Home Guard Sainik Evam Parivar Kalyan Sangh And Others v. State Of Madhya Pradesh And Another

ORDER

As common questions of law and facts are involved in all these three petitions and other connected cases, which were heard together, are being decided by this common order.

2- For the sake of convenience, the documents and material available in the record of W.P No. 10000/2010 is being referred to in this order.

3- Petitioners in all these cases are either individual persons, working as Sainiks/Sepoys in the Home Guards' Organization or are Association of Employees working in the same Organization in similar capacity. The relief claimed for in these writ petitions are, that the petitioners be declared as holders of “civil post” and treating them to be so, all consequential benefits be granted to them as is being granted to regular employees of the State Government, particularly in the Police Department. That apart, further direction sought for is to issue a ‘mandamus’ to the respondents directing them to frame rules and regulations governing conditions of service for the persons working in the Home Guards Organization, particularly with reference to pay scale, allowances, increments, pensionary benefits and other service conditions. Further prayer made is to grant the benefit of pay and allowances as is paid to other employees of the Police Department and treat the petitioners as regular employees in the department and finally it is claimed that after so regularizing and absorbing them in the regular establishment, the system of calling off duty, which is followed be done away with.

4- In the year 1947, the Madhya Pradesh Home Guards Act (hereinafter referred to as ‘Act of 1947’) was enacted. This Act was created to establish a body of volunteers to supplement the police force and to assist the regular police force in case of emergency and as a general measure for public welfare in the State of Madhya Pradesh. Section 2(a) of the Act defines a Home Guard to be a person, who is appointed under section 6. Thereafter, various provisions are contained in this Act, which deal with appointment, duties and training, calling of Home Guards, the competent authorities and the protection available to them. A copy of the Act is filed as Annexure P/1, and it contains various procedure for regulating the activities of Home Guard. Even though there is no specific mention in the Act that the organization is a voluntary organization, but the State Government has come with a case that the Organization is a voluntary organization and, therefore, the persons engaged as Home Guard are volunteers. It is also seen from the records that after due selection in accordance to the provisions contained in the Act of 1947, the Home Guards appointed are designated as Naik, Lance Naik, Constable, Sepoys etc. The persons so employed are deployed to work mainly under the operational control of the MP Police, but the over all control is exercised by respondent No. 2 - the Director General, Home Guards and Civil Defence with Headquarters at Jabalpur. 5- The duties of a Home Guard are those which are assigned to them in the Act of 1947 itself. Thereafter, a provision for calling of duty is contained. Section 10 of the Act of 1947, stipulates the duty of a Home Guard, the same reads as under:

“10. Duties. Subject to any general or special order of the District Magistrate, the Nagar-sainiks (Home Guards) called out under sub-rule (1) of rule 9 may be required to perform all or any of the following duties:

(a) the prevention of commission of offences;

(b) the protection of life and property;

(c) collection and communication to the superior officer of information;

(d) the regulation of traffic;

(e) the suppression of disorder;

(f) to report the currency of false rumours and check it;

(g) to control and regulation of fairs and large assemblies;

(h) to assist the regular fire-fighting services in fighting fires resulting from rioting or sabotage;

(i) to render first-aid and to help in the removal of casualties under escort to hospital;

(j) to combat subversive activities; and,

(k) generally to assist the police in discharge of their lawful duties;

*[(l) to perform such duties as may, in the event of strike or general disorder, be assigned to a Nagar-Sainik (Home Guard) for the purposes of maintaining supplies and services which, in the opinion of the Provincial Government, are essential to the life of the community.]

* Added vide Police Department Notification No. 922-946-IV dated 23rd January, 1949.”

6- It is the case of the petitioners, in all these cases, that the aforesaid duties being performed by the Home Guards are nothing but regular duties which are performed by the persons employed in the regular police establishment in the State of Madhya Pradesh and inspite of the fact that the Home Guards are performing all these duties, they are neither classified as “civil post” holders nor is the benefit of regular pay and other conditions of service applicable to an employee of the Police Department granted. It is the case of the petitioners that even though various statutory rules have been framed like the Madhya Pradesh Home Guards (Gazetted) Service Rules, 1973; the Madhya Pradesh Home Guards [Class III Ministerial] Service Recruitment Rules, 1973 and various other statutory rules providing for creating a substantively defined organization is enacted, but nothing has been done, neither posts are created nor are the pay scale prescribed under various statutory provisions granted to the employees. By referring to the Madhya Pradesh Home Guards Class III [Executive] Service Recruitment Rules, 1973, filed as Annexure P/4, it is stated that even though posts and pay scale are created by the said rules, but the same is not being implemented. It is stated that for the last more than 50 years, the Home Guards are discharging duties like the police personnel and by treating them to be a voluntary organization, benefits available to a regular employee by enforcing the rules framed under Article 309 of the Constitution is not being given. Instead, a pick and choose policy is adopted and in case of some persons even though the benefits are given, but in case of the petitioners, who are before this Court neither the regular pay scale is given nor any service benefit granted. They are only paid an honorarium of Rs. 120-125/- per day alongwith certain additional benefits like washing allowance etc. Vide orders - Annexures P/7 and P/8, certain reservation to the extent of 5% for recruitment on the post of Security Guard in the MP State Electricity Board, and to the extent of 15% in the regular appointment to the Police Department, is granted, but no other service benefit or regular pay scale are granted.

7- Accordingly, in sum and substance, grievance of all the petitioners in these cases are that the Organization is functioning for the last more than 50 years. Even though it was initially started as a voluntary organization, but with the passage of time it lost its voluntary characteristics, instead has become a regular establishment assisting the regular police force of the State and even though persons like the petitioners are required to perform regular duties, they are neither paid regular salary or pay scale and other service benefits. Interalia contending that no statutory rules or regulations have been framed and in an arbitrary manner the respondents are treating the petitioners to be volunteers and denying them their statutory benefit, these petitions are filed.

8- Interalia contending that the voluntary nature of the organization, which existed initially 50 years back, no more survives Shri Mrigendra Singh, Shri A.K Jain, Shri Gopal Singh and other counsel appearing for the petitioners, took me through the provisions of the Act of 1947, the rules framed thereunder and various judgments to emphasize that the petitioners are entitled to the benefit as claimed for. Placing reliance on a judgment of the Supreme Court, in the case of State of West Bengal v. Pantha Chattarjee, AIR 2003 SC 3569, and the observations made by the Supreme Court therein to the effect that the Home Guards organization is no more a voluntary organization, learned counsel emphasized that petitioners are entitled to be benefit as claimed for. That apart, inviting my attention to the following judgments: Union Of India v. Tarit Ranjan Das., AIR 2004 SC 852; State of Karnataka v. M.L Kesari, AIR 2010 SC 2587; Government of India v. Court Liquidator Employees Association, 1999 (8) SCC 560; and, Union of India v. Parul Devnath, 2009 (14) SCC 173; Jaspal Singh v. State of Haryana, (1988) 3 SCC 354, it was argued that in view of the provisions of Articles 14, 16 and 23 of the Constitution and the law laid down by the Supreme Court, in the aforementioned cases, on the principle of ‘equal work for equal wages’, the petitioners are entitled to the relief as claimed for.

