Gujarat High Court
Jadeja Devubha Dipsinji vs State Of Gujarat & 4 on 1 December, 2016
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/18534/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18534 of 2016
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JADEJA DEVUBHA DIPSINJI....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR VIJAY H NANGESH, ADVOCATE for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 01/12/2016
ORAL ORDER
1. This is a petition by the petitioner under Article 226 of the Constitution of India, seeking to challenge the order passed by Respondent No.5-Office of Commandant General Home Guards, Gujarat State, Ahmedabad, Dated:
28.01.2008, so also the order passed by Respondent No.2 dated 20.06.2016.
2. The brief facts of the case are that the petitioner came to be appointed on the post of Home Guard / Border Battalion Commandant No.4, Border Wing, Nalika-Kachchh under Bombay Home Guards Act, 1947. The petitioner continued to discharge his duties till 2005, when his services came to be terminated for the first time. However, later on, he was reinstated. It appears that Respondent No.4 vide order dated 28.01.2008 Page 1 of 20 HC-NIC Page 1 of 21 Created On Sat Nov 04 00:27:35 IST 2017 1 of 21 C/SCA/18534/2016 ORDER canceled the appointment order of the petitioner without affording an opportunity of hearing. The petitioner, therefore, preferred an appeal before Respondent No.3 against the order 28.01.2008 under Section 6-B(3) of the Bombay Home Guards Act, 1947. Pursuant thereto, Respondent No.5 vide order dated 02.02.2011 rejected the appeal of the petitioner. Being aggrieved with the same, the petitioner filed a revision application before Respondent No.2 against the order passed by Respondent No.5, who in turn rejected the same vide order dated 20.06.2016. Hence, the present petition seeking following reliefs:
"8. ...
(A) Your Lordships be pleased to admit this petition.
(B) Your Lordships be pleased to quash and set aside the impugned order passed by respondent no.4 dated 28-1-2008 and order passed by respondent no.5, Office of Commandant General Home Guards, Gujarat State, Ahmedabad dated 02.02.2011 and order passed by respondent no.2 dated 20.06.2016 and also be pleased to direct the Respondents authority to reinstate the petitioner with all consequential benefits in the interest of justice.
(C) Pending, admission and final hearing of this petition, Your Lordships be pleased to stay the execution, implementation and Page 2 of 20 HC-NIC Page 2 of 21 Created On Sat Nov 04 00:27:35 IST 2017
2 of 21 C/SCA/18534/2016 ORDER operation of the impugned order passed by respondent no.4 dated 21.08.2008 and order passed by respondent no.5, Office of Commandant General Home Guards, Gujarat State, Ahmedabad dated 02.02.2011 and order passed by respondent no.2 dated 20.06.2016 and also be pleased to direct the Respondents authority to reinstate the petitioner with all consequential benefits in the interest of justice.
(D) ..."
3. This Court in case of the similarly
situated persons being Special Civil Application No.17025 of 2015 and the allied matters, observed and held as under:
"10. This Court has heard learned advocate Mr. Vijay Nangesh for the petitioners, who has urged that initially when the petitioners were discharged from service, it was on account of their long absenteeism. However, thereafter, the Battalion Commandant in the year 2009 had taken back the petitioners in service and they continued to serve for some time. Therefore, to terminate their services without affording any opportunity surely is a breach of principles of natural justice and the Court needs to interfere with.
11. As against that, the learned Assistant Government Pleader has Page 3 of 20 HC-NIC Page 3 of 21 Created On Sat Nov 04 00:27:35 IST 2017 3 of 21 C/SCA/18534/2016 ORDER urged that when the Battalion Commandant had no authority nor any business or jurisdiction to once again take the petitioners into service, his illegal act cannot confer any right upon the petitioners.
12. From the submission of both the sides and the material on record, it emerges that the petitioners had been appointed as a part-time Home Guards at Battalion Boarder Wing Home Guard No.4 in 2002 and continued to remain absent. Their services came to be terminated in the year 2005 on the respective dates so far as mentioned in the table hereinabove. The Home Guard was originally raised to avail protection to citizens in any kind of Emergency. It serves as Auxiliary to the police and helps maintaining internal security. The Border Wing of 18 Battalions assists the Border Security Force also.
13. In similar such cases the Battalion Commandant had reinstated the present petitioners on different dates as mentioned in the tabular form for the respective petitioners which when realized by the Commandant General, the order came to be cancelled.
