9911796707
TMI Blog2010 (9) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... sar 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 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 Guard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 They also contend that the Punjab Home Guard Rules, 1963 have been repealed by the Punjab Home Guards and Civil Defense (Field) Class III Service Rules, 1983.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and Saving :- The Punjab Home Guard Rules 1963 as these are the applicable to the members of the service are hereby repealed. Provided that anything done or any action taken under the rules so repealed shall be deemed to have been done or taken under the corresponding provisions of these rules." 7) The respondents submit that there is a distinction between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 rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dly, 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. 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:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances 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 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
