REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7904 OF 2010 (Arising out of  S.L.P.(C) No.19807  of 2006)

Davinder Singh & Ors.                                                       ……….Appellants

Versus

State of Punjab & Ors.                                                       ….…..Respondents

                                                        WITH

CIVIL APPEAL NO.7905 OF 2010 (Arising out of  S.L.P.(C) No.19995  of 2006)

Dilbagh Singh & Ors.                                                       ..……….Appellants

Versus

State of Punjab & Ors.                                                     ..….…..Respondents

JUDGMENT

H.L. Dattu, J.

      Leave granted.

2) The appellants have come before this Court, being aggrieved by  

the judgment and order passed by the High Court of Punjab and  

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Haryana at Chandigarh dated 11.09.2006 in CWP No. 5142/2005  

and  CWP  No.  5144/2005.  Both  the  appeals  involve  identical  

questions of law and facts. Consequently, both of them are clubbed  

and disposed of by this common Judgment.   

3) The appellants in the instant case are ‘volunteers’ of the Punjab  

Home Guards.  They were recruited and appointed sometime in the  

year 1989 under the Punjab Home Guards Act, 1947 and the Rules  

framed  thereunder.   They  were  paid  consolidated  wages  of  

Rs.2700/- per month, from the date of their appointment till their  

services were dispensed with.   In the order of  termination,  it  is  

alleged that the appellants were involved in an act of indiscipline at  

the  Amritsar  railway  station  on  02.10.2004.  The  order  of  

termination  was challenged before  the  High Court  in  the  above  

mentioned civil writ petitions.  The view of the High Court is that  

`volunteers’  are  persons  engaged  in  Honorary  capacity.    They  

have no civil rights and, therefore, the termination of their services  

on  account  of  the  allegations  leveled  against  them  cannot  be  

considered  to  be  in  violation  of  law.  The  High  Court  has  also  

placed reliance on the observations made by this Court in the case  

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of State of Gujarat Vs. Akshay Amrutlal Thakkar (2006) 2 SCC  

309.   

4) The  learned  counsel  Sri  Sanjay  Sharawat  appearing  for  the  

appellants, apart from others,  submitted, that, the appellants, being  

temporary  employees  working  from  last  15  to  17  years,  were  

entitled  to  Protection  Guaranteed  under  Article  311(2)  of  the  

Constitution of India before being terminated.  Reference is made  

to the decision of this Court in the case of Parshotam Lal Dhingra  

Vs.  Union  of  India  (1958)  SCR 828;  and  Divisional  Personnel  

Officer,  Southern  Railway,  Mysore  Vs.  S.  Raghavendrachar  

(1966)  3  SCR  106;   since  the  appellants  are  governed  by  the  

provisions of Punjab Home Guards Act, 1947 and Punjab Home  

Guards  and  Civil  Defence  (Field)  Class  III  Rules,  1983,  their  

services  could  not  have  been  terminated  without  issuing  Show  

Cause  Notice  and  without  holding  departmental  enquiry.  

Alternatively, it is contended that the order of termination passed  

by the respondents  is  not  only stigmatic  but  the same has been  

passed as a consequence of an alleged misconduct committed by  

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the  appellants  at  the  Railway Station,  Amritsar   on 02.12.2004.  

Therefore, it is submitted that before any action could have been  

taken against the appellants,  they ought to have been afforded a  

reasonable  opportunity  of  hearing  in  consonance  with  the  

principles  of  natural  justice.   It  is,  therefore,  contended that  the  

action of the respondents is arbitrary and in violation of Principles  

of Natural Justice.

5) It  is  the  contention  of  the  learned  senior  counsel  Dr.  Rajeev  

Dhawan  that  the  appellants  are  ‘volunteers’,  though  their  

appointment is under the Act and the Rules and, therefore, in view  

of the specific provisions under the Rules, their services could be  

discharged at any time without issuing a Show Cause Notice and  

without  holding any enquiry,  much less a departmental  enquiry.  

Alternatively,  it  is  contended  that  the  appellants  have  no  civil  

rights as they are engaged only as volunteers.  Since, the appellants  

have  no  civil  rights,  their  services  could  be  terminated  for  the  

reasons  stated  in  the  order  of  termination.   The  learned  senior  

counsel  invites  our  attention  to  the  extract  of  Para  14.4  of  

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Compendium of Instructions on Home Guards issued by Ministry  

of Home Affairs, which authorizes the Commandant General or the  

Commandant to discharge any Home Guard at any time, if in his  

opinion, the services of such Home Guard are no longer required.  