14. It is quite apparent from the record that initially the petitioners served for a very short duration and long absence of theirs resulted into issuance Page 4 of 20 HC-NIC Page 4 of 21 Created On Sat Nov 04 00:27:35 IST 2017 4 of 21 C/SCA/18534/2016 ORDER of notice by the respondent authority exercising the powers under sub-section (1A) of section 6B of Act. The Commandant General exercised the powers and discharged the petitioners as the member of home guards as he was of the opinion that the service of theirs were no longer required.
15. It could be noticed that the Commandant General or the State Government under section 6B(4) at any time has power to call for and examine the record of any order passed by the Commandant or Commandant General, respectively, under sub-section(1) or (1A) for the purpose of satisfying himself or itself as to the legality or propriety of such order passed by the Commandant or Commandant General.
16. When the Commandant or the Commandant General exercise the powers under sub-section(1) or section (1A), there is no express power for the Commandant to reinstate those persons who have been already discharged in exercise of powers given under sub-section (1A) of section 6B of the Act. Therefore, the exercise of supervisory or appellate powers by the Commandant General or the State Government as the case may be under sub-section (4) of section 6B of the Home Guards Act would have no applicability. Neither side has been in a position to point out to this Court any such Page 5 of 20 HC-NIC Page 5 of 21 Created On Sat Nov 04 00:27:35 IST 2017 5 of 21 C/SCA/18534/2016 ORDER powers vested with the Battalion Commandant for reinstating the home guards or the employees who have been already discharged by virtue of the exercise of statutory powers. However, the fact remains that by a specific order passed somewhere in April, 2009 the petitioners are reinstated and they continued to discharge their duties till the order impugned came to be passed. Possibility cannot be ruled out that after the Court directed the home guards availing of all benefits to the persons working as home guards. Suddenly, the job had interested the petitioners.
17. Be that as it may, for nearly about 6 to 8 months, all the petitioners have worked with the very institution and it is alleged that without putting anything to their notice, unceremoniously all the petitioners have been terminated for the second time.
18. The challenge was never made to the first decision by the petitioners before any authorities. However, when the second time order of termination came in the year 2009, the challenge has been made before both the authorities which have dealt with essentially the issue of first termination by holding that they were terminated by giving of notice as the services were no longer required in the opinion of the Battalion Page 6 of 20 HC-NIC Page 6 of 21 Created On Sat Nov 04 00:27:35 IST 2017 6 of 21 C/SCA/18534/2016 ORDER Commandant but none of the authorities has dealt with the issue explaining giving of a notice at the time of second termination. This in the opinion of this Court is an area which remains completely unaddressed.
19. It is the say of the petitioners that the Appeal before the Commandant General so also before the State Government was well within time. As the said Appeal was not heard expeditiously, the petitioners needed to approach this Court and pursuant to the direction, the same came to be decided in the year 2013. So far the office of Director General is concerned and in case of Secretary, Home Department, the order came to be passed on 29.07.2015.
20. The Commandant is defined under Sub-rule (2) of Rule 2 of the Bombay Home Guards Rules, 1953. It meant the Commandant of Home Guards appointed under Section 2 of the Act. In sub- rule (3) of Rule 2, Commandant General is defined which also means the Commandant General appointed under Section 2 of the Bombay Home Guards Act. The appointment of member of Home Guards and the certificate which appointed person as a member of Home Guards receives in Form-C as per details provided in these provisions.
21. Noticing Sections 2 and 3 of the Home Guards Act, 1947 which Page 7 of 20 HC-NIC Page 7 of 21 Created On Sat Nov 04 00:27:35 IST 2017 7 of 21 C/SCA/18534/2016 ORDER provide for Constitution of Home Guards and appointment of Commandant General and Commandant and appointment of members of the Home Guards, for better appreciation, provisions are reproduced hereinunder.
2. (1) The State Government shall constitute for each of the areas specified in sub-
section(3) of section 1 and for each of the ears notified under the said sub-section(3) a volunteer body called the Home Guards, the members of which shall discharge such functions and duties in relation to the protection of persons, the security of property, the public safety and the maintenance of essential Services as may be assigned to them in accordance with the provisions of this act and the rules made there under.
(1A) In respect of the Saurashtra area and the Vidarbha region, the Home Guards raised or constituted,immediately before the commencement of the Bombay Home Guards (Extension and Amendment) Act, 1958, shall be deemed to be constituted under sub-section (2) The State Government shall appoint a Commandant of each of the Home Guards constituted under sub-section (1).
