9911796707
TMI Blog2010 (9) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 of State of Gujarat Vs. Akshay Amrutlal Thakkar (2006) 2 SCC 309. 4) The learned counsel Sri Sanjay Sharawat appearing for the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teers 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 They also contend that the Punjab Home Guard Rules, 1963 have been repealed by the Punjab Home Guards and Civil Defense (Field) Class III Service Rules, 1983.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and Saving :- The Punjab Home Guard Rules 1963 as these are the applicable to the members of the service are hereby repealed. Provided that anything done or any action taken under the rules so repealed shall be deemed to have been done or taken under the corresponding provisions of these rules. 7) The respondents submit that there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 extensi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (21) A judgment, as is well known is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 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. (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 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rashtra 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. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
