PRAKASH BALWANTRAO DETHE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By the present writ petition, the petitioner has challenged the order dated 10. 12. 2002 passed by the respondent no. 1 terminating his services as Commandant, home Guards, Yavatmal.

(2.) The petitioner avers in his petition that he was appointed initially in the year 1986 as District commandant, Home Guards, Yavatmal and subsequently by the order dated 5. 1. 1999 he was again appointed as district Commandant for a period of five years. The petitioner then states that the respondent no. 1 issued an order on 10. 12. 2002 terminating the services of the petitioner as District Commandant, Home Guards, yavatmal, by giving him one month's notice. The precise challenge to the said order of termination raised by the petitioner was that the principles of natural justice were not followed before dispensing with the services of the petitioner, inasmuch as neither any show cause notice was issued to him nor any personal hearing was granted before taking the impugned action.

(3.) The respondent no. 1 has filed reply-affidavit and stated that during the inspection of the office of the district Commandant, Home Guards, Yavatmal, by the audit party on 12. 7. 2002, shortage of cash was found. The audit party found that the petitioner had misappropriated an amount of Rs. 1,42,238/- by misusing his official position as District Commandant. It is stated that out of the aforesaid amount the petitioner had deposited rs. 37,348/- on 20. 11. 2002 and avoided to pay the balance amount. Therefore, an offence came to be registered against him and other concerned officers vide Crime No. 747 of 2002 and, as such, the Government decided to terminate his service by giving him one month notice. A specific stand has been taken by respondent no. 1 that Sub-section 2a of Section 2 of the bombay Home Guards Act, 1947, as amended in 1978, (for short the Act) does not provide for issuance of either show cause notice or grant of personal hearing. The learned counsel for the petitioner urged before us that the petitioner was not given any show cause notice nor was offered any personal hearing before issuance of the impugned order of termination. The counsel for the petitioner assailed the provisions of sub-section 2a of the act and contended that such a provision which does not provide for opportunity of hearing would violate Article 14 of the Constitution of India and, therefore, liable to be struck down. The learned counsel for the petitioner, therefore, urged that admittedly in the instant case neither any show cause notice was issued to the petitioner nor he was afforded an opportunity of hearing, and therefore the impugned order of termination is per se bad and illegal.