(3) The State Government shall also appoint a Commandant General of the Home Guards in Page 8 of 20 HC-NIC Page 8 of 21 Created On Sat Nov 04 00:27:35 IST 2017 8 of 21 C/SCA/18534/2016 ORDER whom shall vest the general supervision and control of the Home Guards throughout the State of Gujarat.
3.(1) Subject to the approval of the Commandant General, the Commandant may appoint as members of the Home Guards such number of persons, who are fit and willing to serve, as may from time to time be determined by the State Government, and may appoint any such member to any office of command in the Home Guards.
(2) Notwithstanding anything contained in sub-section (1) the Commandant General may, subject to the approval of the State Government, appoint any such member to any post under his immediate control.
(3) Every person who immediately before the commencement of the Bombay Home Guards (Extension and Amendment) Act, 1958 was a member of the Home Guards raised or constituted under the Central Provinces and Berar Home Guards Act, 1947, or the State of Saurashtra Home Guards- Ordinance, 1948, shall be deemed to be appointed under this section and the certificate of appointment and uniform issued to him shall be valid accordingly.
4. (1) The Commandant may at any time call out a member of the Home Guards for training or to Page 9 of 20 HC-NIC Page 9 of 21 Created On Sat Nov 04 00:27:35 IST 2017 9 of 21 C/SCA/18534/2016 ORDER discharge any of the functions or duties assigned to the Home Guards in accordance with the provisions of this Act and the rules made thereunder.
(2) The Commandant General may in an emergency call out a member of the Home Guards for training or to discharge any of the said functions or duties in any part of the 14[ State of Gujarat.
5. (1) A member of the Home Guards when called out under section 4 shall have the same powers, privileges and protection as an officer of police appointed under any Act for the time being in force.
(2) No prosecution shall be instituted against a member of the Home Guards in respect of anything done or purporting to be done by him in the discharge of this functions or duties as such member except with the previous sanction of the Commissioner of Police in any area for which a Commissioner of Police has been appointed and of the District Magistrate, elsewhere.
6. The members of the Home Guards when called out under section 4 in aid of the police force shall be under the control of the officers of the police force in such manner and to such extent as may be prescribed by rules' made under section 8.
Page 10 of 20HC-NIC Page 10 of 21 Created On Sat Nov 04 00:27:35 IST 2017 10 of 21 C/SCA/18534/2016 ORDER 6A. (1) Every person who for any reason ceases to be a member of the Home Guards shall forth with deliver upto the Commandant or to such person and at such place as the Commandant may direct, his certificate of appointment or of office and the arms, accoutrements, clothing and other necessaries which have been furnished to him as such member.
(2) Any Magistrate, and for special reasons which shall be recorded in writing at the time, any police officer not below the rank of a Deputy Commissioner for Police in any area for which a Commissioner of Police has been appointed and Assistant or Deputy Superintendent of Police elsewhere, may issue a warrant to search for and seize, wherever they may be found, any certificate, arms, accouterments, clothing or other necessaries not so delivered up. Every warrant so issued shall be executed in accordance with the provisions of the Code of Criminal Procedure, 1898, by a police officer of if the Magistrate or the police officer issuing the warrant so directs by any other person.
(3) Nothing in this section shall be deemed to apply to any article which under the orders of the Commandant General has become the property of the person to whom the same was Page 11 of 20 HC-NIC Page 11 of 21 Created On Sat Nov 04 00:27:35 IST 2017 11 of 21 C/SCA/18534/2016 ORDER furnished.
6B. (1) The Commandant shall have the authority to suspend, reduce or dismiss or fine, to an amount not exceeding fifty rupees, any member of the Home Guards, under his control, if such member, without reasonable cause, on being called out under section 4 neglects or refuses to obey such order or to discharge his functions and duties as a member of Home Guards or to obey any lawful order or direction given to him for the performance of his functions and duties or is guilty of any breach of discipline or misconduct. The Commandant shall also have the authority to dismiss any member of the Home Guards on the ground of conduct which has led to his conviction on a criminal charge. The Commandant General shall have the like authority in respect of any member of the Home Guards appointed to a post under his immediate control.
(1A) Notwithstanding anything contained in this Act, the Commandant shall have the authority to discharge any member of the Home Guards at any time subject to such conditions as may be prescribed if, in the opinion of the Commandant, the services of such members are no longer required. The Commandant General shall have the like authority in respect of any member of the Home Guards appointed to a post under his immediate control.