9- Finally, inviting attention to a report submitted by the MP State Human Rights Commission, filed as I.A No. 11324/2011, in the record of Writ Petition No. 10000/2010, referring to this detailed report submitted by the Commission on 23.6.2011, during the pendency of this writ petition, learned counsel for the petitioners argued that the Human Rights Commission has found that the engagement of the petitioners in the manner done by paying them a meagre honorarium of Rs. 120-125/- with certain washing allowance and following the system of calling off and granting employment only for a period of 8 months in a year, is an arbitrary, illegal and unconstitutional decision violating the provisions of Articles 14, 21 and 23 of the Constitution, so also amounts to breach of their human rights, the recommendations of the Commission are to the effect that the petitioners should be brought into the regular establishment and regular benefit granted by framing appropriate rules and regulations.

10- Accordingly, contending that now in the light of the recommendations made by the State Human Rights Commission, respondents cannot deny benefits to the petitioners, exploitation of the Home Guards should be done away with, relief is sought for.

11- Finally, by placing reliance on a judgment of the Division Bench of the Nagpur High Court - Sher Singh Malhan v. State of Madhya Pradesh, AIR 1955 NAGPUR 175, it is emphasized that in this case the Division Bench has held that Home Guard is a civil post holder and, therefore, ‘mandamus’ and declaration as sought for be granted. Accordingly, in sum and substance, it is the case of the petitioners that the voluntary nature of the organization has ceased to exist with the passage of time, the Home Guards are performing regular duties as are performed by members of the regular police staff in the State and, therefore, treating the petitioners to be regular employees, applying the principle of ‘equal work for equal wages’ and by declaring the action of the State Government in not doing so to be an arbitrary and an illegal decision, contrary to the mandate of Article 14, 21 and 23 of the Constitution, the relief be granted.

12- Shri R.D Jain, learned Advocate General appearing for the State, refuted the aforesaid contentions and submitted that the recommendations made by the Human Rights Commission is not legal. The recommendations made by the Human Rights Commission is beyond the powers conferred on the Commission under law and the Commission has no authority to recommend or direct the State Government to frame rules and regulations for laying down the service conditions of the Home Guards. Contending that the Home Guards organization is a voluntary organization and until and unless the statutory Act of 1947 is not declared as ‘ultra vires’ and so long as the said Act is in existence, engagement of the volunteers as Home Guards under the said Act is permissible, the Human Rights Commission has no authority to make any recommendation as has been done in the present circumstances. Contending that the Human Rights Commission has travelled beyond its jurisdiction in making the recommendation and the recommendations made by the Commission to formulate the rules and regulations cannot be enforced by this Court Shri R.D Jain, learned Advocate General, sought for rejecting the claim of the petitioners.

13- Placing reliance on a judgment of the Supreme Court, in the case of Mallikarjuna Rao v. State of Andhra Pradesh, (1990) 2 SCC 707, and referring to paragraphs 9 to 13 thereof, Shri R.D Jain, learned Advocate General, argued that the recommendations made and the directions given by the Human Rights Commission cannot be enforced by this Court. Thereafter, placing reliance on the judgment of the Supreme Court, in the case of N.C Dhoundial v. Union of India, AIR 2004 SC 1272, learned Advocate General argued that the Home Guards are not “civil post” holders, they are only volunteers and as they are not civil post holders, it is stated that no relief can be granted to them. 14- Emphasizing that the judgment rendered by the Nagpur High Court, in Sher Singh Malhan (supra), was based on the benefit to be granted and the protection available under Article 311 of the Constitution, it is without referring to the statutory provisions of the Act, the same is no more good law in view of the subsequent judgments rendered by this Court, particularly in the case of Kedar Prasad Mishra v. State of MP, Writ Petition No. 3668/2000 decided on 14.7.2000; and, Punpratap Singh v. State of MP, 2000 (4) MPHT 398, learned Advocate General submits that the contention of the petitioners that they are civil post holders cannot be accepted.

15- Inviting my attention to various judgment Shri R.D Jain, learned Advocate General, submitted that the principle of ‘equal work for equal wage’ will not apply in the case under the present set up, for the simple reason that the method of recruitment, the nature of work, the control and power exercised by the Home Guards are entirely different from those exercised by the employees of the regular police establishment and, therefore, it is stated that the principle of ‘equal work for equal wage’ will not apply. Placing reliance on various judgments as is indicated hereinabove Shri R.D Jain, learned Advocate General, argued that quantity and quality of work done by the Home Guards, the capacity of the work to be performed by them, the method of recruitment and all other factors are different and, therefore, the principle of ‘equal work for equal wage’ will not apply. The judgments relied upon are: Punpratap Singh (supra); State of Haryana v. Charanjit Singh, (2006) 9 SCC 321; State of Madhya Pradesh v. Pramod Bhartiya, (1993) 1 SCC 539; Sita Devi v. State of Haryana, (1996) 10 SCC 1; Union of India v. S.K Sareeen, (1998) 1 SCC 177; State of Orissa v. Balaram Sahu, AIR 2003 SC 33; State of Haryana v. Haryana Civil Secretariat Personal Staff Association, (2002) 6 SCC 72; Raghunath Rai Bareja v. Punjab National Bank, (2007) 2 SCC 230; State of West Bengal v. Kinkar Karmakar, 2008 Cal LT (2) 315; Delhi Home Guards Welfare Association (Delhi Pradesh) v. Lieutenant Governor, Delhi, 2003 ILR DLH (11) 272; Manibhushan Kumar Rao v. State of Bihar, 2005 PLJ (3) 355; Prakash Balwantrao Dethe v. Collector, Yavatmal, 2007 AIR Bom R (1) 441; Narayan S. Bhat v. State of Karnataka, 2008 KCCR (2) 818. 16- Shri R.D Jain, learned Advocate General, taking me through the organizational set up of the Home Guards, the work being done by the regular police personnel, submitted that except for certain duties with regard to public safety, none of the work performed by the Home Guards fall in the category of a work, which is performed by the regular police personnel and, therefore, the same benefit of ‘equal work for equal wage’ cannot be granted. Distinguishing the principle laid down by the Supreme Court in the case of Pantha Chatterjee (supra) and contending that the said case has been subsequently explained by the Calcutta High Court in the case of Kinkar Karmakar (supra) Shri R.D Jain, learned Advocate General, argued that the benefit cannot be granted to the petitioners.

17- Thereafter, inviting my attention to certain judgments of the High Court of Patna, High Court of Bombay, High Court of Karnataka, particulars of which are given hereinabove, Shri R.D Jain, learned Advocate General, argued that the Home Guards set up throughout the country is in the nature of a voluntary organization and the work done by the Home Guards is entirely different from that of a regular police personnel and, therefore, the Home Guards and the petitioners herein have no right to claim any benefit. Accordingly, contending that the recommendations of the Human Rights Commission cannot be enforced by this Court; the Commission is not empowered to issue the recommendations or directions as contained in its report dated 23.6.2011, and further submitting that the Home Guards are not civil post holders nor does the principle for ‘equal work for equal wage’ applies, learned Advocate General resists the claim made by the respondents.

