ALL INDIA INSTITUTE OF MEDICAL SCIENCES v. ASHOK AND ANR

Respondent No. 1 in person. Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. -I- W.P.(C) 6060/2012 & CM. NO. 16375-76/2012, CAV. 972/2012 AND • .' • • ALL INDIA INSTITUTE OF MEDICAL SCIENCES Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs. W.P.(C) Mos. 5944, 6059-68/2012 Versus MAHESH AND ANR . Through; Mr. Anurag Dubey, Mr. D.P. Pandey and Respondents ' Mr. Meenesh Dubey, Advs. forR2. W„PiO 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, Versus Advs. GOVIND AND ANR Respondents Through: Mr. Anurag Dtibey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. H- W.PiC) 6062/2012 & CM, NO, 16379-80/2012, CAV. 974/2012 ^ ALl. INDIA INSTITUTEOF MEDICALSCIENCES 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. W.F.(C) 6063/2012 & CM. NO. 16381-82/2012 AL!.; INDIA INSTITUPEOF MEDICAL SCIENCES Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Versus Advs. MUKESH YADAV AND ANR, VV.P,(C) IMOS. 5944, 6059-68/2012 Respondents Pa^e z of 35 ' Through: Mr. Anurag Dubey, Mr. D.P. Pandey and' Mr. Meenesh Dubey, Advs. forR2. -I- W.PiC) 6064/2012 & CM. NO. 16383-84/2012 ALL INDIA INSTITUTE OF MEDICAL SCIENCES ..... Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Versus Advs. Dl-IARAMVIR AND ANR • Through: Mr. Anurag Dubey, Mi". D.P. Pandey and .....Respondents Mr. Meenesh Dubey, Advs. forR2. W.P.(C) 6065/2012 & CM. NO. 16385-86/2012 ALI. INDIA INSTITUTE OF MEDICAL SCIENCES • • Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Versus Advs. MUKbSH AND ANR Respondents , Through: Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. IVleeneshDubey, Advs. for 'Rl. -I- W.P.(C) 6066/2012 & CM. NO. 16387-88/2012, CAV. 977/2012 , ALL INDIA INSTITUTEOF MEDICAL SCIENCES Petitioner Through; Mr. Rajat Katyal and Mr. SanjeevJoshi; Versus Advs. MA MTA A^.^D ANR Respondents Through: Mr, AnuragDubey,Mr. D.P. Pandey and Mr. Meenesh Dtibey, Advs. forR2. W.P.(C) Nos. 594^, 6059-68/2012 'pagg 3 35

12. -I- W.PiO 6067/2012 & CM, NO- 16389--90/2012, CAV. 97.5/2012 ALL INDIA INSTITUTE OF MEDICAL SCIENCES Petitioner . Through: Mi". Rajat Katyal and Mr. Sanjeev Joshi, Versus Advs. BALAMURGAN & ANR Respondents Through: Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. -I- W.PiC) 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. V ersus VI.IAY AND ANR Through: Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. Respondents HON'BLE MR. JUSTICE SURESH KAIT " . ' % SURESH KAIT, J. ('Oral) ORDER 18.10.2012 CAV. No. 961/2012 Since the learned counsel has put appearance on behalf of the caveator, the caveat stands discharged. CIVL No. 12241/2012 ("for exemption) Hxemptionallov/ed, subject to all just exceptions. The application stands disposed of. . • ; W.P.iC) No.s, 5944, 6059-68/2012 ' Page 4 of35 W.P.(C) Nos. 5944/2012 & 6059-6068/2012

1. The Sulabh International Social Service Organization, and the All India histitute of Medical Sciences, New Delhi, by way of the present petitions, are challengingthe sustainabilityof the order dated 25.06.2012passed by the Regional "^Labor Commissioner. Since all the petitionshave 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 respondentNo. 3, DirectorAll India Institutesof Medical Sciences,New Delhi, by way of differentwrit petitions,are challengingthe sustainabilityof the order dated

25.06.2012 passed by the Regional Labor Commissioner. The Regional Labor Commissioner, being the Authority under the Minimum V/ages Act, allowed the claim petitionthat has been filed by the respondentNo.2 under Section20(2) of the Act. The Authority also held that the petitioner and the respondent No.3 both are severally andJointly responsible for the payment of the claim.

