Allowed

Ram Milan v. State of U.P.Thru Prin.Secy.Home Lucknow and Ors.

Allahabad HC25 Mar 2022WRIA/2811/2020

Case brief

AI extract

What is this about?

High Court allowed a writ petition challenging the cancellation of the petitioner's Home Guard volunteer appointment. The court quashed the order dated 04.01.2020 passed by the District Commandant without hearing, noting mere detention does not constitute misconduct. Parties were directed to proceed afresh after issuing a show cause notice.

What did the court decide?

Quashed the order dated 04.01.2020 cancelling the enrollment; permitted the State to proceed afresh with a show cause notice and hearing.

Ram Milan Vs State of U.P.Thru… — Pension and Retirement Benefits | Allahabad HC (2022)

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Court No. - 22

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Case :- WRIT - A No. - 2811 of 2020

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Petitioner :- Ram Milan

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Respondent :- State of U.P. Thru Prin.Secy.Home Lucknow and Others Counsel for Petitioner :- Ajay Kumar Pandey Counsel for Respondent :- C.S.C.

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Hon'ble Subhash Vidyarthi,J.

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Heard Shri Ajay Kumar Pandey, Advocate, learned counsel for the petitioner and Shri Vishal Verma, learned State Law Officer for the State-respondents.

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By means of the instant writ petition, the petitioner has challenged the validity of the order dated 04.01.2020 passed by the District Commandant, Home Guards, District Ayodhaya, cancelling the certificate of appointment of the petitioner on the post of Home Guard Volunteer for the reason that he had been detained in district prison from 05.06.2019 to 16.11.2019 as an undertrial prisoner.

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On 03.06.2019 a first information report bearing Case Crime No. 127 of 2019 under Sections 498-A, 304-B IPC and 3/4 D.P. Act, P.S. Tarun, District Faizabad (now Ayodhyaya) was lodged alleging that the petitioner, his wife and his son have committed murder of wife of the petitioner's son Suresh Yadav by hanging her.

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The petitioner's submission is that on the date of the incident i.e. on 03.06.2019, the petitioner was on duty and he has annexed a copy of the duty allowance muster roll which shows his presence on duty on the said date. He submits that he has been falsely implicated in the aforesaid criminal case.

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The petitioner was taken into custody, on the basis of the aforesaid FIR and he was sent to jail on 05.06.2019. By means of an order dated 05.11.2019 passed by this Court, the petitioner was enlarged on bail and he was released from the jail on 16.11.2019.

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On 04.01.2020, the petitioner gave a representation to the District Commandant, Home Guards, Ayodhyaya for being assigned duties. However, on 04.01.2020 itself the District Commandant, Home Guard, Ayodhyaya passed an order cancelling his appointment certificate for the reason that the petitioner had been detained in district prison.

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While assailing the aforesaid order dated 04.01.2020, the learned Counsel for the petitioner has submitted that the impugned order has been passed without giving any opportunity of hearing to the petitioner, in violation of the principles of natural justice.

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The respondents have filed a counter affidavit and they have stated that on 22.08.2019 a show cause notice had been issued to the petitioner calling upon him to show cause as to why his name should not be struck out of the nominal roll of the Home Guards and he should not be relieved of his services as a volunteer member of the Home Guards. Again on 04.12.2019 another show cause notice was issued to the petitioner on the same facts. However, copies of none of the show cause notices annexed with the counter affidavit contains any acknowledgement of receipt of the same by the petitioner and there is no averment regarding the manner through which the show cause notices were sent to the petitioner and were served upon him.

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The State has filed a supplementary counter affidavit annexing therewith a copy of the Government Order dated 02.12.2016, which provides that the appeal filed against the decisions taken on the representations submitted by a former home guard volunteer against his expulsion order will be disposed of by a Committee constituted by the Commandant General, Home Guards, Uttar Pradesh.

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On the basis of the aforesaid Government Order, the learned State Counsel submits that the petitioner has got an alternative remedy to file an appeal against the impugned order dated 04.01.2020 and therefore, the writ petition is liable to be dismissed as such.

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The petitioner has assailed the order cancelling the enrollment on the ground that the same has been passed without affording any opportunity of hearing to him. Although, show cause notices are stated to have been issued to the petitioner on 22.08.2019 and 04.12.2019, there is no narration as to how the notices were sent to the petitioner and there is no proof of acknowledgement of receipt of the same available on the record of the case. On the date of issuance of first notice, i.e. on 22.08.2019, the petitioner was detained in district prison and he could not have received the notice by any means. The other notice dated 04.12.2019 also contains no acknowledgement of its receipt by the petitioner.

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From the material available on record, it appears that the order under challenge has been passed without any giving opportunity

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of hearing to the petitioner in violation of the principles of natural justice.

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Petitioner's enrollment as Home Guard volunteer has been cancelled on the sole ground that he had been detained in district prison. Mere detention in prison cannot amount to a misconduct committed by the detenue, in absence of any further material.

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Keeping in view of the aforesaid facts, I am of the view that the order dated 04.01.2020 passed by the District Commandant Home Guards, District Ayodhaya is not sustainable in the eyes of law. Accordingly, the writ petition is allowed . The order dated 04.01.2020 passed by the District Commandant Home Guards, District Ayodhaya is quashed.

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However, it will be open to the opposite parties to proceed afresh against the petitioner by issuing a show cause notice and giving him proper opportunity of hearing as per the Government Orders issued from time to time. No order as to costs.

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Order Date :- 25.3.2022 Jaswant

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Digitally signed by JASWANT KUMAR Date: 2022.03.28 17:41:33 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Ram Milan v. State of U.P.Thru Prin.Secy.Home Lucknow and Ors.

Case brief

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Ram Milan v. State of U.P.Thru Prin.Secy.Home Lucknow and Ors.

Case brief

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What did the court decide?

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