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CASE NO.:

Appeal (civil) 4420 of 1999

PETITIONER:

State of West Bengal and Ors.

RESPONDENT:

Vs.

Pantha Chatterjee and Ors.

DATE OF JUDGMENT: 07/07/2003

BENCH:

Brijesh Kumar & D.M. Dharmadhikari.

JUDGMENT:

JUDGMENT

WITH

CIVIL APPEAL NOS. 4421/1999, 4422/1999 & 4423/1999

BRIJESH KUMAR,J.

The State of West Bengal and others have preferred these

appeals against the judgment and order passed by the Division

Bench of Calcutta High Court, dated May 2, 1996, dismissing

their appeals with some modification in the Judgment of the

learned Single Judge, allowing, by a common judgment, four

writ petitions filed by respondents-petitioners. It will be

pertinent to mention here that the Union of India, the Inspector

General, Border Security Force and the Commandant 65

Battalion, Border Security Force, Calcutta were also impleaded,

in the appeal, as proforma respondents 10 to 12 in the High

Court.

The part time Border Wing Home Guards (for short

'BWHG') being dissatisfied with the pitiable conditions of

service under which they had been working and the nominal

emoluments paid to them, preferred four writ petitions before

the Calcutta High Court complaining that they were being

discriminated vis-a-vis other regular Border Wing Home Guards

of the West Bengal and the Border Security Force Personnel, as

the writ petitioner-respondents had also been performing similar

duties and discharging same responsibilities. The learned

Single Judge considering all the material on the record, came to

the conclusion that there is a relationship of master and servant

between the writ petitioners and the State of West Bengal, who

is their appointing authority as well. So far the nature of the

employment is concerned, as to whether it was casual and

voluntary, the learned Single Judge has referred to the Memo

dated October 11, 1985 issued by the Deputy Secretary, Home

(Civil Defence) Government of West Bengal, a part of which is

reproduced herewith: "though the Border Wing Home Guard

boys are supposed to render voluntary service and are subject to

rotational duty, actually the same sets who were enrolled and

deployed at the time of formation of the Battalion in 1977 are

still working and their duties have never been rotated." On the

basis of the above, the Government of West Bengal had strongly

recommended for making the services of the part time Border

Wing Home Guards as permanent WBHG. The learned Single

Judge has therefore concluded that the petitioners could not be

treated as volunteers engaged in causal nature of work so as to

be termed as part time staff of the Government of West Bengal.

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The learned Single Judge also referred to a decision of

Guwahati High Court in C.R. No. 119 of 1981 (Ratanlal Dutta

Vs. State of Tripura and Ors.) which in turn relying upon

AIR 1987 SC 664, State of West Bengal Vs. Kanak Chandra,

held that there existed relationship of master and servant

between such home guards and the State government. They

were also held to be holders of civil posts under Article 311 of

the Constitution and members of permanent staff of the State

Government. After referring to decisions of this Court, a few

of which may be mentioned here eg. AIR 1987 SC 2342

Bhartiya Dak Tar Mazdoor Manch Vs. Union of India and Ors.,

on the point that the Government could not take advantage of

its dominant position to treat the work as casual and retain them

on lower wages and AIR 1987 SC 2049, Bhagwan Dass and

Ors. Vs. State of Haryana and Ors. for the proposition 'equal

pay for equal work' besides AIR 1991 SC 101, Delhi Transport

Corporation Vs. D.T.C.Mazdoor Congress and Ors., it has been

held by the learned Single Judge that the petitioner-respondents

are entitled to the same benefits as admissible to the permanent

BWHGs.

It has also been found that Union of India is responsible

for the salary and other allowances payable to the writ

petitioners which the Central Government had undertaken to

reimburse to the State Government but the appropriate authority

for redressal of their grievance is only the State of West Bengal

and not the Border Security Force or Union of India. It was also

found that there was clear discrimination between the

permanent staff and the part time Boarder Wing Home Guards

on all counts. So far the question of reimbursement is concerned

it is held that the dispute is between the State Government and

the Central Government which has to be sorted out between

them and the respondent-writ petitioners could not be concerned

with it.