3. Facts of this case are that the petitioner and respondent No. 3 entered into an agreementfor deploymentof the respondentNo.2 for employmentof cleaningand 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 W.P.(C) Nos. 5944, 6059-68/2012 Page 5 of35 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 thaf whether the alleged volunteers, deployed through the petitioner, namely Sulabh -international Organization, are entitled to get the minimmTi wages under the Minimum Wages Act.

5. The petitioner Sulabh Internationalhas relied upon the judgment delivered in Writ Petition Mo. 3408/1989 by the High Court of Patna, wherein the said Court observed as under: establishment has set up lavatories and bathrooms, "The Petitioner 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 the jobless carrying of any night soil on' anyone's head. Further, scavengers or other persons rendered without employment are now being imparted vocational training in centers which may help them to fmd 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 elementofprofit and loss need not be there yet as I read the aforesaid decision of the the definition cannot be extended to a purely Supreme Court, voluntary organization establishment which is like the Petitioner working for public good and in the interest of the weaker Section of the societ)'. " '

6. Adopting the observation made in the above judgment. Mi". K.T.S. Tulsi, learned Senior Advocate appearing on behalf of the petitioner contends 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 caiTying out its activitieson "no profit and no loss basis". Secondly,the petitioner has relied upon ' W.p.(C) iMos. 5944, 6059-68/2012 Page6of35 r a circular dated 03.04.2001 issued by Jt. Labor Commissioner, New Delhi wherein the applicationof Labor Laws has been excludedqua petitionerestablisliment.The, said circular is reproduced as under: '^GOVT. OF NATIONAL CAPITAL TERIUTORY OF DELHI LABOUR DEPARTMENT 15-RAJPUR ROAD: DELHI-110054 No. 1:1291 Dated: 03.04.2001 CIRCULAR • • _ That it is a Society^ registered under the Societies Registration • That it is voluntary philanthropic organization. That it is carryingout its activitieson 'No ProfitandNo Loss Hony. Chairman, MS Siilabh 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) Act, I860. b) c) basis. Thai it was considered as not an Lndustiy" as defined in d) Section 2(j) of the IndustrialDisputesAct, 1947 by the Hon'ble Lligh Court of Patna and the same was accepted by the Hon'ble Supreme Court of India. e) and Andhra it was neither an ^Lndustiy" nor a Pradesh considering that issued instructions to their officers not "Commercial Establishment" to enforce the labour laws and keep the above saidjudgments in view, while dea.ling M'ith the said organization. f) That that Governmentof Bihar also aecorded exemption to it, from applicability of the provisions of the "Shop & Establishment Ad", as applicable in their State. After the examinationof above application,it appears that the above said organizationis a non-profitvoluntarysocial organizationand is carrying out its activities on 'No Profit and No loss" basisfor the welfare of the humanit}> and as such is neither an indiistiy nor an Establishment. Llence, all the subordinate offices in different States have been instructed to keep the above in view, while dealing with the the Government of Orissa, Karnataka That W.P.(C) Nos. 5944, 6059-68/2012 Page 7of 35 L \ International and 20.03.1996 dismissed Civil Appeal Plon'ble Siiprme Court of India that the Petitioner management/organization, Social Service Organization above said oi'ganization for the purpose of enforcement of labour laws. lion 'hie 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 i.e., M/s Sulabh is not an industry within the meaning of Section 2(j) of the Industrial Disputes . Ad. 1947. vide order dated 17.02.1994 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 ofPatna. The Govt. of Orissa, Karnataka, Andhra Pradesh & Govt. of Bihar issued circulars/instructions to enforce the labour km>s in view of above said judgments. Copies of the above said judgments and relevant circidars as issued by different State Governments ore enclosed for ready reference. The Metropolitan Magistrate, Delhi has also decided on 22.03.1997 that the provisions of Minimimi Wages Act ^are not applicable to the said Organization. Copy of the said judgment is also enclosed. Hence, Department while dealing with the above said Organization are herebv 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. the Branch Officers of the . to their subordinate circumstances in such officers (V. KUMAR) Jt. Labour Commissioner"

