2010 (9) TMI 1073 - SC - Indian Laws

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? Whether 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?

Issues Involved:
1. Applicability of Rules (1963 Rules vs. 1983 Rules)
2. Validity of Termination Order
3. Requirement of Show Cause Notice and Departmental Enquiry
4. Principles of Natural Justice
5. Distinction between Volunteers and Members of Service
6. Relevance of Previous Judgment (State of Gujarat vs. Akshay Amrutlal Thakkar)
7. Exhaustion of Appeal Remedy

Detailed Analysis:

1. Applicability of Rules (1963 Rules vs. 1983 Rules):
The primary issue was determining which set of rules applied to the appellants, the Punjab Home Guards Rules, 1963, or the Punjab Home Guards and Civil Defense (Field) Class III Service Rules, 1983. The appellants argued that the 1983 Rules repealed the 1963 Rules, citing Rule 20 of the 1983 Rules. However, the respondents maintained that the 1963 Rules still applied to volunteers. The Court concluded that the 1983 Rules did not envisage the appointment of volunteers, which could only be done under Rule 22(2) of the 1963 Rules. Therefore, the 1963 Rules were applicable to the appellants.

2. Validity of Termination Order:
The termination order cited indiscipline at the Amritsar Railway Station as the reason for the appellants' discharge. The Court noted that the order was not a case of discharge simplicitor but was based on alleged misconduct. As such, the termination should have followed the procedure prescribed under Rule 27 of the 1963 Rules, which requires a reasonable opportunity of showing cause against the proposed action.

3. Requirement of Show Cause Notice and Departmental Enquiry:
The appellants contended that their termination without a show cause notice and departmental enquiry violated Article 311(2) of the Constitution and the principles of natural justice. The Court agreed, stating that the respondents could not terminate the appellants' services without complying with the statutory rules that mandate providing an opportunity of hearing.

4. Principles of Natural Justice:
The Court emphasized that even in cases of discharge, the authority must act non-arbitrarily and provide a reasonable opportunity of hearing. The respondents' failure to do so in this case rendered their action contrary to statutory rules and principles of natural justice.

5. Distinction between Volunteers and Members of Service:
The Court observed that the term "volunteers" appeared to be a misnomer, given the appellants' long service and lack of alternative employment opportunities. The distinction between volunteers and members of service was crucial, as the 1983 Rules did not apply to volunteers, who were governed by the 1963 Rules.

6. Relevance of Previous Judgment (State of Gujarat vs. Akshay Amrutlal Thakkar):
The High Court had relied on the State of Gujarat vs. Akshay Amrutlal Thakkar case to dismiss the appellants' writ petition. The Supreme Court found this reliance misplaced, as the facts of the two cases were different. In the Thakkar case, the discharge was from an honorary post, not a termination from service.

7. Exhaustion of Appeal Remedy:
The respondents argued that the appellants should have exhausted the appeal remedy under Rule 27(3) of the 1963 Rules before approaching the High Court. The Court dismissed this argument, noting that it was not raised before the High Court and could not be introduced at this stage.

Conclusion:
The Supreme Court allowed the appeals, set aside the impugned judgment, and directed the respondents to reinstate the appellants within four weeks without back wages. The Court found the termination order to be arbitrary, in violation of statutory rules, and contrary to principles of natural justice.

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