APHC010467332021 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI WEDNESDAY, THE NINTH DAY OF JULY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE MS JUSTICE B S BHANUMATHI WRIT PETITION (AT) NO: 1649 OF 2021 Between: CH Ramesh, S/o Chukkaiah, aged about 33 years, Home Guard (775), RTA Check post Garikapadu Krishna District ...Petitioner AND 1. The Government of Andhra Pradesh, rep by its Principal Secretary Home Department Secretariat at Velagapudi, Guntur District - 522001 The Director General of Police, Mangalagiri Guntur District - 522503 The Superintendent of Police, Krishna District Machilipatnam - 521001 The Additional Superintendent of Police(Admn), Machilipatnam Krishna District 521001 The Commandant, Home Guards Vijayawada Region Vijayawada Krishna District - 520001 2. 3. 4. 5. ...Respondents To call for the records relating the proceedings of the 3rd respondent bearing D.O.N.o8/2017, C.No.5251/B8/HGs/2017 dt.05-01-2018 and set aside the same by declaring the same as illegal arbitrary and unconstitutional being violative of Articles 14,16,21 and 311(2) of Constitution of India apart from well known principles of natural justice and consequently direct the respondents to reinstate the applicant into service as Home Guard with all consequential benefits lA NO: 1 OF 2021 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the proceedings of the 3rd respondent bearing D.O.No.08/2017, C.No.5251/B8/HGs/2017, dated 5-1-2018 and direct reeducation of the applicant into service, forthwith pending final disposal of the main OA Counsel for the Petitioner; SRI S SATYANARAYANA MURTHY Counsel for the Respondents No.1 to 5: SRI V RAM MOHAN RAO, AGP FOR SERVICES I The Court made the following order: APHC010492042021 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3311] Wednesday, the ninth day of July, two thousand and twenty five Present The Honourable Ms. Justice B. S. BHANUMATHI Writ Petition (A.T.) No.1649 of 2021 (O.A.No.639 of 2018) Between: Ch. Ramesh ...Petitioner and The State of Andhra Pradesh and others ...Respondents Counsel for the petitioner: I.Sri S. Satyanarayana Murthy Counsel for the respondents: I.G.P. for Services I The Court made the following: 2 BSBJ ' W.P (AT) No.1649 of 2021 ORDER: The writ petition is originally numbered as O.A.No.639 of 2018 before the Andhra Pradesh Administrative Tribunal. After transfer of case to this High Court it is re-numbered as \/\/.P.(A.T.) No.1649 of 2018. 2. The case of the petitioner is briefly as follows: The petitioner was appointed as Home Guard in the Home Guards Organization, Machilipatnam, Krishna district on 08.04.2008 and posted as a driver by the Superintendent of Police, Krishna district, i.e., the respondent vide proceedings, dated 08.04.2008. Subsequently, he was deputed to work at R.T.A check post, Garikapadu, Krishna district. He served without any blame. Not even a single memo has ever been issued to him. b. When the petitioner attended his shift duty from 8 P.M 28.05.2015 to 8 AM on 29.05.2015 at R.T.A check-post, Garikapadu, he declared his personal cash in the register. He attended his duty by standing on the road and stopping the transport vehicles passing through the check post and directing the crew to produce record before the A.M.V.I.s. on duty as per the instructions. At about 11 P.M on 28.05.2015, a group of persons rushed into the check post. Thereafter, a person came to the petitioner and informed that he was A.C.B. Constable and directed the petitioner to come to the check-post. Accordingly, the petitioner followed him. The A.C.B. officials checked the personal cash and found no excess amount with the petitioner. After conducting some proceedings, the A.C.B. officials left the check post. There is no practice of collecting or accepting the unauthorized amounts from the crew of the transport vehicles at the check post. on 3 BSB, J W.P(AT) No.1649 of 2021 m However, the petitioner was falseiy implicated in the case filed by the A.C.B. officials though he had nothing to do with the alleged accounted amount purported to have been found during the check. j un- The Additional Superintendent of Police (Admn.), Machilipatnam, the 4**^ respondent, issued a show-cause notice, dated 14.11.2017 to the petitioner. The show-cause notice refers to a memo NO.45/SC.A/A2/2017, dated 17.10.2017, whereunder, the government of A.P / 1®‘ respondent directed the Director General of Police / 2 respondent to remove the petitioner from service even without notice or opportunity to the petitioner and directing the petitioner to submit explanation within seven (7) days or else to take disciplinary action. c. nd In response thereto, the petitioner submitted explanation denying the allegations and seeking to drop further action. Superintendent of Police, Krishna