It  is  also  submitted  that  the  appellants  are  not  temporary  

employees, but only volunteers in the Organisation and they are  

governed by Punjab Homes Guards Rules, 1963 and not the Punjab  

Home Guards and Civil Defence (Field) Class III Rules, 1983.  

6) In view of the rival contentions canvassed by the learned counsel,  

the first issue which requires our consideration is, which is the rule  

which  may  be  made  applicable  to  the  parties  to  this  lis.   The  

appellants  contend,  that,  they  are  governed  by  Punjab  Home  

Guards and Civil Defense (Field) Class III Service Rules, 1983,  

whereas the Respondents contend that the appellants are governed  

by the Punjab Home Guard Rules, 1963.  They also contend that  

the Punjab Home Guard Rules,  1963 have been repealed by the  

Punjab Home Guards and Civil Defense (Field) Class III Service  

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Rules, 1983. In support of their submission, they cite Rule 20 of  

the latter which reads as under:          

“20.Repeal and Saving :- The Punjab Home Guard  Rules  1963  as  these  are  the  applicable  to  the   members of the service are hereby repealed. Provided  that  anything  done  or  any  action  taken  under  the   rules so repealed shall be deemed to have been done  or taken under the corresponding provisions of these   rules.”

7) The  respondents  submit  that  there  is  a  distinction  between  the  

‘volunteers’  and ‘members  of  the  service”  of  the  Punjab  Home  

Guards.  It was argued before us, that the 1963 Rules were still  

applicable to the ‘volunteer’ members of the Punjab Home Guards  

and that they are not to be considered as ‘members of the service’  

as  mentioned  under  Rule  20  of  the  1983  Rules.   The  question  

before us is, whether the 1983 Rules provide for the repeal of the  

1963 rules only in matters relating to `members of the service’ and  

whether  the  1963  rules  are  still  applicable  for  the  purpose  of  

recruitment, discharge and dismissal of `volunteers’ of the Punjab  

Home Guards.

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8) The Punjab Home Guard Rules, 1963 were earlier repealed by the  

Punjab Home Guard Rules,  1960.  Rule 31 of the Punjab Home  

Guard Rules, 1963 reads:                                     

“Repeal :- The Punjab Home Guard Rules   1960, republished with Punjab Government   Home  Department  Notification  No.  G.S.R  9P-A-8/47/S.9/6/ dated 19th December 1961  are hereby repealed.”

9) If we were to juxtapose the two corresponding provisions relating  

to repeal, there is a marked difference in the wording of Rule 31 of  

The Punjab Home Guard Rules,1963 and Rule 20 of Punjab Home  

Guards and Civil Defense (Field) Class III Service Rules, 1983.  It  

is to be noted that the Rule 31 of the 1963 rules unlike Rule 20 of  

the 1983 rules are categorical in repealing the 1960 Rules.  There  

is no reference to the `members of the service’.

10) There is further evidence for such a distinction in Rule 22(2) of the  

Home Guard Act, 1963. Rule 22 is as under:-   

“22  (1)  Training:  -  Every  member  shall  be  required  to  undergo  a  preliminary  course  of   training in drill,  discipline,  weapon training and  special training of service he belongs to for such  period  as  may  be  fixed  by  the  Commandant-   

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General in the case of Home Guards Unit I and  the Gram Raksha Dal Chief in the case of Home   Guard Unit II.    

(2)    Such  members  of  the  public  as  may  offer   themselves voluntarily may also be given training   in drill, discipline and the use of weapons.”

11) It is relevant to note that there is no such provision empowering the  

state to recruit volunteers from the public under the scheme of the  

Punjab Home Guards and Civil Defense (Field) Class III Service  

Rules, 1983.  In fact, Rule 22 of the Punjab Home Guard Rules,  

1963,  is  the  only  Provision  which  seems  to  empower  the  

recruitment of volunteers.  The 1983 Rules prescribe an elaborate  

scheme for appointment of members to specific posts enumerated  

in Appendix ‘A’. This can be seen from Rule 3 of  Punjab Home  

Guards and Civil  Defense (Field)  Class  III  Service Rules,  1983  

which states :-

“3.  Number and Character of Posts. - The service   shall comprise of the posts shown in Appendix ‘A’   to these rules.”

