Delhi High Court
Sulabh International Social ... vs Regional Labour Commissioner ... on 18 October, 2012
Author: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 18.10.2012
+ W.P.(C) 5944/2012 & CM. NO. 12240-41/2012, CAV 961/2012
SULABH INTERNATIONAL SOCIAL SERVICE ORGANIZATION
..... Petitioner
Through: Mr. Anurag Dubey, Mr. D.P. Pandey and
Mr. Meenesh Dubey, Advocates
Versus
REGIONAL LABOUR COMMISSIONER (CENTRAL) & ORS.
..... Respondents
Through: Ms. Sweety Manchanda, CGSC for
Respondent No. 1.
Mr. Vidya Nand Sharma, R2.
Mr. Rajat Katyal and Mr. Sanjeev Joshi,
Advs. for R3.
AND
+ W.P.(C) 6059/2012 & CM. NO. 16373-74/2012
ALL INDIA INSTITUTE OF MEDICAL SCIENCES ..... Petitioner
Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi,
Advs.
Versus
VIDYA NAND SHARMA ANDANR ..... Respondents
Through: Respondent No. 1 in person.
Mr. Anurag Dubey, Mr. D.P. Pandey and
Mr. Meenesh Dubey, Advs. forR2.
AND
+ W.P.(C) 6060/2012 & CM. NO. 16375-76/2012, CAV. 972/2012
ALL INDIA INSTITUTE OF MEDICAL SCIENCES ..... Petitioner
Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi,
Advs.
W.P.(C) Nos. 5944, 6059-68/2012 Page 1 of 35
Versus
MAHESH AND ANR ..... Respondents
Through: Mr. Anurag Dubey, Mr. D.P. Pandey and
Mr. Meenesh Dubey, Advs. forR2.
AND
+ W.P.(C) 6061/2012 & CM. NO. 16377-78/2012, CAV. 973/2012
ALL INDIA INSTITUTE OF MEDICAL SCIENCES ..... Petitioner
Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi,
Advs.
Versus
GOVIND AND ANR ..... Respondents
Through: Mr. Anurag Dubey, Mr. D.P. Pandey and
Mr. Meenesh Dubey, Advs. forR2.
AND
+ W.P.(C) 6062/2012 & CM. NO. 16379-80/2012, CAV. 974/2012
ALL INDIA INSTITUTE OF MEDICAL SCIENCES ..... Petitioner
Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi,
Advs.
Versus
ASHOK AND ANR ..... Respondents
Through: Mr. Anurag Dubey, Mr. D.P. Pandey and
Mr. Meenesh Dubey, Advs. forR2.
AND
+ W.P.(C) 6063/2012 & CM. NO. 16381-82/2012
ALL INDIA INSTITUTE OF MEDICAL SCIENCES ..... Petitioner
Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi,
Advs.
Versus
MUKESH YADAV AND ANR ..... Respondents
W.P.(C) Nos. 5944, 6059-68/2012 Page 2 of 35
Through: Mr. Anurag Dubey, Mr. D.P. Pandey and
Mr. Meenesh Dubey, Advs. forR2.
AND
+ W.P.(C) 6064/2012 & CM. NO. 16383-84/2012
ALL INDIA INSTITUTE OF MEDICAL SCIENCES ..... Petitioner
Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi,
Advs.
Versus
DHARAMVIR AND ANR ..... Respondents
Through: Mr. Anurag Dubey, Mr. D.P. Pandey and
Mr. Meenesh Dubey, Advs. forR2.
AND
+ W.P.(C) 6065/2012 & CM. NO. 16385-86/2012
ALL INDIA INSTITUTE OF MEDICAL SCIENCES ..... Petitioner
Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi,
Advs.
Versus
MUKESH AND ANR ..... Respondents
Through: Mr. Anurag Dubey, Mr. D.P. Pandey and
Mr. Meenesh Dubey, Advs. for R2.
AND
+ W.P.(C) 6066/2012 & CM. NO. 16387-88/2012, CAV. 977/2012
ALL INDIA INSTITUTE OF MEDICAL SCIENCES ..... Petitioner
Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi,
Advs.
Versus
MAMTA AND ANR ..... Respondents
Through: Mr. Anurag Dubey, Mr. D.P. Pandey and
Mr. Meenesh Dubey, Advs. forR2.
W.P.(C) Nos. 5944, 6059-68/2012 Page 3 of 35
AND
+ W.P.(C) 6067/2012 & CM. NO. 16389-90/2012, CAV. 975/2012
ALL INDIA INSTITUTE OF MEDICAL SCIENCES ..... Petitioner
Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi,
Advs.
Versus
BALAMURGAN & ANR ..... Respondents
Through: Mr. Anurag Dubey, Mr. D.P. Pandey and
Mr. Meenesh Dubey, Advs. forR2.
AND
+ W.P.(C) 6068/2012 & CM. NO. 16391-92/2012, CAV. 976/2012
ALL INDIA INSTITUTE OF MEDICAL SCIENCES ..... Petitioner
Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs.
Versus
VIJAY AND ANR ..... Respondents
Through: Mr. Anurag Dubey, Mr. D.P. Pandey and
Mr. Meenesh Dubey, Advs. forR2.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
ORDER
% 18.10.2012
SURESH KAIT, J. (Oral)
CAV. No. 961/2012
Since the learned counsel has put appearance on behalf of the caveator, the
caveat stands discharged.
CM. No. 12241/2012 (for exemption)
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
W.P.(C) Nos. 5944/2012 & 6059-6068/2012
1. The Sulabh International Social Service Organization, and the All India
Institute of Medical Sciences, New Delhi, by way of the present petitions, are
challenging the sustainability of the order dated 25.06.2012 passed by the Regional
Labor Commissioner. Since all the petitions have arisen from the common order,
therefore, this Court has decided to dispose of all the petitions by this common
judgment. The facts of the Writ Petition (Civil) No. 5944/2012 would be
discussed inter alia being the lead matter.
2. The petitioner Sulabh International Social Service Organization, and
respondent No. 3, Director All India Institutes of Medical Sciences, New Delhi, by
way of different writ petitions, are challenging the sustainability of the order dated
25.06.2012 passed by the Regional Labor Commissioner. The Regional Labor
Commissioner, being the Authority under the Minimum Wages Act, allowed the
claim petition that has been filed by the respondent No.2 under Section 20(2) of the
Act. The Authority also held that the petitioner and the respondent No.3 both are
severally and jointly responsible for the payment of the claim.
