DAVINDER SINGH AND ORS.versusSTATE OF PUNJAB AND ORS.

                   [2010] 11 S.C.R. 609


              DAVINDER SINGH AND ORS.                           A
                             V.
              STATE OF PUNJAB AND ORS.
              (Civil Appeal No. 7904 of 2010)
                  SEPTEMBER 10, 2010
                                                                B
            [D.K. JAIN AND H.L. DATTU, JJ.]

      Service Law - Termination - For misconduct - Punjab
Home Guard Rules, 1963 - Rules 18, 27 - 'Volunteers' of the
Punjab Home Guards terminated from service on ground of         C
indiscipline - Termination order challenged - Dispute as
regards the governing rules - Held: The 1983 Rules provided
for repeal of the 1963 Rules only in the matters relating to
'members of the service', thus, the 1963 Rules were still
applicable for the purpose of recruitment, discharge and        D
dismissal of the 'volunteers'- The termination order passed
by the Department suffered from legal infirmity inasmuch as
the 'volunteers' were not given a reasonable opportunity of
showing cause against the action proposed to be taken
against them - Action of the Department was contrary to their   E
own statutory rules (the 1963 rules) and in violation of the
principles of natural justice - Termination order set aside -
 On facts and circumstances of the case and in interest of
justice, Department directed to reinstate the 'volunteers' as
Home Guards without back wages - Punjab Home Guards             F
and Civil Defence (Fidd) Class Ill Rules, 1983 - Rule 20.

      Plea - New plea of remedy - Plea made by respondents
for the first time before Supreme Court that the appellant could
not have approached the High Court under Article 226 of the
Constitution without exhausting the statutory appeal remedy G
- Maintainability of - Held. Not maintainable - Remedy.

   The appellants, volunteers of the 'Punjab Home
Guards', were terminated from service on the allegation
                         609                                    H
    610      SUPREME COURT REPORTS            [201 OJ 11 S.C.R.


A   that while boarding a train in connection with election
    duty, they were involved in an act of indiscipline at the
    railway station. The appellants challenged the
    termination order by filing writ petitions. The High Court
    held that the appellants were 'volunteers' engaged in
B   Honorary capacity who had no civil rights and, therefore,
    the termination of their services on account of the
    allegation levelled against them could not be considered
    to be in violation of the law.

C        In the instant appeal filed by the volunteers, the
    appellants submitted that they were temporary
    employees working for 15 to 17 years, and. were,
    therefore, entitled to protection guaranteed under Article
    311 (2) of the Constitution of India before being
    terminated; that the appellants were governed. by the
D   provisions of the Punjab Home Guards Act, 1947 and
    Punjab Home Guards and Civil Defence (Field) Class Ill
    Rules, 1983, therefore, their services could not have been
    terminated without issuing show cause notice and
    without holding departmental enquiry. Alternatively, the
E   appellants contended that the order of termination
    passed by the respondents was stigmatic. and was
    passed as a consequence of an alleged misconduct and
    therefore, before any action could have been taken
    against the appellants, they ought- to have been afforded
F   a reasonable opportunity of hearing· in consonance with
    the principles of natural justice.

        Per contra, the respondent submitted that the
    appellants were not temporary employees; but only
G   volunteers in the organization and were still governed by
    Punjab Homes Guards Rules, 1963~

          Allowing the appeals, the Court

        HELD: 1.1. There is no provision empowering the
H   State to recruit volunteers from the public under the
DAVINDER SINGH AND ORS. v. STATE OF PUNJAB 611
                AND ORS.
scheme of the Punjab Home· Guards and Civil Defense              A
(Field) Class Ill Service Rules, 1983. The· 1983 Rules.deal
with the appointment of individuals to specific posts,
when a temporary or permanent vacancy arises. It does
not deal with volunteers who are recruited• from· the
general public. The legislative intent for such a distinction    8
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~ It is apparent from.the
scheme of the Rules that the appointment of volunteers
is not envisaged under the scope ofthe 1983 Rules. Rule          c
22 of the Punjab Home Guard Rules, 1963, is the only
provision which seems to empower the recruitment of
volunteers. Volunteer.s could· be appointed only under
Rule 22(2) of the Punjab Home Guard Rules, 1963. [Paras
11, 13, 14 and 17]'[618~G-H; 619-F-G; 620-B~CJ
                                                                 D
      1'.2: The repeal as envisaged; by r.20 of the 1983 Rules
applies only to the members. of the service mentioned
under Annexure 'A' and not to volunteers. The,198.3 rules
do not confer upon the appointing authority any power
 to discharge the volunteer when his services are. no            E
 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          F
 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        G
service' (non-volunteers members) within the scheme of
the 1983 Rules. That being the case, it is neither possible
nor desirable to dilute the distinction which the legislature
intended to preserve, something which falls squarely in
                                                                 H
    612    SUPREME COURT REPORTS             [2010] 11 S.C.R.