12) The 1983 Rules envisage a scheme where a person who fulfills the  

requirements under Rule 5 which deals with nationality, domicile  

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and character of candidates; secondly, he must not be specifically  

disqualified  under  Rule  6,  thirdly,  he  has  to  fall  under  the  age  

group prescribed under Rule 7.  On fulfilling these three criteria,  

he would be eligible for appointment to any of the posts mentioned  

under Appendix ‘A’ as long as he has the necessary educational  

qualification.  The  educational  requirement  differs  depending  on  

the post to which the person is being appointed. On appointment  

there is a period of probation as prescribed under Rule 9 during  

which the work and conduct of the appointee is evaluated.  The  

proviso to Rule 9 states that:-   

“Provided  that  the  total  period  of  probation,   including extension, if any, shall not exceed three  years.”

13) The  1983  Rules  deal  with  the  appointment  of  individuals  to  

specific posts mentioned in Annexure ‘A’, when a temporary or  

permanent vacancy arises. It does not deal with volunteers who are  

recruited from the general public.

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14) The  legislative  intent  for  such  a  distinction  with  respect  to  

application of the 1983 Rules to `non-volunteer’ members is also  

discernible  from a combined reading of Rule 2(n) and Rule 3.

15) Rule 2(n) defines ‘service’ as follows:- ‘Service’ means the Punjab  

Home Guards and Civil Defence [Field] Class III Service.

16) If we read the above definition alongwith Rule 3 which states as  

under :-   

“3. The service shall comprise of the posts shown  in Appendix ‘A’ to these rules.”  

17) It  is,  therefore,  apparent  from the  scheme of  the  Rules  that  the  

appointment of volunteers is not envisaged under the scope of the  

1983 Rules. Volunteers could be appointed only under Rule 22(2)  

of the Punjab Home Guard Rules, 1963.

(18)Rule 20 is as under:-  

“20.  Repeal  and  Saving  :-  The  Punjab  Home  Guard Rules 1963 as these are the applicable to   the members of the service are hereby repealed.”

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(19)The repeal  applies  only  to  the  members  of  the  service  mentioned  

under Annexure  ‘A’ and not  to volunteers.  Furthermore,  the 1983  

rules  do  not  confer  upon  the  appointing  authority  any  power  to  

discharge the volunteer when his services are no longer required as  

provided under Rule 18 of the 1963 Rules. This is because, the 1983  

Rules are not meant to apply to volunteers. Under the 1983 Rules, a  

member  of  the  service  can  be  dismissed  only  after  following  the  

procedure prescribed for that purpose under the Punjab Civil Services  

(Punishment and Appeal) Rules, 1970.  But such a detailed procedure  

is not envisaged while discharging a volunteer under 1963 rules.  It is  

therefore  evident  that  the  legislature  intended  to  preserve  this  

distinction between the  ‘volunteers’  and ‘members  of  the  service’  

within the scheme of the 1983 Rules.  That being the case, we think  

that it is neither possible nor desirable to dilute the distinction which  

the legislature intended to preserve, something which falls squarely  

in the realm of policy.  Therefore, in our opinion, the 1963 Rules  are  

applicable to the appellants in these appeals.  

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(20)Now we take up the second issue.  The appellants  contend that the  

High  Court  erred  in  dismissing  the  writ  petition  filed  by  the  

appellants relying on the decision of this court in State of Gujarat vs.  

Akshay Amrutlal Thakkar (2006) 2 SCC 309. In that case, Akshay  

Amrutlal  Thakkar  was  appointed  to  the  honorary  post  of  District  

Commandant in the Home Guard and then subsequently the order of  

disengagement  was passed by the State Govt.  vide its order dated  

02.12.1995.  It is this order which was impugned in the writ petition.  

This  court  sustained  the  order  passed  by  the  State  Government  

primarily on the ground, that the persons involved therein did not act  

in the terms of undertaking given by them.  It has also observed, that  

the services rendered by those persons was honorary, therefore, no  

civil consequences were involved.  In our view, the facts of that case  

are  different from that of the instant case.  In that case, Amrutlal  

Thakkar was being discharged from a honorary post, his employment  

was  not  being  terminated  as  is  being  done  in  the  present  case.  

Therefore, in our opinion, the High Court was not justified in placing  

reliance on this decision to unsuit the appellants.   

