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High Court Of Calcutta
DEBI PRASAD SARKAR
KINKAR KARMAKAR - Appellant
Versus
GOVERNMENT OF WEST BENGAL - Respondent
C. O. 21365 Of 1995
Decided On : 05/21/1999
HOME GUARDS - SERVICE CONDITIONS - EQUAL PAY FOR EQUAL WORK - RIGHT TO RETIREMENT BENEFITS - EXPLOITATION BY RESPONDENTS - VIOLATION OF ARTICLES 14, 16, 19 AND 43 OF THE CONSTITUTION OF INDIA - WRIT PETITION - PRAYER FOR CANCELLATION OF NOTIFICATION - STRIKING OFF THE NAMES OF HOME GUARDS FROM THE MUSTER ROLL ON THEIR ATTAINING THE AGE OF SIXTY YEARS WITHOUT PAYMENT OF ANY RETIREMENT BENEFIT - WRIT PETITION ALLOWED - RULE 4 OF THE WEST BENGAL HOME GUARDS RULES, 1962 AND ITS PROVISO, SECTIONS 5, 6(3), 7(1), 7(2), 8, 9, AND 10 OF WEST BENGAL HOME GUARDS (AMENDMENT) ACT, 1990, THE GOVT. ORDER NO. 5220-HCD/HG-37/95 DATED 26-9-95 ARE STRUCK DOWN AS ULTRA VIRES - PRAYER OF THE PETITIONERS ALLOWED TO THE EXTENT THAT THE RESPONDENTS SHALL GIVE EQUAL SALARY, ALLOWANCES, LEAVE, OTHER PERQUISITES AND TERMINAL BENEFITS TO THE PETITIONERS AS ARE ALLOWED BY THE SERVICE STANDARD TO THE POLICE PERSONNEL OF CLASS-IV CATEGORY OF THE SAME SENIORITY IN SERVICE, WITH EFFECT FROM THE DATES ON WHICH THE PETITIONERS WERE RESPECTIVELY APPOINTED FOR THE FIRST TIME - ALL THE NECESSARY STEPS AS DIRECTED SHOULD BE TAKEN WITHIN THREE MONTHS FROM THIS DATE FOR ACCORDING, AS ABOVE AS MAY ACCRUE TO THE PETITIONERS, THE EQUAL SALARY, PERQUISITES AND TERMINAL BENEFITS (IN APPROPRIATE CASES) AT PAR WITH THE POLICE FORCE OF CLASS IV GRADE CALCULATING FROM THE DATES OF APPOINTMENT.
Fact of the Case:
The petitioners, who were appointed as members of the Home Guards under the West Bengal Home Guards Act, 1962, filed a writ petition challenging the West Bengal Home Guards Act, 1962 and the rules framed thereunder, including the amendments thereto, alleging violation of the provisions contained in the Articles 14, 16, 19 and 43 of the Constitution of India by the Respondents, including State of West Bengal. The petitioners claimed that they were denied equal pay for equal work, retirement benefits, and were subjected to unfair exploitation by the respondents. They prayed for cancellation of the notification bearing No. 5220-HCD/hg-37/95 for striking off the names of the members of the Home Guards from the master roll as soon as the members of the Home Guards would reach the age of sixty years, without payment of any retirement benefit.
Finding of the Court:
The Court found that the Home Guards were appointed to assist the police in performing their duties as provided in the Acts and Rules, and that they performed the same work as the policemen. However, the service conditions of the Home Guards were quite miserable as they were paid only daily wages and did not get any benefits at the time of retirement. The Court held that this wide discrimination about entitlements in the two services violated the Articles of the Constitution as aforesaid. The Court also found that the Rule 4 of the West Bengal Home Guards Rules, 1962 and its proviso, the sections 5, 6(3), 7(1), 7(2), 8, 9, and 10 of West Bengal Home Guards (Amendment) Act, 1990, the Govt. Order No. 5220-HCD/hg-37/95 dated 26-9-95 were ultra vires.
Issues: 1. Whether the Home Guards were entitled to equal pay for equal work as the policemen? 2. Whether the Home Guards were entitled to retirement benefits? 3. Whether the Rule 4 of the West Bengal Home Guards Rules, 1962 and its proviso, the sections 5, 6(3), 7(1), 7(2), 8, 9, and 10 of West Bengal Home Guards (Amendment) Act, 1990, the Govt. Order No. 5220-HCD/hg-37/95 dated 26-9-95 were ultra vires?