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2.When the Commandant General or the Commandant passes an order for suspending, reducing, dismissing or fining any member of the Home Guards under sub- section (1), he shall record such order or cause the same to be recorded, together with the reasons therefore and a note of the inquiry made, in writing, and no such order shall be passed by the Commandant General or the Commandant unless the person concerned is given an opportunity to be heard in his defence.
3.Any member of the Home Guards aggrieved by an order of the Commandant may appeal against such order to the Commandant General and any such member aggrieved by an order of the Commandant General may appeal against such order to the State Government, within thirty days of the date on which he was served with notice of such order. The Commandant General or the State Government, as the case may be, may pass such order as he or it thinks fit.
4.The Commandant General or the State Government may at any time call for and examine the record of any order passed by the Commandant or Commandant General, respectively, under sub-section (1) or (1A) for the purpose of satisfying himself or itself as to the legality or propriety of such order passed by the Commandant or the Page 13 of 20 HC-NIC Page 13 of 21 Created On Sat Nov 04 00:27:35 IST 2017 13 of 21 C/SCA/18534/2016 ORDER Commandant General, as the case may be, and may pass such order with reference thereto as he or it thinks fit.
(5) Every order if no appeal is made therefrom as hereinbefore provided and every order passed in appeal or revision under this section shall be final.
(6) Any fine imposed under this section may be recovered in the manner provided by the Code of Criminal Procedure, 1898, for the recovery of fines imposed by a Court as if such fine were imposed by a Court.
(7) Any punishment inflicted on a member of the Home Guards under this section shall be in addition to the penalty to which such member is liable under section 7 or any other law for the time being in force.
The Bombay Home Guards Rules, 1953 provides for appointment of member of Home Guards. For ready reference, the same is hereinbelow:-
3. Appointment of member of Home Guards.-(1) No person shall be appointed as a member of the Home Guards:
(a) unless he has attained the age of 18 years and has not completed the age of 50 years;-
(b) unless he has passed at least the fourth standard examination in any language;
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(c) unless he has been medically examined in accordance with the directions of the Commandant General and is in the opinion of the Commandant physically fit:
Provided that the Commandant General may relax the conditions regarding the age or educational qualifications prescribed in clauses (a) and (b) above in suitable cases:
Provided further that the State Government may direct that in respect of any area the educational qualifications for appointment as a member to the Home Guards shall be such as it deems fit.
xxx xxx xxx xxx xxx xxx
6.Pledge.- Every person before his appointment as a member shall sign a pledge in Form-B before the Commandant or an officer authorised by him for the purpose.
7.Certificate.- Every person appointed as a member of the Home Guards shall receive a certificate of appointment in Form-C.
22. It is quite apparent from the provisions and the rules reproduced above that subject to the approval of Commandant General, the Commandant is authorised to appoint as members of Home Guards such number of persons, who are fit and willing to serve as may from time to time be determined by the State Government and, he may appoint any such member to any office of Page 15 of 20 HC-NIC Page 15 of 21 Created On Sat Nov 04 00:27:35 IST 2017
15 of 21 C/SCA/18534/2016 ORDER commandant in the Home Guards subject to the approval of the State Government the Commandant General may appoint any such member on any post on his immediate control. Therefore, once the Commandant is required to appoint as members of the Home Guards any person who is fit and willing to serve the same shall have to be subject to the approval of the Commandant General. The members shall be determined by the State Government and therefore, the Commandant has no power to independently appoint anyone without the approval of the Commandant General. The qualifications for appointment of a member of Home Guards are prescribed under Rule 3 of the Home Guards Rules and every person before his appointment is required to be sign a pledge in Form B before the Commandant or an officer authorised by him for that purpose and such person also would receive certificate of appointment in Form C. Compliance of none of these requisite mandatory aspects come forth before this Court. The very basic requirement of seeking approval of the Commandant General, who also in turn is bound by the State Governments approval, is missing on the record, and therefore, any challenge of ending the appointment which ab initio was not on following the procedure of law, could not be held sustainable.
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23.It can be emphasized that after once the first order of the termination came somewhere in the year 2005 in cases of most of the petitioners, there was complete silence on their part and in the year 2009, as in case of one of the petitioners when the direction had been issued by this Court, not in his case but in cases of others, the Commandant, on considering the willingness of the petitioners, had appointed them once again.
