* THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION Nos.28875 and 29382 of 2010; 5814, 7142, 7656, 1070 11595, 12585, 13240, 16969 and 21661 of 2011 %Dated:07.09.2011 Between: The State of Andhra Pradesh, Represented by the Principal Secretary to Government, Home Department, Secretariat Buildings, Hyderabad, And others …Petitioners and P.Prasad Rao, And others. …Respondents ! Counsel for the Petitioners: G.P for Services - I ^Counsel for the Respondents: Sri A.Sreedhar Sri L.V.S.Nagaraju <Gist: >Head Note: ?Citations: 1. (1996) 9 SCC 322 2. (1994) 5 SCC 267 3. AIR 1994 SC 1558 THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION Nos.28875 and 29382 of 2010; 5814, 7142, 7656, 1070 11595, 12585, 13240, 16969 and 21661 of 2011 Dated:07.09.2011 Between: The State of Andhra Pradesh, Represented by the Principal Secretary to Government, Home Department, Secretariat Buildings, Hyderabad, And others. … Petition And P.Prasad Rao, And others. ... Responde THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION Nos.28875 and 29382 of 2010; 5814, 7142, 7656, 1070 11595, 12585, 13240, 16969 and 21661 of 2011 COMMON ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) The short but significant question that would arise in these ele writ petitions is as to whether a Home Guard (HG) appointed under Andhra Pradesh Home Guards Act, 1948 (the Act) whose conditions service are regulated by the Madras Home Guards Rules, 1949 Rules), as applicable in the State of Andhra Pradesh, can be removed f the rolls of the Home Guards Organization (HGO) without giving adequ opportunity to answer the allegations of misconduct and, if the answer i the negative, what is the extent and measure of adequacy of opportu that should be provided to a delinquent HG? As the issue is common in the matters it would be expedient to dispose of all the matters b common order. Illustratively the factual background in two writ petiti need to be highlighted in brief for better appreciation of the controversy. The writ petition, being W.P.No.21661 of 2011, is filed by the St Commissioner of Police, Joint Commissioner of Police and Commandant, Home Guards, Hyderabad City, against the order O.A.No.2583 of 2008, dated 01.10.2010, of the Andhra Prad Administrative Tribunal, setting aside the order dated 12.03.2008 issued the Commandant removing the first respondent (hereafter called, applicant) from the rolls of the HGO, Hyderabad. The applicant w appointed as HG on 03.02.2000. He was detailed for duty at the Office the Joint Commissioner of Police, Special Branch, Hyderabad, and w asked to work under the control of the Sub Inspector. When the S Inspector was on leave from 26.01.2008 to 03.02.2008, the applicant w required to maintain the attendance register of Class IV employees of Special Branch. After coming back from his leave, the Sub Inspector fo that the applicant allowed the absentee Class IV employees to sign attendance register as if they worked in the Office. On the said allegat the Commandant issued order dated 12.03.2008 removing the applic from the rolls of the HGO, which was assailed in the Original Applicat being O.A.No.2583 of 2010. By impugned order, the learned Tribunal aside the order of the Commandant as violative of principles of nat justice and further directed the Commandant to take back the applicant the rolls of the HGO. In Writ Petition Nos.7656, 10704, 11595 and 12585 of 2011 wh are also filed against separate orders of the Administrative Tribunal, HGs who were removed from the rolls of the HGO were not given any p notice for which reason the learned Tribunal allowed the Orig Applications and directed the Commandant to take back those applica also on the rolls of the HGO. The writ petition, being W.P.No.28875 of 2010, is filed by the St the Director General and Inspector General of Police, the Commissione Police, Visakhapatnam, and the Commandant, against the order O.A.No.9058 of 2009, dated 04.02.2010. By impugned order, the lear Tribunal set aside the order dated 26.05.2009 of the Commissio removing the applicant as HG. The applicant was appointed as HG 20.04.1998. On 23.03.2009 the Commandant issued a show cause no alleging that the applicant was involved in a criminal case, be C.C.No.225 of 2009 (arising out of Crime No.99 of 2009 of II Town P Visakhapatnam) on the file of the II Additional Metropolitan Magistr Visakhapatnam, under Sections 384 and 34 of the Indian Penal Co 1860. He and another HG (first respondent in W.P.No.29382 of 2010) alleged to have extorted money from one Bandi Kanakaraju at 20.00 