7. The respondent No.3 Du'ector, 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, & 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 "empic^yee" as is defined in the Minimum Wages Act. Therefore, the respondent No. 3 contend;-;ihat 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 W.P.(C) Nos. 5944, 6059-68/2012 • n responclenl No. 2. The respondentNo. 3 also bought to the notice that the non existenceof relationshipas "employeeand employer"betweenthe petitionerand the respondentNo. 2would renderthat the impugnedorderis void ab initio. 8 The Authorityunder the Act has taken note ofthe"pleadingsand framed the - following issues, namely, (i) Whether the Minimum Wages Act, 1948 is applicableonly to 'industry', ^establishment'and 'enterprise',and not to voluntarysocialserviceorganizationof charitable and philanthropic nature. ' Whether AITMS or Sulabh hiternational should be deemed to be the: (ii) employerunder the Act havingresponsibilityto pay minimumwages. (iii) Whether the persons associatedwith Sulabh Internationalare 'employees' within the meaning under the Act. (iv) Whetherexemptionof employerfrom liabilityin certaincases under Section 23 applies to claim cases. (v) Whetherthe Hon'blePatnaHigh Court'sorder in CWJC No. 3408 of 1989 has a bearing on this case. On the issues mentionedabove, the learnedAuthorityheld that the petitionei and the respondentNo. 3 are coveredunder the definitionof"employer"as defined in Section2(e) ofthe Act sincethe respondentNo. 2 was deployedor employedby the respondentNo. 3 through,the petitioner.Therefore,the Authorityhas reached to the conclusionthat the petitionerand the respondentNo. 3 are employersfor the purpose of determiningthe liabilityunder the Minimum Wages Act. Moreover,it also consideredthe fact that the duty which was performedby the respondentNo.2 was the scheduled employmentwhich is defined in Section 2(g) ofthe Minimum W,P.(C) Nos. 5944, 6059-68/2012 ^ Wages Act and the Central Governmenthas- fixed minimum rate of wages vide notification No.S.O. 1994(E),dated 7.08.2008.

9. As regards the contentionsbased on the judgmentof Patna High Court in • Wi-il. Petition No. 3408/1989, the Authority under the Minimum Wages Act has -^jointed out that the said judgmentwas not applicablein the issue of payment of Minimum Vv'ages Act. It was also differentiatedon the aspect of the issues, as in the above said judgmentthe issue was the constructionof 'latrinesand urinals' by the Petitioner for the use of the public which was held to be not "industry" wliereas,the issue involvedin the claim applicationwas sweepingand cleaningin 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. IL is importantto note that the Authorityhas come to a specific conclusion •^ th'at the Patna High Court judgmentis not applicablein 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 reproduce the relevant paragraphs of the said judgment as under: "6. Concluding, therefore, 1 have no hesitation in holding, firstly, that the so-called union is entirely spiirioiis. It has no sanctity of law nor does It represent anyone -who can be treated to be a -worhnan of the Petitionerestablishment. Infact, it is a self-styled,union of certain persons whose motive is not only laudable but entirely mala fide. 1 have also no hesitationin 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 authoritiesshouldhave been well advisedto examine, before making a reference, whether the Union making the demand was a union W.P.(C) Mes. 59/14; 6059-GS/2012 Page.10of35 sanctified by lew and really represented the workmen of the petitioner-establishmentwhich situationwas subsequentlybroughtin . to light resultingin the issuance ofAnnexure 4. Even if, 1 were to assess me that the Stategovernmentwas right in makingthe reference ofregistrationalone, once it has come to light that the Union whose Presidenthas made the demand, is not a Union created in accordance ' with laM! and it does not consistof the persons who are the workmen of the Petitioner establishment, then also'the reference and the consequentialproceeding cannot be alloM'ed to stand. I have, therefore, no hesitation in quashing the entire reference thus renderingthe consequentialawarda nullity.