3. Facts of this case are that the petitioner and respondent No. 3 entered into an
agreement for deployment of the respondent No.2 for employment of cleaning and
sweeping at the premises of All India Institute of Medical Science, as such
respondent No. 2 worked during the period from 25.01.2008 to 31.03.2010.
Thereafter, the respondent No. 2 filed a writ petition before this Court for the
payment of minimum wages. The same was disposed of by the order dated
17.02.2010, whereby the respondent No. 2 was directed to approach the
appropriate Forum. Accordingly, the respondent No. 2 preferred a claim
application before the Authority under the Minimum Wages Act; same has been
allowed by the impugned order.
4. The moot question for the consideration in these writ petitions is that
whether the alleged volunteers, deployed through the petitioner, namely Sulabh
International Organization, are entitled to get the minimum wages under the
Minimum Wages Act.
5. The petitioner Sulabh International has relied upon the judgment delivered
in Writ Petition No. 3408/1989 by the High Court of Patna, wherein the said Court
observed as under:
"The Petitioner establishment has set up lavatories and bathrooms,
the construction being of very simple in nature for the use of the
public which need not be cleaned by the scavenger nor does it require
carrying of any night soil on‟ anyone‟s head. Further, the jobless
scavengers or other persons rendered without employment are now
being imparted vocational training in centers which may help them to
find jobs. For this purpose it has a large number of volunteers who
are paid small sums of money as pocket money for their pocket
expenses. It is true that in every case of industry, the element of profit
and loss need not be there yet as I read the aforesaid decision of the
Supreme Court, the definition cannot be extended to a purely
voluntary organization like the Petitioner establishment which is
working for public good and in the interest of the weaker Section of
the society."
6. Adopting the observation made in the above judgment, Mr. K.T.S. Tulsi,
learned Senior Advocate appearing on behalf of the petitioner contends that the
impugned order is illegal, since there is no relationship of employer and employee
which is a prerequisite for the application of the Minimum Wages Act. He pointed
out that the object of the establishment is to liberate the scavengers from the sub
human occupation; and is a voluntary philanthropic organization carrying out its
activities on "no profit and no loss basis". Secondly, the petitioner has relied upon
a circular dated 03.04.2001 issued by Jt. Labor Commissioner, New Delhi wherein
the application of Labor Laws has been excluded qua petitioner establishment. The
said circular is reproduced as under:
"GOVT. OF NATIONAL CAPITAL TERRITORY OF DELHI
LABOUR DEPARTMENT
15-RAJPUR ROAD: DELHI-110054
No.1:1291 Dated: 03.04.2001
CIRCULAR
Hony. Chairman, M/S Sulabh International Social Service
Organisation, RZ-83, Mahavir Enclave Palam, Dabri Marg, New
Delhi-110045, has applied that the provisions of labour laws are not
applicable on their organization on the basis of the following
grounds:-
a) That it is a Society registered under the Societies Registration
Act, 1860.
b) That it is voluntary philanthropic organization.
c) That it is carrying out its activities on "No Profit and No Loss"
basis.
d) That it was considered as not an „Industry" as defined in
Section 2(j) of the Industrial Disputes Act, 1947 by the Hon‟ble High
Court of Patna and the same was accepted by the Hon‟ble Supreme
Court of India.
e) That the Government of Orissa, Karnataka and Andhra
Pradesh considering that it was neither an "Industry" nor a
"Commercial Establishment" issued instructions to their officers not
to enforce the labour laws and keep the above said judgments in view,
while dealing with the said organization.
f) That that Government of Bihar also accorded exemption to it,
from applicability of the provisions of the "Shop & Establishment
Act", as applicable in their State.
After the examination of above application, it appears that the above
said organization is a non-profit voluntary social organization and is
carrying out its activities on "No Profit and No loss" basis for the
welfare of the humanity and as such is neither an industry nor an
Establishment. Hence, all the subordinate offices in different States
have been instructed to keep the above in view, while dealing with the
above said organization for the purpose of enforcement of labour
laws.
Hon‟ble High Court of Patna in the matter of M/s Sulabh
International V/s. State of Bihar & Ors. held vide their judgment
dated 09.02.1990 that the Petitioner management/organization, i.e.,
M/s Sulabh International Social Service Organization is not an
industry within the meaning of Section 2(j) of the Industrial Disputes
Act, 1947. Hon‟ble Suprme Court of India vide order dated
17.02.1994 and 20.03.1996 dismissed Civil Appeal and Review
Petition in the matter of "Bhartiya Sulabh Sauchalaya Karamchari
Sang vs. Sulabh International & Ors", thereby upholding the same
view as decided by the Hon‟ble High Court of Patna.
The Govt. of Orissa, Karnataka, Andhra Pradesh & Govt. of Bihar
issued circulars/instructions to their subordinate officers to enforce
the labour laws in view of above said judgments. Copies of the above
said judgments and relevant circulars as issued by different State
Governments are enclosed for ready reference.
The Metropolitan Magistrate, Delhi has also decided on 22.03.1997
that the provisions of Minimum Wages Act are not applicable to the
said Organization. Copy of the said judgment is also enclosed.
Hence, in such circumstances all the Branch Officers of the
Department while dealing with the above said Organization are
hereby instructed to keep the above facts and judgments in view for
the purpose of enforcement of labour laws and for compliance of the
above said judgments in letter and spirit.
(V. KUMAR)
Jt. Labour Commissioner"
7. The respondent No.3 Director, All India Institute of Medical Sciences is the
petitioner in the Writ Petitions No. 6059/2012, 6060/2012, 6061/2012, 6062/2012,
6063/2012, 6064/2012, 6065/2012, 6066/2012, 6067/2012 & 6068/2012
challenging the same on the preposition that the relationship between the petitioner
herein and the respondent No. 2 is not established as "employer" and "employee"
as is defined in the Minimum Wages Act. Therefore, the respondent No. 3
contends that the application of the provisions of the Minimum Wages Act would
not arise; and is not liable under the Act to pay the minimum wages to the
respondent No. 2. The respondent No. 3 also bought to the notice that the non
existence of relationship as "employee and employer" between the petitioner and
the respondent No. 2 would render that the impugned order is void ab initio.
8. The Authority under the Act has taken note of the pleadings and framed the
following issues, namely,
(i) Whether the Minimum Wages Act, 1948 is applicable only to „industry‟,
„establishment‟ and „enterprise‟, and not to voluntary social service organization of
charitable and philanthropic nature.
