Nafr High Court
Case Details
1 Digitally signed by INDRAJEET SAHU Date: 2025.09.01 15:01:05 +0530 2025:CGHC:43899 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 8861 of 2025 1 - Shashi Bhusan Rathore S/o Shri Jagdish Prasad Rathore Aged About 41 Years R/o Village Bhadesar, Post Dhaneli, Tehsil Janjgir, District Janjgir- Champa C.G. versus ... Petitioner(s) 1 - State of Chhattisgarh Through Secretary, Department of Home, Mantralaya, Mahanadi Bhawan, Atal Nagar, Nava Raipur C.G. 2 - Director General, Home Guards, Fire And Emergency Services, S D R F Headquarters, Sector-19, Atal Nagar, Nava Raipur, Raipur C.G. 3 - Divisional Commandant, Home Guards, Fire And Emergency Services, Bilaspur Division, District Bilaspur C.G. 4 - District Commandant And District Fire Officer, Janjgir Champa, District Janjgir-Champa C.G. ... Respondent(s) For Petitioner (s) For State : : Shri Shishir Dixit, Advocate. Shri Sabyasachi Choubey, Panel Lawyer. Hon’ble Shri Justice Ravindra Kumar Agrawal, J
Decision
Order on Board 29.08. 202 5 1. Challenge in this petition is the order dated 26.04.2025 issued by the respondent No.4 as also the order dated 27.05.2025 passed by the respondent No.3 whereby the petitioner has been suspended from his service and his departmental appeal has been remitted back to respondent No.4 for reconsideration. 2. The petitioner, working on the post of Home Guard, having Batch No.115, was posted at Call Out Branch in the office of respondent No.4. On 26.03.2025 the respondent No.4 sought a list of Home Guards who were not posted outside the District for VVIP duties in the 2 last one year. As per order of respondent No.4, the petitioner supplied the list of Home Guards concerned. On 27.03.2025 the respondent No.4 sought an explanation from the petitioner alleging that details of list of Home Guard was confidential which were leaked between the Home Guards and they visited to respondent No.4 making their request for not assigning VVIP duties. In reply to notice dated 27.03.2025, the petitioner denied the allegations levelled against him. However, on 04.04.2025 he was relieved from the duty of Call Out Branch and was directed to hand over the charge to officer in charge. On 15.04.2025 the respondent again directed the petitioner to submit his Call Details of his mobile phone, failing which action was proposed against him, however, due to some technical glitch the petitioner could not submit the same and after repeated notice for one or another cause ultimately on 26.04.2025 the respondent No.4 suspended the petitioner under the provisions of Section 13 of the Home Guards Act and Rule 12 of The Madhya Pradesh (Central Provinces and Berar) Home Guards Rules, 1947 (in short, the Rules, 1947). 3. Learned counsel for the petitioner would submit that since suspension of the petitioner from the post of Home Guard is a punishment, he filed a departmental appeal under Rule 13 of the Rules, 1947 before the respondent No.3, but the said appeal of the petitioner was remitted back to respondent No.4 stating that as per order dated 02.03.2013 issued by the Department, suspension of Home Guard can be revoked by the authority who have issued the order of suspension which are under challenge in the present writ petition. He would further submit that since suspension is a punishment as per Rule 12 of Rules, 1947, the appeal has to be decided on its own merits by passing a reasoned 3 order. The order dated 02.03.2013 issued by the Department is only an instruction to maintain discipline amongst the Home Guards, however the appeal has to be decided on its own merits. Therefore, the impugned order dated 27.05.2025 is liable to be set aside. 4. On the other hand, the counsel for the State opposes the submissions made by the counsel for the petitioner and would submit that it is clearly mentioned in the order dated 02.03.2013 that suspension can be revoked by the authority who have issued the order of suspension of Home Guard and in view of the said order dated 02.03.2013 the appeal of the petitioner has rightly been remitted back to the respondent No.4 for its reconsideration. Therefore, there is no infirmity or illegality in the order dated 27.05.2025 and the writ petition is liable to be dismissed. 5. I have heard the counsel for the parties and perused the material annexed with the petition. 6. From perusal of Rule 12 of Rules, 1947 it transpires that under the said Rules of 1947, the suspension of Home Guard is punishable, which reads as under : “12(1) Without prejudice to the institution of a criminal prosecution in any case one or more of the following punishments may be imposed on a Nagar Sainik (Home Guard) found guilty an offence specified in rule 11- I. reprimand; ii. confinement to barracks for a period not exceeding one week; iii. extra parade and extra fatigue; iv. suspension; v. reduction in rank; vi. dismissal.” 