However, they were to be
appointed subject to the
approval of the Commandant
General. No certificate as
provided under Rule 7 would be prepared unless there is appointment of a person. As rightly pointed out by learned advocate for the petitioner that first time when the petitioners were appointed, they had been issued certificate under Rule 7 of the Home Guards Rules, however, there is no such certificate issued the second time since such approval never came from the Commandant General. The communication which is impugned in these matters was issued to the petitioners as the Commandant General had not approved action of the Commandant. In fact, it is submitted by learned Assistant Government Pleader that concerned Commandant is facing departmental proceedings for directly appointing the persons in the month of April, 2009 Page 17 of 20 HC-NIC Page 17 of 21 Created On Sat Nov 04 00:27:35 IST 2017 17 of 21 C/SCA/18534/2016 ORDER without seeking the approval of the Commandant General.
24.Thus, the action on the part of the Commandant of appointing persons straight away without approval of the Commandant General as provided in Section 3 and in absence of any certificate as otherwise required for being the members of Home Guards, the appointment itself cannot be said to be legal. It is the fact that both the authorities i.e. Commandant General and the Secretary, Home Department have made reference of the termination which had been made in the year 2004-05 and they have not touched upon reappointment of theses members and its non-approval by the Commandant General in the month of December, 2009. To that extent, learned advocate for the petitioners is right that the orders of both the authorities speak of ending the service the first time and have chosen to deal with the appointment second time. Commandant did exceed his brief and straightway gave appointment to the petitioners who were then discharged from the services by order of December, 2009 without any individual communication. Of course, the communication impugned herein mentions the intimation through the Registered Post A.D. and as each of the petitioners had preferred appeal before the Commandant General question of delay has Page 18 of 20 HC-NIC Page 18 of 21 Created On Sat Nov 04 00:27:35 IST 2017 18 of 21 C/SCA/18534/2016 ORDER not occurred. It is to be believed that communication through the RPAD had reached each petitioner well within time.
25.It is apt to mention at this stage that so far as the order of discharge in the first attempt is concerned, challenge had been made belatedly for having been made in the year 2009. The notices had been duly served upon the petitioners while determining them in the year 2004-05 to which they never replied when the Commandant had exercised his powers as provided under Section 6B(1A) under the Bombay Home Guards Act, 1947. This Court also while deciding Special Civil Application No.6781 of 2014 and allied matters had in detail discussed this aspect so far as the discharge from the service for the first time is concerned. SO far the action of December, 2009 is concerned, the petitioners have exhausted the alternative efficacious remedy, there would not be any requirement for Court to relegate them to the said authority once again only on the ground that some of the legal aspects though argued have not been touched by the authorities as discussed hereinabove. In essence, no purpose is likely to be served relegating them to the authority concerned merely because both the authorities chose not to touch the aspect of termination in the year 2009.
Page 19 of 20HC-NIC Page 19 of 21 Created On Sat Nov 04 00:27:35 IST 2017 19 of 21 C/SCA/18534/2016 ORDER Order which was ab initio untenable and void for having been passed by the officer who had no authority, cannot lend any right to the petitioners for challenging once again the very issue.
This Court, not having found any merit in the case of the petitioners, deems it appropriate not to entertain these petitions.
26.For the above reasons, these petitions are dismissed."
4. Applying the ratio laid down by this Court in case of similarly situated persons in Special Civil Application No.17025 of 2015 and the allied matters, this petition shall not survive and it is also DISMISSED, accordingly.
(MS SONIA GOKANI, J.) UMESH Page 20 of 20 HC-NIC Page 20 of 21 Created On Sat Nov 04 00:27:35 IST 2017 20 of 21 C/SCA/18534/2016 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 18534 of 2016 [On note for speaking to minutes of order dated 01/12/2016 in C/SCA/18534/2016 ] ========================================================== JADEJA DEVUBHA DIPSINJI....Petitioner(s) Versus STATE OF GUJARAT & 4....Respondent(s) ========================================================== Appearance:
MR VIJAY H NANGESH, ADVOCATE for the Petitioner(s) No. 1 ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1 MS ASMITA PATEL, AGP for the Respondent (s) No.1 ========================================================== CORAM: HONOURABLE MS JUSTICE SONIA GOKANI Date : 03/11/2017 ORAL ORDER Inadvertently, name of the learned Assistant Government Pleader, Ms.Asmita Patel is missed out in the cause title of the order dated 01/12/2016 her name be added.
Note for speaking to minutes stands disposed of accordingly.
(MS SONIA GOKANI, J.) MIRZA Page 1 of 1 HC-NIC Page 21 of 21 Created On Sat Nov 04 00:27:35 IST 2017
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