(ii) Whether AIIMS or Sulabh International should be deemed to be the
employer under the Act having responsibility to pay minimum wages.
(iii) Whether the persons associated with Sulabh International are „employees‟
within the meaning under the Act.
(iv) Whether exemption of employer from liability in certain cases under Section
23 applies to claim cases.
(v) Whether the Hon‟ble Patna High Court‟s order in CWJC No. 3408 of 1989
has a bearing on this case.
On the issues mentioned above, the learned Authority held that the petitioner
and the respondent No. 3 are covered under the definition of "employer" as defined
in Section 2(e) of the Act since the respondent No. 2 was deployed or employed by
the respondent No. 3 through the petitioner. Therefore, the Authority has reached
to the conclusion that the petitioner and the respondent No. 3 are employers for the
purpose of determining the liability under the Minimum Wages Act. Moreover, it
also considered the fact that the duty which was performed by the respondent No.2
was the scheduled employment which is defined in Section 2(g) of the Minimum
Wages Act and the Central Government has fixed minimum rate of wages vide
notification No.S.O. 1994(E) dated 7.08.2008.
9. As regards the contentions based on the judgment of Patna High Court in
Writ Petition No. 3408/1989, the Authority under the Minimum Wages Act has
pointed out that the said judgment was not applicable in the issue of payment of
Minimum Wages Act. It was also differentiated on the aspect of the issues, as in
the above said judgment the issue was the construction of „latrines and urinals‟ by
the Petitioner for the use of the public which was held to be not "industry"
whereas, the issue involved in the claim application was sweeping and cleaning in
the establishment of the respondent No.3 by the petitioner in the capacity as a
contractor or an outsourced agency. Accordingly, the Authority under the Act
allowed the claim application that has been filed by the respondent No.2.
10. It is important to note that the Authority has come to a specific conclusion
that the Patna High Court judgment is not applicable in the present case, wherein
the above said circular of labor department is also based on the above said
judgment. Importantly, the petitioner also strongly relies upon the dictum of
W.P.No.3408/1989 of Patna High Court. In this context, it may be relevant to
reproduce the relevant paragraphs of the said judgment as under:
"6. Concluding, therefore, I have no hesitation in holding, firstly,
that the so-called union is entirely spurious. It has no sanctity of law
nor does it represent anyone who can be treated to be a workman of
the Petitioner establishment. In fact, it is a self-styled union of certain
persons whose motive is not only laudable but entirely mala fide. I
have also no hesitation in holding that this was a case, primarily, in
which no reference should have been made merely on the basis of a
solitary material that is the notification recognizing the Union. In the
light of the subsequent notification as contained in Annexure 4, the
authorities should have been well advised to examine, before making
a reference, whether the Union making the demand was a union
sanctified by law and really represented the workmen of the
petitioner-establishment which situation was subsequently brought in
to light resulting in the issuance of Annexure 4. Even if, I were to
assess me that the State government was right in making the reference
of registration alone, once it has come to light that the Union whose
President has made the demand, is not a Union created in accordance
with law and it does not consist of the persons who are the workmen
of the Petitioner establishment, then also the reference and the
consequential proceeding cannot be allowed to stand. I have,
therefore, no hesitation in quashing the entire reference thus
rendering the consequential award a nullity.
7. Having held as above, the second point whether the petitioner-
establishment is an industry or not become entirely academic because
even if it was held to be an industry, the initiation of the proceeding
itself being bad and it being not established that the demand has been
made by or on behalf of an for a workman of the petitioner-
establishment, no award could be made against the petitioner-
establishment and the demand made in annexure 3 could not be
entertained. I, however, would like to express my opinion succinctly
in regard to this point also. Undoubtedly, the law has completely
been crystallized by the decision of the Supreme Court reported in
AIR 1978 SC 548 (Bangalore Water Supply and Sewerage Board vs.
A. Rajappa and others) relating to types of establishments that come
within the definition set out in Section 2(J)of the Act. The definition in
Section 2(j) of the Act of the word "Industry" has been given a wide
meaning embracing within its ambit a large number of organizations
which would come within the nature of the Institution set out but is
essential in every case where the question is raised whether an
establishment is an industry within the meaning of Section 2(j) of the
Act that certain relevant factual data have to be found. If an
establishment is undoubtedly an industry established for the purpose
of business, trade, undertaking manufacture or calling of employers
and it includes the calling, services, employment, handicraft, or
industrial occupation or avocation of workmen, that being an
establishment of undoubted has in regard to its character of being an
industry then much ado is not required for applying the provisions of
the Industrial Disputes Act in all its aspect. The problem arises only
when an establishment by the very nature of its creation, extent and its
purpose for which it was established cannot ex facie be described as
an Industry then it can only be brought in to the ambit of the definition
of Section 2(J) of the Act on the basis of ascertainable facts brought
about by detailed inquiry in an award proceeding or at the level of the
State Government making the reference. The onus would lie on the so
called workmen to bring on the record, cogent and relevant materials
to show that not only they are the members of such establishment but
also that the organization is in fact functioning in the manner which
brings it within the definition of „industry‟. In the instant case, apart
from the bye laws and the audit report of the management and four
witnesses examined by the workmen, nothing has been brought on the
record to show the manner in which really the Petitioner
establishment is functioning. In fact, the Petitioner establishment
claim to be a voluntary organization of social workers who have
gathered together to work on a project by which apart from others the
harizans could be relieved from performing the inhuman duties of
carrying night soil on their heads. The other purposes for the
establishment of the Petitioner -organization have been set out in the
aims and objects and appear primarily to render certain specific
benefits for the member of the public in various spheres of everyday
life. For these purposes, the Petitioner establishment has been set up
which is technically described as "Sulabh Sauchalaya". The
Petitioner establishment has set up lavatories and bathrooms, the
construction being of very simple in nature for the use of the public
which need not be cleaned by the scavenger nor does it require
carrying of any night soil on‟ anyone‟s head. Further, the jobless
scavengers or other persons rendered without employment are now
being imparted vocational training in centers which may help them to
find jobs. For this purpose it has a large number of volunteers who
are paid small sums of money as pocket money for their pocket
expenses. It is true that in every case of industry, the element of profit
and loss need not be there yet as I read the aforesaid decision of the
Supreme Court, the definition cannot be extended to a purely
voluntary organization like the Petitioner establishment which is
working for public good and in the interest of the weaker Section of
the society unless relevant facts are proved. In my view, it is incorrect
to say on the basis of the aims and objects of the organization that
these cannot be accomplished by voluntary workers. The aims and
objects of any establishment are always extensive and goes even
beyond the actual work that the establishment undertakes. The ipso
dixit of four workmen all of whom claim to be no longer in service of
the establishment and the aim and objects can hardly justify the
inference that the establishment is an industry. Much more than this
was needed to be proved.
