Davinder Singh & Ors vs State Of Punjab & Ors

Davinder Singh & Ors. ..........Appellants

Versus

State of Punjab & Ors. .........Respondents

WITH

CIVIL APPEAL NO.7905 OF 2010 (Arising out of S.L.P.(C) No.19995 of 2006)

Dilbagh Singh & Ors. ............Appellants

Versus

State of Punjab & Ors. ...........Respondents

JUDGMENT

H.L. Dattu, J.

Leave granted.

2) The appellants have come before this Court, being aggrieved by

the judgment and order passed by the High Court of Punjab and

1 Haryana at Chandigarh dated 11.09.2006 in CWP No. 5142/2005

and CWP No. 5144/2005. Both the appeals involve identical

questions of law and facts. Consequently, both of them are clubbed

and disposed of by this common Judgment.

3) The appellants in the instant case are `volunteers' of the Punjab

Home Guards. They were recruited and appointed sometime in the

year 1989 under the Punjab Home Guards Act, 1947 and the Rules

framed thereunder. They were paid consolidated wages of

Rs.2700/- per month, from the date of their appointment till their

services were dispensed with. In the order of termination, it is

alleged that the appellants were involved in an act of indiscipline at

the Amritsar railway station on 02.10.2004. The order of

termination was challenged before the High Court in the above

mentioned civil writ petitions. The view of the High Court is that

`volunteers' are persons engaged in Honorary capacity. They

have no civil rights and, therefore, the termination of their services

on account of the allegations leveled against them cannot be

considered to be in violation of law. The High Court has also

placed reliance on the observations made by this Court in the case

2 of State of Gujarat Vs. Akshay Amrutlal Thakkar (2006) 2 SCC

309.

4) The learned counsel Sri Sanjay Sharawat appearing for the

appellants, apart from others, submitted, that, the appellants, being

temporary employees working from last 15 to 17 years, were

entitled to Protection Guaranteed under Article 311(2) of the

Constitution of India before being terminated. Reference is made

to the decision of this Court in the case of Parshotam Lal Dhingra

Vs. Union of India (1958) SCR 828; and Divisional Personnel

Officer, Southern Railway, Mysore Vs. S. Raghavendrachar

(1966) 3 SCR 106; since the appellants are governed by the

provisions of Punjab Home Guards Act, 1947 and Punjab Home

Guards and Civil Defence (Field) Class III Rules, 1983, their

services could not have been terminated without issuing Show

Cause Notice and without holding departmental enquiry.

Alternatively, it is contended that the order of termination passed

by the respondents is not only stigmatic but the same has been

passed as a consequence of an alleged misconduct committed by

3 the appellants at the Railway Station, Amritsar on 02.12.2004.

Therefore, it is submitted that before any action could have been

taken against the appellants, they ought to have been afforded a

reasonable opportunity of hearing in consonance with the

principles of natural justice. It is, therefore, contended that the

action of the respondents is arbitrary and in violation of Principles

of Natural Justice.

5) It is the contention of the learned senior counsel Dr. Rajeev

Dhawan that the appellants are `volunteers', though their

appointment is under the Act and the Rules and, therefore, in view

of the specific provisions under the Rules, their services could be

discharged at any time without issuing a Show Cause Notice and

without holding any enquiry, much less a departmental enquiry.

Alternatively, it is contended that the appellants have no civil

rights as they are engaged only as volunteers. Since, the appellants

have no civil rights, their services could be terminated for the

reasons stated in the order of termination. The learned senior

counsel invites our attention to the extract of Para 14.4 of

4 Compendium of Instructions on Home Guards issued by Ministry

of Home Affairs, which authorizes the Commandant General or the

Commandant to discharge any Home Guard at any time, if in his

opinion, the services of such Home Guard are no longer required.

It is also submitted that the appellants are not temporary

employees, but only volunteers in the Organisation and they are

governed by Punjab Homes Guards Rules, 1963 and not the Punjab

Home Guards and Civil Defence (Field) Class III Rules, 1983.

6) In view of the rival contentions canvassed by the learned counsel,

the first issue which requires our consideration is, which is the rule

which may be made applicable to the parties to this lis. The

appellants contend, that, they are governed by Punjab Home

Guards and Civil Defense (Field) Class III Service Rules, 1983,

whereas the Respondents contend that the appellants are governed

by the Punjab Home Guard Rules, 1963. They also contend that

the Punjab Home Guard Rules, 1963 have been repealed by the

Punjab Home Guards and Civil Defense (Field) Class III Service

5 Rules, 1983. In support of their submission, they cite Rule 20 of

the latter which reads as under:

"20.Repeal and Saving :- The Punjab Home Guard Rules 1963 as these are the applicable to the members of the service are hereby repealed. Provided that anything done or any action taken under the rules so repealed shall be deemed to have been done or taken under the corresponding provisions of these rules."

