Orissa High Court
Yudhistira Jena And Others vs State Of Orissa And Others on 24 June, 2014
Author: B.R. Sarangi
Bench: B.R. Sarangi
ORISSA HIGH COURT, CUTTACK
W.P.(C) NO. 21856 OF 2010
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Yudhistira Jena and others ......... Petitioner
- Versus -
State of Orissa and others ........ Opposite Parties
For petitioners - M/s. Mr. S.C. Routray
For opp. parties- Addl. Standing Counsel
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PRESENT:-
THE HON'BLE DR. JUSTICE B.R. SARANGI
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Date of hearing & judgment :24.06.2014
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DR. B.R. SARANGI, J. The petitioners, who were working as Home Guards
under the Badchana Police Station, have challenged the order of
discharge from their engagement, the order passed in the year 1997
vide D.O. No.4 of 3.3.2000, D.O. No.21/2000 dated 26.06.2000, D.O.
No. 144 dated 22.12.2002 and D.O. No. 148/2002 dated 27.12.2002,
issued by the Superintendent of Police-cum-Commandant, Home
Guards, Jajpur at Panikoili. The petitioners have averred that though
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the aforesaid disengagement orders have not been served on them,
they are not allowed to discharge their duty.
2. The petitioners who were working as Home Guards under
the Badchana P.S. have challenged the order of discharge from their
engagement, the order passed in the year 1997 vide D.O. No.4 of
3.3.2000, D.O. No.21/2000 dated 26.06.2000, D.O. No. 144 dated 22.12.2002 and D.O. No. 148/2002 dated 27.12.2002, issued by the Superintendent of Police-cum-Commandant, Home Guards, Jajpur at Panikoili. The petitioners have averred that though the aforesaid disengagement orders have not been served on them, they are not allowed to discharge their duty.
3. Mr. S.C. Routray, learned counsel for the petitioners, states that against the orders of their discharge from duty, the petitioners preferred appeal before the appellate authority namely the Commandant General, (Home Guards) Orissa, Cuttack, opposite party no.2. While the appeal was pending, the petitioners approached this Court by filing the writ petition praying for issuance of direction to the opposite parties to pass appropriate order in accordance with the provisions of law.
4. The sole contention raised before this Court is that the petitioners were discharged from their duties under sub-section (2) of Section 8 of the Orissa Home Guards Act, 1961. If the petitioners were
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discharged from their duties under the said provision, then Rule 10 of the Home Guards Rules, 1962 was to be followed. For non-compliance with the said provision, the orders impugned being vitiated in law, the Superintendent of Police-cum-Commandant, Home Guards-opposite party no.4 as well as Appellate Authority may be directed to allow the petitioners to discharge their duties.
5. Mr. A.K. Mishra, learned Addl. Government Advocate for the State relying on the counter affidavit filed by opposite party no.4 in paragraph-10 stated that due to non-satisfactory performance of the petitioners they had been disengaged from duty. It is stated that as on 14.08.2008 no appeal had been filed and on the other hand the appellate authority-opposite party no.2 has passed order in conformity with the provisions of law. Therefore, this Court may not entertain this writ petition.
6. Considering the contentions raised by the learned counsel for the parties and perusing the records, it appears that the petitioners were discharging their duties and responsibility of Home Guards under opposite party no.4. So far as unsatisfactory performance of the petitioners is concerned, no material has been produced before this Court in that regard for consideration. This Court had given opportunity to the opposite parties by order dated 23.04.2014 to file counter affidavit, but in spite of that no counter affidavit from the side
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of opposite party nos. 1 and 2 is forthcoming. In addition to that, the orders of opposite party no. 4 as well as the appellate authority- opposite party no.2 are not reasoned ones, inasmuch as the orders had been passed in mechanical manner without applying mind.
7. Section 8 of the Orissa Home Guards Act, 1961 provides for punishment of members of Home Guards for neglect of duties, etc. Sub-section (2) of Section 8 reads as follows:
"Notwithstanding anything contained in this Act the Commandant shall have the authority to discharge any member or the Home Guards at any time subject to such condition as may be prescribed by rules made under this Act, if in the opinion of the Commandant the services of such member are no longer required and the Commandant-General shall have the like authority in respect of any member of the Home Guards under his control."
8. The ultimate power to discharge a member of the Home Guards from duty is vested on the authorities, namely Commandants/Commandant General if not satisfied with the performance of any member of the Home Guards. This power of Commandant/Commandant General is not in dispute. But while exercising the said power, the said authorities ought to have glanced through the mandatory requirement of law as per rule 10 of the Home Guards Rules 1962. Rule-10 provides compliance with a pre-condition, subject to which power of discharge may be exercised. Rule 10 is quoted hereunder, which is as follows:
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"No member of the Home Guards shall be discharged under Sub-Section(2) of Section-8 without being given one month's notice thereof."
9. In view of the above-mentioned provisions, no member of the Home Guard shall be discharged under sub-section(2) of Section-8 without being given one month's prior notice. Therefore, the power can be exercised by the authorities namely the Commandant and the Commandant General under sub-section (2) of Section 8; provided Rule-10 of the Orissa Home Guards Rules, 1962 is complied with. As it appears, Rule-10 of the 1962 Rules has completely been given a go-by by the authorities in the present case. It is well settled principle of law laid down by the apex Court in catena of decisions that when the words of statute are clear, plain or unambiguous, i.e., they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of consequences. Nelson Motis v. Union of India, AIR 1992 SC 1981 : (1992) 4 SCC 711, Gurudevdata VKSSS Maryadit v. State of Maharastra, AIR 2001 SC 1980 : (2001) 4 SCC 534, State of Jharkhand v. Govind Singh, AIR 2005 SC 294, Nathi Devi v. Radha Devi Gupta, AIR 2005 SC 648 : (2005) 2 SCC 271. Therefore, the action taken by the Commandant General in non-compliance with the provision of Rule-10 of the 1962 Rules is nonest in the eye of law, inasmuch as it is contrary to the provisions of law. Accordingly, the impugned discharge
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orders of the petitioners passed by opposite party no.4 being absolutely unsustainable in law, are liable to be struck down on judicial scrutiny.
10. The order of the Commandant General, Home Guards, Orissa, Cuttack, the Appellate Authority, vide Annexure-14, is hereby quashed as the same has been passed in utter contravention of the provisions of Sec. 8(2) of the Orissa Home Guards Act, read with Rule 10 of the 1962 Rules.
11. The petitioners being treated not to have been disengaged pursuant to the order of the Commandant-opposite party no.4 and the order in Appeals therefrom by the Commandant General, opposite party no.4, be given engagements with regular wages and be also paid their back wages for the periods they were unjustly prevented from discharging their duties within one month hence.
12. The writ petition is allowed. No cost.
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Dr. B.R. Sarangi, J.
Orissa High Court, Cuttack The 24th June, 2014/Ajaya/PKSahoo