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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6373 OF 2010

JIBAN KRISHNA MONDAL & ORS. APPELLANT(S)

VERSUS

STATE OF WEST BENGAL & ORS. RESPONDENT(S)

WITH

C.A. No.6374 of 2010

C.A. No.6375 of 2010

C.A. No.55 of 2015

C.A. No.56 of 2015

C.A. No.57 of 2015

C.A. No.58 of 2015

C.A. No.59 of 2015

C.A. No.60 of 2015

C.A. No.61 of 2015

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA,J

These appeals have been preferred by the appellants

against the judgment and orders passed by the Calcutta High

Court in F.M.A. No.588 of 2002 etc. dated 31

st

January, 2008,

in W.P. No. 14779(W) of 2005 etc. dated 23

rd

July, 2008 and in

M.A.T. No. 4609 of 2006 dated 26

th

November, 2008. By the

impugned judgment dated 31

st

January, 2008, Division Bench of

the High Court set aside the judgment of learned Single Judge

dated 21

st

May, 1999 in C.O. No.21365(W) of 1995 and disposed

of the writ petitions preferred by appellants-members of the

Home Guards and their Association accordingly. By the impugned

orders dated 23

rd

July, 2008 and 26

th

November, 2008, learned

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Single Judge and Division Bench of the High Court respectively

disposed of the writ petitions preferred by appellants-Home

Guards and appeals preferred by the State relying on

observations made by Division Bench in F.M.A. No. 588 of 2002.

2. The only question involved in these appeals is whether

the appellants and other members of West Bengal Home Guards

are in services of the State and whether they are entitled for

regularization of their services or any other relief.

3. The appellants took plea before the High Court that the

members of West Bengal Home Guards are in the services of the

State performing the same duty like police constables who are

Government employees. They are also entitled for

regularization of their services and regular pay at par with

the police personnel.

4. The aforesaid plea taken by the appellants were opposed

by the State of West Bengal and Union of India. According to

them, the members of West Bengal Home Guards are volunteers

who are neither employees of the State nor entitled for

regular scale of pay and hence the question of regularization

of their services does not arise.

5. The submission on behalf of the appellants was accepted

by the learned Single Judges of the High Court who directed

the State to give equal salary, allowances and other benefits

as allowed by service standard to police personnel of Class IV

category. Against which, the appeals were preferred by the

State before the Division Bench. By the impugned judgment and

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orders High Court disposed of the said appeals and fresh writ

petitions preferred by the Home Guards. By the impugned

judgment dated 31

st

January, 2008, the Division Bench of the

High Court held that the members of Home Guards are

volunteers. However, taking into consideration the sufferings

and miseries so highlighted by the members of the Home Guards,

the Division Bench observed:

“We, however, express our desire that the

legislature as well as executives should re-think on

the issue as to what best they can do within the

frame work of the Constitution for welfare of the

members of the home guard. They have given some

benefits in deference to the desire of this Court as

discussed above. We hope and trust in future they

would try to give something more. We, however,

cannot issue any direction on that score. It would

be open for the legislature to re-enact the law on

the subject. It would be open to the executives to

extend further benefits if permissible within the

scope of the said Act of 1962 as amended up-till

date. We, abundantly make it clear that our desire

should not be construed as any special right accrued

in favour of the members of the home guard to claim

as a matter of right any further benefit from the

State. The State would be free to act in accordance

with law. While doing so they should keep in mind

the plight of the members of the home guard so

highlighted by us as above and should consider their

case sympathetically in the light of the observation

made by us herein before.”

6. It is informed that pursuant to judgment and orders

passed by the High Court the State of West Bengal has

increased the duty allowance which is more than Rs.300 per

day.