7. Having held as above, the secondpoint whether the petitioner- establishmentis an industryor not become,entirelyacademicbecause even ifit was held to be an industry, the initiationofthe proceeding itselfbeing bad and it being not establishedthat the demandhas been made by or on behalf of an for a worJcman of the petitioner- establishment, no award could be made against the petitioner- establishment and the demcmd made in annexure 3 could not be entertained. 1, hoyvever, would like to express my opinion succinctly in regard to this point also. Undoubtedly, the law has completely been crvstallized by the decision of the Supreme Court reported in AIR 1978 SC 548 (Bangalore Water Supply and Sewerage Board vs. A. I~{ajappa 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 is raised whether an essential is an industry within the meaning of Section 2(j) of the establishment If an Act establishment is undoubtedly an industry established for the purpose of business, trade, undertaking manufacture or calling of employers includes the calling, ser.nces, employment, hcmdicraft, or and it industrial that being an or avocation of worknien, establishment of imdoubted has in regard to its character of being cm. industry then much ado is not recfuired 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 that certain relevant factual data have to be found. in every case where the question occupation . W.P.(C) Nos. 5944, 6059-6872012 Pagellof35 .\ the manner an Indiistrvthen it can only be broughtin to the ambitof the definition ofSection 2(J) ofthe Act on the basis ofascertainablefacts brought about by detailedinquiryin an awardproceedingor at the level ofthe State Governmentmakingthe reference. The onus would lie on the so calledworkmen to bring on the record, cogentand relevantmaterials to sho^'\> that not only they are the members of such establishmentbut also thai the organizationis in fact functioningin the manner which- hj-ini^s it within the definitionof 'industry'. In the instantcase, apart from the bye laws and the audit report of the managementandfour witnessesexaminedby the workmen, nothinghas been broughton the record to sho^•v in which really the Petitioner establishmentis' functioning. In fact, the Petitioner establishment claim, to be a voluntary organization of social workers who have gatheredtogetherto work on a projectby which apartfrom others the harizans could he relievedfrom performing the inhuman duties of The other purposes for the carrying night soil on their heads. establishmentof the Petitioner-organization have been set out in the aims and objects and appear primarily to 'render certain specific benefitsfor the member of the public in various spheres of everyday life. For these purposes, the Petitioner establishmenthas been set up The which is Pt'liiioner establishment has set up lavatories and bathrooms, construction being of very simple in nature for the use of the public which need not be cleaned by the scavenger nor does it rec[uire carrying of any night soil on' anyone's head. Further, the jobless rendered without employment are now scavengers or other persons 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 elementofprofit and loss need not be there yet as I read the aforesaid decision of the the definition cannot be extended to a purely Supreme Court-, voluntary organization establishment which is like the Petitioner workingfor public good and in the interest of the weaker Section of the society unless relevantfacts 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 yvorkers. The aims and ' objects of any establishmentare always extensive and goes, even beyond the actual work that the establishmentundertakes. The ipso dixit offour yvorkmen all of whom claim to be no longer in serviceof as . "Sulabh Sauchalaya". technically described . W.P.(C) Nos: 5944, 6059-68/2012 Page 12of35 and the aim and objects can hardly justify the the establishment inj'erencethat the establishmentis an industiy. Much more than this was needed to be proved.

8. I have, therefore, no hesitation in holding that there was no sufficientevidence on record to hold that the petitioner-establishment is an industry M'ithin the meaning of Section 2(J) of the Act and the decisions of the Supreme Court.

11. The reading of the foregoingparagraphsin 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- deriniiion of industrial dispute as defined in Section 2(k) of the Industrial Disputes y\ct, and tlie Court ruled that the dispute which was referred was not an industrial dispute since;'it was not refen-ed by the worlaiien 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 de finition of "industry" could not extent to the petitioner.

