IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI THURSDAY .THE TWENTY FOURTH DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE MS JUSTICE B S BHANUMATHI WRIT PETITION (AT) NO: 116 OF 2023 Between; Smt. P. Bhagya Lakshmi, W/o P. Hari Krishna, Aged 29 years, Occ: Women Home Guard 1398, (removal from service) R/o Nazarpeta, Tenali, Guntur District. ...Applicant AND 1. The Superintendent of Police, Guntur Rural, Guntur District. 2. The Additional Director General of Police, Home Guards, A.P. Hyderabad. 3. The State of Andhra Pradesh, rep. by its Principal Secretary to Government, Home Department, Secretariat, Hyderabad 500 022. ...Respondents Petitioner Under Article 226 of Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to call for the records relating to and connected with the impugned orders passed by the respondent vide Order C.No.15559/HG- 1/2015, D.O.No.583/2015 dated 15.05.2015 removing the applicant from the rolls of Home Guard Organization without conducting proper enquiry and without following the principles of Natural justice and set aside the .same.as illegal, arbitrary and unconstitutional and consequently direct the respondent to reinstate the applicant into service forthwith with all consequential benefits. Counsel for the Petitioner: SRI TENE PANDU RANGA RAO Counsel for the Respondents: GP FOR SERVICES -1 The Court made the following: APHC010371792021 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3311] Thursday, the Twenty Fourth day of April Two Thousand and Twenty Five Present The Honourable Ms. Justice B. S. Bhanumathi Writ Petition (AT) No: 116 of 2023 (O.A.No.2805 of 2015) Between: Smt. P. Bhagya Lakshmi W/o P. Hari Krishna Occ: Women Home Guard 1398, R/o Guntur district. ...Petitioner AND The Superintendent of Police, Guntur Rural, Guntur and others ...Respondents Counsel for the petitioner: Sri Tene Panduranga Rao Counsel for the respondents: 1.GP for Services I The Court made the following: 2 BSB, J W.P (AT) No.116 of 2023 ORDER; This petition was initially filed before the A.P. Administrative Tribunal, Hyderabad vide O.A.No.2805 of 2015 and it is renumbered as W.P (AT) No. 116 of 2023 on its transfer to this High Court. 2. The case of the petitioner is briefly as follows; (a) The petitioner was appointed as a Home Guard and posted under the control of the Superintendent of Police, Guntur Rural, Guntur District / the respondent No.1 vide proceedings DO.No.540 / 2007 dated 24.04.2007. She worked to the satisfaction of the higher authorities till 31.07.2014. As she suffered from LBA, GTCS, Ankle Sprain on the right leg and was hospitalized for two months, i.e., from 01.08.2014 to 30.09.2014, she submitted the information to the higher authorities from time to time and requested to treat her absence from duty as leave. After she recovered from her ill-health, her husband also fell sick due to kidney problem and was hospitalized. After he also recovered, the petitioner approached the respondent No.1 to permit her to join her duty, but the respondent No.1 did not permit her and issued a show cause notice on 10.03.2015 asking her to submit an explanation. Accordingly, she submitted her explanation. Without considering the same, the respondent No.1 issued order vide C.No.15559/HG-l / 2015 dated 15.05.2015 removing her from service, without conducting any proper enquiry. The petitioner submitted representation to the respondent No.1 on various dates. She submitted representation to the respondent No.2 / Additional Director General of Police, Home Guards, Andhra Pradesh on 25.02.2015, to the Inspector General of Police, Intelligence Department, Hyderabad on 27.02.2015 and to the Director General of Police, Andhra Pradesh, Hyderabad on 16.03.2015. Finally, 3 BSB, J W.P (AT) No.ll6of2023 she submitted another representation to the respondent No.3 01.04.2015. For the reasons best known to the authorities, her request was not considered. Thus, the impugned order dated 15.05.2015 removing her from service was passed. The petitioner hails from family with rural background and has two female children. She is the only bread earner of her family. The action of the respondents is in violation of principles of natural justice. Even a temporary employee also is entitled for an enquiry to be conducted before passing any order of removal from service. Therefore, this petition was filed to set aside the order of the respondent No.1 vide C.No.15559/HG-l / 2015 dated 15.05.2015 removing the petitioner from service. In a similar case, the Andhra Pradesh Administrative Tribunal in OA.No.1493 of 2013, vide order dated 25.04.2013 and in O.A.No.1627 of 2014, vide order dated 25.02.2014 set aside the orders of removal for want of proper enquiry and observation of principles of natural justice. The High Court of Andhra Pradesh in State of A.P. Vs. P.Prasad Rao^ held that a delinquent Home guard shall be given reasonable opportunity by conducting an enquiry and following principles of natural justice before passing order of removal from service. No counter was filed. However, Sri Vuyyuru Ram Manohar, the learned Assistant Government Pleader for Services-I placed on record the circular memorandum Rc.No.167 / HGs / Estt.1 / 2012 dated 15.02.2012 in support of the documents with regard to the procedure to be followed for appointment and removal of the Home Guards. on a poor (b) 3. 