8. I have, therefore, no hesitation in holding that there was no
sufficient evidence on record to hold that the petitioner-establishment
is an industry within the meaning of Section 2(J) of the Act and the
decisions of the Supreme Court.
11. The reading of the foregoing paragraphs in the said judgment makes it clear
that the issue was not the application of the payment of Minimum Wages Act; but
the Industrial Disputes Act. Two issues were involved, primarily the scope of the
definition of industrial dispute as defined in Section 2(k) of the Industrial Disputes
Act, and the Court ruled that the dispute which was referred was not an industrial
dispute since; it was not referred by the workmen in the establishment. Secondly,
on the issue whether the petitioner herein, namely, Sulabh International is an
industry or not, the Patna High Court held that, being a purely voluntary
organization, working for the public good and for the benefit of weaker Sections in
the society the definition of "industry" could not extent to the petitioner.
12. It is legally fundamental to note that the reasoning of the judgment flows
from the provisions of the Industrial Disputes Act; not from the Minimum Wages
Act. Significantly, the existence of the petitioner as a voluntary organization is
different from as compared to deployment of persons as volunteers through the
petitioner. In the latter category the petitioner stands in the different footing as
compared to the former; that is as an employer. Therefore, the learned Authority
under the Minimum Wages Act opined that the said judgment has no bearing in the
issue involved.
13. One of the most important aspects for consideration is that the respondent
No.2 was serving the petitioner as a volunteer; not as an employee. Therefore, the
contention was that the existence of "employee- employer" relationship is a sine
quo non for the application of the Minimum Wages Act. The root of this
proposition was based on the agreement executed between the petitioner and
respondent No.3 as exhibited as annexure P-3 in Writ Petition No.-6059/2012. The
first party in the agreement was the respondent No.3 whereas the petitioner was
second party. For the proper evaluation of the said aspect, it is convenient to
reproduce the relevant terms and conditions in the said agreement as under:
"The agreement between First Party and Second Party witnesseth as
per terms and conditions set forth hereunder.
1. The Second Party will have to provide adequate voluntary
social workers for cleaning. The timing of the deployment of the
voluntary social workers would be according to the needs of the Dr.
BRAIRCH, AIIMS, Ansari Nagar.
2. No refuse/garbage will be dumped by the voluntary social
workers in the open trenches, hedge.
3. Removal of the dead body of Dogs/Cats/Rats/Monkeys etc.
within two hours after receiving the complaint without fail.
4. Second Party shall provide the House Keeping services on all
calendar days Sundays including Gazetted Holidays i.e. the timing of
the deployment of the staff would be according to the needs of the Dr.
BRAIRCH, AIIMS, Ansari Nagar.
5. The Second Party shall provide 10 Nos. of Sulabh voluntary
social workers and one supervisor to cope with work load of
sanitation throughout the period of agreement. In case, the number of
Sulabh voluntary social workers engaged, is found less while
inspection by any Executive Officer of the Center, proportionate
charges will be deducted after discussion with Second Party the as
per charges specified in Annexure-I. The Executive Officer of this
Contract shall be Asstt. Admn. Officer AIIMS (as nominee of Dr.
BEAIRCH, AIIMS, Ansari Nagar).
6. The Second Party shall maintain the complaint book for
different areas, which will be made available to the supervisory staff.
The Second Party will use the manpower only at the places wherever
authorized.
7. The Second Party shall provide two sets of Apron including Dr.
BRAIRCH, AIIMS to its voluntary social workers and ensure that they
shall wear it while on duty and maintain them clean.
8. That the voluntary social workers deputed by the Second Party
shall not be below the age of 18 years.
9. The voluntary social workers deputed by the Second Party
should not interfere with the duties of workers of the First Party.
10. The Second Party shall ensure and guarantee the conduct,
behavior and honest of the voluntary social workers deputed by them.
In case of any misconduct or any other damage or theft of the
property of the First Party, the Second Party shall be responsible for
all such losses or damages after it is established by holding proper
enquiry that the voluntary social workers deputed by the Second Party
are responsible for these.
11. The voluntary social workers engaged by the Second Party
shall be of good character and sound health. And should be
medically fit and this may be checked by Senior Residents Dr.
BRAIRCH, AIIMS, Ansari Nagar.
12. In the event of any loss to the Dr. BRAIRCH, AIIMS on account
of negligence of voluntary social workers, Second Party shall make
good the loss sustained by the Dr. BRAIRCH, AIIMS, Ansari Nagar
either by the replacement or on payment of adequate compensation
which will be decided by the Joint Committee of both the parties after
holding necessary enquiry.
13. The First Party shall not be responsible for the payment of
honorarium to the voluntary social workers engaged by the Second
Party and shall ensure timely payment to them.
14. The Second Party shall provide voluntary social workers as per
approved terms and conditions. The same shall be monitored by Sr.
Sanitation Officer/Representative of the Dr. BRAIRCH, AIIMS, Ansari
Nagar and if the strength is found less, proportionate recovery will be
made.
15. The Second Party will have to produce the monthly bill along
with the certificate of satisfactory performance from the Sr. Sanitation
Officer/Sanitation Inspector to the submitted on the 8 th of every
calendar month for verification by the Executive Officer and same
shall be paid within 10 days by the First Party.
16. Second Party shall not appoint any Sub-contractor/Agent to
carry out any obligations under the awarded period of work.
17. The First Party shall provide the quality cleaning material to
the Second Party as per requirement at its cost, but the Second Party
shall make this demand in advance so that work does not suffer.
18. The Second Party Dr. BRAIRCH, AIIMS, Ansari Nagar shall
not be responsible for any compensation which may be required to be
paid to the voluntary social workers of the Second Party consequent
upon any injury/mishap.
19. The Second Party shall be responsible to the Head of the Dr.
BRAIRCH, AIIMS, Ansari Nagar or any office authorized by him/her
for execution of day to day work of the campus.
The Security instructions/orders issued by the Dr. BRAIRCH, AIIMS,
Ansari Nagar from time to time shall also be followed by the Second
Party and voluntary social workers.
20. The First Party reserves the rights to award the area for
cleaning, dusting etc. out of various buildings/locations and can any
time withdraw some areas or add some additional areas from the
contract without assigning any reason after giving one month‟s
notice.