12. It is legally fundamental to note that the reasoning of the judgment flows from the provisionsof the IndustrialDisputes Act; not from the Minimum Wages Act. Significantly,the existence of the petitioner as a voluntary organizationis di fferent from as compared to deploymentof persons as volunteers through the petilioner. In the latter category the petitionerstands in the different footing as conipai-ed to. the former; that is as an employer. Therefore,the learned Authority under the Minimum Wages Act opinedthat the saidjudgmenthas no bearingin the issue invofved. " ^

13. One of the most importantaspects for considerationis that the respondent No.2 was serving the petitioneras a volunteer;not as an employee.Therefore,the W.P.(C) Nos. 5944, 6059-68/2012 Page 13 of.35 contention was that the existence of "employee- employer" relationship is a sine cjiio non for the application of the Vlinimum Wages Act. The root of this proposition was based on the agreement executed between the petitioner and respondentNo.3 as exhibitedas annexureP-3 in Writ PetitionNo.-6059/2012.The > first party in the agreementwas the respondentNo.3 whereas the petitionerwas second party. For the proper evaluation of the said aspect, it is convenientto reproducethe relevantterms and conditionsin the said agreementas under; "The agreementbehveen FirstParty and SecondParty witnessethas per terms and conditionssetforth hereimder.

1. The Second Party will have to provide adequate voluntary social workers for cleaning. The timing of the deployment of the voluntarysocial workers woiild be accordingto the needs of the Dr. BRAfRCH, AIIMS, Ansari Nagar. No refuse/garbage will be dumped by the voluntary social

2. workers in the open trenches, hedge. Removal of the dead body of Dogs/Cats/Rats/Monkeys etc.

3. within Pi'\>o hours after receiving the complaint without fail. Second Party shall provide the House Keeping services on all 4. 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 sanitationthroughoutthe period of agreement. In case, the mmiberof is found less while Sulabh voluntary social workers engaged, inspection by 'any Executive Officer of the Center, proportionate charges yvi.ll he deductedafter discussion with Second Party the as per charges specifiedin Annexure-l. The Executive Officer of this Contract shall be Asstt. Admn. Officer AIIMS (as nominee of Dr ~ BEAIUCH, AIIMS, Ansari Nagcuf - '

6. The Second Party shall maintain the complaint hook for Ifierentareas, which will be made availableto the supervisorystaff L W.P.(C) Nos. 5944, 6059-68/2012 Page 14of35 : n2> The SecondParty M>ill use the manpoweronly at the places wherever authorized. The SecondParty shall provide two sets ofApron includingDr. 7. BRAIRCH, AIIMS to its voluntarysocialworkersand ensure that tUey shall wear it while on duty and maintain them clean. That the voluntary social workers deputed by the Second Party

8. shall not be below the age of 18 years. The voluntary social workers deputed by the Second Party .

9. should not interfere with the duties of yvorkersof the First Party. ' ' i The Second Part)/ shall ensure and guarantee the conduct, 10. behaviorand honestof the voluntarysocialworkersdeputedby them. In case of any misconduct or any other damage or theft of the property/ofthe FirstParty, the SecondPartyshall be responsiblefor all such losses or damages after it is established by holdingproper enquirythat the voluntarysocialworkersdeputedby the SecondPart)' are responsible for these. The voluntary social workers engaged by the Second Party 'II. shall be of good character and sound health. And should be., medicallyfit and this may he checked by Senior kesidents 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 m.ake 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. The First Party shall not be responsible for •the payment of 13. honorarium to the voluntar)/ social workers engaged by the Second. Parly and shall ensure timely payment to them. The Second Party shall provide voluntary social workers as per -

14. 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'foimd less, proportionate recovery will be made. W.,P.(C) Nos. 13944, 6059-68/2012 • OA The Second Party will have, to produce the monthly hill along 15. with the certificate of satisfactoryperformancefrom the Sr. Sanitation Officer/SanitationInspector to the submitted on the S"' of every calendar month for verification by the Executive Officer and same shall hepaid within 10 days by the First Party. Second Party shall not appoint any Sub-contractor/Agentto

