IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.11.2011 Coram: THE HONOURABLE MR. JUSTICE T.S.SIVAGNANAM Writ Petition No.14349 of 2009 Mr.N.Ramasamy .. Petitioner versus 1.The Superintendent of Police, District Police Office, Nagapattinam. 2.The Inspector General of Police, Chennai – 600 004. .. Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus to call for the records of the second respondent pertaining to his proceedings in Na.Ka.A2/3549/HG/2007 dated 28.12.2007, confirming the order of the first respondent in his proceedings No.Ma.AA.No.696/07 -Na.Ka.No.E1/8272 of 2007 dated 28.08.2008, and to quash the same and to direct the second respondent to reinstate the petitioner in service with continuity and all attendant benefits. For Petitioner : Mr.R.Kannan For Respondents : Mr.R.Lakshmi Narayanan Govt. Advocate O R D E R The prayer in the Writ Petition is to issue a Writ of Certiorarified Mandamus, to quash the order dated 28.12.2007 passed by the second respondent, as confirmed by the first respondent, by order dated 28.08.2008, and to direct the second respondent to reinstate the petitioner as Homeguard. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner was appointed as a Homeguard, by order dated 18.04.2002, and such an appointment was for a period of three years. The services of a Homeguard is absolutely voluntary and no salary is paid and whenever they are called for duty, the callout charge of Rs.45/- per call is paid and it is not a full time, but a part-time service. 3. It appears that the petitioner had misbehaved with other women Homeguards, by taunting them and passing unnecessary comments during the period of their training, which resulted in services being disengaged by order dated 03.05.2006. Aggrieved the same, the petitioner filed a Writ Petition, being W.P.No.29362 of 2006 and this Court, by order dated 30.08.2006, without going into the merits of the petitioner's case, directed the Authorities to consider the petitioner's Appeal petition and pass appropriate orders, after affording an opportunity to the petitioner. Thereafter, by proceedings dated 23.02.2007, the petitioner was taken back into the Homeguard service. The term of appointment of such Homeguard being for a period of three years, the Area Commander, by order dated 28.08.2007, did not extend his service, whereas, he discharged him. Against the order, the petitioner preferred an Appeal to the second respondent, which came to be rejected by order dated 28.08.2008. Challenging the said order, the petitioner has preferred this Writ Petition. 4. The learned counsel appearing for the petitioner contented that the order of removal of the petitioner from the service as Homeguard is in violation of principles of natural justice and no opportunity was given to the petitioner and he was discharged, based on certain allegations, which cast a stigma on the petitioner and discharging the petitioner from service, without conducting any enquiry is illegal and therefore, the orders impugned are liable to be set aside. 5. The learned Government Advocate, by relying upon the counter affidavit filed by the first respondent submitted that the petitioner was discharged, since the Authority did not extend his service and no stigma is caused to the petitioner. In any event, only after a proper enquiry was conducted, the order of removal was passed and there is no violation of principles of natural justice, as alleged by the petitioner and the order impugned is perfectly valid and legal. The Government Advocate also produced the original files relating to the petitioner. 6. Heard the learned counsel for the parties and perused the materials available on record, including the original file. https://hcservices.ecourts.gov.in/hcservices/ 7. It is seen that the Homeguard's have been constituted as a Force to assist the Police Personnel, as and when need arises, more particularly, during Festival Seasons, when there is a large congregation of people. The services of a Homeguard are regulated in terms of The Tamil Nadu Home Guard Rules, 1983 and the rules framed therein. From the Scheme of the Act, it is patently evident that the services of a Homeguard are purely on a voluntary basis and no salary is paid to the Homeguard, except for a remuneration of Rs.45/- termed as “call duty charge” payable, whenever, they are requested to be present. It is needless to state that the nature of duties assigned to a Homeguard, being in the nature of disciplined force, it is expected that such Homeguards conduct themselves in a manner, which imposes confidence in the public and to treat a Homeguard as a friend of the public. 