21. The contract can be terminated by the First Party Dr.
BRAIRCH, AIIMS, Ansari Nagar by giving one month‟s notice. The
Second Party can also terminate the contract by giving one month‟s
notice.
22. No voluntary social workers of the Second Party shall stay in
the campus beyond prescribed duty hours. While going out of the Dr.
BRAIRCH, AIIMS, Ansari Nagar , Second Party will go through the
check by security at various exists of the Dr. BRAIRCH, AIIMS,
Ansari Nagar .
23. It is further agreed that there would be absolutely no scope of
escalation payable by the First Party on account of increase in
honorarium of voluntary social workers unless mutually agreed to.
24. It is agreed that in case the Second Party fails to perform any of
the terms and conditions of this agreement or commits any breach in
contract, the First Party may cancel the contract after giving
reasonable opportunity and if found unsatisfactory then by giving one
month notice in writing to the Second Party.
25. That the Second Party shall issue the identity card to each of
the voluntary social worker engaged as associate member for entry
into the work place of AIIMS premises.
26. That in case of any dispute between the parties aforesaid in
respect of this agreement, the matter shall be referred to a mutually
agreed upon Arbitrator by the First Party and Hony., Asstt. Director
of the Second Party and the decision of the Arbitrator so appointed
shall be final and binding on both the parties.
27. The rates terms and conditions as per annexure I, II & III to
this agreement will form an integral part of this agreement."
14. Indisputably, the above said contract establishes the fact that the respondent
No.2 was deployed in the premises of respondent No. 3 for the employment of
cleaning through the petitioner. It is true that the contract entered between the
parties refers the respondent No. 2 as "voluntary social worker". Despite of this
reference as a voluntary social worker, the respondent No. 2 has filed claim
petition under the Minimum Wages Act; and therefore, the Authority under the
Act, held that the respondent No.2 is not a volunteer.
15. Moreover, it is legally significant to note and examine the nature and scope
of the above contract in the light of observations made by the Supreme Court in
Peoples Union for Democratic Rights and Ors vs. Union of India 1982 (3) SCC
235. The relevant paragraph is reproduced as under
20. 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 wage, 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 rigor of his
poverty, he would have no choice but to accept any work that
comes him 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
socio-economic 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 un often 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.
16. Article 23 of the Constitution enacts a very important fundamental right in
the following terms:
Article 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 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.
17. The challenge herein is not about the enforceability of the said contract; but
the nature and scope of the same is to be examined in the light of Article 23 of the
Constitution, with the findings as regards the different forms of forced labour as
held in Peoples Union for Democratic Rights and Ors vs. Union of India ( supra)
for culling out the stand of the respondent No. 3 and the petitioner. In the light of
the above, the deployment of respondent No. as a social worker is a new method of
forced labour in the society, which needs to be curbed. The reading of the terms
and conditions of the said contract in terms with Article 23 would establish the fact
that, the respondent No. 2 was working as an "employee" not as a "volunteer"
18. It is also pertinent to examine the said contract with the provisions of the
Minimum Wages Act.
19. Section 25 of the Minimum Wages Act reads as follows;
25. Contracting out.- Any contract or agreement, whether made
before or after the commencement of this Act, whereby an
employee either relinquishes or reduces his right to a minimum
rate of wages or any privilege or concession accruing to him
under this Act shall be null and void in so far as it purports to
reduce the minimum rate of wages fixed under this Act.
20. Therefore, the contract entered between the petitioner and the respondent
No. 3, would not disentitle the claim of the respondent No. 2 as an employee for
minimum wages under the Minimum Wages Act.
21. This Court in judgment delivered on 24.02.2010 in Writ Petition No.
3785/2007 held as under:
"16 The object and policy of the Legislature in enacting the
Minimum Wages Act is to prevent exploitation of the workers
and, for that purpose, it aims at fixation of minimum wages
which the employer must pay. The Legislature undoubtedly
intended to apply the Act to those industries or localities in which
by reason of causes such as unorganized labour or absence of
machinery for regulation of wages, the wages paid to workers
were, in the light of the general level of wages, and subsistence
level, inadequate. Conditions of labor vary in different industries
and from locality to locality, and the expediency of fixing
minimum wages, and threats thereof depends largely upon
diverse factors which in their very nature are variable and can
properly be ascertained by the Government which is in charge of
the administration of the State. It is to carry out effectively the
purpose of this enactment that power has been given to the
appropriate Government to decide, with reference to local
conditions, whether it is desirable that minimum wages should be
fixed in regard to any scheduled trade or industry, in any
locality, and if it be deemed expedient to do so, the rates at which
the wages should be fixed in respect of that industry in the
locality"
22. In order to protect the interest of the employees, the scope under the
Minimum Wages Act is in wider perspective than the Industrial Disputes Act. The
Minimum Wages Act "Section 2 defines as follows;
(e) "employer" means any person who employs whether directly
or through another person or whether on behalf of himself or
any other person one or more employees in any scheduled
employment in respect of which minimum rates of wages have
been fixed under this Act and includes except in sub-Section (3)
of Section 26
(i) in a factory where there is carried on any scheduled
employment in respect of which minimum rates of wages
have been fixed under this Act any person named under
clause (f) of sub-Section (1) of Section 7 of the Factories
Act 1948 (63 of1948) as manager of the factory;
(ii) in any scheduled employment under the control of any
government in India in respect of which minimum rates of
wages have been fixed under this Act the person or
authority appointed by such government for the
supervision and control of employees or where no person
or authority is so appointed the head of the department;
(iii) in any scheduled employment under any local
authority in respect of which minimum rates of wages
have been fixed under this Act the persons appointed by
such authority for the supervision and control of
employees or where no person is so appointed the chief
executive officer of the local authority;
(iv) in any other case where there is carried on any
scheduled employment in respect of which minimum rates
of wages have been fixed under this Act any person
responsible to the owner for the supervision and control
of the employees or for the payment of wages;
23. Whereas the Industrial Disputes Acts, Section 2(g) defines employer:
(g) "Employer" means--
(i) in relation to an industry carried on by or under the authority
of any department of 3*[the Central Government or a State
Government], the authority prescribed in this behalf, or where no
authority is prescribed, the head of the department;
(ii) in relation to an industry carried on by or on behalf of a local
authority, the chief executive officer of that authority;
24. It is important to note that the definition of employer in the Minimum Wages
Act prescribes that "any person who employees" falls under the category of
employer wherein the definition of the employer in the Industrial Disputes Act is
solely based on the definition of industry. Therefore, both the petitioner and the
respondent No.3 qualifies the test to be called as employer as per the provisions of
Minimum Wages Act. In the light of the above discussions, the relationship of the
petitioner and respondent No.3 with respondent No. 2 is established as employer
and employee. Respondent No.2 is entitled to get the minimum wages as per the
scheme of the Constitution of India as well as the object of the Minimum Wages
Act, 1948. Accordingly, interference under Articles 226 and 227 of the
Constitution of India is not warranted.