16. carryout any obligationsunder the awardedperiodofwork. / 7. • The First Party' shall provide the quality cleaning material to the SecondParty as per requirementat its cost, but the SecondParty shall make this demand in advance so that work does not suffer. The Second Party Dr. BHilRCFf, AIIMS, Ansari Nagar shall 18. not be responsiblefor any compensationwhich may be requiredto be paid to the voluntarysocial workers of the SecondParty 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 .Ansari Nagar Party and. volimtary social workers. issued by the Dr. BRAIRCH, AIFMS, from time to time shall also be followed by the Second The First Party reserves the rights to award the area for 20. 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 m.onth'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. • . ' No voluntarysocial workers of the Second Party shall stay in 22. the campus beyondprescribedduty hours. While goingout ofthe Dr. BRAIRCPI, AIIMS, Ansari Nagar , SecondParty will go through the check by security' at various exists of the Dr. BRAIRCH, AIIMS. Ansari Nagar. . ' W.P.(C) Mos: 5944, 6059-68/2012• , Page 16of35 V It /V further agreedthat there would be absolutelyno scope of ^^scalation payable by the First Party on account of increase m honorariumofvoluntarysocialworkersunlessmutuallyagreedto. 74 It is acyreedthat in case the SecondPartyfails to performany of die terms and conditionsofthis agreementor commits any breach m the First Party may cancel the contr-act after giving contract reasonableopportunity^and iffound unsatisfactorythen by givingone month notice in writingto the SecondParty. 7s That the SecondParty shall issue the identitycard to each of The voluntarysocial worker engaged as associatememberfor entiy into the workplace ofAllMSpremises. ?6 That in case of any dispute between tl-w parties aforesaidin respect oftitis agreement, the mattershall be referredto a nmtuaUy agreedupon Arbitratorby the FirstParty and Hony., Asstt Director of the Second Party and the decision of the Arbitratorso appointed shall befinal and bindingon both theparties. 27 'this agreementwillform an integralpartofthis agreement" Indisputably,tlie above said contractestablishesthe fact that the respondent 14 No.2 was deployed in the premises of respondentNo. 3 for the employmentof cleaning through the petitioner. It is true that the contract entered between the parties refers the respondentNo. 2 as "voluntarysocial worker". Despite of this relerence 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. The rates terms and conditionsas per annexure /, 11 &III to