STAND OF THE APPELLANTS

7. The gist of the arguments advanced on behalf of the

appellants can be summarized as follows:

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(i)A bare reading of the provisions of the West Bengal

Home Guards Act, 1962 (hereinafter referred to as ‘1962

Act’) and West Bengal Home Guards Rules, 1962

(hereinafter referred to as ‘1962 Rules’) clearly

establishes that there is an organized service called the

Home Guard under the State and there exists master and

servant relationship between the Home Guards and the

State Government. The State Government exercises complete

supervision and control over the work done by the Home

Guards and directs what work is to be done and in what

manner it is to be done. The Home Guards satisfies all

the following tests laid down by this Court in Balwant

Rai Saluja vs. Air India Ltd. (2014) 9 SCC 407 to

determine the relationship of master and servant:

(i) who appoints the workers;

(ii)who pays the salary/remuneration;

(iii)who has the authority to dismiss;

(iv) who can take disciplinary action;

(v) whether there is continuity of service; and

(vi) extent of control and supervision i.e whether there

exists complete control and supervision.

(ii)The State Government failed to prescribe pay scale

of the Home Guards which is one of the essential

conditions of service. In the 1962 Rules, it was merely

stated that the service would be voluntary and unpaid,

which was never the intention of the Act. The Act never

intended to create voluntary service of Home Guard.

(iii)Rule 4 of the 1962 Rules is ultra vires the Act

inasmuch the Act never contemplated that the service

would be voluntary and unpaid. Rule 4 is also

unconstitutional, being arbitrary and being violative of

Articles 14 and 16 of the Constitution of India and it

amounts to forced labour under Article 23 of the

Constitution.

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(iv) Appellants were regularly appointed as per the

procedure prescribed under the said Act and Rules. The

appointment letters of the appellants clearly state that

they are appointed as members of Home Guard under the Act

and while on duty they will have the same powers,

functions and privileges as Police Officers appointed

under the Police Act (Act V), 1861. The appointment

letters do not state that the appellants were appointed

as volunteers. Even as per the finding of the Division

Bench of the High Court in the impugned judgment “it is

however an admitted fact for all practical purposes that

they are engaged on continuous basis upto the age of 60

years when then are disengaged because of their advance

stage.” It is thus wrong to contend that the appellants

were appointed as volunteers and not as members of Home

Guard.

(v)West Bengal Home Guards (Amendment) Act, 1990 was

passed by the West Bengal Legislature whereby the word

“member” was substituted by word “volunteer”. However,

the Act is not retrospective and came into force on 1

st

October, 1989. It is pertinent to note that all the

appellants were appointed between 1966 and 1974, i.e.

prior to coming into force of the Amendment Act. The

Amendment Act has thus not altered the status of the

appellants from that being “member” of Home Guards to

“volunteer” of Home Guards.

(vi) The Home Guards were initially paid Rs.2.50 per day

which was enhanced to Rs.24.71, then to Rs.53, to Rs.117

and finally to RS.328 which is presently being paid. The

payment of Rs.328 per day to them who are duly trained is

a pittance and much below the minimum scale of pay of the

State Government. Payment of wages below the minimum

wages fixed under the Minimum Wages Act, 1948 amounts to

forced labour within the meaning of Article 23 of the

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Constitution. The appellants are thus entitled to regular

scale of pay from the date of their appointment.

STAND OF THE STATE OF WEST BENGAL

8. On the other hand, according to learned counsel for the

State, in absence of any sanctioned post for members of Home

Guard, the appellants cannot claim to be employees of the

State. The word “appointment” used in the Act and Rules

amounts to enrollment of members in the Home Guard. The

following submissions were also made:

Section 7 of the Act provides that the members of

Home Guard called out u/s 5 directly in aid of police

force shall be under the control of officers of such

force in such manner as may be prescribed by rules made

u/s 9. This provision clearly indicates that whenever

any member of Home Guard will be called he will discharge

his duties. The expression “called out” clearly shows

that their services are called out only when they are

required as per the circumstances and thus they are not

rendering any service like a permanent employee.

Rule 4 provides that the service in the Home Guard

shall ordinarily be voluntary. A plain reading of the

objects/reasons and the provisions of the Act and the

rules framed thereunder clearly indicates that the

services of the members of the Home Guard are voluntary

in character.

Like in other states, in West Bengal also the

members of the Home Guard are meant for voluntary service

and in effect they have accepted the above position for

decades together and now at almost the fag end of their

enrollment as member, they cannot demand that they were

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entitled to be appointed in the substantive post and

entitled to get any pay scale whatsoever.