25. Mr.Tulsi, learned Senior Advocate has further submitted that since there is
no relationship of employer and employee and the petitioner being the voluntary
organization, therefore, Section 2 (j) of the Industrial Disputes Act, 1947 cannot be
applied on such organization.
26. He has relied upon a case of Rattiram and Others Vs. State of Madhya
Pradesh, (2012) 4 SCC 516, wherein while relying upon the case of Union of
India Vs.Raghubir Singh, (1989) 2 SCC 754, the Supreme Court has held that a
pronouncement of law by a Division Bench or a smaller number of Judges, and in
order that such decision would be binding. It has been held as under:-
"26. In Union of India v. Raghubir Singh, (1989) 2 SCC 754,
the Constitution Bench, speaking through R. S. Pathak, CJ, has
held thus:- (SCC p. 778, para 28)
"28. We are of opinion that a pronouncement of law by
a Division Bench of this Court is binding on a Division
Bench of the same or a smaller number of Judges, and in
order that such decision be binding, it is not necessary
that it should be a decision rendered by the Full Court or
a Constitution Bench of the Court."
xxx xxx xxx
28. In Chandra Prakash v. State of U.P, (2002) 10 SCC 710 :
2003 SCC (L&S) 808 , a subsequent Constitution Bench
reiterated the view that had already been stated in Raghubir
Singh (supra).
29. Thus viewed, Bhooraji (supra) was a binding precedent,
and when in ignorance of it subsequent decisions have been
rendered, the concept of per incuriam would come into play."
27. He has further relied upon the judgment of Sundarjas Kanyalal Bhatija &
Ors. Vs. Collector, Thane Maharashtra & Ors., (1989) 3 SCC 396, wherein the
Supreme Court has observed as follows:-
"14. The other limb of the argument of counsel for the
appellants relates to the manner in which the High Court
disposed of the matter. It was said that a decision of this Court
has been disregarded and a binding decision of a co-ordinate
Bench of the same Court has been ignored.
xxx xxx xxx
18. It would be difficult for us to appreciate the judgment of
the High Court. One must remember that pursuit of the law,
however glamorous it is, has its own limitation on the Bench. In
a multi-judge court, the Judges are bound by precedents and
procedure. They could use their discretion only when there is
no declared principle to be found, no rule and no authority. The
judicial decorum and legal propriety demand that where a
learned Single Judge or a Division Bench does not agree with
the decision of a Bench of co-ordinate jurisdiction, the matter
shall be referred to a larger Bench. It is a subversion of judicial
process not to follow this procedure.".
28. The learned senior counsel has further referred the order dated 27.11.2003
passed by this Court in Crl. Miscellaneous (Main) Nos. 3822, 2933 to 2936, 3820-
3821 of 2002 filed by the M/s Sulabh International and Another against the order
of Labour Enforcement Officer (C), Delhi 3, wherein this Court has also relied
upon the judgment of the Patna High Court and held that there is no relationship of
master and servant between the petitioner and the persons being the voluntary
services.
29. The aforesaid order was challenged by the Government of NCT of Delhi by
way of an SLP (Crl.) No. 1693/2006 dated 23.02.2007, wherein the Supreme Court
has passed the following order:-
" The question as to whether a public utility service, which
is allegedly carried on by a Society on „no profit no loss basis‟,
would be an industry within the meaning of the provisions of
the Industrial disputes Act, 1947, being pending decision before
a seven Judge Bench in State of U.P. vs Jai Bir Singh, (JT 2005
(5) SC 170), we are of the opinion that the matter should be
referred to a larger bench.
The parties are given liberty to mention the matter before
Hon‟ble the Chief Justice or File an appropriate application for
tagging this case with Jai Bir Singh (supra).
Let the records be placed before Hon‟ble the Chief
Justice of India for passing appropriate orders."
30. The Coordinate Bench of this Court on 16.11.2009 in Crl. M.C. No.
3884/2009 passed the order as follows:-
" Mr.Tulsi, learned Senior Advocate appearing for the
petitioner submits that the petitioner is a voluntary social
organization engaged in the work of constructing and
maintaining lavatories and has been carrying on its activity on
no profit and no loss basis for the welfare of the humanity. Mr.
Tulsi has drawn attention of this court to the Circular No. 1291
dated 3.4.2001 issued by the GNCT, whereby the Labour
Department has notified all the Branch Officers of the
Department that provisions of labour law would not be
application to the petitioners. Mr. Tulsi also draws attention of
the court to the order dated 27.11.2003 passed by this court in
Crl. Mis. (M) Nos. 3822/2002, 2933/2002, 2934/2002,
2935/2002, 2936/2002, 3820/2002 and 3821/2002 and the
order of the Division Bench of Patna High Court in W.P.(C) no.
3408/89. Based on the said submissions, Mr. Tulsi submits that
provisions of Sections 23 and 24 of the Contract Labour (R &
A) Act cannot be invoked by the trial court against the
petitioner.
In Crl. M.A. No. 13582/2009, the Trial Court proceedings were stayed till
the next date of hearing.
31. On the same issue whether the petitioner is an industry within the meaning
of Section 2(j) of the Industrial Disputes Act, 1947 and whether the Industrial as
well as Labour Laws are applicable to the organization, on 07.03.2011, this Court
in Crl. M.C. No. 3884/2009 passed the following order:-
" Short question for determination in this petition is
whether or not the petitioner Sulabh International is an
`industry‟ within the meaning of Section 2(j) of the Industrial
Disputes Act and whether the industrial as well as labour laws
are applicable to the organization.
I have been informed that aforesaid legal issue is
pending consideration of a Larger Bench of Supreme Court and
the finding of the Supreme Court will obviously impact the
decision on this petition. Thus, decision on the petition is
deferred. The petition is, accordingly, consigned sine die with
the observation that either of the parties may get it revived after
the decision of the Supreme Court on the issue."
