Pwd And Forest Employees Union vs State Of Gujarat
2023 Latest Caselaw 6746 Guj

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       C/SCA/4348/2016                                ORDER DATED: 13/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 4348 of 2016

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             PWD AND FOREST EMPLOYEES UNION & 23 other(s)
                               Versus
                     STATE OF GUJARAT & 4 other(s)
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Appearance:
MR. SHALIN MEHTA, SR. ADV. WITH ADITI S RAOL(8128) WITH
MS VIDHI J BHATT(6155) for the Petitioner(s) No.1
10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,3,4,5,6,7,8,9
MR. MANAN MEHTA, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1 AND 3
ADVOCATE NOTICE SERVED for the Respondent(s) No. 4,5
MR HS MUNSHAW(495) for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1,3
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     CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA

                             Date : 13/09/2023

                               ORAL ORDER

Heard learned senior advocate Mr. Shalin Mehta assisted by learned advocate Ms. Aditi Raol for the petitioners, learned Assistant Government Pleader Mr. Manan Mehta for respondent Nos. 1 and 3 and learned advocate Mr. H. S. Munshaw for respondent No.2-Gujarat Water Supply and Sewerage Board. Rule is served on the rest of the respondents, but none has chosen to appear.

2. By filling this petition under Article 226 of the Constitution, the petitioners have prayed to declare the inaction on the part of the respondent authorities in ensuring the payment of minimum wages to petitioner nos. 2 to 24 to be illegal. It is prayed to command the respondents to pay to the petitioner Nos. 2 to 24 the minimum wages as

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per the prevalent rate. The minimum wages are claimed from the initial date of appointment with interest. A prayer is made to restrain the respondents from not terminating the services of the petitioners.

3. The petitioner No.1 is PWD and Forest Employees' Union whereas petitioner Nos. 2 to 24 are the individual employees. The petitioners have been working on different posts such as Lineman, Valveman and Operators. Respondent No.2 Gujarat Water Supply and Sewerage Board is a statutory body set up by the State Government.

3.1 It is the case of the petitioners that as the respondent No.2 is required to undertaken the works relating to Water Supply and Rural Water supply schemes covering several villages, it needs to engage the employees for performing different works like Head Works Motor Operator, Fitter Plant, Storekeeper, Plant Operator, Lineman, Valveman, Watchman etc. It is stated that for performing such works, contractors are engaged to supply the labourers. It was stated that the petitioner Nos. 2 to 24 are appointed accordingly as contract employees. They have put in more than 8 years of service.

4. While seeking the grant of prayers made in the petition, learned senior advocate submitted that the very issue came to be considered by this court in PWD and Forest Employees' Union & 6 Others vs. State of Gujarat & 3 others which was Special Civil Application No. 2516 of 2018 decided on 30.09.2019. In that case, the petitioner No.1 was the same Union and petitioner Nos. 2 to 7 were the employees working on the post of Lineman and Operators under the same Board-the Gujarat Water Supply and Sewerage Board-respondent No.2 herein. The case of the petitioners was that they were paid Rs. 5000-7000 only, which were less than minimum wages. They were appointed on different posts

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through contractors.

4.1 The claim of those petitioners for grant of minimum wages was contested by the Board by filling affidavit to submit that they were the employees under the contractor. The Court considered the controversy in its various legal dimensions. The discussion rendered and reasoning supplied in PWD and Forest Employees' Union & 6 Others (supra) would apply to the present case also, which shall be treated as part of the reasoning of the present order.

"5. As far as the claim for minimum wage is concerned, it is the responsibility of the principal employer as well as the contract labourers even if the case of the respondent Board is taken on demur. Non payment of minimum wages to the labourers amounts to exploitation which is prohibited in law. Article 23 of the Constitution confers rights against exploitation, which reads as under,

"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 purpose, 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.

5.1 The rights conferred under Article 23 of the Constitution is one such exception fundamental right which could be claimed not only against the State but against the private person as well. The right against exploitation by not paying minimum wages would be therefore claimable against the private contractor.

5.2 Section 21 of the Contract Labour (Regulations and Abolition Act), 1970 extracted hereinbelow mandates that payment of minimum wages is statutory responsibility of the principal employer as well as the contractor.

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"21. Responsibility for payment of wages. - (1) A contractor shall be responsible for payment of wages to each worker employed by him as contract labour and such wages shall be paid before the expiry of such period as may be prescribed. (2) Every principal employer shall nominate a representative duly authorised by him to be present at the time of disbursement of wages by the contractor and it shall be the duty of such representative to certify the amounts paid as wages in such manner as may be prescribed. (3) It shall be the duty of the contractor to ensure the disbursement of wages in the presence of the authorised representative of the principal employer. (4) In case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the the contractor and recover the amount so paid from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor."

5.3 In Peoples' Union for Democratic Rights v. Union of India reported in [(1982) 3 SCC 235], the Supreme Court observed,

"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."

5.3.1 It was further emphasised,

"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

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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."

