DEBABRATA BANERJEE Vs. SUPTD OF POLICE 24 PGS

JUDGEMENT

(1.) THIS Rule is directed against art, order of discharge of the petitioner by the Senior Adjutant, Home guard, Alipore, with effect from 5. 11 76. In this application the petitioner was a member of the Home Guard and was appointed as such on 11. 12. 62 by superintendent of Police under Ordinance No. XI of 1962. The Ordinance was repealed on the coming into force of the West Bengal home Guards Act. 1962. Under the said act the Superintendent of Police in a district may constitute a body to be called the home Guards the members of which shall discharge such functions in relation to the protection of persons, the security of property or the public safety as may be assigned to them under the provisions of the Act and the Rules made there under. The appointing authority in the district is the Superintendent of Police. The functions of the members of the Home Guards have been enumerated under section 5 of the Act stating therein the Superintendent of Police in a district may at any time call out a member of the Home Guard for training or to discharge any of the functions assigned to the Home Guard in accordance with the provisions of this Act and the Rules made there under. A member of the Home guard when called out under section 5 shall have the same powers, privileges and protection as an officer of police appointed under any Act for the time being in force. The members of the Home Guard when called out under section 5 directly in aid of police force shall be under the control of the officers of such force, in such mannerand to such extent as may be prescribed by rules made under section 9. If any member of a Home Guard refuses without sufficient cause to obey such order made under section 5 he may be convicted by a competent court and is punishable with a fine.

(2.) IT appears on the face of it that the home Guard has function as subsidiary police force when called upon under section 5 of the Act The Home Guard is to help or aid the police force and perform all the duties of the police when called in. Therefore, in my opinion, the Home Guard post is a civil post. In the case reported in 59 cwn 628 Brajagopal v. Commissioner of police it has been held by this Court that a special Constable appointed by the Commissioner of Police under section 12 of the calcutta Suburban Police Act, 1866, holds a civil post. At page 630, it has been held interpreting the similar provisions under section 12 of the said Act that that the members of the regular police force of Calcutta are members of a civil service under the State of West Bengal or are persons, who hold civil posts under the State, admits of no doubt. The words 'civil post' and 'civil service are used in contradistinction to service in or post under the defence forces of the Government of India. It is true that the petitioner does not belong to the cadre of any regularly constituted service. His office of a special constable continues so long as the temporary emergency within the meaning of section 12 of the Calcutta Police suburban Act continues. Neverthless he is holder of a civil post. In the Supreme Court judgment reported in A. I. R. 1967 SC 884 (State of Assam versus Kanak) it has been held that the post of Mazadar of the Assam valley is a civil post.

(3.) IN my view, the Home Guard appointed under the West Bengal Home Guards act, 1962, is a civil post and, therefore, he is entitled to all protection under Article 311 of the Constitution of India. It appears the order passed by the Senior Adjutant. Home guard, Police Officer, Alipore, by which debabrata Banerjee, the petitioner herein, was discharged is illegal apart from the fact the appointing authority of the petitioner is the Superintendent of Police and he alone can discharge. It appears he was holding the post from 1962 till 1976 and was discharged without following the procedure for discharge of a person holding civil service. Therefore, the order impugned cannot stand and must be set aside. The Rule is made absolute. There will be no order as to costs. It is really unfortunate though the Rule was served on the State Government in july 1978 none appeared to oppose this rule.