hrs 07.03.2009 on the pretext that the said Kanakaraju went to brothel and applicant threatened him with dire consequences, as a result of which complainant gave his purse containing Rs.500/- and fled away. applicant submitted explanation on 20.04.2009 denying the allegatio Considering the same, the Commissioner passed orders on 26.05.2 removing the applicant from the rolls of HGO. This order was assailed the Original Application. The same was heard along with O.A.No.9494 2009 filed by another HG. By a common order, the learned Tribu allowed Original Applications holding that subsequently the applicant w acquitted by the criminal Court for the offence for which he was remo from service and hence he is entitled for reinstatement. The facts in Writ Petition No.29382 of 2010 are also similar. In Writ Petition Nos.5814, 7142, 13240 and 16969 of 2011 the or of removal from the rolls of HGO was in fact preceded by a show ca notice, and explanation was obtained before passing the order of remov The allegations in all these matters are either absenteeism, attemp collect money, consumption of liquor or involvement in criminal cases. the allegations were denied by the HGs, who are applicants before Tribunal. The Tribunal allowed the Original Applications and directed Commandant to reinstate the applicants as HGs. Submissions & Issues The Government Pleader for Services-I submits that the HGs appointed on honorary basis. They are not members of regular Po force nor can be equated to Government/public servants. Therefo enquiry is not contemplated before directing the removal of the HGs f the rolls of HGO. Alternatively, he submits that the learned Tribunal wa error in directing reinstatement. He would urge that when there i violation of principles of natural justice, as alleged by the applicants, Tribunal ought to have remitted the matters to the Commandant to fo the procedure contemplated in law instead of ordering reinstatement. relies on State of Punjab v Dr.Harbhajan Singh Greasy[1]. Counsel for the first respondent in W.P.Nos.7656, 10704, 115 12585 and 21661 of 2011 would submit that the removal of HG with giving notice or without affording a reasonable opportunity violates principles of natural justice, and therefore, the learned Tribunal was w within powers to direct reinstatement after setting aside the order removal. Whether the issue of prior notice is mandatory? The Act was enacted to constitute a voluntary organization for us emergencies. Section 3 contemplates the constitution of HGO. Ev member of such Organization, “shall have … powers and discharge duties in relation to the protection of persons, the security of property, the preservation of public order or tranquility as may be assigned under Act” (Section 3 of the Act). A person possessing the prescri qualifications and willing to serve may be appointed as HG. On s appointment, every HG will receive a certificate of appointment, whereu he shall have the powers, privileges and protection conferred discharge the duties imposed on a HG (Section 4 of the Act). As Section 7 of the Act a HG shall have the same powers, privileges protection as an Officer of the Police appointed under the Hyderabad C Police Act, 1348 Fasli, or the Andhra Pradesh (Andhra Area) District Po Act, 1859, and every HG shall be bound to serve the State Government such period and in such areas as may be prescribed. Every HG who subject to the conditions as may be prescribed can be suspend dismissed or removed by the prescribed authority and in such eventua the certificate of appointment shall cease to have effect. All the HGs s be under the control of the Officers of the Police Force as stipulated Section 8 of the Act. In addition to Section 4(3) of the Act which empowers the prescri authority to suspend, dismiss or remove any HG, Section 9 of the deals with penalties for the cognizable offences committed by the HGs any HG neglects or refuses to obey the orders of any superior authority officer, or fails to discharge any other duty, or deserts his post, or is gu of any wilful breach or neglect of any provisions of the Act or any rule shall be punishable with simple imprisonment for a term which may ext to three months or with fine which may extend to two hundred and rupees or with both. Section 9(2) of the Act, however, imposes a ba prosecution unless it is previously sanctioned by the Officer empowered the State Government. Section 11 of the Act declares that all the H acting in exercise of their powers under the Act shall be deemed to public servants within the meaning of Section 