All throughout their enrollment as members they have

received duty allowances, which were time to time fixed

by the order of the Governor of West Bengal. Further in

the affidavits the appellants have incorrectly used the

expression “daily wages” instead of “duty allowance”.

Section 9 of the Act empowers the State Government to

make rules in different fields including condition of

service and allowances. But no pay has been prescribed in

the rules made thereunder as well. But in terms of

provisions of the Act duty allowance has been given to

them as prescribed from time to time. Since the Act and

Rules did not prescribe any scale of pay , the question

giving any pay scale did not and does not arise. But all

throughout they were paid duty allowances. It cannot be

said that the members of the Home Guard were treated as

bonded labour because neither were they forced to work

nor were they unpaid. They were paid a substantive amount

which is called as Duty Allowance.

It would be evident from the statement of objects

and reasons of the 1990 amendment, that the voluntary

character of the Home Guards Organization and its members

had not also been explicit in the 1962 Act because of use

of the word “appointment as members”, and this gave rise

to confusion and claims of permanent status. The

amendment Act was brought in 1990 so as to clarify the

voluntary character of the Home Guard Organization and

that the volunteers were enrolled in honorary and

voluntary capacity. The expression “Voluntary” was used

in the 1960 Rules itself. If objects and reasons of the

1962 Act, 1990 Act and the provisions of the Act and

Rules are taken into consideration, it can be safely said

that the status of the members of the Home Guard are

voluntary in character and only when they are called upon

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to discharge their duty they perform their duty. Further

they are not entitled to get any pay or any other

benefits except duty allowances which the State

Government may time to time fix.

STAND OF THE UNION OF INDIA

9. Learned Attorney General appearing on behalf of Union of

India made the following submissions:

The concept of Home Guards has always been

voluntary. This concept originated after the Second

World War. In India, it was first conceived as a force

in 1946. The Bombay Home Guards Act, 1947 apparently was

among the first few of such State enactments. Its

preamble states that it is “a volunteer organization for

use in emergencies……” Section 3 provides for appointment

of Home Guards, “who are fit and willing to serve…..”

Rule 8 of the Bombay Home Guard Rules, 1953 provides that

the term of a Home Guard shall be three years.

The following features are note-worthy in the said Act.

(i) There is no salary, retirement benefits like

pension etc.

(ii) There is no regular cadre.

(iii) The term of Home Guard is only 3 years.

(iv) Persons “fit and willing to serve” are to come

forward to join as Home Guards.

(v) It is a volunteer organization.

(vi) No methodical system of recruitment.

This Act has been extended to Delhi.

A Careful perusal of almost all the State enactments

will show that the Organization was always meant to be

voluntary and it consisted of people from all walks of

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life. In fact Government servants were also enrolled in

the Home Guards to be called as and when the need arises.

However such persons were to route their application

through their employers with the employer’s No objection

to lend their service. In fact refusal of an employer or

obstruction met with penal consequences. For the period

when these enrolled person were called for Home Guard

duty, their service was treated as continuing and salary

was to be paid. This shows that Home Guards are not a

separate full time employment but it was utilized for

specific occasions. Realizing that the 1962 Act did not

use the term “volunteer” or “enrolment” and since there

was a spate of litigations, the Act was amended in 1990.

The Statement of Objects and Reasons dated 18

th

April,

1990 is critical. It states that the Act was passed in

the wake of external aggression in 1962. It states that

the voluntary character was also not explicit in 1962 Act

and this gave rise to confusion and claims of permanent

status. It was made clear that the character of Home

Guards shall be voluntary where volunteers would be

enrolled in honorary and voluntary capacity. What was

implicit was thus made explicit. The 1962 Act was made

after more than 15 years of other State Acts. The

legislature of the State would be aware of the

legislatures in different parts of the country dealing

with the same issue and had framed it accordingly. By

virtue of amendment, the concept of voluntary nature of

service and voluntary organization was made clear.

The amendment is thus purely clarificatory. It made

explicit what was implicit before. Clarificatory

amendments will be retrospective in nature since the

intention of the Act would be deemed to be right from the

inception. Hence the term voluntary and enrolment will

always be deemed to have been there.