district / 3'"'' respondent issued proceedings removing the petitioner from service. Therefore, the said proceedings are illegal being violative of 7(4) of the Madras Home Guards Rules and principles of natural justice. No charge sheet was filed against the petitioner, yet, the services were terminated. Hence, this writ petition was filed. d. However, the The 3'^ respondent filed counter opposing the petition while admitting the facts regarding the employment of the petitioner, raid by the A.C.B officials. The averments in the counter, are briefly, as follows: 3. The A.C.B officials found some illegal activity was going on and submitted a report in which it was stated that taking some amount, the petitioner was letting off some vehicles without booking cases in violation of the rules. After completion of the duty, the A.M.V.I. / M.V.I. would give some amount to them. Basing on the report of A.C.B. 4 BSB, J W.P (AT) No.1649 of 2021 officials, the government directed the D.G.P. to take action against the petitioner to remove him from the service due to the above misconduct. In turn, the D.G.P., A.P., Mangalagiri, vide memo Rc.No.416/HGs/Estt/2017, dated 11.12.2017, issued instructions to remove the petitioner from service due to illegal gratification taken from the drivers of the vehicles. In the above circumstances, the Additional Superintendent of Police, vide proceedings C.No.5251/HGs/B8/2017 issued show-cause notice, dated 14.11.2017, to the petitioner. The petitioner submitted his explanation, dated 20.11.2017. After considering the explanation by a committee, the service of the petitioner was terminated by proceedings, dated 05.01.2018. Since the petitioner had been given reasonable opportunity informing the grave charge against him, it is not correct to contend that no opportunity was given to him or that the principles of natural justice had not been complied. Since his explanation was found not convincing, the decision to remove him from service was taken after following the due procedure. Hence, the petition is liable to be dismissed. The learned counsel for the petitioner submitted that the service of a Home Guard can be terminated not by the Superintendent, but by Commandant of Home Guards. He further submitted that if this Court holds that the Standing Orders in A.P. Police Mannual are not the rules framed by exercising power under Section 10 of the A.P Home Guards Act, and therefore, it cannot be applied to govern the conditions of enrollment and discipline in the Home Guards Organization, vide the decision in V.Sadasiva Vs. State of Andhra PradeshV He further submitted that the punishment of removal from service cannot be imposed against the Home Guard without conducting an enquiry. It is 4. « I 2021 (4) ALD 21 (AP) 5 Bse,j W.P (AT) No. 1649 of 2021 also submitted by him that it is the petitioner alone who was taken to task and no action was initiated against any other persons who duty at the check post on that day and that the petitioner was made a were on scapegoat for the entire episode, though he had no role in the alleged act of misconduct. That apart, the petitioner was not made as accused in any criminal case alleging corruption and that it is only to wipe their hands, the impugned action was taken merely on the basis of the direction given by the government in furtherance of the recommendation, that too, merely basing on the report of the A.C.B. officials. an The learned Assistant Government Pleader for Services-I submitted that due procedure had been followed by issuing indicating the charge in clear terms and after considering the explanation given by the petitioner and therefore, the petition is liable to be dismissed. 5. a memo 6. The circular memorandum Rc.No. 167 / HGs / Estt.l / 2012, dated 15.02.2012 deals with the instructions regarding the procedure and qualifications for enrolment and removal of the Home Guards. The relevant part of the instructions reads as follows: Removal of Home Guards: i) While weeding out the habitually absent Home Guards, care should be taken to ensure that the ordinary absentees are not penalized generally. It needs to be clarified that only such Home Guards as do not respond when assigned duties are absent from duties without permission or intimation repeatedly or for a long period ^ .2 '1 6 BSBJ ' W.P (AT) No.1649 of 2021 shall be treated as indulging in delinquent behavior to be dealt with severally, ii) A Home Guard can be discharged at any time, if he submits resignation, iii) A Home Guard can be suspended or removed or imposed a fine by the Commandant, Home Guards, the SP or CP for neglect or refusal to discharge the duties and responsibilities entrusted to him or failure to obey any lawful order, by duly adhering to the principles of natural justice. Reasonable opportunity