Mr.N.Ramasamy v. The Superintendent of Police,District Police Office,Nagapattinam & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 25.11.2011Coram:THE HONOURABLE MR. JUSTICE T.S.SIVAGNANAMWrit Petition No.14349 of 2009Mr.N.Ramasamy.. Petitionerversus1.The Superintendent of Police, District Police Office, Nagapattinam. 2. The Inspector General of Police, Chennai – 600 004. .. Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus tocall for the records of the second respondent pertaining to hisproceedings in Na.Ka.A2/3549/HG/2007 dated 28.12.2007, confirming theorder of the first respondent in his proceedings No.Ma.AA.No.696/07-Na.Ka.No.E1/8272 of 2007 dated 28.08.2008, and to quash the same andto direct the second respondent to reinstate the petitioner inservice with continuity and all attendant benefits. For Petitioner :Mr.R.KannanFor Respondents : Mr.R.Lakshmi Narayanan Govt. Advocate

O R D E RThe prayer in the Writ Petition is to issue a Writ of Certiorarified Mandamus, to quash the order dated 28.12.2007 passedby the second respondent, as confirmed by the first respondent, byorder dated 28.08.2008, and to direct the second respondent toreinstate the petitioner as Homeguard. https://hcservices.ecourts.gov.in/hcservices/

The petitioner was appointed as a Homeguard, by order dated18.04.2002, and such an appointment was for a period of three years. The services of a Homeguard is absolutely voluntary and no salary ispaid and whenever they are called for duty, the callout charge ofRs.45/- per call is paid and it is not a full time, but a part-timeservice.

It appears that the petitioner had misbehaved with otherwomen Homeguards, by taunting them and passing unnecessary commentsduring the period of their training, which resulted in services beingdisengaged by order dated 03.05.2006. Aggrieved the same, thepetitioner filed a Writ Petition, being W.P.No.29362 of 2006 and this Court, by order dated 30.08.2006, without going into the merits ofthe petitioner's case, directed the Authorities to consider thepetitioner's Appeal petition and pass appropriate orders, afteraffording an opportunity to the petitioner. Thereafter, byproceedings dated 23.02.2007, the petitioner was taken back into the Homeguard service. The term of appointment of such Homeguard beingfor a period of three years, the Area Commander, by order dated28.08.2007, did not extend his service, whereas, he discharged him. Against the order, the petitioner preferred an Appeal to the secondrespondent, which came to be rejected by order dated 28.08.2008.Challenging the said order, the petitioner has preferred this WritPetition.

The learned counsel appearing for the petitioner contentedthat the order of removal of the petitioner from the service as Homeguard is in violation of principles of natural justice and noopportunity was given to the petitioner and he was discharged, basedon certain allegations, which cast a stigma on the petitioner anddischarging the petitioner from service, without conducting anyenquiry is illegal and therefore, the orders impugned are liable tobe set aside.

The learned Government Advocate, by relying upon the counteraffidavit filed by the first respondent submitted that the petitionerwas discharged, since the Authority did not extend his service and nostigma is caused to the petitioner. In any event, only after a properenquiry was conducted, the order of removal was passed and there isno violation of principles of natural justice, as alleged by thepetitioner and the order impugned is perfectly valid and legal. TheGovernment Advocate also produced the original files relating to thepetitioner.

Heard the learned counsel for the parties and perused thematerials available on record, including the original file. https://hcservices.ecourts.gov.in/hcservices/

It is seen that the Homeguard's have been constituted as aForce to assist the Police Personnel, as and when need arises, moreparticularly, during Festival Seasons, when there is a largecongregation of people. The services of a Homeguard are regulated interms of The Tamil Nadu Home Guard Rules, 1983 and the rules framedtherein. From the Scheme of the Act, it is patently evident that theservices of a Homeguard are purely on a voluntary basis and no salaryis paid to the Homeguard, except for a remuneration of Rs.45/- termedas “call duty charge” payable, whenever, they are requested to bepresent. It is needless to state that the nature of duties assignedto a Homeguard, being in the nature of disciplined force, it isexpected that such Homeguards conduct themselves in a manner, whichimposes confidence in the public and to treat a Homeguard as a friendof the public.