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10.For determination of the issue, it is necessary to notice

the ‘Genesis’ of Home Guards Organization and relevant

provisions of Acts and Rules framed by State of West Bengal

with regard to Home Guards Organization.

11.Genesis

In the Compendium of Instructions of Home Guards

published by Directorate General Civil Defence, Ministry of

Home Affairs, Government of India, New Delhi, the Genesis of

Home Guard Organization is shown as below:

“1.1. Genesis

During World War-II, ‘Home Guards’- a voluntary

citizen organization for local defence was raised in

the United Kingdom. In India, in 6

th

December 1946,

Home Guards were raised in Bombay to assist the

police in controlling Civil disturbances and

communal riots. Subsequently, this concept of a

voluntary citizen’s force as auxiliary to the Police

for maintenance of law and order and for meeting

emergencies like floods, fires, famines etc. was

adopted by several other States such as Paranti

Raksha Dal, West Bengal Village block and Civic

Guards. In the wake of Chinese Aggression in 1962,

the Centre advised the States and Union Territories

to merge their existing voluntary organizations into

one all – India force known as ‘Home Guards’ which

would be voluntary both in concept and character.

1.2.Role

The following revised roles are assigned to the

Home Guards. These instructions have been reiterated

from time to time:

(a) Serve as an auxiliary to the police and

assist in maintaining internal security.

(b)Assist the community in any kind of

emergency an air raid, a fire, a flood, an epidemic

and so on.

(c)Organise functional units to provide

essential services such as motor transport, pioneer

and engineer groups, fire brigades, nursing and

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first-aid, operation of water and power supply in

installations etc.

(d)Promote communal harmony and give

assistance to the administration in protecting

weaker sections of the Society.

(e)Participate in socio-economic and welfare

activities such as adult education, health and

hygiene, development schemes and such other tasks as

are deemed useful.”

WEST BENGAL HOME GUARDS ACT, 1962

12.Initially, West Bengal Home Guards Ordinance, 1962 (West

Bengal Ordinance XI of 1962) was promulgated. In exercise of

the power conferred u/s 9 of the said Ordinance, the

Government of West Bengal, Home Department, Police by

notification No.4583P 1 dated 13

th

November, 1962 framed “The

West Bengal Home Guards Rules, 1962”.

The Ordinance subsequently was made an Act known as “The

West Bengal Home Guards Act, 1962.

From Statement of Objects and Reasons shown in (Part IVA)

the Calcutta Gazette Extraordinary dated 14

th

November, 1962,

we find that the Home Guard Organization was raised after the

Chinese aggression. The Statement of Objects and Reasons reads

as follows:

“STATEMENT OF OBJECTS AND REASONS

In connection with the defence of the country

against external aggression it has been found

necessary to raise an organization of Home Guards,

the members of which may be called out for the

protection of persons, the security of property or

the public safety and for such other allied

functions as may be assigned to them according to

circumstances. Accordingly, the West Bengal Home

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Guards Ordinance, 1962, was made and promulgated by

the Governor under clause (1) of Article 213 of the

Constitution. The present Bill is intended to enact

the provisions of the said Ordinance. The clauses of

the Bill are self-explanatory.”

Section 3 of the Act relating to constitution of Home

Guards reads as follows:

“3. Constitution of Home Guards. The Superintendent

of Police in a district or the Commissioner of

Police in Calcutta may constitute for the district

or Calcutta, as the case may be, 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 in

accordance with the provisions of this Act and the

rules made thereunder.”

As per Section 5 of the Act, the Superintendent of Police

may at any time call out a Home Guard for training or to

discharge any of the functions assigned to the Home Guard in

accordance with the provisions of the Act.