8. In other words, a person volunteers to be a Homeguard with an object to serve the people, when they are directed to be present by the Police Authorities. It is a common knowledge that such Homeguard's are seen in busy areas, guiding and succoring the people, regulating the public and such other matters. Considering the nature of duties and responsibilities assigned to such a voluntary service, it can hardly be stated that a Homeguard is a civil servant. If such interpretation is given, then, the same would be in direct conflict with the object of the Homeguard Act. However, the past conduct of the petitioner appears to be not appreciable. There were charges against the petitioner of abusing and ill-treating women Homeguards by using un-parliamentary language and such other very unpalatable allegations against the petitioner. This lead to the petitioner being discharged from the service of Homeguard by order dated 03.05.2006. 9. The petitioner filed an Appeal against such order and thereafter, approached this Court and filed a Writ Petition being W.P.No.29362 of 2006, challenging his order of discharge. This Court, did not consider the merits of the petitioner's case, but, disposed of the Writ Petition by order dated 31.8.2006, directing the Authorities to consider the petitioner's Appeal Petition. Though, there was no positive direction given by this Court, yet, the respondents in their discretion, onceagain, engaged his services. Thereafter, the respondents appear to have received further complaints against the petitioner, which were similar to the complaints, which were made against him earlier. The original files discloses that certain statements were recorded and the first respondent, after taking note of the allegations, decided not to extend the services of the petitioner, since the period of his initial engagement was coming to an end. Accordingly, the services of the petitioner was not extended and the same was communicated to the petitioner on 28.12.2007. https://hcservices.ecourts.gov.in/hcservices/ 10. The petitioner appears to have filed an Appeal to the second respondent and the second respondent, after taking note of the recommendations made by the Commandment, passed an order that the services of the petitioner need not be continued further, he, having completed a period of three years. Thus, it is evident that no stigma has been attributed by virtue of the impugned order and it is not an order of removal, as stated by the petitioner. The Competent Authority, based on the recommendations of the Commandment, took a decision not to extend the service of the petitioner, after the initial period of three years. Admittedly, the terms of engagement of the petitioner was for a period of three years. Therefore, there is no vested right to the petitioner to claim that the respondents are bound to continue his services further. As already pointed out, the engagement of the petitioner as a Homeguard is purely on voluntary basis. Moreover, he in not holding a civil post and therefore, the question of applying the principles of Article 311 of the Constitution of India does not arise. The plea raised by the petitioner in this regard is wholly misconceived. 11. The learned counsel appearing for the petitioner submitted that no enquiry was conducted, before the petitioner was discharged from service. 12. Firstly, the question of conducting any enquiry does not arise, moreso, when the petitioner has been engaged purely on a voluntary basis and the payment given, whenever his services are engaged is in the nature of honorarium and not a salary. That apart, no stigma can be said to have been attributed against the petitioner by virtue of the impugned orders, when the ultimate direction is not to continue his services. 13.Admittedly, his engagement as the member of the Homeguard is subject to the opinion of the Commissioner of Police of the City or the Superintendent of the Police in a District, as a suitable member of the Homeguard 14. This Court, will not be justified in assessing as to whether in the opinion of the Superintendent of Police, the petitioner was found to be suitable or unsuitable for extension of his period of engagement in service. This opinion of the Superintendent of Police is based on his subjective satisfaction, which should not be gone into in a Writ Petition, moreso, when in the opinion of the Superintendent of Police, the petitioner was not found suitable for further extension. Even in the counter affidavit, it has been admitted that no stigma has been caused on the petitioner, by virtue of the impugned proceedings. https://hcservices.ecourts.gov.in/hcservices/ 15.Further, under the Tamil Nadu Home Guard Rules, 1963, there is no requirement for disclosing the grounds of discharge and if the same is compelled to be disclosed, it may not be in the interest of the public. 16. For all the above reasons, it is held that the petitioner has not made out any case for interference and accordingly, the Writ Petition fails and the same is dismissed. However, there shall be no order as to costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar sd To 1)The Superintendent of Police, District Police Office, Nagapattinam. 2)The Inspector General of Police, Chennai – 600 004. Writ Petition No.14349 of 2009 DM(CO) EU 21.12.11 https://hcservices.ecourts.gov.in/hcservices/