Allahabad High Court
Hriday Narayan Yadav vs State Of U.P. And 02 Others on 9 December, 2020
Author: Shekhar Kumar Yadav
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 75 Case :- WRIT - A No. - 19141 of 2019 Petitioner :- Hriday Narayan Yadav Respondent :- State Of U.P. And 02 Others Counsel for Petitioner :- Shailesh Verma Counsel for Respondent :- C.S.C. CONNECTED WITH Case :- WRIT - A No. - 21089 of 2019 Petitioner :- Mahendra Tiwari @ Mahendra Prasad Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shailesh Verma Counsel for Respondent :- C.S.C. AND Case :- WRIT - A No. - 21101 of 2019 Petitioner :- Vishok Kumar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shailesh Verma Counsel for Respondent :- C.S.C. AND Case :- WRIT - A No. - 19140 of 2019 Petitioner :- Rajendra Prasad Respondent :- State Of U.P. And 02 Others Counsel for Petitioner :- Shailesh Verma Counsel for Respondent :- C.S.C. AND Case :- WRIT - A No. - 19148 of 2019 Petitioner :- Raja Ram Respondent :- State Of U.P. And 02 Others Counsel for Petitioner :- Shailesh Verma Counsel for Respondent :- C.S.C. AND Case :- WRIT - A No. - 19150 of 2019 Petitioner :- Ram Bali Respondent :- State Of U.P. And 02 Others Counsel for Petitioner :- Shailesh Verma Counsel for Respondent :- C.S.C. AND Case :- WRIT - A No. - 145 of 2020 Petitioner :- Ram Awadh Yadav Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shailesh Verma Counsel for Respondent :- C.S.C. Hon'ble Shekhar Kumar Yadav,J.
1. Since in all these writ petitions, similar reliefs have been prayed, hence they are being decided by a common order.
2. The facts of WRIT - A No. - 19141 of 2019 (Hriday Narayan Yadav Vs. State Of U.P. And 02 Others) is taken as leading case to decide the controversy.
3. The petitioner has instituted this writ petition for issuance of writ of certiorari for quashing the order dated 18.11.2019, whereby his engagement has been dispensed with by respondent no. 3, District Commandant of Home Guards, Sonebhadra as well as the Government Order dated 21.08.2012 passed by respondent no. 2.
4. The brief facts of the case are that petitioner is alleged to be appointed as Home Guard under the provisions of UP Home Guards Act, 1963. He was served a show cause notice regarding his involvement in criminal case, wherein after investigation the Investigating Officer has submitted charge sheet. The petitioner was called upon to submit his reply within 15 days. The petitioner has submitted his reply wherein he has not denied the pendency of any criminal case against him and has stated that he has been falsely implicated. After considering the reply submitted by the petitioner, the impugned order has been passed dispensing the services of the petitioner on the ground of the pendency of the criminal case against him.
5. It is contended by learned counsel for the petitioners that service of the petitioner could not be terminated due to mere filing of a charge sheet as that by itself is not enough to remove or disengage an employee unless the underlying conduct that has led to registration of a criminal case is considered. It is also contended that the services of petitioner could not have been dispensed with by the impugned order in the manner it has been done without holding any enquiry into the allegations against him. It is further submitted that private dispute giving rise to criminal case cannot be made subject matter of departmental proceedings as it would not amount to misconduct. He contends that a full fledged enquiry was required in the matter.
6. He has placed reliance on the case of Arun Kumar Shukla Vs State of UP and others, 2018 2 ADJ 353, to contend that a Government employee cannot be dismissed, removed or reduced in rank merely on the ground that he has been convicted by a court of law.
7. A counter affidavit has been filed on behalf of the respondents. It is stated therein that under the Circular issued by the respondent no. 2 i.e. Headquarters of Home Guards, Uttar Pradesh, Lucknow dated 02.09.2013, which is Annexure No. 4 to the counter affidavit, in which conditions have been mentioned as to on which grounds the action can be taken against the conduct of the Home Guards. One of the grounds mentioned for dispensing the services is the pendency of the criminal case, wherein the involvement of the petitioner is prima-facie clear. It has further been stated that as criminal case is pending against the petitioner, the impugned order of termination has been passed under the provisions of Section 12(1) of the Home Guards Act, 1963.
