STATE OF WEST BENGAL Vs. PANTHA CHATTERJEE

JUDGEMENT

(1.) 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 pro forma 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 petitioners-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 others) 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 others, 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 others vs. State of Haryana and others for the proposition equal pay for equal work besides AIR 1991 SC 101, Delhi Transport Corporation vs. D. T. C. Mazdoor Congress and others, it has been held by the learned single Judge that the petitioners-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 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.