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(21)A judgment,  as is  well  known is the authority for the proposition  

which it decides and not what can logically be deduced from. This  

Court in the case of Union of India v. Major Bahadur Singh (2006) 1  

SCC 368,  has observed:           

“The courts should not place reliance on decisions   without discussing as to how the factual situation  fits  in  with  the  fact  situation  of  the  decision  on   which  reliance  is  placed.  Observations  of  the   courts are neither to be read as Euclid’s theorems  nor as provisions of the statute and that too taken  out  of  their  context.  These observations must  be   read in the context in which they appear to have   been stated. Judgments of the courts are not to be  construed as statutes. To interpret words, phrases  and  provisions  of  a  statute,  it  may  become  necessary  for  judges  to  embark  into  lengthy  discussions but the discussion is meant to explain  and not to define.  Judges interpret  statutes,  they  do not interpret judgments. They interpret words  of statutes; their words are not to be interpreted as   statutes.”    

The court has proceeded to add:    

“Circumstantial  flexibility,  one  additional  or   different  fact  may  make  a  world  of  difference  between  conclusions  in  two  cases.  Disposal  of   cases by blindly placing reliance on a decision is   not proper.”

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(22)There is a substantial difference in the circumstances surrounding the  

lis in Amrutlal’s case and the present case.  Firstly, as stated earlier,  

the appellants in that case were not being terminated from service.  

Secondly, the revocation of appointment was merely with regard to  

an honorary post.   

(23)It is, therefore, necessary to consider whether Order No. E//285 dated  

02.12.2004 passed by the respondents is one without authority of law  

and whether the said order suffers from any other legal infirmities.

(24)The order of termination served on the appellants reads :  

“In response to above said letters,  the following  guards  who  had  created  indiscipline  at  the  Railway station Amritsar while boarding the train   for  going  to  Maharashtra  in  connection  with   election  duty  maybe  terminated  today  the   2.12.2004 and they cannot be given any allowance  from 3.12.2004. Immediate [action] in this regard   should be taken on this letter.”

(25)It is argued on behalf of the Respondents that the appellants were  

discharged under Rule 18 of the 1963 rules read with para 14.4 of  

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compendium  of  instructions  on  Home  Guards.  Rule  18  of  1963  

reads:

“Discharge of Members :- any member may be  discharged at any time by the authority which had  appointed  him  when  his  services  are  no  longer   required.”

(26)The expression `Discharge’ was interpreted by this Court in the case  

of  State  of  Kerala  vs.  Mother  Anasthasia,  Superior  General  and  

Others (1997) 10 SCC 79, wherein, it  is stated, “Discharge would  

connote for any other reason ejusdem generis due to abolition of the  

post  or  course  of  study  or  such  similar  circumstances  except  for  

discharge due to misconduct.”.   

(27)The  abovesaid  Rule  does  not  contemplate  the  requirement  of  

conducting an enquiry or giving notice to the concerned person and,  

therefore,  the  respondents  maintain that  the termination order  was  

therefore  within  the  scope  and scheme  of  the  Home Gaurds  Act,  

1947 and the 1963 Rules made thereunder.

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(28)The order terminating the services of the appellants specifically cites  

indiscipline  at  the  Amritsar  Railway  Station  as  the  cause  for  the  

termination.   Therefore,  it  is  not  a  case  where  the  appointing  

authority is discharging the services of the appellants on the ground  

that their services are no longer required but it is a case where their  

services  are  sought  to  be  dispensed  with  on  the  ground  of  

indiscipline, which would come within the meaning of the expression  

‘Misconduct’.  In such a situation, the respondents cannot terminate  

the  services  of  the  appellants  without  following  the  procedure  

prescribed under Rule 27 of  the Rules,  the said rules,  specifically  

deals with Discipline.  It reads as under :-   

“Dismissed :- (1) Any officer may for misconduct or  for  absence without  sufficient  cause,  be dismissed  from service.   

Provided  that  an  order  of  dismissal  shall  not  be  passed unless reason of dismissal are recorded in  writing and the member concerned has been given a  reasonable  opportunity  of  showing  cause  against   the action proposed to be taken against him.”

(29)The language employed in the Rule is clear and unambiguous.  The  

Rule envisages that any officer may be dismissed from service either  

for misconduct or for unauthorized absence.  Proviso appended to the  

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Rules speaks of giving an opportunity of hearing to the delinquent  

officer or the member appointed under the Act and the Rules.  It is an  

admitted position that no such opportunity of hearing or notice was  

given to the appellants in the present case as is required under Rule  

27.  In this view of the matter, the respondents cannot be permitted to  

contend that the appellants being `volunteers’, their services could be  

terminated without complying with the procedure prescribed in the  

Statutory Rules, which speaks of providing an opportunity of hearing  

to the person who would be affected by the proposed action.   