32. Mr. Mukul Gupta, learned Senior Advocate, who argued the petitions filed
by the All India Institute of Medical Sciences has joined hands with Mr. Tulsi,
learned Senior Advocate on the legal issue and has further added that the
respondents have neither challenged the agreement nor the Memorandum of
Understanding entered into between the Sulabh International and the All India
Institute of Medical Sciences. There is no evidence on record that the respondent
was employed by either of the organizations mentioned above and the impugned
decision is without application of mind and without any basis. Therefore, the same
has to be set aside.
33. Before the learned Authority under the Minimum Wages Act, 1948 and
Regional Labour Commissioner (Central), New Delhi and before this Court the
same issue was raised that the petitioner is not an industry and the provisions of
Minimum Wages Act, 1948, are not applicable to them as it is a voluntary social
service organization of charitable and philanthropic nature, working on no profit
and no loss basis. Therefore, it is neither an establishment nor an employer. It is
further submitted that the persons associated with Sulabh International are not
employees or workers, but are associate members of Sulabh International,
rendering their voluntary social services for the upliftment of scavengers. The
object of the associate members of Sulabh International is to render social service
and not to attain personal benefits, and also because they are not rendering any
services for the organization but are using the organization to coordinate and guide
their activities along with the activities of other similarly minded social workers to
help them attain their goal of social welfare, therefore, no wages/salaries are
payable to these volunteers.
34. On the minimum wages, the learned Authority framed an issue that " (i)
Whether the Minimum Wages Act, 1948 is applicable only to „industry‟,
„establishment‟ and „enterprise‟, and not to voluntary social service organization of
charitable and philanthropic nature.
35. On the issue framed above, the learned Authority has held that the Minimum
Wages Act, 1948 is applicable to a scheduled employment in respect of which
minimum rates of wages have been fixed by the appropriate Government as is
evident from a reading of the definition of „employer‟ and „employee‟ under
Sections 2(e) and 2(i) respectively of the Act. The „Appropriate Government‟ as
defined under Section 2(b) of the Act in respect of AIIMS is the Central
Government. The employment of sweeping and cleaning is a scheduled
employment under Section 2(g) of the act and the Central Government has fixed
minimum rates of wages for the said employment vide Notification No. S.O. 1994
(e) dated 7.8.2008. There is no reference in the Act to terms like „industry‟,
„establishment‟ and „enterprise‟ nor is there any mention even by implication that
the Act applies only to them.
36. On the contrary, while defining the term „employer‟ under Section 2(e) of
the Act, the Act has made clear that it is applicable to scheduled employments
carried on in a factory, scheduled employments under the control of any
Government in India, scheduled employments under any local authority and
scheduled employments in any other case.
37. There is no direct or indirect mention in the Act that the scheduled
employment has to be carried on by an industry. The Act applied to an
employment which is scheduled irrespective of who carries on that scheduled
employment.
38. On the issue No. (ii) Whether AIIMS or Sulabh International should be
deemed to be the employer under the Act having responsibility to pay minimum
wages, the learned Authority has held that Section 2(e) of the Act defined
„employer‟ as
"any person who employs, whether directly or through
another person, or whether on behalf of himself or any other
person, one or more employees in any scheduled employment
in respect of which minimum rates of wages have been fixed
under this Act, and ------------."
39. It is recorded in the impugned order that in the instant case, the so called
volunteers have been deployed in the scheduled employment of sweeping and
cleaning by Sulabh International directly. It is also not in dispute that they have
been deployed by AIIMS though Sulabh International in said scheduled
employment. Therefore, both having satisfied the definition of „employer‟ are
jointly and severally responsible for payment of minimum wages to the employed
or deployed. In this case, AIIMS as employer can in no case escape the
responsibility of payment of minimum wages to the employed as the amount paid
by it to the Sulabh International for the purpose of payment to the employed is less
than the minimum rates of wages fixed by the Government.
40. On issue No. (iii) Whether the persons associated with Sulabh International
are „employees‟ within the meaning under the Act, the learned Authority has relied
upon a case decided by Jharkhand High Court titled Robert Toppo Vs. State of
Jharkhand, wherein it has been observed that "there is no provision in the Act or
in the Rules that any „shramdan‟ should not be treated as labour."
41. The learned Authority has observed that the Sulabh International may be a
voluntary organization, but it does not necessarily mean that the persons deployed
in it are all volunteers. The very fact that the persons employed or deployed by
Sulabh International have claimed the minimum wages under the Act by filing
their claims establishes that they are not volunteers. Had they been volunteers,
why would they claim minimum wages? Therefore, the petitioner is treating the
employed persons as volunteers only with a view to depriving them of minimum
wages so that either or both of them gain out of this system.
42. On the issue whether the judgment of the High Court of Patna, as mentioned
above, has a bearing on the issue raised in the instant claims, the learned Authority
has held as under"-
" An examination of the judgment dated 9.2.1990 of
Hon‟ble Patna High Court in C.W.J.C. No. 3408 of 1989 reveals
that the Hon‟nle Court in that judgment held Sulabh
International not to be „industry‟ within the meaning of section
2(j) of the Industrial Disputes Act, 1947. As it has already been
discussed in the foregoing paragraph that the application of
Minimum Wages Act, 1948 has nothing to do with „industry‟ and
that the act is applicable to scheduled employments under the
act irrespective of whether it is carried on by an industry or not,
the judgment appears to have no bearing on this case. The
contention of the O.P. No. 2 that the Hon‟ble High Court held
that Sulabh International not being an industry, no industrial as
well as labour laws can be made application to the organization
is totally out of place and misquoted. The Hon'ble High Court
never ruled that no labour laws could be applied to Sulabh
International.
Further, it may be added that the case examined by the
Hon‟ble High Court is that of construction of latrines and
urinals by Sulabh for the use of the public which was held to be
not „industry‟ whereas the case under this claim application is
sweeping and cleaning in the establishment of AIIMS by Sulabh
in the capacity as a contractor or an outsourced agency."
43. I note that the learned Authority under the Minimum Wages Act has
considered each and every aspect raised by the petitioners including the judgment
dated 27.11.2003 of this Court passed in Crl. Misc. (M) Petition No. 3821/2002.
The relevant portion reads as under:-
"i) The Petition No. 3821 of 2002 has been filed as
prosecution complaint against Sulabh International
under section 22 A of the Act whereas the instant claim
application has been filed under section 22(2) of the Act.
