Davinder Singh & Ors vs State Of Punjab & Ors

2) The appellants have come before this Court, being aggrieved by the judgment and order passed by the High Court of Punjab and 1 Haryana at Chandigarh dated 11.09.2006 in CWP No. 5142/2005 and CWP No. 5144/2005. Both the appeals involve identical questions of law and 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 Rs.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 2 of State of Gujarat Vs. Akshay Amrutlal Thakkar (2006) 2 SCC

(23)It is, therefore, necessary to consider whether Order No. E//285 dated 02.12.2004 passed by the respondents is one without authority of law and whether the said order suffers from any other legal infirmities. (24)The order of termination served on the appellants reads :

(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.

(32)Even without going into the question whether the appellants are eligible for the protection under Article 311 of the Constitution, in our view, the respondents seem to have acted in an arbitrary manner by terminating the services of the appellants, who have been working as Home Guards for the last 15-17 years. They are all over-aged. They may find it difficult to find alternate employment. Therefore, in the facts and circumstances of this case and in the interest of justice, we deem it proper to set aside the order of termination passed 1 by the respondents dated 02.12.2004 and direct the respondents to reinstate the appellants as Home Guards without back wages. (33) Before parting with the case, we should also notice the minor issue raised by learned senior counsel for respondents. It is submitted that the appellants without exhausting the appeal remedy provided under rule 27(3) of 1963 rules could not have approached the High Court under Article 226 of the Constitution, inter-alia, requesting the High Court to quash the order passed by respondents dated 02.12.2004. We do not find any merit in their submission, for the reason that this issue was not raised nor argued before the High Court and, therefore, we will not permit this issue to be raised for the first time before us. It is also argued that para 14.4 of compendium of instructions on Home Guards authorizes the Commandant General or the Commandant to discharge a Home Guard at any time, if in his opinion, the services of the Home Guard are no longer required. These instructions are reiteration of Rule 18 of the Rules. We have already dealt with these rules. Therefore, repetition of our reasoning once over again may not be necessary.

2 (34) For the reasons stated, we allow these appeals and set aside the impugned judgment. We direct the respondents to reinstate the appellants within four weeks' time from today without back wages. No order as to costs.