A   the realm of policy. Therefore, the 1963 Rules are
    applicable to the appellants. [Para 19] [620-D-G]

         2.1. In the instant case, the order terminating the
    services of the appellants specifically cited indiscipline
    at the Amritsar Railway Station as the cause for the
8
    termination. Therefore, it is not a case where the
    appointing authority discharged 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
C   to be dispensed with, on the ground ofindiscipline, 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. The
D   language employed in the said Rule is clear and
    unambiguous. The Rule envisages that any officer may
    be dismissed from service either for misconduct or for
    unauthorized absence. The proviso appended to the said
    Rule speaks of giving an opportunity of hearing to the
E   delinquent officer or the member appointed under the Act
    and the Rules. In the instant case no such opportunity
    of hearing or notice was given to the appellants as is
    required under Rule 27. In this view of the matter, the
    respondents cannot be permitted to contend that the
F   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. [Para 28 and
G   29] [623-F-H; 624-B-D]
        2.2. The instant case 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
H
  DAVINDER SINGH AND ORS. v. STATE OF PUNJAB 613
                  AND ORS.
-services are no longer required. If it is an instance of      A
  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            B
  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. [Para 30] [624-G-H; 625-A-B]
      2.3. Even in matters of discharge, the authority C
 concerned cannot act arbitrarily while discharging an
 employee. However, in the instant case, the appellants
 were discharged from service for indiscipline. Therefore,
 as provided· in proviso to Rule 27 of the Rules, the
 appellants should have been given a reasonable D
 opportunity of showing cause against the action
 proposed to be taken against them. No such opportunity
 was given to them. Therefore, the action of the
 respondents is contrary to their own statutory rules and
 in violation of principles of natural justice. [Para 31] [625- E
 C-E]
       2.4. Even without going ir" ., the question whether the
 appellants are eligible for the protection under Article 311
 of the Constitution, the respondents seem to have acted
 in an arbitrary manner by terminating the services of the F
 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, it is deemed proper to set aside the order of G
 termination passed by the respondents and direct the
 respondents to reinstate the appellants as Home Guards
 without back wages. [Para 32] [625-E-G]
    State of Gujarat v. Akshay Amrutlal Thakkar (2006) 2
 SCC 309 - distinguished.                                      H
    614       SUPREME COURT REPORTS             [201 O] 11 S.C.R.


A       Parshotam Lal Dhingra v. Union of India (1958) SCR
  828; Divisional Personnel Officer, Southern Railway, Mysore
   v. S. Raghavendrachar (1966) 3 SCR 106; Union of India v.
   Major Bahadur Singh (2006) .1 SCC 368; State of Kera/a v.
   Mother Anasthasia, Superior General and Others (1997) 10
B ·sec 79 - referred to.

         3. There is no merit in the submission made by the
    respondents 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
C   226 of the Constitution, inter-alia, requesting the High
    Court to quash the termination order passed by
    respondents; for the ·reason that this issue was not
    raised ·nor argued 'before the High Court and, therefore,
    this issue cannot be permitted to be raised for the first
D   time before the Supreme Court. [Para 33] [625-H; 626-A-
    C]
                           Case Law Reference:
          (1958) ·scR 828         referred to         Para 4
E
          (1966) 3 SCR 106        referred to          Para 4
          (ZOOS) 2 sec 309        distinguished        Para 20
          ·(2006) 1 sec 368       referred to          Para 21
F
           (1997.) 10   sec 79   ·referred to         Para 26
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    7904 of 2010.

G        ·From .the Judgment & Order .dated 11.9.2006 of the High
     Court of·Punjab & Haryana at Chandigarh in CWP No. 5142
    :of 2005.

                                  WITH

H   C.A. No. 7905 of 2010.
DAVINDER S'INGH AND ORS. v. STATE OF PUNJAB 615
                 AND ORS.
     Sanjay Sharawat for the Appellants.                               A

    Rajeev Ohawan, Brijender Chahar, Ajay Pal, Prasahant
Shukla, Abhinav Ramakrishan for the Respondents.

     The Judgment of the Court was delivered by
                                                                       B
     H.L. .OATTU, J. 1. 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 Haryana at Chandigarh dated 11.09.2006 in                c
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    D
Punjab ·Horne Guards. They were Tecruited 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      E
order of .termination, it is alleged that ·the appellants were
involved in an act of indiscipline ~t 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        F
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 of State of Gujarat        G
Vs. Akshay Amrut/al 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,
                                                                       H
    616      SUPREME COURT REPORTS                  [2010] 11 S.C.R.

A   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.
B   S. Raghavendrachar (1966) 3 SCR 106; since the appellants
    are governed by the provisions of Punjab Horne Guards Act,
    1947 and Punjab Horne Guards and Civil Defence (Field)
    Class Ill Rules, 1983, their services could not have been
    terminated without issuing Show Cause Notice and without
c   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 the appellants at the
    Railway Station, Amritsar on 02.12.2004. Therefore, it is
D   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 arbitfary and in violation of Principles of Natural
    Justice.
E
        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
F 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
G 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 Compendium of Instructions on
  Horne Guards issued by Ministry of Home Affairs, which
  authorizes the Commandant General or the Commandant to
H discharge any Horne Guard at any time, if in his opinion, the
DAVINDER SINGH AND ORS. v. STATE OF PUNJAB 617
          AND ORS. [H.L. DATTU, J.]
services of such Home Guard are no longer required. It is also · A
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 Ill Rules, 1983.
                                                                  B
     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 Ill Service C
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 Ill Service Rules, 1983. In support
of their submission, they cite Rule 20 of the latter which reads D
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        E
    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 thavthere is a distinction
                                                                    F
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       G
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.
                                                                    H
    618       SUPREME COURT REPORTS                   [201 OJ 11 S.C.R.