In the year 1990 by notification No.1189-I dated 30

th

July, 1990, the West Bengal Home Guards (Amendment) Act, 1990

was notified. It was given effect from 1

st

October, 1989. By

the said amendment in place of a ‘body’ ‘a body of volunteers’

was substituted in Section 3. Similarly, by Section 7 of the

Amendment Act the word ‘member’ in Section 6 was substituted

by the word ‘volunteers’. By Section 8 of the Amendment Act

in Section 7 the word ‘Member” was substituted by the word

‘volunteers’. By Section 9 of the Amendment Act the word

‘members’ in Section 8 was substituted by word ‘volunteers’

and in place of words ‘as a member of the Home Guards’ the

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words ‘as such volunteer’ were substituted. By Section 10 of

the Amendment Act, in clause (b) of sub Section 2 of Section 9

of the Act the word ‘enrolment’ was substituted in place of

the word ‘appointment’ and for the word ‘members’ the word

‘volunteers’ was substituted. Similar substitutions were made

in different clauses of Section 9.

WEST BENGAL HOME GUARDS RULES, 1962

13.Rule 3 deals with appointment and reads as follows:

“3. Appointment (i) Application for enrolment

as members of the Home Guards shall be in the form

set out in Schedule A to these rule and shall be

presented to the Group Commander of the area within

which the applicant resides. The Group Commander

shall interview the candidate and shall forward the

application with his recommendations through the

Home Guard Commandant to the appointing authority

and such authority may, in its discretion, refuse to

accept any particular recommendation for

appointment. All recruits shall be formally enrolled

with due ceremony on parade, provided that before

such enrolment, a recruit shall if he is in service,

be required to produce a certificate from his

employer agreeing to spare his services for training

and duty when so required.”

Rule 4 relates to conditions of service, as quoted below:

“4.Conditions of service -Save as the State

Government may otherwise direct in the case of any

class of officers, service in the Home Guards shall

ordinarily be voluntary and unpaid.

Provided that the State Government may

determine the allowances to be paid to the members

of the Home Guard when calls out on duty.”

Rule 7 relates to duties as follows:

“7.Duties-Members of the Home Guards may be

called out on duty.

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(i)to assist the police force in the protection

of Civil population against the forces of crime and

disorder;

(ii)to work in close touch with Civil Defence

Organization;

(iii)to perform such duties in connection with

the protection of persons, the security of property

or the public safety as the State Government may,

from time to time, by rule assign to them.”

Rule 8 relates to order for calling out Home Guards and

reads as follows:

“8.Order for calling out Home Guard- A Home

Guard in its entirely or such portion thereof as the

Superintendent of Police or the Commissioner of

Police, as the case may be, thinks fit may be called

out on any particular occasion and for such purpose

a written order shall be issued in a district by the

Superintendent of Police and in Calcutta by the

Commissioner of Police.”

14.From plain reading of the aforesaid Rules, the following

facts emerge:

(i)West Bengal Home Guards are enrolled as member of the

Home Guard in the form set out in Schedule A of the Rules.

(ii)The Home Guards shall ordinarily be volunteers and

unpaid. But the State Government may determine the allowances

to be paid to the members of the Home Guard when they are

called out for duty.

(iii)There is no fixed duty for members of the Home Guard.

When they are called out for duty, they shall assist the

police force in the protection of civil population against the

forces of crime and disorder. They have to work in close touch

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with Civil Defence Organization and have to perform such

duties in connection /with the protection of persons, the

security of property or the public safety as the State

Government may, from time to time, determine.

Therefore, if the 1962 Act is read with 1962 Rules, we

find that members of Home Guards are ordinarily unpaid

volunteers for whom the State Government shall determine the

pay and allowances when called out for duty.

15.The voluntary character of the Home Guards Organization

was not explicit in the 1962 Act because of the use of word

“appointment as members”, though it was explicit from 1962

Rules as noticed above.

For the reasons aforesaid, the State Government issued

Amendment Act, 1990.

16.The Statement of Objects and Reasons of amended 1990 Act

reads as follows:

“STATEMENT OF OBJECTS AND REASONS

Home Guard Organization was created in West

Bengal in the wake of the external aggression on

India in 1962 and the West Bengal Home Guard Act was

passed in the same year. Since the passing the Act,

there have been many changes in the working of the

organization as a result of which the Act has become

outdated. There is no reference in the 1962 Act to

the post of Commandant General, Home Guards, West

Bengal which was created long after the enactment of

the current Act. Although the Commandant General,

Home Guards, West Bengal has been given the task of

commanding and controlling Home Guards Organization

in the districts in West Bengal and administrating

Home Guards Budget, legally he cannot issue any

direction to the Superintendent of Police or to

other police officers posted in the Home Guard

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section of the district. There is hence absence of

a chain of command in the Home Guards Organization.