The learned Single Judge finally issued the following

specific directions : (I) part time members of the Border Wing

Home Guards would be treated at par with whole time staff of

the Border Wing Home Guards, (II) they would get all the

privileges of the State armed police as extended to a full time

Border Security Wing Home Guards (III) all the benefits

available to the West Bengal Government Servants, for

example, fixation of pay, benefit of provident fund, gratuity,

retiral benefits and allowances and leave etc. shall also be made

admissible to the petitioners (IV) arrears of service benefits

were also directed to be given to them since the time of their

joining (V) they were also directed to be absorbed irrespective

of age bar which would stand waived. The judgment was to

operate in rem covering all the part time members of the

Border Wing Home Guards and each of the petitioner was

awarded cost of Rs. 1,000/- which cumulatively came to

Rs.2,73,000/-.

The Division Bench also arrived at and upheld the

findings as recorded by learned Single Judge. The State of

West Bengal also seems to have canvassed before the Bench

that the liability to make payment would only be that of the

Central Government alone. However, we find that on

considering the facts and circumstances and the memos issued

from time to time by the Government of India and State of West

Bengal, the Division Bench held that the Battalion of Border

Wing Home Guards was raised by the State Government and

they were being paid by and from a particular head of

expenditure of the State Government. The Union of India had

only undertaken for the full reimbursement of the expenditure

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incurred by the State government but this would not be enough

to hold that the respondent-writ petitioners are employees of

Union of India. So far BSF is concerned, they exercise only

operational control over them in the field. In our view, the

Division Bench has rightly arrived at and upheld the finding

recorded by the learned Single Judge. The work, it has been

observed, is of a perennial nature and no one was discontinued

on expiry of three months of initial appointment. Therefore,

there was no occasion to disengage them after they were

continued for years after years, on the ground that they were

engaged for causal nature of work. With the above findings, the

Division Bench dismissed the appeal with a modification that

the order of the learned Single Judge to the effect that the

judgment was in rem and levy of costs of Rs. 1,000/- for each

petitioner, was set aside.

It appears that necessity was felt for raising of Border

Wing Home Guards Battalion in the States of Assam,

Meghalaya, Tripura and West Bengal so as to strengthen the

measures against infiltrations of foreigners from across the

borders. With that view, the Government of India, Ministry of

Home Affairs promulgated a scheme by means of Memo No.

1/17/75-DGCD (HG) dated October 15, 1976 Government of

India, Ministry of Home Affairs. It was addressed to the Chief

Secretaries to the Governments of Assam, Meghalaya, Tripura

and West Bengal. It is indicated in the scheme that the

President had sanctioned the raising of one Border Wing Home

Guards Battalion with immediate effect. The Battalion was to be

raised, as far as practicable, from within a belt zone of 30 miles

along the border, any slight variation, if necessary, could be

permissible by the Ministry of Home Affairs. The strength of

the Border Wing Home Guards Battalions was to be within the

existing allocated strength of States concerned. The preference

was to be given to the Home guards Organisation already on

the rolls but it was to be ensured that they were available for

duty during emergencies both for long and short durations. They

were to conform to the required qualifications/standards. With

a view to raise the Battalion speedily, permanent staff was

provided to be taken on loan or retired defence, police personnel

could also be taken in the Battalion. BWHG were to be utilized

for the jobs assigned to them but the State Government could

also deploy them for its purpose with prior clearance from the

Home Ministry, Government of India. The expenditure

incurred in payment of salary etc. for implementing the scheme

was to be met by the Government of India. The initial

expenditure on setting up the Battalion was to be incurred by

the State Government itself. In case of urgency, if the State

deployed the BWHG for its own purpose, the expenditure for

such deployment was to be met by the State Government.

The duties assigned to the Border Wing Home Guards is

to be found in the appendix to the Memo dated 15.10.1976.