15. Moreover, it is legally significantto note and'examinethe nature and scope of the above contract in the light of observationsmade by the Supreme Court in Peoples Unionfor DemocraticRights and Ors vs. Union ofIndia 1982 (3)-SCC 2jS. The'relevantparagraphis reproducedas under W.P.(C) Mo.'^. 5944, 6059-68/2012 70 Now the next question-that arises for consideration is ],hether there is any breach of Article23 when a person provides labour or service to the State or to any other person and is paidless than the minimumwagefor it. It is obvious^that ordinarify m one woidd willingly supply labour or service to. anotherfor less than the mihimiim wage, when he biows that the law he is entitledto get minimum wagefor the labour •under or service provided bv him. It may therefore be legitimately oreswved that when a person provides labour_ or service to 'another against receipt of remunerationwhich is less than the nnnimum.mge, he is actingunder theforce ofsome compulsion ,vhich drives him to work though he is paid less than what he is entitledunder law to receive. What Article23 prohibitsis 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 physiccd force which may compelaperson to providelabouror sei^nce to anotheror it may beforce exertedthrougha legalprovisionsuch as aprovisionfor imprisonmentorfine in case the employeejaUs to providelabouror serviceor it may even be compulsionarising h-om hungerandpoverty, want and destitution.Anyfactorwhich ''deprivesa person ofa choice ofalternativesand compels him to adopt one particularcourse ofaction may properlybe regarded as 'force'and iflabouror sei-viceis compelledas a residtofsuch- 'force', it would we 'forcedlabour'. Where a person is suffering, from- hunger or stai-A'ation, when he has no resources at all to fight disease orfeed his wife and children or even to hide their' nakedness, where uttergrindingpovertyhas broken his back and. reduced him to a state of helplessness and despair and yvhere no other employment is available to alleviate the rigor•of his povert).', 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 minim.um 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 hirn would be clearly 'forced labour.' There is no reason why the 'forced'should be read in a narrow and restrictedmanner so as to be confinedonly to physicalor legal 'forc^j'particularly W.P.(C) Nos. 59^4, 6059-68/2012 ^7 charter, its fundamental document has M'hen the national promisedto build a new socialistrepublic where there Will be socio-economicjustice 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 docum.entsin historyfor 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 Constitutionmust be interpretedin a mannerwhich would advance the socio-economic objective of the Constitution. It is not un often that in capitalist society economic circimistance exert much greaterpressureon an individualin drivinghim. to a particularcourse ofaction than physicalcompulsionorforce 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 receivedfor it is less than the minimimi wage'of course, if a person provides labour "or sei^ice to another against receipt of the minimum wage, it would not be possible to say that Ihe labour or service provided by him is forced labour' because he gets what he is entitled under law to receive. No inference ccua reasonably be drawn in such a case that he is forced to provide that he would be labour or service for providing labour or service against is lawfully payable to him just like any other person M'ho is not under the ' force of any compulsion. We are therefore of the view thai where a person provides reinuneration 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 courtfor enforcementoj 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 rem.edied. Jt is therefore clear that when the petitioners alleged that minim.um wage yvas not paid to the the complaint yvas really workmen employed by the contractors, labour or service to another the simple reason receipt of what W.P.(C) Mos. 5944, 6059-68/2012 in effect and substance a complaint against violation of the. fimdainentalrightof the worknienunderArticle23.

16. Article23 ofthe Constitutionenacts a very importantfimdamentalright in the following terms: Article23 : Prohibitionof traffic in human beingsandforced labour- (/) Traffic in human beings and begar and other similarforms offorced labour are prohibitedand any contraventionof this provisionshall be an offencepunishablein accordancewith law. (2) Nothing in this Article shall prevent the State from imposing compulsoryservicefor publicpurposes, and in. imposingsuch service the State shall not mcike any discrimination on grounds only of religion, race, caste or class or any of them.

17. 'T^he challengeherein is not about the enforceabilityof the said contract: but- the nature and scope of the same is to be examinedin 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 ofthe respondent No. 3 and the petitioner. In the light of the above, the deployment of respondent No. as a social w^orker is a new method of forced labour in the society, which needs to be curbed'. The reading of the terms and conditions ofthe said contract in terms with Ai-ticle 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 ofthe Minimum Wages Act.

19. Section 25 ofthe Minimum Wages Act reads as follows;

2.5. Contracting out.- Any contract or agreement, whether made before or after the commencement of this Act, whereby an W.P.(C) Nos. 5944, 6059-68/2012 Page 20 of35 employee either relinquishesor reduces his right to a minimum. rate of wages or any privilege or concession accruing to him •under reduce the minimum,rate of wages fixed under this Act. this Act shall he null and void in sd far as it purports •

20. HiereFore, the contract entered between the petitioner and the respondent ^No. 3, would not disentitlethe claim of the respondentNo. 2 as ah employee .for minimum wages under the MinimumWages 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 Minim.u.m. Wages Act is to prevent exploitation of the workers it aims .at fixation of minimim wages . and, for that purpose, which the employer must pay. The Legislature undoubtedly intended to apply the Act to those industries or localities in which hv 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 localit)', and the expediency of fixing minimum wages, and threats 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 that power has been given to the purpose of this enactment appropriate Government to decide, with reference to local conditions, whether it is desirable that minimimi wages should be fixed in regard to any scheduled trade or industiy, 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" thereof depends •

