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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.