to be given: In all cases of disciplinary action, a reasonable opportunity must be given to the delinquent Home Guard at both the stages, i.e.. Preliminary Enquiry and imposition of penalty/punishment. It is to emphasize that the show cause notice must be sent through Registered Post (A/D) at the address provided by the Home Guard in official records or otherwise as per the established procedure in this regard. It is also decided that before the imposition of penalty, the entire record of the case should be examined by a Committee consisting of the Unit Officer, Dy. S.P and Commandant, Home Guards. It is also to emphasize that in the cases of ordinary delinquency, the Unit officer may place the Home Guard under suspension till the final decision of the Committee is arrived at. As per the order in State of A.P., Vs. P. Prasad Rao^, the final show cause notice indicating the penalty has to contain the charges / imputation or instances of misconduct. The relevant portion of the order is as follows: ^2012 (1) ALD 76, W.P.No.28875 of 2010 and batch, order, dated 07.09.2011 7 BSB, j W.P (AT) No. 1649 of 2021 ^ ‘We are inclined to mandating a show cause notice containing the charges imputations or instances of mi read Rule 7(4) of the Rules as / misconduct so as to give a reasonable opportunity to the delinquent HG to meet the charges and effectively plead defense Show cause notice for exoneration. A merely Indicating the penalty to be imposed would not answer the test of fairness i:. notice calling upon to submit explanation only against penalty imposed would certainly not comply with the principles of natural justice. An order Of authority exercising judicial in administrative action. Any or quasi-judicial functions passed in violation of principles of natural justice I procedurally ultra vires and suffers from IS a jurisdictional error. Therefore in all the cases only where a show as a post-decisional exercise and cause notice is issued without a reasonable opportunity to the delinquent HG at a pre-decisional stage would certainly violate the principles of natural justice. Appeal i) Appeal against order of suspension or fine may be made to within a period of 2 months from the was imposed, ii) Petition for removal discharge, the DIG / IG, HGs, date the punishment revision against order of or fine may be made to the within a period of 2 months removal, Addl. from discharge, suspension DGP, Home Guards, C 8 BS8,J ' W.P (AT) No.1649 of 2021 the date of service of final decision on the delinquent Home Guard in appeal.” This Court in P. Prasad Rao (2"^ supra) held that the Home Guards are governed by the A.P Home Guards Rules, 1949 applicable to the State of Andhra Pradesh, and therefore, the competent authority to remove a Home Guard is the Commandant, Home Guards and not the Superintendent of Police. Any circular instructions cannot override the enactment. Therefore, merely basing the circular instructions noted above at Clause (iii) under the caption removal of Home Guards, it cannot be held that an authority other than the Commandant, Home Guards, can remove a Home Guard from service. 7. as 8. It is also relevant to refer the decision of the High Court for the State of Telangana, dated 22.10.2024, in M.Massoor Vs. State of Telangana and others^, wherein law relating to disciplinary action against a Home Guard is, in detail, discussed with reference to the A.P.Home Guards Act, 1948 (being adaptation of the Madras Home Guards Act, 1948) and the Madras Home Guards Rules, 1949. It is further submitted that since the order terminating the services of the petitioner is legally not being in consonance with the provision of law which requires exercise of such authority only by the Commandant, Home Guards and not the Commissioner of Police, reinstatement of the petitioner may be ordered and further the requirement to undergo physical fitness test may be dispensed with as ordered in the above decision in view of long delay and the time taken for adjudication of the matter in dispute. 9. ' W.P (Transferred) No.5490 of 2017, dated 22.10.2024 c 9 BSB,J W.P (AT) No.1649 of 2021 On the other hand, the learned Assistant Government Pleader placed reliance on the decision of the Division Bench of this High Court in P. Prasad Rao (2"^ supra) to contend that if there is any defect in the impugned order, it is not proper to direct reinstatement of the petitioner with consequential benefits and that the matter shall be remitted to the authority to follow the procedure. I 10. I 10. I A perusal of the above decisions in P.Prasad Rao (2'^'^ supra) and also M. Massoor (3^^^ supra) and batch of cases clearly indicates that the disciplinary action against the Home Guards is governed by the A.P. Home Guards Act, 1948 and Madras Home Guards Rules, 1949 and that