7) The respondents submit that there is a distinction between the

`volunteers' and `members of the service" of the Punjab Home

Guards. It was argued before us, that the 1963 Rules were still

applicable to the `volunteer' members of the Punjab Home Guards

and that they are not to be considered as `members of the service'

as mentioned under Rule 20 of the 1983 Rules. The question

before us is, whether the 1983 Rules provide for the repeal of the

1963 rules only in matters relating to `members of the service' and

whether the 1963 rules are still applicable for the purpose of

recruitment, discharge and dismissal of `volunteers' of the Punjab

Home Guards.

6

8) The Punjab Home Guard Rules, 1963 were earlier repealed by the

Punjab Home Guard Rules, 1960. Rule 31 of the Punjab Home

Guard Rules, 1963 reads:

"Repeal :- The Punjab Home Guard Rules 1960, republished with Punjab Government Home Department Notification No. G.S.R 9P-A-8/47/S.9/6/ dated 19th December 1961 are hereby repealed."

9) If we were to juxtapose the two corresponding provisions relating

to repeal, there is a marked difference in the wording of Rule 31 of

The Punjab Home Guard Rules,1963 and Rule 20 of Punjab Home

Guards and Civil Defense (Field) Class III Service Rules, 1983. It

is to be noted that the Rule 31 of the 1963 rules unlike Rule 20 of

the 1983 rules are categorical in repealing the 1960 Rules. There

is no reference to the `members of the service'.

10) There is further evidence for such a distinction in Rule 22(2) of the

Home Guard Act, 1963. Rule 22 is as under:-

"22 (1) Training: - Every member shall be required to undergo a preliminary course of training in drill, discipline, weapon training and special training of service he belongs to for such period as may be fixed by the Commandant-

7 General in the case of Home Guards Unit I and the Gram Raksha Dal Chief in the case of Home Guard Unit II.

(2) Such members of the public as may offer themselves voluntarily may also be given training in drill, discipline and the use of weapons."

11) It is relevant to note that there is no such provision empowering the

state to recruit volunteers from the public under the scheme of the

Punjab Home Guards and Civil Defense (Field) Class III Service

Rules, 1983. In fact, Rule 22 of the Punjab Home Guard Rules,

1963, is the only Provision which seems to empower the

recruitment of volunteers. The 1983 Rules prescribe an elaborate

scheme for appointment of members to specific posts enumerated

in Appendix `A'. This can be seen from Rule 3 of Punjab Home

Guards and Civil Defense (Field) Class III Service Rules, 1983

which states :-

"3. Number and Character of Posts. - The service shall comprise of the posts shown in Appendix `A' to these rules."

12) The 1983 Rules envisage a scheme where a person who fulfills the

requirements under Rule 5 which deals with nationality, domicile

8 and character of candidates; secondly, he must not be specifically

disqualified under Rule 6, thirdly, he has to fall under the age

group prescribed under Rule 7. On fulfilling these three criteria,

he would be eligible for appointment to any of the posts mentioned

under Appendix `A' as long as he has the necessary educational

qualification. The educational requirement differs depending on

the post to which the person is being appointed. On appointment

there is a period of probation as prescribed under Rule 9 during

which the work and conduct of the appointee is evaluated. The

proviso to Rule 9 states that:-

"Provided that the total period of probation, including extension, if any, shall not exceed three years."

13) The 1983 Rules deal with the appointment of individuals to

specific posts mentioned in Annexure `A', when a temporary or

permanent vacancy arises. It does not deal with volunteers who are

recruited from the general public.

9

14) The legislative intent for such a distinction with respect to

application of the 1983 Rules to `non-volunteer' members is also

discernible from a combined reading of Rule 2(n) and Rule 3.

15) Rule 2(n) defines `service' as follows:- `Service' means the Punjab

Home Guards and Civil Defence [Field] Class III Service.

16) If we read the above definition alongwith Rule 3 which states as

under :-

"3. The service shall comprise of the posts shown in Appendix `A' to these rules."

17) It is, therefore, apparent from the scheme of the Rules that the

appointment of volunteers is not envisaged under the scope of the

1983 Rules. Volunteers could be appointed only under Rule 22(2)

of the Punjab Home Guard Rules, 1963.