18- Finally, it was also submitted by Shri R.D Jain, learned Advocate General, that if the prayer made by the petitioners are to be considered and accepted, the financial implication of the same will create burden on the State Government, which the State Government is unable to bear and, therefore, no ‘mandamus’ can be issued which would have the effect of upsetting the entire economic and financial set up of the State Government. Accordingly, contending that the petitioners and the Home Guards chose to come into the organization which is voluntary in nature, governed by the Act of 1947 and having accepted the same, they cannot now claim any further benefit. Accordingly, on the aforesaid contentions, Shri R.D Jain, learned Advocate General, prays for dismissal of the writ petition.

19- Having heard learned counsel for the parties at length and after taking note of the various contentions advanced at the time of hearing and further on a close scrutiny of the report submitted by the State Human Rights Commission, the matter is being decided. 20- As far as the claim made by the petitioners for treating them as “civil post” holders and further issuing a direction for treating them as regular employees of the department are concerned, the same is to be considered in the light of submissions made by Shri R.D Jain, learned Advocate General, particularly with reference to the rights and power of the Human Rights Commission.

21- In the light of the principles laid down by the Supreme Court in the case of Mallikarjuna Rao (supra), relied upon by Shri R.D Jain, learned Advocate General, this Court cannot issue a ‘mandamus’ for implementing the recommendations of the State Human Rights Commission. To that effect, the relief claimed for by the petitioners cannot be accepted.

22- Similarly, as the method of recruitment of the petitioners and the employees appointed in the regular establishment of the Police Department and even in the manner of discharging the duty and exercise of powers, there is no exact similarity. As such, the principle of ‘equal work for equal wages’ cannot be enforced in its totality in the facts and circumstances of the present case. Particularly, in the light of the law laid down by the Supreme Court in the cases relied upon by learned Advocate General. To that effect Shri R.D Jain, learned Advocate General, may be right in contending that the relief claimed for by the petitioners cannot be granted.

23- However, this Court can very well take note of the findings recorded by the State Human Rights Commission and consider as to under the facts and circumstances that have come on record, whether the relief of directing for their continuation in service without calling off and the relief of paying them a reasonable salary can be granted. To that affect, I am of the considered view that the report of the Human Rights Commission can very well be examined and after taking note of the manner in which the Home Guards establishment is functioning in the State of Madhya Pradesh, during the long period of 50 years, a decision can be taken.

24- Even though initially when the Act of 1947 was enacted, the same was enforced for establishing a voluntary organization and the organization that came into force was also a voluntary organization, but the voluntary nature of the organization lost its identity, with the passage of time and the nature of work which the organization started performing also underwent substantial change in due course of time, it attained the status of a regular establishment. Even the employees, like the petitioners, who are working have continued to work for more than 10-20 years and it is, therefore, correct on the part of the petitioners in contending that with the passage of time and with the manner in which the organization had progressed, the voluntary nature of the organization had ceased to exist. This aspect of the matter is considered by the Supreme Court in the case of Pantha Chatterjee (supra) and after taking note of the continued deployment of Home Guards for a period of more than 10 years, in that particular case, it has been held by the Supreme Court that the voluntary nature of the organization has lost its identity and it has become more or less a regular establishment. It is held by the Supreme Court that in the prevailing situation, it is unfair on the part of the competent authorities to contend that it is a voluntary organization and no relationship of master and servant exists. It has been held that the scheme, which was originally indicated as a voluntary organization, has lost its characteristic and now it is nothing but a regular establishment, catering to the needs of the State in various matters.

25- Even though under the Act of 1947, the Home Guards organization is termed to be a voluntary organization, the nature of duties of the Home Guards as is specified in Section 10 clearly indicates that the Home Guards have to perform various duties. The duties performed by the Home Guards and the findings recorded by the Human Rights Commission in this regard would be referred to after some point of time. For the present, it may be taken note of that the State Government itself feeling that the Home Guards organization is no more a voluntary organization, temporary in nature, has enacted various rules exercising powers under Article 309 of the Constitution and if these rules are taken note of, it would be seen that the State Government had been harping upon an idea of creating a permanent organization with a permanent set up, regular substantive posts were to be created with a particular pay scale. The statutory rules framed in this regard namely the Madhya Pradesh Home Guards (Gazetted) Service Rules, 1973; the Madhya Pradesh Home Guards [Class III Ministerial] Service Recruitment Rules, 1973; The Madhya Pradesh Home Guards Class III (Ministerial) Service Recruitment Rules, 1973; The Madhya Pradesh Home Guards Class III (Executive) Recruitment Rules, 2000; The Home Guards Class III (Executive) Recruitment Rules and the Pension Rules are all examples of various enactment made by the State Government for giving a permanent characteristic to the Home Guards organization.

26- At this stage, it would be relevant to take note of certain findings recorded by the State Human Rights Commission, in its report, which is available on record. The report of the Human Rights Commission indicates that various complaints were received by the Commission in the year 2008-09 from various quarters, including registered organizations, pointing out the miserable conditions under which the Home Guards are performing the duties and the prayer made in these complaints were that an enquiry be conducted into their working conditions and proper recommendations be made for betterment of the same. The report further indicates that between 24.3.2009 to 8.4.2009, various complaints were received and even though notices were issued to the State Government and the Director General (Home Guards) to give their response to the Commission. The State Government and the Home Guards organization did not respond to the notices issued by the Human Rights Commission and, therefore, steps were taken for summoning the Director General and it was only on 25.5.2009 that the Director General (Home Guards) gave his written reply to the State Human Rights Commission. The reply was sent to various authorities, including the Chief Secretary, and their comments on the same were called for. It is revealed from the report that on 20.7.2009, the Director General of Home Guards - Shri Hemant Sareen, appeared before the State Human Rights Commission and it was stated by him before the Commission that a Home Guard Sainik except for conducting investigations into an offence and participating in anti-dacoity operations are discharging all the duties, which is discharged by a normal police personnel. In paragraph 6 of the report submitted by the Human Rights Commission, the following statements are made:

(Emphasis supplied)

which clearly goes to show that the Home Guards are discharging all the duties, which are being performed by a regular police personnel except actual investigation into a crime and anti-dacoity operations and this is the admission of the Director General before the Commission.

27- It is also seen from this report that keeping in view the increasing demand of the Home Guards and due to non-grant of adequate financial assistance from the State Government, the system of calling off duty was introduced, in his statement the Director General has admitted this position. It is, therefore, clear from the statements of the Director General (Home Guards) that the calling of duty was necessitated due to economic and financial constraints inspite of requirement for the work. Thereafter, if the report is scrutinized, it would be seen that on the basis of material that was collected, the Commission thought it appropriate to constitute a Committee to conduct a detailed enquiry and study into the working of the Home Guards. Accordingly, a High Level Committee consisting of Shri D.P Khanna - Director General of Police (Retired), Home Guards, Bhopal; Shri Prakash Singh Rajput, Divisional Commandant (Retired), Home Guards, Jabalpur; and, Shri Pradeep Roonwal, Director General of Police, Human Rights Commission, Bhopal was constituted. After transfer of Shri Pradeep Roonwal, Shri H.K Sareen replaced him as a Member in the Committee. Shri D.P Khanna was nominated as Chairman of the Committee and Shri H.K Sareen was the Convener of the Committee. The points for determination, which was referred to the Committee, was as under:-

“1- Whether the present working condition of Home Guards conform to the Human Rights declared and accepted by India being a Member Country of the United Nations in the Universal Declaration of Human Rights 1948, and particularly the provisions in Articles 23, 24 and 25 therein?

