Reserved on 23.9.2021
Delivered on 29.9.2021
Court No. - 6
Case :- WRIT - A No. - 8661 of 2021 Petitioner :- Abhay Pal Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shailesh Verma Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the petitioner and Shri Vibhav Dutt Ojha, learned Standing Counsel for the State-respondents.
The present petition has been filed alleging that the petitioner was initially enrolled as a Home Guard on 19.12.1987 as a Platoon Commandant and thereafter the petitioner was called for discharging of his duties under Section 8 of the U.P. Home Guards Act and since then has been discharging his duties.
The petitioner was served with a show cause notice dated 4.10.2019 and 5.11.2019 by the respondent no. 4 calling for a reply in respect of two cases lodged in Case Crime No. 131 of 2018, under Sections 498-a, 323, 494, 506 IPC and Section 3/4 D.P. Act, P.S. Mahilla Thana, Hazratganj, District Lucknow and Case Crime No. 240 of 2019, under Sections 420, 494, 120-B, 506 IPC, P.S. Izatnagar, District Bareilly. The petitioner was also called upon to show cause as to why his services may not be dispensed with in terms of the mandate of the Government Order dated 2.9.2013.
The petitioner gave a reply that the FIR was lodged by the brother- in-law of the petitioner making allegations against her husband as well as the family members including the petitioner. After receiving the said reply, the order has been passed on 8.4.2020 terminated the services of the petitioner in exercise of powers under Section 12 (3) of the U.P. Home Guards Act, 1963.
Learned counsel for the petitioner argues that the order is bad inasmuch as it casts stigma without holding any regular departmental enquiry. He further argues that the petitioner would be holder of a civil post and thus was entitled to the procedure as required to be observed in terms of Article 311 of the Constitution of India. He further argues that in the impugned order, no defence has been taken into consideration.
This Court has passed a detailed judgment in the case of Dheer Singh Vs. State of U.P., Writ-A No. 8869 of 2021, decided on 9.9.2021, in which it has held that the persons who are called upon for performing the duty under Section 8 of the said Act are holders of civil post. In the said judgment, this Court has followed the earlier judgment of this Court in the case of State of U.P. and others Vs. Dasrath Singh Parihar and another, (2007 All. C.J. 1165).
In view of the fact that this Court has already held that the person appointed under Section 8 is holder of civil post and thus entitled to the protection under Article 311 of the Constitution of India and there being nothing on record in the present case to establish that the rigors of Article 311 of the Constitution were followed prior to passing of the dismissal order, the order impugned dated 8.4.2020 is set aside with liberty to the respondents to pass orders after observing the principles of Article 311 of the Constitution of India, if they so desire.
In view of the fact that the order dated 8.4.2020 is set aside, it is provided that the petitioner shall be permitted to continue in service and shall be paid his wages, to which he is entitled subject to any other order being passed against the petitioner.
The writ petition stands allowed.
Copy of the order downloaded from the official website of this Court shall be treated as certified copy of this order.
Order Date :- 29.9.2021
S. Rahman 2 of 2