21 of IPC. In exercise of the powers conferred by Section 10 of the Mad Home Guards Act, 1948, the Rules were made by the then Mad Government which have been made applicable in the State of And Pradesh. Rule 3 thereof prescribes the qualifications and eligibility crit for recruitment and appointment as HG; Rule 4 deals with Organization HGO; and Rule 5 requires every HG to undergo training for a period of more than three months to acquire certain skills referred to therein; a Rule 6 contains the duties to be performed by HG. As per Rule 10 of Rules, the service in HGO will be entirely honorary, and no pay shall admissible to its members, nor they are entitled to any allowance du the period of training. Rule 7 of the Rules deals with discipline. It reads under. 7.Discipline:- (1) The Commandant shall comply with all orders in regard to the training of Home Guards and their use in aid of the Police issued by the Commissioner of Police or the District Superintendent of Police concerned, as the case may be. (2) A Home Guard shall perform such duties and functions as may be assigned to him and shall obey every order of his superior officers. (3) For the purposes of administration and discipline, the Home Guards shall, subject to the provisions of Sub-rule (5) be under the control of their Commandant and, in his absence of the Adjutant or the other staff officers, if any, appointed to assist t he Commandant. (4) The Commandant may, for good and sufficient reasons, impose on any Home Guard any of the following penalties:- (a) reprimand; (b) suspension; (c) reduction of rank; (d) removal; and (e) dismissal. No appeal shall lie against any of these punishments. In all the cases of disciplinary action, a reasonable opportunity shall ordinarily be given to the delinquent Home Guard to show cause against the penalty proposed to be imposed on him, but in exceptional cases, when this course is not possible, it may be waived for special reasons to be recorded in writing. (5) The Commissioner of Police in the Presidency-town and the District Superintendent of Police concerned elsewhere may, for good and sufficient reasons, direct the suspension, removal or dismissal of a Home Guard from his office. (6) The superintendence of the Home Guards shall be vested in the Inspector General of Police and shall be exercised by him through the Commissioner of Police in the Presidencey- town and through the Special Officer for the special armed police Units and the District Superintendent of Police concerned elsewhere. Rule 7 of the Rules stipulates that for the purpose of administra and discipline, the HGs shall be under the control of the Commandant, in his absence, under the control of the adjutant and other staff offic appointed if any. Sub-rule (4) of Rule 7 of the Rules confers the power the Commandant to impose on any HG the penalties, namely, reprima suspension, reduction of rank, removal and dismissal. But, in all s cases, a reasonable opportunity shall be given to the delinquent HG show cause against the penalty proposed to be imposed on him. exceptional cases, however, the issue of show cause notice can be wai for special reasons to be recorded in writing by the Commandant. If penalty is imposed by the Commandant, it is final and no appea provided. It may also be mentioned that as per Rule 7(5) of the Rules, Commissioner of Police in the Presidency-town and the Dist Superintendent of Police in Districts may direct the suspension, remova dismissal of a HG for good and sufficient reasons. From the conspectus of the provisions of the Act and the Ru there cannot be any doubt that though the members of HGO hold Office a honorary basis, they discharge very important sovereign functions. protection of persons, security of property and preservation of public or or tranquility are, without any doubt, important State functions. The H who are appointed to discharge these functions are also conferred with powers and privileges of an Officer appointed under the Hyderabad C Police Act or the District Police Act. In our considered opinion, tho they work on honorary basis, by reason of Sections 3 and 7 of the Act t are appointed in connection with affairs of the State and as a necess corollary hold civil posts. This view is also supported by an unrepo decision of the Division Bench of this Court in V.Rajulu v T Superintendent of Police[2], wherein it was held that, the provisions Sections 3, 4, 5, 7, 8 and particularly Section 11 of the Act mak abundantly clear that the HGs are in the service under the State. There is no quarrel with