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2003(4) Supreme 441
SUPREME COURT OF INDIA
(From Calcutta High Court)
Brijesh Kumar & D.M. Dharmadhikari, JJ.
State of West Bengal & Ors. -Appellants
versus
Pantha Chatterjee & Ors. -Respondents
Civil Appeal No. 4420 of 1999
With
Civil Appeal Nos. 4421/1999, 4422/1999 and 4423/1999
Decided on 7-7-2003
Counsel for the Parties :
For the Appellants : T.C. Ray, Sr. Advocate, H.K. Puri, Ujjwal Banerjee, S.K. Puri, Ms. Anindita Gupta, Advocates.
For the Respondents : Raju Ramachandran, Additional Soliciter General, Shanti Bhushan, Sr. Advocate, Sanjev Sen, Rajesh Pathak, S. Sukumaran, Ramesh Babu M.R., S.W.A. Qadri, Ajay Sharma, Ms. Sushma Suri, P. Parmeswaran, Rakesh U. Upadhyay and V.K. Sidharthan, Advocates.
Held : 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 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. (Para 16)
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 it 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 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. (Paras 17 to 19)
JUDGMENT
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.
2. 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 casual nature of work so as to be termed as part time staff of the Government of West Bengal. 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 & 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.
3. 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 Border Wing Home Guards on all counts. So far the
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