(18)Rule 20 is as under:-

"20. Repeal and Saving :- The Punjab Home Guard Rules 1963 as these are the applicable to the members of the service are hereby repealed."

1 (19)The repeal applies only to the members of the service mentioned

under Annexure `A' and not to volunteers. Furthermore, the 1983

rules do not confer upon the appointing authority any power to

discharge the volunteer when his services are no longer required as

provided under Rule 18 of the 1963 Rules. This is because, the 1983

Rules are not meant to apply to volunteers. Under the 1983 Rules, a

member of the service can be dismissed only after following the

procedure prescribed for that purpose under the Punjab Civil Services

(Punishment and Appeal) Rules, 1970. But such a detailed procedure

is not envisaged while discharging a volunteer under 1963 rules. It is

therefore evident that the legislature intended to preserve this

distinction between the `volunteers' and `members of the service'

within the scheme of the 1983 Rules. That being the case, we think

that it is neither possible nor desirable to dilute the distinction which

the legislature intended to preserve, something which falls squarely

in the realm of policy. Therefore, in our opinion, the 1963 Rules are

applicable to the appellants in these appeals.

1 (20)Now we take up the second issue. The appellants contend that the

High Court erred in dismissing the writ petition filed by the

appellants relying on the decision of this court in State of Gujarat vs.

Akshay Amrutlal Thakkar (2006) 2 SCC 309. In that case, Akshay

Amrutlal Thakkar was appointed to the honorary post of District

Commandant in the Home Guard and then subsequently the order of

disengagement was passed by the State Govt. vide its order dated

02.12.1995. It is this order which was impugned in the writ petition.

This court sustained the order passed by the State Government

primarily on the ground, that the persons involved therein did not act

in the terms of undertaking given by them. It has also observed, that

the services rendered by those persons was honorary, therefore, no

civil consequences were involved. In our view, the facts of that case

are different from that of the instant case. In that case, Amrutlal

Thakkar was being discharged from a honorary post, his employment

was not being terminated as is being done in the present case.

Therefore, in our opinion, the High Court was not justified in placing

reliance on this decision to unsuit the appellants.

1 (21)A judgment, as is well known is the authority for the proposition

which it decides and not what can logically be deduced from. This

Court in the case of Union of India v. Major Bahadur Singh (2006) 1

SCC 368, has observed:

"The courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of the courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes."

The court has proceeded to add:

"Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper."

1 (22)There is a substantial difference in the circumstances surrounding the

lis in Amrutlal's case and the present case. Firstly, as stated earlier,

the appellants in that case were not being terminated from service.

Secondly, the revocation of appointment was merely with regard to

an honorary post.

(23)It is, therefore, necessary to consider whether Order No. E//285 dated

02.12.2004 passed by the respondents is one without authority of law

and whether the said order suffers from any other legal infirmities.

(24)The order of termination served on the appellants reads :

"In response to above said letters, the following guards who had created indiscipline at the Railway station Amritsar while boarding the train for going to Maharashtra in connection with election duty maybe terminated today the 2.12.2004 and they cannot be given any allowance from 3.12.2004. Immediate [action] in this regard should be taken on this letter."

(25)It is argued on behalf of the Respondents that the appellants were

discharged under Rule 18 of the 1963 rules read with para 14.4 of

1 compendium of instructions on Home Guards. Rule 18 of 1963

reads:

"Discharge of Members :- any member may be discharged at any time by the authority which had appointed him when his services are no longer required."

(26)The expression `Discharge' was interpreted by this Court in the case

of State of Kerala vs. Mother Anasthasia, Superior General and

Others (1997) 10 SCC 79, wherein, it is stated, "Discharge would

connote for any other reason ejusdem generis due to abolition of the

post or course of study or such similar circumstances except for

discharge due to misconduct.".

(27)The abovesaid Rule does not contemplate the requirement of

conducting an enquiry or giving notice to the concerned person and,

therefore, the respondents maintain that the termination order was

therefore within the scope and scheme of the Home Gaurds Act,

1947 and the 1963 Rules made thereunder.

1 (28)The order terminating the services of the appellants specifically cites

indiscipline at the Amritsar Railway Station as the cause for the

termination. Therefore, it is not a case where the appointing

authority is discharging the services of the appellants on the ground

that their services are no longer required but it is a case where their

services are sought to be dispensed with on the ground of

indiscipline, which would come within the meaning of the expression

`Misconduct'. In such a situation, the respondents cannot terminate

the services of the appellants without following the procedure

prescribed under Rule 27 of the Rules, the said rules, specifically

deals with Discipline. It reads as under :-

"Dismissed :- (1) Any officer may for misconduct or for absence without sufficient cause, be dismissed from service.