According to which in the normal times and during period of

tension on the Border they were to assist in providing local

security to the border villages and thereby boost the morale of

inhabitants and to pose as a deterrent against pilferage from

across the border. The other duty was to protect the lines of

communication in times of emergency and to assist the local

administration in tackling the problems of internal security in

the border areas and further as and when required to provide

sub-units as auxiliaries to the Border Security Force including

for the purpose of patrolling along the border and checking and

preventing infiltrations.

In pursuance of the above said letter of the Govt. of India,

dated 15.10.1976, the West Bengal Police Directorate issued a

letter dated 14.3.1977 addressed to the Superintendent of Police

of seven districts in the State of West Bengal in connection with

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raising 8 companies of the Border Wing Home Guards as

desired by the Govt. of India. A "secret" appendix was also

enclosed along with the letter dated 15.10.1976 issued by the

Govt. of India. Apart from indicating the role of the Border

Wing Home Guards, it indicates the strength of the platoon and

the number of persons with their designation who were to be

employed on full time pay basis as well as on part time basis. It

was provided that full time establishment was to be paid scale of

pay and allowances admissible to the State armed police

whereas Home Guards on part time basis were to be paid

honorarium ranging from Rs.5 per month to Rs.15 per month

depending upon the rank, namely, Guardsman, Lance Naik,

Naik, Platoon Havaldar. The State Government, accordingly, as

per Scheme of Government of India, recruited full time and

part time Border Wing Home Guards, under the West Bengal

Home Guards Act, 1962.

The main plank to oppose the writ petitions filed by the

respondents has been that "Home Guards" is a voluntary

organization. The part time Border Wing Home Guards are

entitled to the honorarium and they are to be paid only as and

when their services are required and utilised. Their appointment

was not to exceed for a period of more than three months except

in cases where it was recommended otherwise by the authorities

of the Border Security Force.

What emerges out from the two documents referred to

above, on the basis of which Border Wing Home Guards was

raised, is that they were required, amongst other, for the

purposes of patrolling the border as well with a view to check

infiltration from across the border. They have to help and assist

and to do the patrolling etc. along with and under the

supervision and direction of the Border Security Force

authorities. One thing which deserves to be noticed is that

duties of the permanent Border Wing Home Guards and part

time Border Wing Home Guards are the same, and performed

under the same situation and circumstances but there has been

disparity in their emoluments and other facilities, necessities for

performing their duties, details of which are not necessary to be

indicated here. Yet another thing which is clear is that the

scheme under which Border Wing Home Guards battalion was

raised is the scheme of the Central Government which in

substance is being implemented through the machinery of the

State Government with a condition that pay and salary etc. of

the full time and part time Border Wing Home Guards is to be

borne by the Central Government. They have to assist and work

always with border security personnel along the borders of the

country. So far the engagement for a period of three months is

concerned, it has been stated in the counter affidavit filed in this

Court on 4.5.1998 sworn by Shri O. C. Mehta, Lt. Col.

Assistant Director General, Home Guards, Ministry of Home

Affairs, in Para 16 as follows:

"In terms of the instruction of the Government of

India, Govt. of West Bengal raised one Bn. Consisting

of 8 companies of BWHG volunteers. Since

inception, all the 8 coys of BWHG volunteers in West

Bengal were being utilized by the DG, BSF on the

Indo Bangla Desh Border. For this purpose, Ministry

of Home Affairs vide their letter No.III- 14011/6/79-

DGCD(HG) dated 7th June 1979 issued suitable

instructions for utilization of BWHG volunteers by

the BSF authorities. Under these instructions, DG,

BSF concerned are to sent requisition for home

Guards of the concerned number of BWHG volunteers

to the Comdt. General Home Guards of the concerned

number of BWHG. It has also been stipulated in their

said instructions of this ministry, that deployment of

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BWHG volunteers will not be for prolonged periods.

On the basis of these instructions, DG, BSF had been

approving deployment of BWHG volunteers to assist

BSF initially for a period of 3 months each time

which had been extended continually after every three

months since 1978-79. Although the deployment of

BWHG volunteers would not be prolonged, a

stipulated vide sub para (vi) of MHA letter No.

