High Court of Punjab and HaryanaCWP/8289/2022allowed

State Of Punjab And Others v. Sh. Bhupinder Singh And Others

2025-01-28Mr. Justice Harsimran Singh Sethi11 pages

$ "

%&'

& ( &#)& & &

& ( !&# *+ *

( , ( - %./0

3 , .45 6/

/ 8/. '6.9/ 3:6 6/

#9 2

';</ =.>/ 6/

/ 8/. 3 , .45 6/

#9 2

36 6/

/ 8/. 3 , .45 6/

#9 *

/564 3:6 6/

/ 8/. 3 , .45 6/

#9 #&- ?'@ #7 %"3

&#3 #&

!"!# "$""

%&!!'

"$"( %'$&$ "$"(

"(%&) "$"&

%&!!'

"$"( %'$&$ "$"(

"(%&) "$"& * * %

!"!# "$""

&#3 #&

%7 #&@

+%# "$"(

"! $% "$"'

+%# "$"(

%#(&!

"$"& .

7 /- .. ,

. 0 .

- -

-5 .

-. %#+"

( 1 !"!# "$"" /

-. %#+"

"! $" "$"$ 78 %9

- -

"& $! "$"% 78 "9

& 1

- . .

!"!# "$""

-. %#+"

;

%#&+ 7

4%#&+ 59

%#)( ) 0 , .. .

- - /

! "#

$ %%

- , < - -

- ,

,; ,

. ..

.. .

%#&+

%#)(

= <

- - <

- 0

" In the introductory passage of the Home Guards' Rules, the Home Guard organisation has been described to be a voluntary force. It was conceptualized in the wake of Chinese aggression in 1962 when Centre advised the States and the UTs to merge their existing voluntary organisations into one all India force known as Home Guards' and it was expected to be a voluntary organisation both in concept and character. The Rules were further elaborated to include their role at the time of calamities. In short they to be utilised as volunteers during the course of disaster management. The enrollment procedure also does not vizualise any regular character.

However, certain other categories of staff have been set up which forms the various levels of hierarchy in the organisation and includes clerical and Class III and IV employees and extends upto the level of Commandants and Divisional Commandants. The Rules do not stipulate that Home Guards will be entitled to any regular pay scale or a regular service so as to invite the benefits as admissible to such a regular employee. Division Bench of Delhi High Court has observed in Rajesh Mishra's case (supra) as under:3 "22. In Man Sukh Lal Rawal & others vs. Union of India & Others, Civil Writ Petition No. 4286 of 1997 decided on 26.5.

"The two questions that have been raised by the petitioners before us are whether they are entitled to be regularized as members of the Home Guards, and whether their services can be terminated without following the procedure laid down by Rule 8 of the Rules.

In so far as the first question is concerned, the genesis, history and concept of the Home Guards clearly show that it is not an "employment" or a "source of employment". It is a volunteer body where citizens voluntarily offer their serivces for the benefit of society. There are no hard and fast rules for recruitment or the nature of duties and functions that are to be performed by a member of the Home Guards. It is also not as if a member of the Home Guards cannot have employment elsewhere. A member of the Home Guards can be a professional or a government servant or a person carrying on any trade or occupation, industrial worker, university student, etc; it can be anyone who can give some spare time for the benefit of the community.

In fact, of the applicants who were before the Tribunal, admittedly some of them were employed in the government and some in the private sector. This being the position, there cannot be any question of regularizing any person as a volunteer or for carrying on any voluntary activity. A contrary view will destroy the very ethos and character of the Home Guards."

Therefore, I am of the considered opinion that a perusal of the Home Guards' Rules leave no room for doubt that Home Guards Organisation is purely a voluntary organisation as conceptualized during the time of its birth and therefore, the deceased certainly could not have been considered to be a regular employee or a Government employee so as to entitle him to the benefits of the service as claimed by his legal heirs, the appellants after his death.

For the reasons stated above, the question of law is answered

as above. It is held that Home Guards Organisation is purely a voluntary organisation and the Home Guards are not entitled to benefits of the regular employee or consequent benefits claimed thereof.

The appeal being devoid of any merit is hereby dismissed." + >

-. %#+"

'( )* !

*, 0

;

'( )* ,

.. . ,

;

-. %#+"

# ? -. %#+"

" (e) "employee" means any person (other than an apprentice) who is employed for wages, whether the terms of such employment are express or implied, in any kind of work, manual or otherwise, in or in connection with the work of a factory, mine, oilfield, plantation, port, railway company or shop or other establishment to which this Act applies, but does not include any such person who holds a post under the Central Government or a State Government and is governed by any other Act or by any rules providing for payment of gratuity."

, ,

'( )* %#&+

%#)(

%#+"

%% >

%#+"

'( )*

.. .

-. %#+"

"! $" "$"$ 78 %9

"& $! "$"% 78 "9 -

-. %#+"

, ,-

-. %#+"

;

%( @ 0

- 25 . 1

))

& % ++ , ! %% - %

" 17. On the basis of the Scheme, as promulgated by the 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 [pic]burden of expenditure must be ultimately borne by the Central Government. The petitioners have been guarding the borders of the country assisting 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.

the engagement of the writ petitioners, as per the 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."

%& >

- .

,! %%- % . ! "# % %

%) 1 .

.' ( )* - 0 ,

.. .

%+ 0 ,

.'( )*@

"! / - . - .

, , ,

%$ -

.'( )* .

;

- - .. . ,

%# 1

.. .

'( )* ..

"! $" "$"$ 78 %9

"& $! "$"% 78 "9 -

"$ ,

!"!# "$""

, , ,

7 - .

%./0

&#3 #&

harsha %"(!

;

A B