2- Whether the Central Province and Berar Home Guards Act, 1948 being a pre-constitutional law (saved and applicable to the State of Madhya Pradesh) is in consonance with the fundamental human rights guaranteed to every citizen under Articles 19 and 23 of the Constitution and the Directive principles of State Policy contained in Articles 38, 39, 41 and 42 of the Constitution? 3- What RECOMMENDATIONS deserve to be made to the Executive and Legislature of the State for providing ‘humane working conditions’ to the Home Guards.”

(Emphasis supplied)

28- After conducting a detailed study on the basis of enquiry conducted, the Committee gave its detailed report and the recommendations on the basis of the report recorded by the Human Rights Commission indicates that even though initially the Home Guards establishment was created for the purpose of meeting the emergency need and subsequently in the year 1962, they were used for protecting the country against the Chinese aggression, but with the passage of time and the change which took place, the work of the organization also changed from time to time and the Government started taking assistance of the organization in various day-to-day activities concerning maintenance of law and order, as a result the organization lost its original characteristic and started performing various activities, which are normally performed by the regular police organization. In paragraph 19 of the report, more than eight duties which are performed by the Home Guards are detailed. Finally, in paragraph 20, it is reported by the Commission that for the present, in the State of Madhya Pradesh, the Home Guards organization is continuing and carrying out all the duties, which is carried out by a regular police force except the duties pertaining to investigation of a criminal offence and participating in anti-dacoity operation. The findings in this regard are recorded in paragraph 20 of the report of the Human Rights Commission, indicates that in Madhya Pradesh the strength of Home Guards consist of 16005 Sainiks, who are continuously working for about 8 months every year. The Commission has also found adverse affect in the call off duty procedure being followed and has reported that the same has affected adversely not only on the force, but also on the physical and mental health of the Sainiks, working in the Home Guard.

29- Thereafter, in paragraph 21 of the report, it is stated that the factual position as on date is that the Home Guard is not a voluntary or temporary organization, a Home Guard Sainik is performing the regular duties like the police jawan, he is enrolled in the name of a volunteer at the age of 19 years and from the date of appointment he continues upto the age of 60 years in the same manner and is discharged after the age of 60 years without granting him any benefits. He is only paid an honorarium/daily wage and some washing allowance. Apart from the same no other benefit is granted to him. After meticulously analyzing each and every aspect of the matter, the allowance being paid to a Home Guard Sainik and the work being performed by them and after evaluating the totality of the facts and circumstances, in its 43 page report, the State Human Rights Commission has indicated that the manner in which the Home Guards are treated in the State of Madhya Pradesh amounts to violation of the provisions of Article 14, 21 and 23 of the Constitution, is contrary to the norms laid down in the Universal declaration of Human Rights, to which India is a party, and the recommendations made are to the effect that there should be rules and regulations governing their service conditions; the principle of ‘equal work for equal wage’ should be made applicable and various other recommendations are made on the ground that the nature of the work performed by the Home Guards is the regular work performed by a regular Government Department and, therefore, they should be treated as a regular employee of the State Government. These recommendations are to be acted upon by the State Government and it is for the State Government to consider these recommendations and take a decision with regard to formulating a scheme or a provision, statutory in nature, for laying down the service conditions of the Home Guards. In this regard no ‘mandamus’ can be issued by this Court except a direction to consider the recommendations and proceed in accordance with law.

30- However, the report does indicate the following factors:

(a) The Home Guards are required to work continuously once they are empanelled at the age of 19 years and most of them continue to work upto the age of 60 years.

(b) For the work done by them during this period except for granting them daily wage or honorarium and some washing allowance etc, alongwith some medical facility, no benefit available to a regular employee of the State Government or a regular employee of the Police Department is granted.

(c) The action of the State Government in so treating the employees is nothing but an arbitrary and unjustified action of the State Government, which amounts to violating the Human Rights of the Home Guards.

(d) Finally, it is found that the Home Guards are entitled to work continuously without the rotation or calling off duty procedure being implemented.

It is under the back drop of these findings and certain reports submitted by Shri K.F Rustom Ji, the then Chief of MP Police in the year 1960, wherein it was indicated that the Home Guards are receiving salary which is very meagre and cannot be enough to even sustain them for their day to day living, that this Court is now required to consider as to what directions can be issued and what relief can be granted to the petitioners.

31- On a close scrutiny of the report of the Human Rights Commission and the principle laid down by the Supreme Court, in the case of Pantha Chatterjee (supra), this Court is constrained to take note of certain observations made by the Supreme Court in the case of Peoples' Union for Democratic Rights v. Union of India, (1982) 3 SCC 235.

32- In the aforesaid case, Hon'ble Supreme Court was considering the question of paying wages to employees engaged for construction activity under the Asian Games Organization, in the year 1982, and after taking note of the provisions of Article 23 of the Constitution, in paragraphs 12, 13 and 14, the observations made read as under:

“12. Article 23 enacts a very important fundamental right in the following terms:

“Art. 23: Prohibition of traffic in human beings and forced labour-

(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and 483 any contravention of this provision shall be an offence punishable in accordance with law.

(2) Nothing in this Article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.