The voluntary character of the Home Guards

Organization and its voluntary members had not also

been explicit in the 1962 Act because of use of the

word “appointment as members”, and this gave rise to

confusion and claims of permanent states.

In view of the above reasons, the present

amendment to West Bengal Home Guard Act, 1962 is

proposed with the objectives of establishing the

control of Commandant General, Home Guard, West

Bengal over Home Guards Organization in West Bengal

districts and defining the ex officio capacity of

Additional Commandant General, Home Guard of the

Commissioner of Police in Calcutta and of making

clear the voluntary, character of the Home Guard

Organization where volunteers are enrolled in

honorary and voluntary capacity.

The Bill has been framed with the above objects

in view.”

Thereby the intention of the Legislature to create a

voluntary Home Guard Organization is made clear.

17.In Rajesh Mishra v. Govt. of NCT of Delhi, 98 (2002) DLT

624, the High Court speaking through S.B. Sinha,J held that

that the Home Guards is a voluntary organization and there is

no Master-Servant relationship between Government and Home

Guards. It was held that they are not civil servants and they

cannot move before the Tribunal u/s 19 of the Administrative

Tribunal Act.

18.In State of Manipur and another v. Ksh. Moirangninthou

Singh and others, (2007) 10 SCC 544, this Court reiterated the

voluntary nature of service of members of Home Guard and held:

“8. It may be noted that Home Guards have been

constituted as a voluntary organisation for service

in emergencies and hence it cannot be treated on a

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par with other organisations like the army,

paramilitary organisations or the civil police.

11. A perusal of the provisions of the Home

Guards Act and the Rules show that the Home Guards

was meant to be a reserve force which was to be

utilised in emergencies, but it was not a service

like the police, paramilitary force or army, and

there is no right in a member to continue till the

age of 55 years. We approve the view taken by the

Delhi High Court in Rajesh Mishra v. Govt. of NCT of

Delhi.

13. The concept of Home Guards was of a

voluntary citizen force as auxiliary to the police

for maintaining law and order and for meeting

emergencies like floods, fires, famine, etc. and for

civil defence.”

19.A Careful perusal of genesis of Home Guards and its role

will show that the Organization was always meant to be

voluntary and it consisted of people from all walks of life.

In fact Government servants were also enrolled in the Home

Guards to be called as and when the need arises. A large

number of State enactments i.e. Andhra Pradesh Home Guards

Act, 1948, Bombay Home Guards Act, 1947, Assam Home Guards

Act, 1947, Manipur Home Guards Act, 1966, Madhya Pradesh Home

Guards Act, 1947, Punjab Home Guard Act, 1947, Rajasthan Home

Guards Act, 1963 etc. placed before this Court in compilation

by learned Attorney General during the hearing makes it clear

that the provisions of all these enactments are more or less

similar. The voluntary nature is a basic feature of the Home

Guards.

20.Majority of the appellants has attained the maximum age

and are no more members of the Home Guards. The appointment

letters enclosed by the remaining category of appellants, do

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not suggest that they are performing duty all over the year

like any Government servant. There is nothing on the record to

suggest the master-servant relationship. They were appointed

pursuant to Home Guard Rules, 1962 and it is made clear that

their services are voluntary and will not get any pay but the

duty allowance as may be fixed by the State Government from

time to time.

In that view of the matter, we hold that the appellants

are not entitled for regularization of service. Further, in

absence of any comparison of duties, responsibilities,

accountability and status, they may not be equated with the

Police Constables or personnel to claim parity with the pay or

scale of pay as provided to the Police personnel. The High

Court by the impugned judgment and orders rightly refused to

grant regularization of their services. We find no merit in

these appeals and they are accordingly dismissed.

……………………………………………………………………… J.

(SUDHANSU JYOTI MUKHOPADHAYA)

……………………………………………………………………… J.

(VIKRAMAJIT SEN)

NEW DELHI,

MARCH 10, 2015.