA (emphasis supplied) (in CWP No.4295/2020) vr% Jh lqjsUnz flag 161 dks Loa; lsodks dks xqejkg@ Hkzfer dj LFkkbZ LVkQ dh >qBh] eux&#2338ar ,oa cscwfu;kn f'kdk;r djokus] eq[; vkj{kh;ksa ds lkFk xkyh xykSp ,oa vHknz O;ogkj djus] LFkkbZ LVkQ ij vuko';d fVdk&fVIi.kh djus Loa; lsodks dks mdlkus] Hkzfer djus ,oa vuq'kklughurk djus ij Jh lqjsUnz flag 161 dks jktLFkku gkse xkMZ ,DV 1963 dh /kkjk 8 ¼2½ ds rgr vkxs fujUrj lnL;rk tkjh ugha j[krs gq, rqjUr izHkko ls x`g j{kk lnL;rk ls i`Fkd fd;k tkrk gSAvkns'k rqjUr çHkko'khy gksxkA**(emphasis supplied)</UL>21. The provisions of Section 8 of the Act, 1963 insofar as relevant, reads as under :<UL>“8. Punishment of members for neglect of duty etc.,-(1) The Commandant General shall have the authority to suspend, reduce or dismiss or fine, to an amount not exceeding fifty rupees, any member of the Home Guards, under his control, if such member, without reasonable cause, on being called out under section 4 neglects or refuses to obey such order or to discharge his functions and duties as a member of Home Guards or to obey any lawful order or direction given to him for the performance of his functions and duties or is guilty of any breach of discipline or misconduct. The commandant shall also have the authority to dismiss any member of the Home Guards on the ground of conduct which has led to his conviction for the commission of an offence involving moral turpitude or an offence against this Act. The Commandant General shall have the like authority in respect of any member of the Home Guards appointed to a post under his immediate control.(2) Notwithstanding anything contained in this Act, the Commandant shall have the authority to discharge any member of the Home Guards at any time subject to such conditions as may be prescribed if, in the opinion of the Commandant, the services of such member are no longer required. The Commandant General shall have the like authority in respect of any member of the Home Guards appointed to a post under his immediate control.(3) When the Commandant General or the Commandant passes an order for suspending, reducing, dismissing or fining any member of the Home Guards under sub-section (1), he shall record such order or cause the same to be recorded, together with the reasons therefore and a note of the inquiry made, in writing, and no such order shall be passed by the Commandant General or the Commandant unless the person concerned is given an opportunity to be heard in his defence.(4) Any member of the Home Guards aggrieved by an order of the Commandant may appeal against such order to the Commandant General and any such member aggrieved by an order of the Commandant General may appeal against such order to the State Government, within thirty days of the date on which he was served with notice of such order. The Commandant General or the State Government as the case may be, may pass such order as he or it thinks fit.”(emphasis supplied)</UL>22. A perusal of the above provision would reveal that the Commandant General has the authority to inter alia dismiss any member of the Home Guards, if such member is inter alia guilty of any breach of discipline or misconduct. The Commandant has the authority to dismiss any member of the Home Guards only on the ground of conduct which has led to his conviction for an offence involving moral turpitude or an offence against the Act.23. The Commandant has the authority to dismiss any member of the Home Guards only on the ground of conduct which has led to his conviction for an offence involving moral turpitude or an offence against the Act.23. Under sub-section (2) the Commandant has the authority to discharge any member of the Home Guards, if in the opinion of the Commandant the services of such member are no longer required.24. Sub-section (3) provides that the Commandant General or the Commandant, if passes an order inter alia dismissing any member of Home Guards under sub-section (1), they have to record such order or cause the same to be recorded, together with the reasons thereof and a note of inquiry made. Further, no order can be passed by the Commandant General or Commandant unless the person concerned is given an opportunity of hearing in his defence.25. It would seen that the allegations made against the petitioners in the show cause notice pertain to breach of discipline or misconduct and in those circumstances, apparently under Section 8 (1) of the Act, 1963 the action could only be taken by the Commandant General and not by the Commandant as has been done in the present cases. The orders impugned have been passed by the Commandant purportedly exercising powers under Section 8(2) of the Act, 1963 by indicating that the services of the petitioners are no longer required.26. Once the authorities empowered to exercise power under sub-section (1) & (2) of Section 8 of the Act, 1963 and circumstance under which the same can be exercised have been specifically indicated i.e. in the case of disciplinary action the same is required to be taken under sub-section (1) by the Commandant General and only in case the petitioners' services are no longer required, action could be taken by the Commandant under subsection (2).27. The notices alleging breach of discipline or misconduct could not have been issued by the Commandant. Further, the exercise of power under Section 8(2) of the Act, 1963 by indicating that the services of the petitioners are no longer required after alleging indiscipline or misconduct could not have been passed by the Commandant.28. The notices alleging breach of discipline or misconduct could not have been issued by the Commandant. Further, the exercise of power under Section 8(2) of the Act, 1963 by indicating that the services of the petitioners are no longer required after alleging indiscipline or misconduct could not have been passed by the Commandant.28. As noticed, under sub-section (1), for the allegations made, only the Commandant General could have issued notice, hold inquiry and dismiss the petitioners from the membership of the Home Guards, the action impugned of issuing notices alleging indiscipline and misconduct and, thereafter purportedly exercising power under Section 8(2) of the Act, 1963 by the Commandant respondent no.4, in the present cases is absolutely without jurisdiction and, therefore, the same cannot be sustained.29. In view of the fact that the orders impugned passed by the Commandant, essentially dismissing the petitioners from the membership of Home Guards are without jurisdiction, the plea of availability of alternative remedy does not come in the way of the petitioners in invoking the jurisdiction of this Court under Article 226 of the Constitution of India.30. Consequently, the writ petitions filed by the petitioners are allowed. The orders impugned dated 19/2/2020 (Annex.1) passed by the Commandant in both the petitions purportedly under the provisions of the Section 8(2) of the Act, 1963 are quashed and set aside. The petitioners would be entitled to all consequential benefits notionally.No order as to costs.<hr color=rgb(84,0,168)></body></html>

Rajendra Sharma S/o. Shri Mangi Lal Sharma v. State of Rajasthan, Through The Secretary, Department, Home Affairs, Government of Rajasthan