Now many of the fundamental rights enacted in Part III operate as limitations on the power of the State and impose negative obligations on the State not to encroach on individual liberty and they are enforceable only against the State. But there are certain fundamental rights conferred by the Constitution which are enforceable against the whole world and they are to be found inter alia in Articles 17, 23 and 24. We have already discussed the true scope and ambit of Article 24 in an earlier portion of this judgment and hence we do not propose to say anything more about it. So also we need not expatiate on the proper meaning and effect of the fundamental right enshrined in Article 17 since we are not concerned with that Article in the present writ petition. It is Article 23 with which we are concerned and that Article is clearly designed to protect the individual not only against the State but also against other private citizens. Article 23 is not limited in its application against the State but it prohibits “traffic in human beings and begar and other similar forms of forced labour” practiced by anyone else. The sweep of Article 23 is wide and unlimited and it strikes at traffic in human beings and begar and other similar forms of forced labour” wherever they are found. The reason for enacting this provision in the chapter on fundamental rights is to be found in the socioeconomic condition of the people at the time when the Constitution came to be enacted. The Constitution makers, when they set out to frame the Constitution, found that they had the enormous task before them of changing the socioeconomic structure of the country and bringing about socioeconomic regeneration with a view to reaching social and economic justice to the common man. Large masses of people, bled white by wellnigh two centuries of foreign rule, were living in abject poverty and destitution with ignorance and illiteracy accentuating their helplessness and despair. The society had degenerated into a status-oriented hierarchical society with little respect for the dignity of individual who was in the lower rungs of the social ladder or in an economically impoverished condition. The political revolution was completed and it had succeeded in bringing freedom to the country but freedom was not an end in itself, it was only a means to an end, the end being the raising of the people to higher levels of achievement and bringing about their total advancement and welfare. Political freedom had no meaning unless it was accompanied by social and economic freedom and it was therefore necessary to carry forward the social and economic revolution with a view to creating social economic conditions in which every one would be able to enjoy basic human rights and participate in the fruits of freedom and liberty in an egalitarian social and economic framework. It was with this end in view that the constitution makers enacted the Directive Principles of State Policy in Part IV of the Constitution setting out the constitutional goal of a new socio-economic order. Now there was one feature of our national life which was ugly and shameful and which cried for urgent attention and that was the existence of bonded or forced labour in large parts of the country. This evil was the relic of feudal exploitative society and it was totally incompatible with the new egalitarian socio-economic order which, “We the people of India” were determined to build and constituted a gross and most revolting denial of basic human dignity. It was therefore necessary to eradicate this pernicious practice and wipe it out altogether from the national scene and this had to be done immediately because with the advent of freedom, such practice could not be allowed to continue to blight the national life any longer. Obviously, it would not have been enough merely to include abolition of forced labour in the Directive Principles of State Policy, because then the outlaying of this practice would not have been legally enforceable and it would have continued to plague our national life in violation of the basic constitutional norms and values until some appropriate legislation could be brought by the legislature forbidding such practice. The Constitution makers therefore decided to give teeth to their resolve to obliterate and wipe out this evil practice by enacting constitutional prohibition against it in the chapter on fundamental rights, so that the abolition of such practice may become enforceable and effective as soon as the Constitution came into force. This is the reason why the provision enacted in Article 23 was included in the chapter on fundamental rights. The prohibition against “traffic in human beings and begar and other similar forms of forced labour” is clearly intended to be a general prohibition, total in its effect and all pervasive in its range and it is enforceable not only against the State but also against any other person indulging in any such practice.

13- The question then is as to what is the true scope and meaning of the expression “traffic in human beings and beggar and other similar forms of forced labour” in Article 23? What are the forms of ‘forced labour’ prohibited by that Article and what kind of labour provided by a person can be regarded as ‘forced labour’ so as to fall within this prohibition? When the Constitution makers enacted Article 23 they had before them Article of the Universal Declaration of Human Rights but they deliberately departed from its language and employed words which would make the reach and content of Article 23 much wider than-that of Article 4 of the Universal Declaration of Human Rights. They banned 'traffic in human beings which is an expression of much larger amplitude than “slave trade” and they also interdicted “begar and other similar forms of forced labour”. The question is what is the scope and ambit of the expression “begar and other similar forms of forced labour?” In this expression wide enough to include every conceivable form of forced labour and what is the true scope and meaning of the words “forced labour?” The word ‘begar’ in this Article is not a word of common use in English language. It is a word of Indian origin which like many other words has found its way in the English vocabulary. It is very difficult to formulate a precise definition of the word begar’ but there can be no doubt that it is a form of forced labour under which a person is compelled to work without receiving any remuneration. Molesworth describes ‘begar’ as “labour or service exacted by a government or person in power without giving remuneration for it.” Wilson's glossary of Judicial and Revenue Terms gives the following meaning of the word ‘begar’: “a forced labourer, one pressed to carry burthens for individuals or the public. Under the old system, when pressed for public service, no pay was given. The Begari, though still liable to be pressed for public objects, now receives pay: Forced labour for private service is prohibited.”“Begar” may therefore be loosely described as labour or service which a person is forced to give without receiving any remuneration for it. That was the meaning of the word ‘begar’ accepted by a Division Bench of the Bombay High Court in S. Vasudevan v. S.D Mital, AIR 1962 Bom 53. ‘Begar’ is thus clearly a film of forced labour. Now it is not merely ‘begar’ which is unconstitutionally prohibited by Article 23 but also all other similar forms of forced labour. This Article strikes at forced labour in whatever form it may manifest itself, because it is violative of human dignity and is contrary to basic human values. The practice of forced labour is condemned in almost every international instrument dealing with human rights. It is interesting to find that as far back as 1930 long before the Universal Declaration of Human Rights came into being, International Labour organization adopted Convention No. 29 laying down that every member of the International Labour organization which ratifies this convention shall “suppress the use of forced or compulsory labour in all its forms” and this prohibition was elaborated in Convention No. 105 adopted by the International Labour organization in 1957. The words “forced or compulsory labour” in Convention No. 29 had of course a limited meaning but that was so on account of the restricted definition of these words given in Article 2 of the Convention. Article 4 of the European Convention of Human Rights and Article 8 of the International Covenant on Civil and Political Rights also prohibit forced or compulsory labour. Article 23 is in the same strain and it enacts a prohibition against forced labour in whatever form it may be found. The learned counsel appearing on behalf of the respondent laid some emphasis on the word ‘similar’ and contended that it is not every form of forced labour which is prohibited by Article 23 but only such form of forced labour as is similar to ‘begar’ and since ‘begar’ means labour or service which a person is forced to give without receiving any remuneration for it, the interdict of Article 23 is limited only to those forms of forced labour where labour or service is exacted from a person without paying any remuneration at all and if some remuneration is paid, though it be inadequate, it would not fall within the words ‘other similar forms of forced labour. This contention seeks to unduly restrict the amplitude of the prohibition against forced labour enacted in Article 23 and is in our opinion not well founded. It does not accord with the principle enunciated by this Court in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, that when interpreting the provisions of the Constitution conferring fundamental rights, the attempt of the court should be to expand the reach and ambit of the fundamental rights rather than to attenuate their meaning and content. It is difficult to imagine that the Constitution makers should have intended to strike only at certain forms of forced labour leaving it open to the socially or economically powerful sections of the community to exploit the poor and weaker sections by resorting to other forms of forced labour. Could there be any logic or reason in enacting that if a person is forced to give labour or service to another without receiving any remuneration at all it should be regarded as a pernicious practice sufficient to attract the condemnation of Article 23, but if some remuneration is paid for it, then it should be outside the inhibition of that Article? If this were the true interpretation, Article 23 would be reduced to a mere rope of sand, for it would then be the easiest thing in an exploitative society for a person belonging to a socially or economically dominant class to exact labour or service from a person belonging to the deprived and vulnerable section of the community by paying a negligible amount of remuneration and thus escape the rigour of Article 23. We do not think it would be right to place on the language of Article 23 an interpretation which would emasculate its beneficent provisions and defeat the very purpose of enacting them. We are clear of the view that Article 23 is intended to abolish every form of forced labour. The words “other similar forms of forced labour are used in Article 23 not with a view to importing the particular characteristic of ‘begar’ that labour or service should be exacted without payment of any remuneration but with a view to bringing within the scope and ambit of that Article all other forms of forced labour and since ‘begar’ is one form of forced labour, the Constitution makers used the words “other similar forms of forced labour.” If the requirement that labour or work should be exacted without any remuneration were imported in other forms of forced labour, they would straightaway come within the meaning of the word ‘begar’ and in that event there would be no need to have the additional words “other similar forms of forced labour.” These words would be rendered futile and meaningless and it is a well recognized rule of interpretation that the court should avoid a construction which as the effect of rendering any words used by the legislature superfluous or redundant. The object of adding these words was clearly to expand the reach and content of Article 23 by including, in addition to ‘begar’, other forms of forced labour within the prohibition of that Article. Every form of forced labour ‘begar’ or otherwise, is within the inhibition of Article 23 and it makes no difference whether the person who is forced to give his labour or service to another is remunerated or not. Even if remuneration is paid, labour supplied by a person would be hit by this Article if it is forced labour, that is, labour supplied not willingly but as a result of force or compulsion. Take for example a case where a person has entered into a contract of service with another for a period of three years and he wishes to discontinue serving such other person before the expiration of the period of three years. If a law were to provide that in such a case the contract shall be specifically enforced and he shall be compelled to serve for the full period of three years, it would clearly amount to forced labour and such a law would be void as offending Article 23. That is why specific performance of a contract of service cannot be enforced against an employee and the employee cannot be forced by compulsion of law to continue to serve the employer. Of course, if there is a breach of the contract of service, the employee would be liable to pay damages to the employer but he cannot be forced to continue to serve the employer without breaching the injunction of Article 23. This was precisely the view taken by the Supreme Court of United States in Baily v. Alabama, 291 US 219, while dealing with a similar provision in the Thirteenth Amendment. ……….