rule 7(4) of the Rules, 1949 specifies that it is the Commandant who can impose penalties described therein, including penalty of removal from service: and as per rule 7(5), the Commissioner of Police or the District Superintendent of Police, as the case may be, may direct the suspension, removal or dismissal of a Home Guard from his office; and as per rule 7(6), it is the superintendence of the Home Guards that is vested on the Inspector General of Police to be exercised through Commissioner of Police or the District Superintendent of Police, as the case may be. 11. In the case of P.Prasad Rao (2"^ supra) one of the questions that fell for consideration is whether the Home Guards appointed under the Andhra Pradesh Home Guards Act, 1948 whose conditions of service are regulated by the Madras Home Guards Rules, 1949, as applicable to the state of Andhra Pradesh, can be removed from the rolls of the Home Guards Organization without giving adequate opportunity to answer the allegations of misconduct and if the answer is in the negative, what is the extent and measure of adequacy of opportunities that should be provided to a delinquent Home Guard? In that case, the 12. . \ 10 BSB, J W.P(AT) No.1649 of 2021 Tribunal set aside the order of Commandant removing the applicant from the rolls of HGO. Alternatively, it is submitted that the Tribunal was in error in directing reinstatement as there is violation of principles of natural justice and directing the Commandant to take the applicant on the rolls of HGO. Initially, the Division Bench dismissed the batch of writ petitions upholding the order of the Tribunal. It is also pertinent to refer the decision of the single Bench of this High Court in V.Sadasiva (supra), the following 5 points for consideration were framed at paragraph No.57: 13. “(1) Whether the appointment, qualification and service conditions are governed by A.P. Police Manual? If not, what is the procedure to be followed for taking disciplinary action? (2) Whether the Home Guards are holding civil post in State Service? If so, whether the impugned proceedings to terminate/removal/dismis sal of Home Guards cancelling their enrolment in the Home Guards Organization without conducting any enquiry, is violative of Article 311 (2) of the Constitution of India? (3) Whether the involvement and acquittal of the petitioners in W.P.Nos.172, 2376, 24946, 14214 and 16990 of 2020, W.P.Nos.825, 3528, 5136, and 4412 of 2021 is a ground to reinstate the petitioners into Home Guards Organisation restoring their enrolment setting aside the impugned proceedings issued by the respondents terminating / dismissal/ removing petitioners? (4) Whether the explanation offered by the petitioners in W.P.No.16218, 15611 of 2019, W.P.Nos.2412, 23873, 12149 of 2020 and W.P.No.1316, 4825 of 2021 for their absence or misconduct is sufficient 11 BSB, J W.P(AT) No.1649 of 2021 % to reinstate them into service as Home Guards setting aside the impugned orders of the respondents terminating/ dismissing / removing the petitioners? If so, whether the enrolment of the petitioners be restored in the Home Guards Organisation? (5) Whether the Commissioner of Police/Superintendent of Police is competent to pass the impugned orders in terms of Rule 7 of the Madras Home Guards Rules, 1949 (adopted by the State by the A.P.Adaptation of Laws Order 1957)? If not, whether the order passed by the Commissioner of Police/Superintendent of Police is liable to be set aside?” It was held in the above decision at paragraph Nos. 115, 116 & 117 as follows: “115. Section 4, 9 of the of the A.P. Home Guards Act coupled with Rule 7 of the Madras Home Guards Rules, deals with different types of penalties, but in what circumstances the order of suspension, dismissal or removal of Home Guard be imposed is not specified. The only requirement is to issue show-cause notice. In the present cases, show-cause notices were issued. 116. However, as discussed above, the Home Guards are holders of Civil post by applying the principles laid down in "State of Assam v. Kanak Chandra Dutta" [AIR 1967 SC 884] and "Satyavir Singh v. Union of India" [AIR 1986 SC 555] (referred supra) as there is no explanation in the A.P. Home Guards Act as contained in U.P. Home Guards Act. For removal of Home Guard, r- 12 BSBJ W.P(AT) No.1649 of 2021 necessary procedure prescribed under rules and Act is to be adhered to strictly. 