5.4 In PWD Employees Union through President (supra), the Letters Patent court considered the law emanating from the joint reading of Article 23 of the Constitution and provisions of the Contract Labour (Regulations and Abolition Act), 1970, further informed by the principles laid down in Peoples' Union for Democratic Rights (supra), held thus

"6 Having considered the submissions of the learned advocates for the respective parties, we are inclined to accept the submission of Shri Shalin Mehta that the appellants could not have been ousted from seeking a relief of payment of minimum wages under Article 226 of the Constitution of India. The Supreme Court in the case of People's Union for Democratic Rights (supra)., has held as under:

"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 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 be 'forced labour'. Where a person is suffering from hunger or

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starvation, when he has no resources at all to fight disease or to 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 socio-economic justice for all and everyone 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 socioeconomic objective of the Constitution. It is not unoften that in a capitalist society economic circumstances 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 construed to include not only physical or legal force but also force arising from alternatives to a person in want and compels him to provide labour or 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 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

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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."

6.1 Therefore, a person is entitled to come to the Court for enforcement of his fundamental right under Article 23 of the Constitution of India asking the Court to direct payment of minimum wages. In effect it was a complaint against violation of Article 23 of the Constitution of India.

6.2 In the other judgment rendered by this Court in Writ Petition (PIL)No. 244 of 2014 after referring to decisions of the Supreme Court, this Court specifically observed as under:

"7. Reference could be made to the decision of the Supreme Court in the case of Hindustan Lever Limited Vs. B.N. Dongre and others, reported in AIR 1995 SC 817, wherein the Supreme Court explained the importance of the wages in life of the working classes. In the said judgment, the Supreme Court held that wages are among the major factors in the economic and social life of the working classes and the workers and their families depend almost entirely on wages to provide themselves with the three basic requirements of food, clothing and shelter.

The other necessities of life like children's education, medical expenses, etc., must also come out of the emoluments earned by the breadwinner. Workers are therefore concerned with the purchasing power of the paypacket he receives for his toil. If the rise in the paypacket does not keep place with the rise in prices of essentials the purchasing power of the paypacket fails reducing the real wages leaving the workers and their families worse off. Therefore, if on account of inflation prices rise while the paypacket remains frozen, real wages will fall sharply. This is what happens in periods of inflation. In order to prevent such a fall in real wages different methods are adopted to provide for the rise in prices. In the costofliving sliding scale systems the basic wages are automatically adjusted to price changes shown by the costofliving index. In this way the purchasing power of worker's wages is maintained to the extent possible and necessary. However, leapfrogging must be avoided. If the prices of food, clothing and other necessities of life which even the lowest wage earner purchases month after month rise and the basic wage remains constant, real wage actually falls creating a problem for survival for the lowest wage earner and

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it is a common knowledge that this frequently happens during the period of inflation."

7 Considering the fact that deprivation of minimum wages is a direct violation of a fundamental right enshrined under Article 23 of the Constitution of India, the learned Single Judge ought not to have ousted the petitioners from seeking such a relief in a petition under Article 226 of the Constitution of India and relegated them to avail of a statutory alternative remedy. This is so particularly when the learned Single Judge in para 17 of the judgment under challenge observed that a duty is cast upon the principal employer under Section 21 of the Contract Labour Abolition Act to ensure that wages are paid as prescribed. The learned Single Judge stopped short of issuing a direction in terms of the prayers made by the petitioners - appellants.

8 For the foregoing reasons, the common oral judgment dated 06.07.2017 rendered in Special Civil Application No. 250 of 2015 and Special Civil Application No. 15819 of 2014 are set aside. The appeals are allowed. The prayers made by the appellants - original petitioners for issuance of a writ of mandamus directing the respondents to pay the appellants minimum wages as prevalent in the State to be paid right from their initial appointment is allowed.

8.1 The respondents are directed to pay the minimum wages as prevalent from time to time in the State, to the appellants, from their initial date of appointment within a period of six weeks from the date of receipt of the certified copy of the order. The appeals are allowed accordingly with no orders as to costs. Civil Applications (For Stay) stands disposed of, accordingly."

4.2 The aforesaid decision was challenged in Letters Patent Appeal No. 727 of 2017 by the Gujarat Water Supply and Sewerage Board. By order dated 1.8.2023, the appeal was dismissed and the order was confirmed.

5. On facts, the petitioners are identically situated working under the very Gujarat Water Supply and Sewerage Board and the relief claimed by them is same as was claimed in PWD and Forest Employees' Union & 6 Others (supra) confirmed by the Letters Patent Bench.

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      C/SCA/4348/2016                               ORDER DATED: 13/09/2023

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6. In view of the above discussion and position of law emerging, the inaction on part of the respondents in not paying to the petitioners the wages commensurate with the minimum wages is declared illegal. The respondents herein are command jointly and severally to pay to the petitioner Nos.2 to 24 the wages equivalent to the minimum wages as prevalent from the date of their initial appointment. The arrears which may arise on the count of the aforesaid direction shall be made available and paid to the petitioners within a period of twelve weeks from the date of receipt of the present order.

6.1 It is observed and directed that if the aforementioned time-limit is not complied with in respect of payment of arrears, the amount payable shall carry interest at the rate of 6% from the date of appointment of the petitioners concerned.

7. Petition stands allowed. Rule is made absolute in terms of the above directions.

(N.V.ANJARIA, J) C.M. JOSHI