It is therefore clear that even if a person has contracted with another to perform service and there is consideration for such service in the shape of liquidation of debt or even remuneration, he cannot be forced by compulsion of law or otherwise to continue to perform such service, as that would be forced labour within the inhibition of Article 23. This Article strikes at every form of forced labour even if it has its origin in a contract voluntarily entered into by the person obligated to provide labour or service Vide Pollock v. Williams, 322 US 1: 88 L Ed 1095. The reason is that it offends against human dignity to compel a person to provide labour or service to another if he does not wish to do so, even though it be in breach of the contract entered into by him. There should be no serfdom or involuntary servitude in a free democratic India which respects the dignity of the individual and the worth of the human person. Moreover, in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, a contract of service may appear on its face voluntary but it may, in reality, be involuntary, because while entering into the contract, the employee, by reason of his economically helpless condition, may have been faced with Hobson's choice, either to starve or to submit to the exploitative terms dictated by the powerful employer. It would be a travesty of justice to hold the employee in such a case to the terms of the contract and to compel him to serve the employer even though he may not wish to do so. That would aggravate the inequality and injustice from which the employee even otherwise suffers on account of his economically disadvantaged position and lend the authority of law to the exploitation of the poor helpless employee by the economically powerful employer. Article 23 therefore says that no one shall be forced to provide labour or service against his will, even though it be under a contract of service.

14- Now the next question that arises for consideration is whether there is any breach of Article 23 when a person provides labour or service to the State or to any other person and is paid less than the minimum wage for it. It is obvious that ordinarily no one would willingly supply labour or service to another for less than the minimum wager when he knows that under the law he is entitled to get minimum wage for the labour or service provided by him. It may therefore be legitimately presumed that when a person provides labour or service to another against receipt of remuneration which is less than the minimum wage, he is acting under the force of some compulsion which drives him to work though he is paid less than what he is entitled under law to receive. What Article 23 prohibits is ‘forced labour’ that is labour or service which a person is forced to provide and ‘force’ which would make such labour or service ‘forced labour’ may arise in several ways. It may be physical force which may compel a person to provide labour or service to another or it may be force exerted through a legal provision such as a provision for imprisonment or fine in case the employee fails to provide labour or service or it may even be compulsion arising from hunger and poverty, want and destitution. Any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action may properly be regarded as ‘force’ and if labour or service is compelled as a result of such ‘force’, it would we ‘forced labour’. Where a person is suffering from hunger or starvation, when he has no resources at all to fight disease or feed his wife and children or even to hide their nakedness, where utter grinding poverty has broken his back and reduced him to a state of helplessness and despair and where no other employment is available to alleviate the rigour of his poverty, he would have no choice but to accept any work that comes his way, even if the remuneration offered to him is less than the minimum wage. He would be in no position to bargain with the employer; he would have to accept what is offered to him. And in doing so he would be acting not as a free agent with a choice between alternatives but under the compulsion of economic circumstances and the labour or service provided by him would be clearly ‘forced labour.’ There is no reason why the word ‘forced’ should be read in a narrow and restricted manner so as to be confined only to physical or legal ‘force’ particularly when the national charter, its fundamental document has promised to build a new socialist republic where there will be socioeconomic justice for all and every one shall have the right to work, to education and to adequate means of livelihood. The constitution makers have given us one of the most remarkable documents in history for ushering in a new socio-economic order and the Constitution which they have forged for us has a social purpose and an economic mission and therefore every word or phrase in the Constitution must be interpreted in a manner which would advance the socio-economic objective of the Constitution. It is not unoften that in capitalist society economic circumstance exert much greater pressure on an individual in driving him to a particular course of action than physical compulsion or force of legislative provision. The word ‘force’ must therefore be constructed to include not only physical or legal force but also force arising from the compulsion of economic circumstance which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wage. Of course, if a person provides labour or service to another against receipt of the minimum wage, it would not be possible to say that the labour or service provided by him is ‘forced labour’ because he gets what he is entitled under law to receive. No inference can reasonably be drawn in such a case that he is forced to provide labour or service for the simple reason that he would be providing labour or service against receipt of what is lawfully payable to him just like any other person who is not under the force of any compulsion. We are therefore of the view that where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words ‘forced labour’ under Article 23. Such a person would be entitled to come to the court for enforcement of his fundamental right under Article 23 by asking the court to direct payment of the minimum wage to him so that the labour or service provided by him ceases to be ‘forced labour’ and the breach of Article 23 is remedied. It is therefore clear that when the petitioners alleged that minimum wage was not paid to the workmen employed by the contractors, the complaint was really in effect and substance a complaint against violation of the fundamental right of the workmen under Article 23.”

(Emphasis supplied)

It has been further held that if the wages paid to the labourers are less than the minimum wages, the same amounts to ‘begar’. It has been held by the Supreme Court in the said case that if Sugar Barons and the Liquor Kings of the country have fundamental right to carry on their business and fatten their purses by exploiting the consuming public, can the down trodden persons belonging to the lower strata of society be denied their fundamental rights even to earn an honest living through sweat and toil. It has been held by the Supreme Court that the only civil and political rights meaningful to this larger section of the society would be to remake the material conditions and restructure the social and economic order, so that these persons may be able to realize the economic, social and cultural rights.

33- If the aforesaid judgment of the Supreme Court is scanned in its totality and the principles scrutinized, it would be seen that the Supreme Court has laid stress to the fact about payment of atleast the minimum wages to an employee for working in the establishment as a fundamental right of the employee and anything done to deprive an employee of this right, would be nothing but an act amounting to ‘begar’. It is true that in the set up, in the organization of the Home Guards, no pay scale is prescribed, but in the statutory rules proposed to be framed by the State Government and as indicated hereinabove, certain posts and pay scales have been prescribed. It is for the State Government and the Expert Authorities to deliberate on these issues and prescribe an appropriate pay scale or conditions of service, which can be termed as the reasonable conditions for these persons. However, the fact remains that as on date nothing is prescribed and the Home Guards are made to work on a payment of an amount of Rs. 120-140/- paid to them every day, which is much less than even the Basic Pay prescribed to a Constable in the Police Department.