III14011/6/79 â\200\223 DG (HG) dated 7th June 1979 but in

actual practice since 1978-79 the same members of

BWHGs in West Bengal had been under continuous

deployment with the BSF on account of extension of

deployment period by DG, BSF on the basis of the

authority given to DG, BSF. As a result all the part

time members of 8 coys of BWHGs had been serving

in aid of BSF since 1978-79 without break in service.

From the above averment, it is clear that BWHGs have

been continuously deployed since 1978-79. It is also to be

found that such a long and continued deployment, which was

initially envisaged only for a period of three months, was

contrary to the Scheme taking away the voluntary nature of the

Scheme. It appears that it was after their continued deployment

for over 10 years that in 1989 the petitioners approached the

High Court for same emoluments and conditions of service as

applicable to the permanent staff of the BWHGs. The Scheme

envisaged that on being released, after a period of three months,

the volunteer Home Guards could go back and resume their

vocations and may earn their livelihood and may be called as

and when needed again for a short period whereafter again they

could pursue their vocation. The step which seems to have been

taken to disengage them and withdrawal of the power to recruit

because of the number of cases filed in Court, is only to be

ignored as extraneous. It is said to have been done in the year

1992. By that time they had already put in near about 14 years

of service. After working for such a long period, patrolling the

borders in all weathers without any facilities, as provided to

other permanent staff of BWHGs and performing same duties,

it is too much to say that their deployment was of a casual and

voluntary nature and the Central Government will not be

concerned with them and that it would be the responsibility of

the State Government alone. The problem of infiltration

continues. It is not over. To say that they are being disengaged

since they volunteered to be BWHG and they are free to

resume their previous vocation, is simply arbitrary,

unreasonable and legally unacceptable. Once they were made

to work for ten to fifteen years or so without break, there hardly

remained any chance or scope for them to resume their old

vocations. The attitude of the Central Government, the least to

say, is surprisingly strange. It would not be expected of them

to cling to the technicalities of forms rather than to see the

substance and realities of existing facts and prevailing situation

which is of their own making. It is simply unfair on their part to

keep on quibbling with the questions that there existed no

relationship of master and servant, or that BWHG were simply

volunteers under a Scheme having acquired no rights, it is

immaterial, whatever be the circumstances. Once the decision

was taken to disengage them, the Central Government under the

guise of the scheme wanted to wash off its hands of these

people who have been guarding the borders of the country for

years together under all conditions and circumstances, at its

instance. Now to tell them that it is only the State Government

which concerns them and the Central Government has nothing

to do with it at all, is totally unfair and unreasonable.

There is no dispute about the fact that there has been

disparity in emoluments and other working conditions, between

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the part time BWHGs and the BWHGs on the permanent staff

although both have been deployed for performing the same

nature of duties and have been working for the same duration in

the same conditions but one of them with and the other without

the necessities of the job, facilities and benefits of the service.

It is true and rightly held that BWHG could not compare

themselves with BSF personnel but the difference between the

permanent staff and the part time staff which had been made in

the scheme was obliterated and rendered ineffective. There is

no real distinction between the two, namely, the permanent

BWHG and the part time BWHG in absence of non-release of

the latter after three months of the appointment, as per the

Scheme. It has not been indicated by the appellants or the

Union of India that the petitioners were ever disengaged of their

assignment temporarily or the State Government had availed of

their services after due and prior permission of the Central

Government, or they were ever freed to resume their old

vocational pursuits. It is in the affidavit of the authorities that

BWHGs are under operational command of B.S.F. authorities,

when deployed for patrolling along Indo-Bangladesh border. In

the background of what has been indicated above, in our view

the findings arrived at by the High Court cannot be faulted with.