8. Learned Standing Counsel for the State submits that in view of the circular letters dated 21.08.2012, 2.9.2013 and 30.102.2019, the termination of the petitioner is justified. It is further submitted that the services of the petitioner was purely on temporary basis, which came to be terminated on the ground of unsuitability and the same being the discharge simplicitor and certainly not by way of penalty, it was not necessary to afford any opportunity to the petitioner before passing any order of termination against him. He also contends that there is no statutory Rules regarding the holding of an enquiry into allegations levelled against the petitioner, before dispensing with his service. He also contends that Home Guards are volunteers and do not hold any civil post under the State. It is further submitted that since the petitioner is not a regular government employee, therefore, the judgement [Arun Kumar Shukla(supra)] relied upon by the petitioner is of no application in the case of the petitioner.
9. I have considered the rival submissions and perused the record.
10. Admittedly, criminal case is pending against the petitioner and this fact has not been denied by the petitioner. Thus, there is no dispute regarding the pendency of the criminal case.
11. Perusal of circular dated 2.9.2013 issued by the Headquarters of Home Guards, Uttar Pradesh for taking disciplinary action against the Home Guards, referring the earlier circular dated 02.11.2007, whereby some amendments have been made, clearly mentions the following grounds on which the action against the Home Guards can be taken. The circular is as under:-
"gksexkM~Zl eq[;ky; ds ifji= la[;k % 3890@LFkk0@,d&796@ 2006] fnukad 02-11-2007 esa fn;s x;s funsZ'kksa esa vkaf'kd la'kks/ku djrs gq, fuEufyf[kr vkns'k ikfjr fd;s tkrs gSa & 1& fu"dklu dh dk;Zokgh fuEufyf[kr ifjfLFkfr;ksa esa gh dh tk;sxh %& ¼d½ vuq'kklughurkA ¼[k½ xSj ekU;rkizkIr ,lksfl,'ku dh xfrfof/k;ksa ;Fkk&/kjkuk&izn'kZu bR;kfn esa lafyIrrkA ¼x½ vokWNuh; xfrfof/k;kaA ¼?k½ 'kkjhfjd v{kerk@viaxrk ¼ esfMdy izek.k i= ds vk/kkj ij½ ¼³½ uSfrd v/kerkA ¼p½ M~;wVh ij e|iku lsouA ¼N½ vkijkf/kd ekeyksa esa lafyIrrk ¼vkijkf/kd ekeyksa esa vfHk;ksx iathd`r gksus ij izFken`"V;k lafyIrrk ik;s tkus ij½ ¼t½ LFkkuh ukSdfj;ksa esa lek;ksftr gksus ijA"
12. Moreover, there is another circular dated 21.08.2012 issued by the Headquarters of Home Guards, Uttar Pradesh for taking disciplinary action against the Home Guards, who are involved in criminal offences.
13. A perusal of the said circulars clearly indicates that the impugned order has been passed in compliance of the said circulars and show cause notice has also been given to the petitioner and in its reply, the petitioner has also admitted the pendency of the criminal case.
14. So far as the contention that full fledged enquiry was required to be conducted, there is no such provision under the Act 1963. The petitioner, as per the explanation to Section 10 of the Act, 1963, does not hold a civil post as has also been held by a Division Bench of this Court in the case of Riyasat Ali Vs. State of U.P. & others reported in 2003(4) AWC Page 3046, which is still good law, therefore, the protection under Article 311 of the Constitution is also not attracted to the case at hand. Consequently the judgement [Arun Kumar Shukla(supra)] relied upon by the petitioner is also not applicable to the facts and circumstances of the present case. Moreover, record reveals that show cause notice was duly issued to the petitioner, seeking his reply in respect of the involvement in criminal case, therefore, passing of the impugned order in terms of Section 12 (1) of the Act 1963 sufficiently satisfies the requirement of principles of natural justice.
15. Petitioner, a Home Guards, who was assigned the duty to act in aid to the police and to maintain public order, is always expected to be of clean antecedents. It is settled that a person who violates the law cannot be permitted to urge that his offence cannot be subjected to inquiry, trial or investigation. Hence the decision of the respondents holding that the petitioner is not suitable, is just, fair and reasonable keeping in view the nature of the post and the duties to be discharged. The Apex Court in unambiguous terms has categorically held in catena of decisions that the employer would be well within his rights to consider the antecedents and the suitability of its employee.
16. Moreover, perusal of all the connected writ petitions indicates that in the criminal cases shown to have been pending against the petitioners, they are facing trial. The petitioner cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services. The standard expected of a person intended to serve in uniformed service is quite distinct from other services. The authorities entrusted with the responsibility of appointing Home Guard, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Home Guard and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Home Guard.
17. In view of the above, I am of the opinion that no interference is called for in the matter.
18. The writ petition lacks merit and is accordingly dismissed.
Order Date :- 09.12.2020 RavindraKSingh (Justice Shekhar Kumar Yadav)