Ratio Decidendi: The Court held that the Home Guards were entitled to equal pay for equal work as the policemen, and that the discrimination in service conditions between the Home Guards and the policemen violated the Articles of the Constitution. The Court also held that the Rule 4 of the West Bengal Home Guards Rules, 1962 and its proviso, the sections 5, 6(3), 7(1), 7(2), 8, 9, and 10 of West Bengal Home Guards (Amendment) Act, 1990, the Govt. Order No. 5220-HCD/hg-37/95 dated 26-9-95 were ultra vires.
Final Decision: The writ petition was allowed on contest. The Rule 4 of the West Bengal Home Guards Rules, 1962 and its proviso, the sections 5, 6(3), 7(1), 7(2), 8, 9, and 10 of West Bengal Home Guards (Amendment) Act, 1990, the Govt. Order No. 5220-HCD/hg-37/95 dated 26-9-95 were struck down as ultra vires. The prayers of the petitioners were allowed to the extent that the Respondents shall give equal salary, allowances, leave, other perquisites and terminal benefits to the petitioners as are allowed by the service standard to the police personnel of Class-IV category of the same seniority in service, with effect from the dates on which the petitioners were respectively appointed for the first time. All the necessary steps as directed should be taken within three months from this date for according, as above as may accrue to the petitioners, the equal salary, perquisites and terminal benefits (in appropriate cases) at par with the police force of Class IV grade calculating from the dates of appointment.
( 1 ) THIS writ application under Article 226 of the Constitution of India the petitioners have challenged the West Bengal Home Guards Act, 1962 and the rules framed thereunder, including the amendments thereto, alleging violation of the provisions contained in the Articles 14, 16, 19 and 43 of the Constitution by the Respondents, including State of West Bengal. The petitioners have also prayed for cancellation of the notification bearing No. 5220-HCD/hg-37/95 for striking off the names of the members of the Home Guards from the master roll as soon as the members of the Home Guards would reach the age of sixty years, without payment of any retirement benefit.
( 2 ) THE petitioners claim that they were appointed since the coming in force of the West Bengal Home Guards Act, 1962 and are working till today and performed their duties as prescribed under the said Act and Rules, although in between the dates they were shown to have been dropped out from work from time to time. The Government of West Bengal has a regular department about the Home Guards as constituted under the direction of the Central Government, the respondent No. 5. The Home Guards are appointed to assist the police in performing their duties as provided in the Acts and Rules. They do the same work as the policemen do. The department is functioning regularly. The respondent No. 5 pays 75% of the wages of the Home Guards and the remaining portion of the fund required for payment to the Home Guards is shouldered by the State Government. The Government of West Bengal does have a standing body of Home Guards throughout the year. The appointments, functions, power, protection and control of the members of the Home Guards are governed by the provisions contained in the West Bengal Home Guards Act, 1962 and the Rules, subject to the amendments thereto from time to time. The Home Guards are sent for training by the appropriate authority, just like the members of the West Bengal Police and are called upon for duties as assigned by the appropriate Police Authority to assist the policemen in their duties in all respect. Each of the Home Guards gets a certificate about appointment in which the Appointing Authority as provided under section 6 of the said Act provides that a Home Guard when called upon to duty under section 5 shall have the same power, privilege and protection as Policeman. Therefore, the work of the Home Guards in the State of West Bengal is similar to the duty of the Police. They also maintain internal security and law and order in the State and also put to all other services just like the policemen in various walks of duties of the Police personnel. In fact, about performance of the duties there is no difference between the police personnel and the numbers of the Home Guards.
( 3 ) BUT about the remuneration they claim, there is gulf of difference between the police personnel and the Home Guards. While the Police personnel get salaries in fixed scales prescribed for them and in addition get allowances, house rent, medical benefit, uniform, ration facilities, privileged leave, medical leave, casual leave and all retirement benefits like, pension, provident fund, family pension, dependents' pension etc. , the members of the Home Guards do not get any of those privileges and facilities. They render service for paltry payment at a daily rate and get no benefit at all at the time of the retirement. This wide discrimination about entitlements in the two services has been made purposively, knowingly and intentionally, just for the purpose of exploiting the Home Guards. They get only the daily wages as their remuneration, revised from time to time. Then again, payment of the daily wages is made to the Home Guards only for the actual working days' toil. They do not get any leave. When they are shown to have been dropped they do not get any thing at all, following the system as no-work-no pay. No benefit is given to them at all at the time of ter
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