On the first date of hearing in this matter the learned

Additional Solicitor General appearing for the Union of India

urged that the State of West Bengal could not argue the matter

in a manner so as to fasten the liability upon the Central

Government, since the Union of India was impleaded only as a

proforma respondent. Therefore, it was not open for the

appellant to take the Govt. of India by surprise and seek relief

which may saddle the Central Government with financial

liability or to say, that the petitioners-respondent are the

employees of the Central Government. We find that in the

appeal this aspect was considered by the High Court vis-a-vis

these two parties viz. State of West Bengal and the Central

Government. In any case so as to be able to argue the matter on

merits and to have further instructions in that connection, from

the Central Government, as prayed by the learned Additional

Solicitor General the matter was adjourned. After having

received the necessary instructions, the learned Addl. Solicitor

General took up the stand that the petitioners will not be entitled

to relief as granted by the High Court for the following reasons:

1. The petitioners have been members of a voluntary

organization;

2. They were recruited under the State Home Guard Act by

the State machinery;

3. Master and servant relationship of the petitioners existed

only with the State Government; and

4. Central Government was liable to bear the financial

liability as provided under the Scheme.

Surprisingly, the point of it being a voluntary organization

is beaten time and again by the State as well as by the Centre,

despite their own admission that voluntary character of the

Scheme was lost due to continuous deployment of the

petitioners for long number of years and their non- relieving

after three months to enable them to go back to their vocational

engagement. In that connection it may again be pertinent to

reproduce Paragraph 4 of the counter-affidavit filed in this

Court by the Central Government on 4.5.1998:

"The contents of Para 4 of the counter affidavit

needs no reply since matters of record. The

present situation which led to BWHG volunteers

claiming service benefits is due to the fact that

voluntary concept which is back bone of home

guards organizations was not followed in letter

and spirit by the state government. Due to

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continuous deployment neither the turnover of

personnel was carried nor apparently mandatory

training was impartedâ\200¦."

By whose fault this scheme lost character of Voluntary Nature

is not relevant for the purposes of the petitioners. It was the

Scheme of the Central Government, it should have monitored its

implementation to see that it was being executed as framed.

Then again, the BWHGs were deployed and continued by BSF

authorities, who were authroised in that behalf by the Central

Government. BWHG could not be left in a lurch after being

engaged continuously for more than 10 to 15 years for

patrolling the borders under the conditions worthy of those who

were doing the same job under the label of permanent staff.

During all this period they were paid less and facilities and

amenities were also almost nil. After suffering such a

discrimination for a period of about a decade or more, when

they approached the Court, then alone a decision is taken to

disengage them for the reason that cases were being filed in the

Court for being provided with similar conditions of service

which were being enjoyed by their counter-part under the label

of permanent staff. The Central Government could not hanker

on technicalities of voluntary nature of their engagement despite

their own admission of facts to the contrary. The stand of the

State and the Central Government both are not bona fide. It is

not good for an ideal employer to avoid liability and deny to

give, what is legally due to one. Defeating such genuine and

legal claims on technicalities would only result in great

injustice.

With a view to recapitulate the legal position, we may

briefly refer to some decisions of this Court apart from those

relied upon by the High Court. In a decision reported in

(1988)3 SCC p.354, Jaipal & ors. etc.etc. vs. State of Haryana &

ors. etc.etc., it has been held to be a constitutional obligation to

ensure equal pay for equal work where the two sets of

employees discharge similar responsibilities under similar

working conditions. The plea of temporary or casual nature of

employment or full time and part time employees had been

negated. Similarly, in the case reported in (1986) 1 SCC 637,

Dhirendra Chamoli & Anr.vs. State of Uttar Pradesh, it was held

that casual workers could not be denied same emoluments and

benefits as admissible to the temporary employees on the

ground that they had accepted the employment with full

knowledge of their disadvantage. In (1991) 1 SCC p.619, Grih

Kalyan Kendra Workers' Union vs. Union of India & ors.,

though on facts no discrimination was found but the principle of

'equal pay for equal work' was upheld and recognized where all

were placed similarly and discharging same duties and

responsibilities irrespective of casual nature of work. This right

had been held to have assumed status of a fundamental right in

service jurisprudence having regard to constitutional mandate of

'equality' in Articles 14 and 16. In Daily Rated Casual Labour

through Bhartiya Dak Tar Mazdoor Manch Vs. Union of India

& Ors., (1988) 1 SCC p.122, right of daily rated casual workers

in the P & T department was recognized and they were directed

to be paid in minimum of the scale as was admissible to the

regular workers as both discharged similar work and

responsibilities.

