Denying Subsistence Allowance To Home Guard Who Worked For 27 Yrs On Ground That He Wasn't 'Permanent' Violates Art 14 & 21: Punjab & Haryana HC

The Punjab and Haryana High Court has directed the authorities to grant subsistence allowance to a home guard who worked continuously for 27 years, observing that denying the same on the ground that he was not permanent or regular employee would be violative of Article 14 and 21 of the Constitution.State authorities while opposing the plea for subsistence allowance submitted that the home guard was not an employee of State and was merely a volunteer.Justice Jagmohan Bansal said, "Taking cue from provisions of ID Act, 1934 Rules, Punjab Civil Service Rules and Fundamental Rules, this Court is of the considered opinion that it would be unjustified, unfair and violative of Articles 14 and 21 of the Constitution of India to deny subsistence allowance to the petitioner who uninterruptedly had worked with the respondent for 27 years prior to his date of suspension. This Court is not oblivious of the fact that there is no statutory provision granting subsistence allowance and this Court is not a law making authority, nevertheless, this Court finds it appropriate to direct respondents to grant a reasonable sum of subsistence allowance because Constitutional Courts are custodian of fundamental rights and right to live like a human being is part of Articles 14 and 21 of Constitution of India. India is a welfare State."The judge opined that denying of subsistence allowance would abridge petitioner's as well as his family members right to live with dignity. Every member of Home Guard who without interruption had already worked for more than 10 years should be paid subsistence allowance, it said. He cannot be denied said allowance on the ground that he is not a permanent or regular employee, the court said. The Court also noted that a member of Home Guards is enrolled after following prescribed procedure which includes training and his appointment cannot be treated as back door entry."Continuous service of more than 10 years gives him some status. Thus, this Court holds that petitioner should be paid reasonable amount as subsistence allowance," the judge added further.These observations were made while hearing the plea of a former Home Guard for setting aside the suspension order passed in 2019 whereby the District Commander, Punjab Home Guards, Patiala has suspended him and further sought subsistence allowance during the period of suspension.Counsel for the petitioner submitted that he was enrolled as member of Punjab Home Guards in 1992 and continuously worked with the respondent as member of Home Guards till the date of passing impugned order of suspension.The State Counsel submitted that the petitioner as per judgment of Supreme Court is a volunteer and he is not an employee of the State. "He, in true sense, is a daily wager and can be called off at any point of time. The volunteers are called on as per requirement and can be called off in case of absence of need. The petitioner was found guilty of misconduct, thus, he was placed under suspension and by order dated 21.10.2024 has been called off," he added.After examining the submissions, the Court noted that e petitioner continuously i.e. without any break worked from 1992 to 2019. He was regularly paid salary in the form of daily allowance. Section 9 of 1947 Act empowers the State Government to make rules regarding conditions of service of Home Guards. As per Rule 14 of 1963 Rules, a volunteer is entitled to pay and allowances as may be determined by the Government from time to time.It further pointed that the respondent is pleading that he was a volunteer and was not getting salary whereas petitioner uninterruptedly worked and got monthly salary in the form of allowances. "Position of a volunteer of Home Guards who works uninterruptedly cannot be worse than a workman. As per Section 2(s) of Industrial Disputes Act, 1947 (ID Act) a 'workman' means any person employed in any industry to do manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward," the Court said.Reliance was placed on Devinder Singh v. Municipal Council, Sanaur, [(2011) 6 SCC 584], to underscore that every workman either casual, temporary or part time is entitled to protection granted by Section 25B read with Section 25F of ID Act. Justice Bansal highlighted that a member of Home Guards is a part of Punjab Police though his service is governed by 1947 Act."Section 5 of the 1947 Act provides that a member shall have the same powers, privileges and protection as an officer of police appointed under any law for the time being in force. He, for his misconduct, may be subjected to punishment of sentence as well as dismissal from service," it added.Furthermore, the Court said that at this stage, particularly after working with police force and having stigma of suspension, cannot be expected to get job elsewhere except small time job of security guard with a private agency.The judge said on account of suspension instead of dismissal, he had legitimate...

Denying Subsistence Allowance To Home Guard Who Worked For 27 Yrs On Ground That He Wasn't 'Permanent' Violates Art 14 & 21: Punjab & Haryana HC

Aiman J. Chishti

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