2012 (1) ALD 76, W.P.No.28875 of 2010 and batch of petitions vide order dated 07.09.2011 4 BSBJ W.P (AT) No.llGof 2023 4. The learned counsel for the petitioner submitted that except issuing show cause notice, neither enquiry by issuing charge memo held nor was a reasoned order passed to decline the explanation given by the petitioner. Therefore, the impugned order is liable to be set aside. He further submitted that the respondent No.1 is not competent to pass the order of removal of Home Guard from service. was Sri Vuyyuru Ram Manohar, the learned Assistant Government Pleader for Services-I, submitted that as the petitioner was given an opportunity of explaining her absence by issuing notice following the principles of natural justice and the procedure, but since the petitioner failed to justify her unauthorized absence with proper documents, the petitioner cannot challenge the order. He further submitted that a Home Guard can be suspended or removed or imposed a fine by the Commandant, Home Guards; the Superintendent of Police or the Commissioner of Police 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 as per the aforesaid circular memo, dated 15.02.2012, and therefore, the respondent No.1 is competent to pass the order of removal of the petitioner from service and moreover, the copy of the order was sent to the Commandant. He further argued that the medical certificates submitted by the petitioner do not match with the representations in relation to the nature and period of the ill-health. It is also submitted by him that the petitioner has to file an appeal before the competent authority and the writ petition is not maintainable. 5. 6. The circular memo 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: 5 BSB, J W.P (AT) No.llSof 2023 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 shall be treated as indulging in delinquent behavior to be dealt with severally. A Home Guard can be discharged at any time, if he submits resignation. 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 ii) iii) 6 BSB, J W.P(AT) No.llSof 2023 ordinary delinquency, the Unit officer may place the Home Guard under suspension till the final decision of the Committee is arrived at. High Court order: As per the order, in P. Prasad Rao (Supra), the A.P High Court, 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: “We are inclined to read Rule 7(4) of the Rules as mandating a show cause notice containing the charges / imputations or instances of misconduct so as to give a reasonable opportunity to the delinquent HG to meet the charges and effectively plead defense for exoneration. A show cause notice merely indicating the penalty to be imposed would not answer the test of fairness in administrative action. Any notice calling upon to submit explanation only against penalty imposed would certainly not comply witfi the principles of natural justice. An order of authority exercising judicial or quasi-judicial functions passed in violation of principles of natural justice is procedurally ultra vires and suffers from a jurisdictional error. Therefore, in all the cases only where a show cause notice is issued as a post-decisional exercise and without a reasonable opportunity to the delinquent HG at a pre-decisional stage would certainly violate the principles of natural justice.” 7 BSB, J W.P (AT) No.116 of 2023 Appeal: Appeal against order of removal, discharge, suspension or fine may be made to the DIG / IG, HGs, within a period of 2 months from the date the punishment imposed. i) was ii) Petition for revision against order of removal, discharge, suspension or fine may be made to the Addl. DGP, Home Guards, within a period of 2 months, from the date of service of final decision on the delinquent Home Guard in appeal.” This Court in P. Prasad Rao (supra) held that the Home Guards are governed by the A.P Home Guards Rules, 1949 as 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. 8. The learned counsel for the petitioner placed reliance on 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 ^ W.P.(Transferred) No.5490 of 2017 dt.22.10.2024 8 BSBJ W.P (AT) No.116 of 2023 Home Guards Rules, 1949. Basing on the above decision, 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 therein in view of long delay and the time taken for adjudication of the matter in dispute. 