34- During the course of hearing, it was stated that now they are being paid a sum of about Rs. 160/- per day. If they are paid salary of Rs. 160/- per day, compared to the salary which is received by a constable in the Police Department, there is a great disparity. According to the indications made in paragraph 26, of the Report of the Commission, it is seen that the Commission has referred to a note of one Shri P.V Rajagopal, Director General of Home Guards, and it is indicated that on examining the duties being performed by Home Guards Personnel, one would find that they are in the same lines as that prescribed for a police personnel under the MP Police Regulations. It is thereafter observed that in the fitness of things, the Sainiks should given daily allowance, which would work out to be equivalent to the average daily income of a police constable, in the State of Madhya Pradesh. Thereafter, a detailed chart is indicated which shows that when a Home Guard Sainik received about Rs. 3000/- per month, a Police Constable was receiving about Rs. 10233/- per month. It is reported that as on date, a police constable is receiving near about Rs. 11,000/- to 12,000/- per month. While considering the question of payment of salary and emoluments to daily wage employees and while taking note of the claim made by the daily wage employee for payment of salary on the principle of ‘equal pay for equal work’, the Supreme Court in the case of Dharwad District PWD Literate Daily Wage Employees Association v. State of Karnataka, (1990) 2 SCC 396, has taken note of various constitutional provisions and has held that even though the Court is not entitled to issue a direction to regularize and make payment of salary to the employees in a particular pay scale of pay and thereby burdening the State Exchequer unduly, but the meaning of the word ‘socialist’ as appearing in the preamble of the Constitution and the socialistic philosophy adopted by the Constitution should be implemented in its letter and spirit. Therefore, a scheme should be formulated in such a manner that daily wage employees are not exploited to such an extent that their constitutional rights are infringed.

35- While considering the same question in the case of State of Punjab v. Devinder Singh, (1998) 9 SCC 595, and taking note of the applicability of the principle of parity of employment and ‘equal pay for equal work’ in the case of daily wage ledger keepers, it was held by the Supreme Court that even if daily wage employees are not entitled to the regular pay scale and other benefits according to a post against which they are working, they are atleast entitled to the minimum of the pay scale prescribed for the post (i.e… ledger keepers in this case). 36- Similar view is again laid down by the Supreme Court in the case of U.P Land Development Corporation v. H. Anwar, AIR 2010 SC 2587. If the aforesaid principle laid down by the Supreme Court and the concept of payment of minimum wages or a fair living wage to the employees discharging duties for the State Government are taken note and if the working conditions of the Home Guards are evaluated in the back drop of the findings recorded by the Human Rights Commission, it is clear that the Home Guards in the State of Madhya Pradesh are not being paid emoluments and other service benefits in accordance to the service performed by them and in the light of the recommendations made by the Human Rights Commission, the entire matter has to be reconsidered and reviewed. But, at the same time as the aforesaid process would take some time, the Home Guards cannot be permitted to suffer, having already suffered for the last more than 50 years. They are to be given some benefit so that the emoluments or salary earned by them for the work done can atleast be termed as a living wage sufficient enough to sustain them and their family. This is the requirement of the constitutional mandate and this Court cannot lose sight of this mandate of the Constitution. The Constitution further mandates the State Government to ensure that conditions of working are atleast such that the employee working for the State or its instrumentalities are paid salary, which is sufficient enough for sustaining them and their family i.e…. they get atleast a living wage. 37- As already indicated hereinabove, this Court cannot issue any ‘mandamus’ to the State Government for implementing the recommendations of the Human Rights Commission in its totality nor can the principle of ‘equal pay for equal work’ be enforced. Similarly, the declaration sought by the petitioners for declaring them as civil post holders and, therefore, to regularize treating them to be “civil post” holders can also be not granted in view of the judgments rendered by this Court in the case of Kedar Prasad (supra) and again in the case of Pun Pratap Singh (supra), wherein it has been held by Division Bench of this Court that as the Home Guards are not civil post holders and they did not enjoy ‘equal pay for equal work’ in the absence of rules being framed and made applicable to them by the State Government. To that effect, the objections raised by Shri R.D Jain, learned Advocate General, has to be upheld.

38- But, at the same time taking note of the fact that the petitioners, who are Home Guards, and are required to work continuously year after year and are not even getting the bare minimum salary as is given to their counterparts in the Police Department, the amount paid presently is not sufficient enough to sustain them and their family, relief has to be granted to them so that they can earn living wage by working as Home Guards and at the same time the system of calling of, which is not at all justified in any manner, should be done away with. 39- During the course of hearing of this petition Shri R.D Jain, the learned Advocate General, except for contending that the recommendations made by the State Human Rights Commission cannot be enforced, did not point out even a single error or illegality or perversity in the findings of fact recorded by the State Human Rights Commission, with regard to the manner in which the Home Guards are treated in the State of Madhya Pradesh. Not a single ground was canvassed during the time of hearing to show as to why the findings recorded in this Report be not taken to be correct. If the facts that have come out in the Report are correct, then it clearly shows that the constitutional and fundamental rights of the Home Guards are being violated and the State Government is not even following the mandate of the Constitution for protecting the rights of the Home Guards. 40- This Court had passed an interim order directing for payment of certain minimum salary and doing away with the system of calling of. Even though the order was passed more than three months back on 22.9.2011, the order has not been given affect to and the State Government by filing an application for recall has not given any reason as to why the said directions cannot be implemented. Except for contending that the financial and economic condition of the State Government prevents the State Government from implementing the said directions, no justifiable reason is given as to why the decision cannot be implemented. Financial constraints of the State Government cannot be an excuse for denying the constitutional rights of an employee discharging duties for the State Government. The Home Guards are performing duty by protecting the life and liberty of the citizens of the State and safeguarding the properties and assets of the State Government and whey they are doing so, the bare minimum of paying them some living wage, enough to sustain them has to be granted and mere financial constraints cannot be an excuse for denying the said benefit to the petitioners.

41- In a welfare State and particularly when the State has to act as a model employer, the State is required to set an example by giving wages and salary sufficient enough to sustain an employee and his family. The State cannot be permitted to act like a private employer and exploit the working class or the labour force doing duties for the State and citizens. The State has to act as a model employer and in the absence of any cogent justification from the Government for not doing so, the excuse of financial constraints cannot be accepted.

42- The emphasis on behalf of the State Government by Shri R.D Jain, learned Advocate General, for denying the benefits to the petitioners are mainly two folded. His first contention is that the recommendations made by the State Human Rights Commission are not enforceable and the Human Rights Commission has no authority under the Human Rights Act to issue any such direction, much less the direction to frame statutory rules and regulations or legislation. It was also emphasized by him that due to various factors as indicated hereinabove, the principle of ‘equal wage for equal work’ does not apply. Except for contending so, nothing is brought to the notice of this Court to show as to why the findings recorded by the State Human Rights Commission in its report dated 25.6.2011, with regard to the manner in which the Home Guards are treated, be not accepted as a correct projection of the entire picture.