In other words, a person volunteers to be a Homeguard with anobject to serve the people, when they are directed to be present bythe Police Authorities. It is a common knowledge that suchHomeguard's are seen in busy areas, guiding and succoring the people, regulating the public and such other matters. Considering the natureof duties and responsibilities assigned to such a voluntary service, it can hardly be stated that a Homeguard is a civil servant. If suchinterpretation is given, then, the same would be in direct conflictwith the object of the Homeguard Act. However, the past conduct ofthe petitioner appears to be not appreciable. There were chargesagainst the petitioner of abusing and ill-treating women Homeguardsby using un-parliamentary language and such other very unpalatableallegations against the petitioner. This lead to the petitioner beingdischarged from the service of Homeguard by order dated 03.05.2006.

The petitioner filed an Appeal against such order andthereafter, approached this Court and filed a Writ Petition beingW.P.No.29362 of 2006, challenging his order of discharge. This Court, did not consider the merits of the petitioner's case, but, disposedof the Writ Petition by order dated 31.8.2006, directing the Authorities to consider the petitioner's Appeal Petition. Though, there was no positive direction given by this Court, yet, therespondents in their discretion, onceagain, engaged his services. Thereafter, the respondents appear to have received furthercomplaints against the petitioner, which were similar to thecomplaints, which were made against him earlier. The original filesdiscloses that certain statements were recorded and the firstrespondent, after taking note of the allegations, decided not toextend the services of the petitioner, since the period of hisinitial engagement was coming to an end. Accordingly, the servicesof the petitioner was not extended and the same was communicated tothe petitioner on 28.12.2007. https://hcservices.ecourts.gov.in/hcservices/

The petitioner appears to have filed an Appeal to thesecond respondent and the second respondent, after taking note of therecommendations made by the Commandment, passed an order that theservices of the petitioner need not be continued further, he, havingcompleted a period of three years. Thus, it is evident that nostigma has been attributed by virtue of the impugned order and it isnot an order of removal, as stated by the petitioner. The CompetentAuthority, based on the recommendations of the Commandment, took adecision not to extend the service of the petitioner, after theinitial period of three years. Admittedly, the terms of engagement ofthe petitioner was for a period of three years. Therefore, there isno vested right to the petitioner to claim that the respondents arebound to continue his services further. As already pointed out, theengagement of the petitioner as a Homeguard is purely on voluntarybasis. Moreover, he in not holding a civil post and therefore, thequestion of applying the principles of Article 311 of the Constitution of India does not arise. The plea raised by thepetitioner in this regard is wholly misconceived.

The learned counsel appearing for the petitioner submittedthat no enquiry was conducted, before the petitioner was dischargedfrom service.

Firstly, the question of conducting any enquiry does notarise, moreso, when the petitioner has been engaged purely on avoluntary basis and the payment given, whenever his services areengaged is in the nature of honorarium and not a salary. That apart, no stigma can be said to have been attributed against the petitionerby virtue of the impugned orders, when the ultimate direction is notto continue his services.

Admittedly, his engagement as the member of the Homeguard issubject to the opinion of the Commissioner of Police of the City orthe Superintendent of the Police in a District, as a suitable memberof the Homeguard14. This Court, will not be justified in assessing as to whetherin the opinion of the Superintendent of Police, the petitioner wasfound to be suitable or unsuitable for extension of his period ofengagement in service. This opinion of the Superintendent of Policeis based on his subjective satisfaction, which should not be goneinto in a Writ Petition, moreso, when in the opinion of the Superintendent of Police, the petitioner was not found suitable forfurther extension. Even in the counter affidavit, it has beenadmitted that no stigma has been caused on the petitioner, by virtueof the impugned proceedings. https://hcservices.ecourts.gov.in/hcservices/

Further, under the Tamil Nadu Home Guard Rules, 1963, thereis no requirement for disclosing the grounds of discharge and if thesame is compelled to be disclosed, it may not be in the interest ofthe public.

For all the above reasons, it is held that the petitionerhas not made out any case for interference and accordingly, the WritPetition fails and the same is dismissed. However, there shall be noorder as to costs. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarsdTo1)The Superintendent of Police, District Police Office, Nagapattinam.2)The Inspector General of Police, Chennai – 600 004. Writ Petition No.14349 of 2009 DM(CO)EU 21.12.11