S. K. MOOKERJEE, J. - (1.) The writpetitioners in the present case had been serving as Homeguards since 1975, the appointments having been given from time to time. By the impugned order, the services of the petitioners have been dispensed with. From the materials, produced on behalf of the respondents, it appears that such order of discharge has been passed in compliance with recommendation of the Vigilance Commission. It further appears that the allegations, which appeared to form the basis of such recommendations, were already subject matters of an abortive police investigation in G. R. No. 771 of 1980, which ended in an order, dated 17.3.1982, in favour of the petitioners. The petitioners were given allotted duties thereafter since September 1982. The discharging authority claims to have passed the impugned order of discharge in purported compliance with Rule. 9 of the West Bengal Homeguard. Rules 1962.
(2.) In my view, the impugned order is liable to be quashed on two grounds : - (a) For non-compliance with the preconditions, laid down in Rule 9,referred to above, as the said authority, before passing the impugned order, did not come to any finding by independent application of mind, whether the petitioners had, by reason of their misconduct, neglect of duty or breach of discipline, become unfit to act or continue as such Homeguards were unlikely to make efficient members of the Homeguards organisation. The order appears to have been passed upon mechanical acceptance of the recommendation of the Vigilance Commission. (b) For violation of the principles of natural justice, as the discharge on the basis of recommendation of the Vigilance Commission itself is indicative of a stigma against the petitioners. Admittedly, no opportunity as given to the petitioners to show whether the case against them was a 'shut' one or not. I am not inclined to accept Mr. Mondal's submissions on this point that the petitioners, not being Civil Servants, cannot claim fulfillment of conditions of Rule 9 or compliance with the principles of natural justice. It is well settled that, unless specifically excluded, the principle of audi alteram partem has to be followed. Failure to follow the same in. the particular case is apparently prejudicial, as the very same allegations proved to be unsustainable in course of criminal investigation. It is not a case, where there was no scope for any explanation. In this connection, I rely upon the observation of Megarri, J, quoted by the Supreme Court in the case of S. L. Kapoor v. Jagmohon (paragraph 19) reported. in AIR 1981 S.C. Page 136.
(3.) Accordingly, I quash the impugned order of discharge, which is Annexure 'C' to the writ application, and direct the respondents to forbear from giving effect to the same. Let a writ of Certiorari issue, quashing Annexure 'C' to the writ application. Let a writ of Mandamus also issue, commanding the respondents to forbear from giving any effect to the same.;