Provided that an order of dismissal shall not be passed unless reason of dismissal are recorded in writing and the member concerned has been given a reasonable opportunity of showing cause against the action proposed to be taken against him."

(29)The language employed in the Rule is clear and unambiguous. The

Rule envisages that any officer may be dismissed from service either

for misconduct or for unauthorized absence. Proviso appended to the

1 Rules speaks of giving an opportunity of hearing to the delinquent

officer or the member appointed under the Act and the Rules. It is an

admitted position that no such opportunity of hearing or notice was

given to the appellants in the present case as is required under Rule

27. In this view of the matter, the respondents cannot be permitted to

contend that the appellants being `volunteers', their services could be

terminated without complying with the procedure prescribed in the

Statutory Rules, which speaks of providing an opportunity of hearing

to the person who would be affected by the proposed action.

(30)To us, it appears, after going through the Act and the Rules framed

thereunder, that the expression `volunteers' appears to be misnomer.

We do not intend to dwell on this issue, since we are told that the

writ petitions for the regularization of similarly placed persons are

pending before the High Court. The facts and circumstances pleaded

by the appellants and the number of years they have spent as

`volunteers' and since they have no other avenue for their alternate

employment because of their age factor, we are impelled to look into

the reason for the termination of the services of the appellants. The

1 letter discharging their services explicitly states that the reason for

discharge is the indiscipline at Amritsar railway station before the

appellants were to board the train for Maharashtra on election duty.

Therefore, in our view, it is not a case of discharge simplicitor.

Under Rule 18 of the 1963 Rules, any member appointed under the

rules may be discharged at any time by the authority which had

appointed him when his services are no longer required. If it is

instance of discharge simplicitor, it would necessarily relate to

instances where the post has been abolished or where there is a

surplus of employees or other similar circumstances. The

respondents have not raised the existence of any circumstances

which required the discharge of any volunteers, neither has it been

urged that there exists any condition which would require the

appellants specifically to be discharged apart from the allegation of

indiscipline. Therefore, in our view, services of the appellants are

discharged for acts of alleged misconduct. It casts a stigma on their

competence and affects their future career.

1 (31)In our considered view, even in matters of discharge, the authority

concerned cannot act arbitrarily while discharging an employee.

However, in the instant case, the appellants are being discharged

from service for indiscipline. Therefore, as provided in proviso to

rule 27 of the rules, the appellants should have been given a

reasonable opportunity of showing cause against the action proposed

to be taken against them. Admittedly, no such opportunity was given

to them. Therefore, we are of the view that the action of the

respondents is contrary to their own statutory rules and in violation

of principles of natural justice.

(32)Even without going into the question whether the appellants are

eligible for the protection under Article 311 of the Constitution, in

our view, the respondents seem to have acted in an arbitrary manner

by terminating the services of the appellants, who have been working

as Home Guards for the last 15-17 years. They are all over-aged.

They may find it difficult to find alternate employment. Therefore,

in the facts and circumstances of this case and in the interest of

justice, we deem it proper to set aside the order of termination passed

1 by the respondents dated 02.12.2004 and direct the respondents to

reinstate the appellants as Home Guards without back wages.

(33) Before parting with the case, we should also notice the minor issue

raised by learned senior counsel for respondents. It is submitted that

the appellants without exhausting the appeal remedy provided under

rule 27(3) of 1963 rules could not have approached the High Court

under Article 226 of the Constitution, inter-alia, requesting the High

Court to quash the order passed by respondents dated 02.12.2004.

We do not find any merit in their submission, for the reason that this

issue was not raised nor argued before the High Court and, therefore,

we will not permit this issue to be raised for the first time before us.

It is also argued that para 14.4 of compendium of instructions on

Home Guards authorizes the Commandant General or the

Commandant to discharge a Home Guard at any time, if in his

opinion, the services of the Home Guard are no longer required.

These instructions are reiteration of Rule 18 of the Rules. We have

already dealt with these rules. Therefore, repetition of our reasoning

once over again may not be necessary.

2 (34) For the reasons stated, we allow these appeals and set aside the

impugned judgment. We direct the respondents to reinstate the

appellants within four weeks' time from today without back wages.

No order as to costs.

............................J. [ D.K. JAIN ]

...........................J. [ H.L. DATTU ] New Delhi, September 10, 2010.

2