DAVINDER SINGH AND ORS. versus STATE OF PUNJAB AND ORS.

Citation: [2010] 11 S.C.R. 609 · Decided: 10-09-2010 · Supreme Court of India · Bench: D.K. JAIN · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2010] 11 S.C.R. 609 
DAVINDER SINGH AND ORS. 
V. 
STATE OF PUNJAB AND ORS. 
(Civil Appeal No. 7904 of 2010) 
SEPTEMBER 10, 2010 
[D.K. JAIN AND H.L. DATTU, JJ.] 
A 
B 
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 
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 
8 
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; 62

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