43- The Human Rights Commission is a fact finding body and the report submitted by the Commission on the basis of enquiry can be taken cognizance of. Infact, in the case of Paramjit Kaur v. State of Punjab, 1999 Cr.L.J 456, the Supreme Court ruled that the Human Rights Commission is a fact finding commission and just like any fact finding body, even the Supreme Court can direct the Commission to conduct enquiry and collect information. The information collected by the State Human Rights Commission and the report submitted by the said Commission, available on record, in my view, has some value and in the absence of the findings recorded in the report being shown to be perverse or opposed to some principle of law or facts, which is shown to be incorrect, the report has to be given due credence, particularly in the present case when the report is based on an enquiry conducted by a High Level Committee, which consisted of Senior Police Officers of the Rank of Director General of Police etc.

44- It is pertinent to note that during his entire submissions Shri R.D Jain, learned Advocate General, did not make any allegation to the effect that any of the findings recorded by the State Human Rights Commission in its report or the facts mentioned on the basis of enquiry conducted is not correct. Except for taking the legal plea that the recommendations cannot be accepted, based on the law laid down in the case of Mallikarjuna Rao (supra), he did not give any reasons as to why the findings recorded by the Commission cannot be taken cognizance of by this Court for dispensing justice to the petitioners herein.

45- The findings recorded by the State Human Rights Commission and the violation of the Human Rights, the provisions of Articles 14 & 23 of the Constitution as indicated therein, have to be taken note of and even if the recommendations have no binding or statutory force, which can be enforced by this Court, but if the report show violation of not only the human rights of the petitioners before this Court, but also their constitutional rights, the question is can this Court be a mute spectator and leave it to the Government to take a decision on the report, without any direction for safeguarding the rights and interests of the petitioners exercising jurisdiction under Article 226 of the Constitution.

46- India alongwith various States is a party to various covenants and International Charter, proclaimed by the United Nations, which have been issued after due deliberations in accordance to the Universal Declaration of Human Rights. One such covenant is the International Covenant on Economic, Social and Cultural Rights. India is a signatory to this Covenant and has also ratified the same. The preamble to this Covenant indicates that the United Nations and the States parties to the said Covenant recognizes the need for inherent dignity, equal and inalienable right of all members of the human family, this is stated to be the foundation of freedom, justice and peace in the world. The Covenant on economic, social and cultural rights is proclaimed realizing the effect that every individual living human being has a right to enjoy certain economic, social and cultural rights and in furtherance thereof, various provisions are made in this Covenant. Part III, Article 7 of this Covenant contemplates that the States parties to the present Covenant recognizes the right of everyone for the enjoyment of just and favourable conditions of work, which ensure that the remuneration provided to all workers are atleast the minimum with regard to fair wages that can fetch them a decent living for themselves and their family, provide for safe and healthy working conditions and various other aspects concerned with the rights of a working individual. Even though Article 7 of this Covenant contemplates various benefits to be extended, including remuneration, public holidays, time for leisure, health and safety. One of the basic conditions is that remuneration provided should be the minimum fair wages, which can enable an individual to have a decent living and this right under the Covenant is nothing but a Human Right. That apart, under Article 23 of the Universal Declaration of Human Rights, it is provided as under:

“Article 23.

1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

2. Everyone, without any discrimination, has the right to equal pay for equal work.

3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

4. Everyone has the right to form and to join trade unions for the protection of his interests.”

(Emphasis supplied)

47- While evaluating the facts with regard to working conditions of the Home Guards, the State Human Rights Commission has found that in the matter of prescribing working conditions of the petitioners and in the matter of granting them various facilities, the basic human rights requirement are not complied with and it is violative of Articles 14, 21 and 23 of the Constitution. If that be so and if the basic human rights and constitutional rights are found to be violated, this Court cannot simply close its eyes and leave it to the Government to take a decision at its own sweet will. For more than 50 years, nothing has been done and it is not known as to for how many more years, the petitioners and Home Guards will have to suffer this violation of their basic human rights in the matter of giving them a fair wage and other working and service conditions, decent enough to maintain themselves and their family.

48- Under such circumstances, even though this Court deems it appropriate to leave it to the State Government to take a final decision into the matter, but with a view to do immediate justice to some extent to the petitioners, the interest of not only justice, but the constitutional mandate requires that till a final decision is not taken by the State Government, as a measure of interim relief or interim benefit, some relief should be granted to the petitioners so that their grievance are mitigated to some extent and the violation of their human and constitutional rights are to some extent remedied and it was taking note of all these factors that an interim order was passed by this Court on 22.9.2011, directing the respondents atleast to give to each of the petitioners the minimum of the pay, payable to a Constable in the Police Department and in doing away with the principle of calling of or rotation of duty.

49- In view of the aforesaid and in the facts and circumstances of the case, for the grounds and reasons indicated hereinabove, these petitions are allowed in part. Even though this Court does not deem it appropriate to issue any ‘mandamus’ with regard to the prayer made by the petitioners for declaring them as civil post holders or for granting them regular service alongwith regular benefits available to a personnel in the police department, the following directions are issued in the facts of the present case:

(a) On receipt of a certified copy of this order, the State Government shall take note of the recommendations made by the State Human Rights Commission and if required after constituting a High Level Committee or Commission to go into the questions and recommendations made by the Human Rights Commission and after studying the organization, working set up and other factors in the establishment of the Home Guards, make endeavour to lay down schemes, rules or regulations for regulating the working of the Home Guards establishment and if required, may formulate statutory rules and regulations in this regard, for prescribing their service conditions.

(b) Till the aforesaid exercise is not completed, all the employees working in the Home Guards department and who are petitioners before this Court, so also other similarly situated persons, who may have not filed writ petitions, be granted salary at the minimum/basic of the pay prescribed for the lowest post i.e…. constable in the police department, without any running pay scale, allowances etc.

(c) All the employees would be entitled to the minimum of the pay scale i.e…. the basic of the pay, as is payable to a constable in the police department, and the said benefit shall be extended to the employees with effect from 1.1.2011

(d) The employees would be paid the aforesaid amount with revision of basic pay, if any, in the corresponding police department from time to time hereafter, till a final scheme or regular rules and regulations are not formulated for working in the Home Guards organization.

(e) Apart from the aforesaid, the system of calling of duty shall be done away with and the employees shall be employed throughout the year subject to their being physically fit or otherwise entitled to work in accordance to law.

50- If this Court does not grant even this bare minimum relief to the petitioners, this Court would be failing in its duty of protecting the constitutional rights of the petitioners and having been prima facie satisfied that the action of the State Government is unjustified and amounts to violation of the constitutional and human rights, cannot sit back and look without issuing any directions. It is under these compelling circumstances that this Court is constrained to pass this order so that till the State Government takes a final decision into the matter, the petitioners are granted some interim benefit.

51- With the aforesaid directions, all these petitions stand allowed and disposed of.