In the present case we have seen that there has not been

any dispute about the nature of duties of the two sets of

BWHGs. Ordinarily, no doubt they could claim benefits only in

accordance with the scheme under which they were engaged.

But as held earlier, the scheme was not implemented in its terms

as framed. Hence, the distinction sought to be drawn between

the part-time and the permanent BWHGs had obliterated and

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both worked together shoulder to shoulder under similar

situations and circumstances and discharged same duties. Once

the scheme as framed failed to be implemented as such by those

at the helms of the affairs and the part-time BWHGs were

continued under the authority of those vested with such power

to continue them, it is not open to the State Government or the

Central Government to deny them the same benefits as

admissible to members of the permanent staff of BWHGs. The

decisions reported in (1992) 2 SCC p.29, Karnataka State

Private College Stop-gap Lecturer's Association vs. State of

Karnataka & ors. and (1999) 8 SCC 560, Government of India

& ors. vs. Court Liquidator's Employees Association & ors.

may also be beneficially referred to.

On the basis of the scheme, as promulgated by

Government of India, the State Government with the sanction of

the Governor of West Bengal raised the Battalion of Border

Wing Home Guards, as indicated earlier and they were to be

paid from a given head of expenditure of the State Government

The Scheme, however, makes it clear that the expenditure

incurred would be reimbursed by the Central government. The

Central Government should not and cannot get out of this

undertaking. It is no doubt true that the State of West Bengal

being in the position of an employer of the respondent-

petitioners, owes the primary responsibility of making all the

payments on account of salary, allowances and other

perquisites to them as admissible to the permanent staff of the

Border Wing Home Guards but this burden of expenditure must

be ultimately borne by the Central Government. The petitioners

have been guarding the borders of the country assisting the BSF

in checking the infiltration from across the border. The

petitioners have been working and discharging their duties

under the control of the authorities of the Border Security

Force. We also find that the Central government cannot shed its

responsibility by raising a lame plea that it was because of the

State Government that voluntary character of the engagement of

the writ petitioners, as per scheme, was lost. In our view, the

primary responsibility for deployment for such a long duration

squarely lies upon the Central government. The deployment

was envisaged to be for a period of 3 months, to be continued,

only if necessary as may be assessed by the authorities of the

Border Security Force. The authority to continue the

deployment beyond the period of 3 months was entrusted to the

responsible authorities of the Border Security Force by the

Central Government itself. There is no dispute that the writ

petitioners were continued accordingly. In such a situation the

State Government hardly had any choice in the matter to cease

or withdraw the deployment engaged in the job of patrolling of

borders under operational control of BSF.

In the circumstances indicated above the High Court has

rightly come to the conclusion that so called part time Border

Wing Home Guards could not be treated differently from the

permanent staff of the BWHG. They have been rightly accorded

parity with them.

The petitioners may not suffer any further because of any

confusion or misunderstanding between the Central and the

State Government, if at all, we, therefore, feel it necessary to

observe that the Central government must in all fairness accept

its responsibility and make the necessary funds available for

reimbursement, at the earliest. In this regard we make the

specific directions to the effect that: (1) The State Government

shall carry out order passed by the High Court and clear all the

consequential monetary benefits to the writ petitioner-

respondents within a period of 3 months from today with

Statement of account to be forwarded to the Central

Government for reimbursement; (2) The Central Government

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within two months of the receipt of the said reimbursement

statement shall reimburse the amount to the State of West

Bengal; (3) In case there is any dispute or confusion in regard to

the actual amount payable on account of reimbursement or

otherwise, the same shall be sorted out between the State of

West Bengal and the Central Government at the earliest but that

would not be cause of delay in payment as indicated above; (4)

that there shall be no delay in payment to be made as scheduled

above by the State of West Bengal to the petitioners nor by the

Central Government to the State of Bengal on account of

reimbursement which may be subject to final settlement; in

case of any dispute or doubt about the same, to be sorted out

sooner or later between them.

The appeals preferred by the appellant-State of West

Bengal are dismissed with costs subject to modification/further

directions as indicated in the preceding paragraph.