Both the cases do not stand in the same footing.
ii) The maximum fine under section 22 A is only Rs. 500/-
(Rupees Five Hundred only) whereas the compensation
under section 20 can go up to ten times of the amount
short paid without any higher limit.
iii) The complaint under section 22 A has been filed by an
inspector under the Govt. of NCT whereas this
application under section 20(2) has been filed by the
employee himself. Therefore, it is likely that the persons
associated with the complaint under section 22 A were
volunteers, but the aggrieved person filing the claim case
himself under section 22(2) could certainly not be a
volunteer.
iv) The judgment of the Hon‟ble High Court has inter-alia
taken in to consideration a circular bearing No. 1291
dated 3.4.2001 issued by the Labour Department of Govt.
of NCT of Delhi to the effect that Sulabh International is
neither an industry nor an establishment. But no such
circular has been issued by the central government.
v) Sulabh International not being an establishment under
the Shops and Establishment Act as decided by various
High Courts, the minimum rates of wages fixed by the
government of NCT of Delhi in respect of all shops and
establishments under the Minimum Wages Act, 1948
might not be applicable to Sulabh International. But no
such stipulation exists in the jurisdiction of the central
government. „Sweeping and Cleaning‟ itself is a
scheduled employment in respect of which minimum rates
of wages have been fixed by the central government
under the Minimum Wages Act, 1948.
vi) The Hon‟ble Court did nowhere categorically rule that
the Minimum Wages Act, 1948 did not apply to Sulabh
International."
44. The learned Authority after dealing with all the issues framed have finally
opined as under:-
" It goes without saying that the O.P.s have caused
considerable hardship to the applicant-employee by not paying
him his rightful dies. Considering the plight of the low paid
applicant-employee, enormous suffering caused to him over a
very long period of time and above all the provisions of
Minimum Wages, Act, 1948 providing for compensation up to
ten times of the amount short paid, I am of the considered
opinion that the ends of justice shall be met if compensation
equivalent to five times of the amount short paid to the
applicant i.e. (Rs. 61765 X 5 = 308825/- (Rupees Three lakh
eight thousand eight hundred twenty five only) is also paid to
the employee over and above the amount short paid. Thus a
total amount of Rs.3,70590/- (Rupess Three lakh seventy
thousand five hundred ninety only) is required to be paid to the
applicant-employee.
As already discussed, both the O.P. Nos. 1 i.e All India
Institute of Medical Sciences and O.P. No. 2 i.e. Sulabh
International being „employer‟ under the Act are severally and
jointly responsible for payment of minimum wages to the
applicant-employee. It is, therefore, decided in the interest of
equity, fairness and reasonableness that the amount required to
be paid to the applicant-employee should be borne equally by
the O.P. No.1 and O.P. No. 2. Accordingly, I direct that an
amount of Rs.185295/- (Rupees one lakh eighty five thousand
two hundred ninty five only) be paid by the O.P. No.2 i.e.
Sulabh International to the applicant-employee.
I further direct that the amount as awarded above have
to be deposited with the authority through demand drafts drawn
in favour of the applicant-employee payable at New Delhi
within 10 days from the date of receipt of this order."
45. After hearing the learned counsel for the petitioner, it is emerged that the
issue decided by the Patna High Court was that whether the petitioner was an
industry under the Industrial Disputes Act and the same issue again framed by this
Court, as mentioned above. While relying upon the judgment of Patna High Court,
the same view had been taken by this Court also. However, neither this Court nor
the Patna High Court, as strongly relied upon by the petitioner, has decided the
issue on the Minimum Wages Act. The petitioner may not be an „industry‟ under
the Industrial Disputes Act, 1947, and may be a „voluntary organization‟, but the
issue in hand is whether for the services rendered for the petitioner, would come in
purview of the Act and deployed persons would be entitled for minimum wages, it
is entitled to pay the minimum wages or not.
46. The petitioner organization has entered into a Memorandum of
Understanding, as mentioned above, by which the services were rendered to the
All India Institute of Medical Sciences. The poor people from the lower strata of
the society have been engaged for this purpose and they were given the wages less
than the minimum wages prescribed under the Minimum Wages Act. The
organization may be a voluntary, but a poor person who has to fill his belly as well
dependent‟s members of the family cannot afford to be a volunteer. A person who
has acquired the minimum requirement in the life may do some voluntary service
for a day or a two or maximum for a week but not on a permanent basis. The
respondent No. 2 is a person whose survival depends upon whatever given/paid by
the employer or who is taking his services. If he works voluntary even for a day,
his whole family would be starving. Therefore, such a person cannot work
voluntary even for a day. One cannot expect he would be a volunteer for months
and years together.
47. I am conscious that against the judgment of the Patna High Court, the Union
of India filed an SLP before the Supreme Court, which was dismissed as
withdrawn and thereafter a review was filed and the same was also dismissed.
Therefore, no decision has been taken by the Supreme Court on the merits and the
matter has been referred to the Larger Bench, which is still pending.
48. I have no hesitation to say that on one side the petitioner is working for a
noble cause, on the other hand, by way of giving the colour of voluntary services,
it is exploiting the poor people.
49. I am conscious that the view taken by this Court was different from the issue
in hand, therefore, there is no question of per incuriam and the violation of law of
precedent. This Court would have been gone wrong if the same issue has been
decided by this Court and the contrary view is taken in the present case.
50. The issue in the instant petitions is not res integra as the same has been
decided in Peoples Union for Democratic Rights and Ors vs. Union of
India(supra),wherein it has been held that ordinarily no one would willingly
supply labour or service to another for less than the minimum wage, when he
knows that under the law he is entitled to get minimum wages for the labour or
service provided by him. In view of that it is held 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.
51. Section 25 of the Minimum Wages Act provides that any contract or
agreement, whereby an employee either relinquishes or reduces his right to a
minimum rate of wages or any privilege or concession accruing to him under this
Act shall be null and void in so far as it purports to reduce the minimum rate of
wages fixed under this Act.
52. Moreover, Section 2(e) of the Minimum Wages Act provides that the
employer means any person who employs whether directly or through another
person or whether on behalf of himself or any other person one or more employees
in any scheduled employment in respect of which minimum rates of wages have
been fixed under this Act.
53. Therefore, finding no discrepancy in the impugned order, I confirm the
same. The present petitions, being without merits, are dismissed. No order as to
costs.
CM. No. 12240/2012 (for stay)
With the disposal of the petition itself, the instant application has become
infructuous. The same is disposed of accordingly.
SURESH KAIT, J.
OCTOBER 18, 2012
RS/sb