the purport of Rule 7(4) of the Rules, wh mandates that every order imposing penalty passed by the Command shall be preceded by a “reasonable opportunity” and the delinquent shall be asked to show cause why the penalty should not be imposed him/her. When the Rules themselves prescribe the issue of show ca notice so as to provide reasonable opportunity to delinquent HG, breach thereof must lead to invalidation of the order of punishment impo by the Commandant. Therefore, we cannot find fault with the ord passed by the learned Tribunal which are subject matter of W.P.Nos.76 10704, 11595, 12585 and 21661 of 2011. These writ petitions a therefore, liable to be dismissed. Reasonable opportunity Whether issue of show cause notice calling upon the delinquent to submit explanation against penalty proposed to be imposed wo satisfy the principles of natural justice? We are afraid, it would n Though Rule 7(4) of the Rules speaks of issue of show cause notice o against the penalty proposed to be imposed, having regard to settled ru of interpretation we do not hesitate to hold that the show cause no contemplated under Rule 7(4) of the Rules must also spell out allegations/charges or contraventions levelled against the HG, proposed removal/dismissal. Such show cause notice may contain the imputati and the material which is the basis for them. As otherwise, mere issue show cause notice calling upon for the explanation against pen proposed would be futile, and unless and until the delinquent HG is aw of charges/imputations levelled against him, he cannot effectively put fo his case even for reduction of the punishment proposed. The principle legality is well settled. The Legislature never intends the enforcer of law or the executive to act arbitrarily or unreasonably. The Legislatur presumed never to have intended the decision maker to arrive at a decis in an unfair manner. It should be the endeavour of the Court to r adherence to fairness and compliance with the principles of natural jus in every action taken under the statute or otherwise unless and until statute itself specifically excludes the compliance with the rules of nat justice. In Dr.Rash Lal Yadav v State of Bihar[3] the validity of the orde removal of Chairman of the Bihar School Service Board constituted un the provisions of the Bihar Non-Government Secondary Schools (Tak over of Management and Control) Act, 1981, was considered. The H Court of Patna repelled the challenge rejecting the plea that principles natural justice are to be read into Section 10(7) of the State Act, wh empowered the Government to remove the Chairman/Member of Bo without the need to comply with the requirements of giving an opportu to show cause. The Supreme Court held that, “…unless the law expres or by necessary implication excludes the application of the rule of nat justice, courts will read the said requirement in enactments that are si and insist on its application even in cases of administrative action hav civil consequences”. The relevant observations are as follows The concept of natural justice is not a static one but is an ever expanding concept. In the initial stages it was thought that it had only two elements, namely, (i) no one shall be a judge, in his own cause and (ii) no one shall be condemned unheard. With the passage of time a third element was introduced, namely, of procedural reasonableness because the main objective of the requirement of rule of natural justice is to promote justice and prevent its miscarriage. Therefore, when the legislature confers power in the State Government to be exercised in certain circumstances or eventualities, it would be right to presume that the legislature intends that the said power be exercised in the manner envisaged by the statute. If the statute confers drastic powers it goes without saying that such powers must be exercised in a proper and fair manner. Drastic substantive laws can be suffered only if they are fairly and reasonably applied. In order to ensure fair and reasonable application of such laws courts have, over a period of time, devised rules of fair procedure to avoid arbitrary exercise of such powers. True it is, the rules of natural justice operate as checks on the freedom of administrative action and often prove time-consuming but that is the price one has to pay to ensure fairness in administrative action. And this fairness can be ensured by, adherence to the expanded notion of rule of natural justice. Therefore, where a statute confers wide powers on an administrative authority coupled with wide discretion, the