(30)To us, it appears, after going through the Act and the Rules framed  

thereunder, that the expression ‘volunteers’ appears to be misnomer.  

We do not intend to dwell on this issue, since we are told that the  

writ petitions for the regularization of similarly placed persons are  

pending before the High Court.  The facts and circumstances pleaded  

by  the  appellants  and  the  number  of  years  they  have  spent  as  

‘volunteers’ and since they have no other avenue for their alternate  

employment because of their age factor, we are impelled to look into  

the reason for the termination of the services of the appellants. The  

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letter discharging their services explicitly states that the reason for  

discharge is  the indiscipline at Amritsar railway station before the  

appellants were to board the train for Maharashtra on election duty.  

Therefore,  in  our  view,  it  is  not  a  case  of  discharge  simplicitor.  

Under Rule 18 of the 1963 Rules, any member appointed under the  

rules  may  be  discharged  at  any  time  by  the  authority  which  had  

appointed  him when his  services  are  no  longer  required.   If  it  is  

instance  of  discharge  simplicitor,  it  would  necessarily  relate  to  

instances  where  the  post  has  been  abolished  or  where  there  is  a  

surplus  of  employees  or  other  similar  circumstances.  The  

respondents  have  not  raised  the  existence  of  any  circumstances  

which required the discharge of any volunteers, neither has it been  

urged  that  there  exists  any  condition  which  would  require  the  

appellants specifically to be discharged apart from the allegation of  

indiscipline.  Therefore, in our view, services of the appellants are  

discharged for acts of alleged misconduct. It casts a stigma on their  

competence and affects their future career.  

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(31)In our considered view, even in matters of discharge, the authority  

concerned  cannot  act  arbitrarily  while  discharging  an  employee.  

However,  in  the  instant  case,  the  appellants  are  being  discharged  

from service for indiscipline.  Therefore, as provided in proviso to  

rule  27  of  the  rules,  the  appellants  should  have  been  given  a  

reasonable opportunity of showing cause against the action proposed  

to be taken against them.  Admittedly, no such opportunity was given  

to  them.   Therefore,  we  are  of  the  view  that  the  action  of  the  

respondents is contrary to their  own statutory rules and in violation  

of principles of natural justice.       

(32)Even  without  going  into  the  question  whether  the  appellants  are  

eligible for the protection under Article 311 of the Constitution, in  

our view, the respondents seem to have acted in an arbitrary manner  

by terminating the services of the appellants, who have been working  

as Home Guards for the last 15-17 years.  They are all over-aged.  

They may find it difficult to find alternate employment.  Therefore,  

in the  facts  and circumstances of  this  case and in the  interest  of  

justice, we deem it proper to set aside the order of termination passed  

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by the respondents dated 02.12.2004 and direct the respondents to  

reinstate the appellants as Home Guards without back wages.

(33)   Before parting with the case, we should also notice the minor issue  

raised by learned senior counsel for respondents.  It is  submitted that  

the appellants without exhausting the appeal remedy provided under  

rule 27(3) of 1963 rules could not have approached the High Court  

under Article 226 of the Constitution, inter-alia, requesting the High  

Court to quash the order passed by respondents dated 02.12.2004.  

We do not find any merit in their submission, for the reason that this  

issue was not raised nor argued before the High Court and, therefore,  

we will not permit this issue to be raised for the first time before us.  

It  is  also argued that  para 14.4 of compendium of instructions on  

Home  Guards  authorizes  the  Commandant  General  or  the  

Commandant  to  discharge  a  Home  Guard  at  any  time,  if  in  his  

opinion,  the  services  of  the  Home Guard  are  no  longer  required.  

These instructions are reiteration of Rule 18 of the Rules.  We have  

already dealt with these rules.  Therefore, repetition of our reasoning  

once over again may not be necessary.     

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(34) For  the  reasons  stated,  we allow these  appeals  and set  aside the  

impugned  judgment.   We  direct  the  respondents  to  reinstate  the  

appellants within four weeks’ time from today without back wages.  

No order as to costs.   

 ….……………………J.                                                                    [ D.K.  JAIN ]

………………………J.  [ H.L. DATTU ]

New Delhi, September 10, 2010.

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