KINKAR KARMAKAR Vs. GOVERNMENT OF WEST BENGAL

JUDGEMENT

(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 termination of their service at their old age as terminal benefit. When they reach the age of sixty their names are just struck out. The Home Guards also have to undergo training like policemen and are deputed to the same job as the policemen, rendering service for years, although, with occasional breaks, made purposefully, just designed with a view to deny them of any benefit. They only get daily wages at the rate fixed by the Government from time to time and only for the days they actually work. It has been provided in the Acts and Rules motivatedly that the Home Guards are employed as just volunteers. But patently they are not at all volunteers. Although the petitioners, like many other Home Guards personnel are working since the West Bengal Home Guards Act, 1962 came into effect, and are continuing as such even now, with designed nominal artificial breaks inflicted occasionally they are denied of continuity of service, but are engaged again. The establishment of the Home Guards is a regular establishment and the Home Guards are, in fact, Government employees and not self-employed volunteers. A discriminatory treatment is meted out to the Home Guards violating the Articles of the Constitution as aforesaid. When they fall sick no payment is made to them, unlike police personnel, with whom they render equal service.