4 7. As suspension is considered as punishment under the Rules 1947, an appeal has also been provided under Rule 13 of the said Rules of 1947, which reads as under : “13 (1). A Nagar-Sainik (Home Guard) other than an officer in respect of whom an order of suspension, reduction in rank or dismissal is passed, and an officer in respect of whom an order of suspension is passed by any authority subordinate to the Provincial Government may within thirty days, appeal in the manner laid down in the standing orders to the authority immediately superior to the authority passing the order. Any order passed by the appellate authority in such appeal shall be final and no petition by way of revision or review shall lie to any authority in respect of any such appellate order. 13 (2). An officer in respect of whom an order of reduction in rank or dismissal has been passed by the Provincial Government may apply in review to the Provincial Government against such order and any order passed on such application shall be final.” 8. When appeal is provided against the order of punishment, it has to be decided on its own merits under the facts and circumstances of the case as well as law applicable to it. The appeal of the petitioner has been decided by the respondent No.3 stating that as per the order dated 02.03.2013 issue by the Department, the revocation of suspension is to be decided by the authority who has passed the order of suspension. During the course of argument, a copy of order dated 02.03.2013 issued by the respondent Department have been placed on record by the State counsel, Clause-2 of which provides that “ftl vf/kdkjh ds }kjk fuyacu fd;k tkosxk] fuyacu ls cgky Hkh mlh vf/kdkjh }kjk fd;k tkosxkA” 9. It is well-settled law that the Government Order supplant the law; it can only supplement it. Indisputably, an executive order cannot override the 5 rules which has been framed by the rule-making authority in exercise of powers conferred upon it by the Act. If there are any inconsistencies with the legislation, executive instructions or Government Order, the rule cannot be ignored. The right which is given to the petitioner under the Rules could not have been taken away by an executive order/letter/circular issued by the authorities because an executive order cannot override the rules. 10. The said order dated 02.03.2013 has been passed by the department in the context of maintaining discipline amongst the Home Guards. When suspension is a punishment, no employee be put in such a condition that the authority who have passed the order of suspension, only he can revoke the suspension of said employee. It would amount unfettered powers upon the authority concerned to suspend an employee and to revoke his suspension. It thus affect the service record of the employee if his appeal against punishment have not been considered on merits. Though there is an order dated 02.03.2013, but it does not have any impact or effect upon an appeal filed under Rule 13 of Rules, 1947 against the order passed under Rule 12 of the Rules, 1947, yet the respondent No.3 has remitted the appeal back to the respondent No.4 for further action, which, in the opinion of this court is unsustainable. 11. In the matter of Kumari Shrilekha Vidyarthi etc. Vs. State of U.P. and Others, 1991 (1) SCC 212, the Hon'ble supreme Court has held in para 36 that:- “36. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the 6 circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that be you ever so high, the laws are above you'. This is what men in power must remember, always.” 12. Accordingly, this court is of the opinion that the order dated 27.05.2025 is liable to be and is hereby quashed. The appellate authority- respondent No.3 is directed to decide the departmental appeal of the petitioner in accordance with law on its own merits under the applicable rules and circulars of the State Govt. governing the field by passing a reasoned order under the facts and circumstances of the case after affording proper opportunity of hearing to the petitioner within a period of two months from the date of receipt of copy of this order. The petitioner is directed to produce a copy of this order to respondent No.3 within two weeks from today. 13. The writ petition is accordingly allowed. No order asto costs. inder Sd/- (Ravindra Kumar Agrawal) Judge