A       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,
B         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
C of Rule 31 of The Punjab Home Guard Rules,1963 and Rule
  20 of Punjab Home Guards and Civil Defense (Field) Class Ill
  Service Rules, 1983. ~tis 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
D '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
E         undergo a preliminary course of training in drill, discipline,
          weapon training and special training of--S-ervice he belengs
          to for such period as may be fixed by the Commandant-
          General in the case of Home Guards Unit I and the Gram
          Raksha Dal Chief in the case of Home Guard Unit II.
F
          (2) Such members of the public as may offer themselves
          voluntarily may also be given training in drill, discipline and
          the use of weapons."

G      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 Ill 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
H Rules prescribe an elaborate scheme for appointment of
    DAVINDER SINGH AND ORS. v. STATE OF PUNJAB 619
              AND ORS. [H.L. DATTU, J.]
    members to specific posts enumerated in Appendix 'A'. This            A
    can be seen from Rule 3 of Punjab Home Guards and Civil
    Defense (Field) Class Ill Service Rules, 1983 which states :-

         "3. Number and Character of Posts. - The service shall
         comprise of the posts shown in Appendix 'A' to these
                                                                          B
         rules."

          12. The 1983 Rules envisage a scheme where a person
    who fulfills the requirements under Rule 5 which deals with
    nationality, domicile and character of candidates; secondly, he
    must not be specifically disqualified under Rule 6, thirdly, he has   C
    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         D
    is being appointed. On appointment there is a period of
5
    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          E
         extension, if any, shall no~'Efxceed 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 F
    volunteers who are recruited from the general public.

         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 · G
    3.

        15. Rule 2(n) defines 'service' as follows:- 'Service' means
    the Punjab Home Guards and Civil Defence [Field] Class Ill
    Service.
                                                                          H
    620      SUPREME COURT REPORTS                [201 O] 11 S.C.R.

A        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."

B         17. It is, therefore, apparentfrom the scheme of th~ 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:-
c
          "20. Repeal and Saving :- The Punjab Home Guard Rules
          1963 as these are the applicable to the members of the
          service are hereby repealed."

o      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
E 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
F 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
G 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.

      20. Now we take up the second issue. The appellants
H contend that the High Court erred in dismissing the writ petition
 DAVINDER SINGH AND ORS. v. STATE OF PUNJAB 621
           AND ORS. [H.L. DATTU, J.]
filed by the appellants relying on the decision of this ,court in A
State ot'Gujarat. vs. Akshay Amrut/al 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 B
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,              c
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 D
High Court was not justified in placing reliance on this decision
to unsuit the appellants.

    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.          E
    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.             F
    Observations of the c.ourts 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         G
    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
                                                                       H
    622       SUPREME COURT REPORTS,                  [2010) 11 S.C.R.
                                      ;'      //      //
                                               I      .
A         interpret judgments. They interpj;¢lt words/of statutes;. their
          words are not to be interpreted'~s sta~es."            ·       /
                                                   .                   '
          The court has proceeded to add:

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

          22. There is a substantial difference in the circumstances
c   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
D
    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
E   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
F         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
G   appellants were discharged under Rule 18 of the 1963 rules
    read with para 14.4 of compendium of instructions on Home
    Guards. Rule 18 of 1963 reads:

          "Discharge of Members :- any member may be discharged
H
 DAVINDER SINGH AND ORS. v. STATE OF PUNJAB 623
           AND ORS. [H.L. DATTU, J.]
     at any time by the authority which had appointed him when        A
     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          B
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                  C
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.                                                      D

      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
                                                                      E
 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          F
 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              G
     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
                                                                      H
    624      SUPREME COURT REPORTS                (2010] 11 S.C.R.

A         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
8 dismissed from service either for misconduct or for
  unauthorized absence. Proviso appended to the 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
C 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
D 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
E 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
F 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 letter discharging their services
  explicitly states that the reason for discharge is the indiscipline
  at Amritsar railway station before the appellants were to board
G 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
H
DAVINDER SINGH AND ORS. v. STATE OF PUNJAB 625
          AND ORS. [H.L. DATTU, J.]
where the post has been abolished or where there is a surplus         A
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               B
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.

     31. In our considered view, even in matters of discharge, C
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 D
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.                                                   E

      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 F
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 G
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.         H
     626      SUPREME COURT REPORTS                 [2010] 11 S.C.R.


. A )t is' submitted that the appellants without exhausting the appeal
     remedy provided under rule 27(3) of 1963 rules coultl not have
     approached thefligh 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
  B 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
  c Commandant to discharge a Home Guard at ariy 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.
 D        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.

     B.B.B.                                        Appeals allowed.