possibility of its arbitrary use can be controlled of checked by insisting on their being exercised in a manner which can be said to be procedurally fair. Rules of natural justice are, therefore, devised for ensuring fairness and promoting satisfactory decision-making. Where the statute is silent and a contrary intention cannot be implied the requirement of the applicability of the rule of natural justice is read into it to ensure fairness and to protect the action from the charge of arbitrariness. Natural justice has thus secured a foothold to supplement enacted law by operating as an implied mandatory requirement thereby protecting it from the vice of arbitrariness. Courts presume this requirement in all its width as implied unless the enactment supplies indications to the contrary as in the present case. (emphasis supplied) Section 4(3) of the Act empowers the prescribed authority suspend, dismiss, remove any HG subject to such conditions as may prescribed. Rule 7(4) of the Rules contemplates a show cause notice o with regard to the penalty proposed to be imposed. No such show ca notice or prior opportunity is contemplated under the Act for the Ru before a HG is removed. But, having regard to the language used in R 7(4) of the Rules that the show cause notice should be to afford reasonable opportunity before passing an order of penalty, and hav regard to the ratio in Dr.Rash Lal Yadav we are inclined to read Rule 7 of the Rules as mandating a show cause notice containing charges/imputations or instances of misconduct so as to give a reasona opportunity to the delinquent HG to meet the charges and effectively pl defence for exoneration. A show cause notice merely indicating penalty to be imposed would not answer the test of fairness administrative action. Any notice calling upon to submit explanation o against penalty imposed would certainly not comply with the principles natural justice. An order of authority exercising judicial or quasi-judi functions passed in violation of principles of natural justice is procedur ultra vires and suffers from a jurisdictional error (Ravi S.Naik v San Bandekar[4]). Therefore, in all the cases only where a show cause no is issued as a post-decisional exercise and without a reasona opportunity to the delinquent HG at a pre-decisional stage would certa violate the principles of natural justice. In that view of the matter, in other group of writ petitions, we do not find any error in the orders learned Tribunal. Whether the issue of show cause notice contain charges/imputations and the instances of misconduct should be follow by an enquiry as contemplated under Article 311(2) of the Constitution India is an issue which was not argued before the Tribunal or before Therefore, we leave the question open to be decided in an appropr case. The decision in Dr.Harbhajan Singh Greasy does not support contention of the Government Pleader that the matter should have b remitted to the Commandant. It was a case where the delinquent Off was removed after a regular departmental enquiry. The High Court fo the enquiry to be defective, but directed the reinstatement of the delinqu Officer while setting aside the removal order. This was faulted by Supreme Court on the holding that when the enquiry was found to be fau it would not be proper to reinstate with consequential benefits and that matter requires to be remitted to the authority to follow the procedure which the fault was pointed out. In none of these cases any such enq was conducted, and therefore, we are not persuaded with the submissio Indisputably, the HGs are paid the honorarium (Rule 10 of the Rules) o for the period during which they discharge the duty. In all the matters, applicants were not detailed as HGs after their removal and therefore question of payment of wages would not arise. It is needless to men that as the orders of removal passed by the Commandant have been aside for violation of principles of natural justice, it is for the compet authority to take necessary action as deemed fit in law. We, however, not inclined to make any observations which may prejudice the parties. In view of this, the writ petitions, being W.P.Nos.28875, 29382 2010, and 5814, 7142, 13240 and 16969 of 2011 are also liable to dismissed. The writ petitions, with the above observations, stand dismis without any order as to costs. _____________ (V.V.S.RAO ________________ (K.G.SHANKAR 07.09.2011 Note: LR copy to be marked. B/o. vs [1] (1996) 9 SCC 322 [2] W.A.No.1005 of 1998, dated 25.12.2001 [3] (1994) 5 SCC 267 [4] AIR 1994 SC 1558