117. The petitioners raised a specific contention that they are holding civil post and dismissal / removal / termination of their services without conducting enquiry is hit by Article 311 (2) of the Constitution of India. The respondents refuted the said contention, but did not convince this Court that the petitioners are not holding civil post to fall within the definition of 'category of persons holding civil post'. Therefore, analysing the law laid down by the Apex Court in various judgments including constitutional bench judgment of "State of Assam v. Kanak Chandra Dutta" (referred supra), I hold that the petitioners / Home Guards are holding Civil Post, and no punishment be imposed against them without conducting any enquiry in view of Article 311 (2) of the Constitution of India. Accordingly, the point is held against the respondents and in favour of the petitioners holding that the Home Guards are holders of Civil Post and they cannot be removed from service except by conducting necessary enquiry.” Finally, it was held at paragraph Nos. 135 & 136 as follows: “135. In the show-cause notice, respondents referred to A.P. Police Manual to issue such removal order. The A.P. Police Manual or Police Standing Orders are not binding on the Home Guards since Home Guards are governed by A.P. Home Guards Act, 1948 and rules framed thereunder in view of the adoption of the 13 BSB, J W.P{AT) No.1649 of 2021 enactment and rules by virtue of A.P. Adaptation of Laws Order, 1957. At best, the respondents appropriate order subject to the Act and Rules governing the service of Home Guards. The point is answered accordingly. 136. In the result, the writ petitions are allowed setting aside the impugned proceedings while granting liberty to the respondents to pass appropriate orders subject to the Andhra Pradesh Home Guards Act and Rules governing the service of Home Guards. Consequently, the respondents are directed to reinstate the petitioners into service with immediate effect. No costs.” can pass 14. Thus, it is clear that the Superintendent of Police, in the present case, has no authority to remove the petitioner from service, however, he passed the impugned order, dated 05.01.2018, removing the petitioner from service with immediate effect and it is only a copy of such order marked to the Commandant, Home Guards, Vijayawada region. As the Superintendent of Police can only recommend and cannot remove a Home Guard from service, the impugned order passed is not valid and is liable to be set aside. Thus, the impugned order is violative of the above provisions and not valid, for the order was passed by an incompetent authority, that too without conducting enquiry by indicating the charge. 15. Then the question is whether the petitioner is entitled to reinstatement without any past benefits and also exemption from physical fitness test which is ordered by the High Court for the State of I 14 BSB, J ■ W.P (AT) No.1649 of 2021 Telangana in the above-referred cases (or) the concerned authority shall be given liberty to take necessary action as per law. 16. In the present case also, since the impugned order is in violation of the rules of procedure, the same is liable to be set aside and the petitioner shall be reinstated, however, without any consequential benefits. In so far as the physical fitness test at the time of reinstatement is concerned, this Court is of the opinion that if the rules require periodical fitness test for continuation of service, reinstatement shall also be subject to the same test or else it is not necessary as a condition precedent for reinstatement. No rule etc., has been shown to this Court regarding any periodical test. 17. As the impugned proceeding is only a procedural lapse, it cannot divest the appropriate authority to take action as per law. Therefore, while directing reinstatement of the petitioner, subject to physical fitness test if required as aforesaid, the respondent authorities are given liberty to follow the procedure as per law by treating the impugned order as a recommendation by the Superintendent of Police to the Commandant, Home Guards to take appropriate disciplinary action against the petitioner by duly following procedure of law, after taking explanation afresh from the petitioner, by issuing memo with imputation of charge(s). 18. Accordingly, the writ petition is allowed. There shall be no order as to costs. Pending miscellaneous petitions, if any, shall stand closed. Sd/- K TATA RAO DEPUTY REGISTRAR / SECTION OFFICER //TRUE COPY// To, 1. The Principal Secretary, State of Andhra Pradesh, Home Department Secretariat at Velagapudi, Guntur District 2. The Director General of Police, Mangalagiri Guntur District 3. The Superintendent of Police, Krishna District Machilipatnam 4. The Additional Superintendent of Police (Admn), Machilipatnam Krishna District 5. The Commandant, Home Guards Vijayawada Region Vijayawada Krishna District 6. One CC to SRI S SATYANARAYANA MURTHY, Advocate [OPUC] 7. Two CCs to GP FOR SERVICES I High Court of Andhra Pradesh [OUT] 8. Two CD Copies gsg HIGH COURT DATED: 09/07/2025 ORDER I UJUL 2025 I ^ , Current Secnon WP (AT) NO. 1649 OF 2021 WP(AT) IS ALLOWED WITHOUT COSTS