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 (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. 9. 10. A perusal of the above decisions in P.Prasad Rao (supra) and also M. Massoor (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. 9 BSB,J W.P(AT) No.ll6of2023 In the case of P.Prasad Rao (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 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. 11. It is also pertinent to refer the decision of the single Bench of this High Court in V.Sadasiva Vs. State of A.P and others^, where in, the following 5 points for consideration were framed at paragraph No.57: “(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? 12. ^ 2021 (4) ALD 21 10 BSBJ W.P (AT) No.ll6of2023 (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 of2019, W.P.Nos.2412, 23873, 12149 of 2020 and W.P.No.1316, 4825 of 2021 for their absence or misconduct is sufficient 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?” Point No.1 was answered at paragraphs No.62 and 140 as follows: “62. Therefore, the standing orders in A.P.Police Manual are not the rules framed by exercising power under Section 10 of the A.P.Home Guards Act. Thereby, Chapter 52 of the A.P.Police Manual cannot be applied to govern the conditions of enrolment and discipline in the Home Guards Organisation. Hence, the contention of the learned Government Pleader for Services - I is hereby rejected while holding that the petitioners are not governed . \ 11 BSB, J W.P (AT) No.llSof 2023 by Chapter 52 of the A.P.Police Manual. Accordingly, the point held in favour of the petitioners and against the respondents. IS 140. In the show-cause notice, respondents referred to A.P.Police Manual to issue such removal order. The A.P.Police Manual 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 enactment and rules by virtue of A.P. Adaptation of Laws Order, 1957. At best, the respondents can pass appropriate order subject to the Act and Rules governing the service of Home Guards. The point is answered accordingly.” or Point No.2 was answered at paragraph No. 122 as follows: 122. 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.” Point No.5 was answered at paragraph No. 139 as follows: “139. Therefore, the power of the Commissioner of Police or Superintendent of police is recommendatory in nature and on the recommendation of Commissioner of Police in the presidency town I 12 BSB, J W.P (AT) No.llBof 2023 and the District Superintendent of Police direct the Commandant as referred in sub rule (4) of Rule 7 of the Madras Home Guards Rules for suspension/removal or dismissal only, but the ultimate authority to remove/suspension/dismiss is the Commandant not the Superintendent of Police or Commissioner of Police. Hence, the orders impugned in the petitioners are contrary to Rule 7 (3) (4) and (5) of the Madras Home Guards Rules, on this ground also the impugned orders are liable to be set aside.” Thus, it is clear that the Commissioner of Police, in the present case, has no authority to remove the petitioner from service, however, he passed the impugned order, dated 15.05,2015, 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 Commissioner 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. 13. 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 Telangana in the above-referred cases (or) the concerned authority shall be given liberty to take necessary action as per law. 14. First of all, in the present case, the medical record placed by the petitioner is not supported by any other record of prescriptions or the receipts of medicines purchased or tests conducted etc. As such, the 15. 13 BSB, J W.P(AT)No.ll6of2023 Commissioner of Police, having not been satisfied with the medical record, decided to remove the petitioner from service. 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. 16. 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 Commissioner of Police to the Commandant, Home Guards to take appropriate disciplinary action against the petitioner. 17. 18. Accordingly, the Writ Petition is allowed. There shall be ho order as to costs. Pending miscellaneous petitions, if any, shall stand closed. Sd/- SHAIK MOHD. RAFI ASSISTANT REGISTRAR //TRUE COPY// SECTION OFFICER To 1. The Superintendent of Police, Guntur Rural, Guntur District. 2. The Additional Director General of Police, Home Guards, A.P. Hyderabad. 3. The Principal Secretary to Government, State of Andhra Home Department, Secretariat, Hyderabad 500 022. 4. One CC to SRI. TENE PANDU RANGA RAO, Advocate [OPUC] 5. Two CCS to GP FOR SERVICES - I, High Court of Andhra Pradesh. [OUT] 6. Three CD Copies Pradesh, sree HIGH COURT DATED:24/04/2025 ^forANDlsq^ ^ 0 6 Jl'N m W ^ . Current Section . ^ ^<£esPATCB«^ ORDER WP(AT).No.116 of 2023 ALLOWING THE W.P. WITHOUT COSTS