22. \n order'to protect the interest of the employees, the scope under the Minimum Wages Act is in wider perspectivethan the Industrial Disputes Act. The Minimum Wages Act "Section 2 defmes as follows; V\/.P,(C) l\io^, S9U, 6059-68/2012 (e) "employer"meam any person who employswhetherdirectly^ or through anotherperson or whether on behalfof any other person one or more employees in any scheduled emplovmentin respect of which minimtim rates beenfixed under this Act and includesexceptmsub-Section(^) %n"l^ctorywhere there is carriedon any scheduled emplovmentin respectofwhich minimum rates ofwages have beenfixed under this Act any person named under . clause (f) ofsub-Section(!) ofSection 7ofthe Facto)les Act 1948 (63 of1948)as managerofthefactory; (ii) in any scheduledemploymentunder the controlofany governmentin India in respectofwhich minimumrates of lages have been fixed tmder thitr Act the person or authoriiy' appointed by stmervisionand controlofemployeesor where no pa son or authorit)^is so appointedthe headofthe department, (Hi) in any scheduled employment under any local authoritj^ in respect of which minimum rates of wages have been fixed under this Act the persons appointedby such authority for the supervision and control of employees or where no person is so appointedthe chief executiveofficerof the local authorit)^; such government for (iv) in any other-case where there is carried on any scheduledemploymentin respect of which minimum rates ages have been fixed under this Act any person responsibleto the oMmerfor the supervisionand control of the employeesorfor the paymentoj wages; Whereas the industrialDisputesActs, Section2(g) definesemployer: "Employer" means— (i) in relationto an industry^carriedon by or under the authoriiy of any department of 3 the Central Government or a State GovernmentI, ihe authority^prescribedin this behalfor where no authorit).'is prescribed,the head ofthe department; \A/.P.(C) Nof^. 'SQH 6059-68/2012 •. Page 22 of 35 :>) (ii) In relationto an industrycarriedon by or on behalfofa local authority,the chiefexecutiveofficerof that authority;

24. It is importantto note that the defniitionofemployerin the MinimumWages ^Act prescribes that "any person who employees" falls under the category of employerwherein the definitionof the employerin the IndustrialDisputesAct is solely based on the definitionof industry. Therefore, both the petitionerand the respondentNo.3 qualifiesthe test to be calledas employeras per the provisionsof Minimum Wages Act; In the light ofthe above discussions,the relationshipofthe petitionerand respondentNo.3 with respondentNo. 2 is establishedas employer and employee. RespondentNo.2 is entitledto 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 relaLionship of eniployer 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. Pradesh, (2012) 4 SCC 516, wherein while relying upon the case of India Vs.RisghubirSingh, (1989) 2 SCC 754, the Supreme Court has held that a pronouncementof law by a DivisionBench or a smallernumber of Judges, and in order tiial 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 thi/s;- (SCCp. 778, para 28) W,P,(C) Nos. 594^, 6059-68/2012 Page 23 of35 "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 niimherofJudges, and in it is not necessary order that such decision be binding, 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 UP, (2002) 10 SCC 710 : 2003 SCC (L&S) 808 , a subsequent Constitution Bench reiterated the view that had already been stated in Raghubij\ Singh (supra).

29. Thus viewed, Bhooraji (supra) was a binding precedent^ and. when in ignorance of it subsequent decisions have been' • rendered, the concept ofper incuriam would come into play. " T!. He has further relied upon the judgment of Sundarjas Kanyalal Ehatija & Ors. Vs. Collector, Thane Maharashtra & Ors,, (1989) 3 SCC 396, wherein the Supreme Court has observed as follows:- relates limb of the argument of counsel for "14. The other appellants 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 oj the same Court has been ignored. to the manner XXX XXX XXX

18. It would be difficultfor us to appreciate thejudgment of the High Court. One m.ust remember that pursvdt of the laM^', however glamorous it is, has its own limitation on the Bench. In a miiltifudge court, the Judge'); are bound by precedents and procedure. They could use their discretion only when there is no declaredprinciple to befound, no rule and no authority^ The judicial decorum and legal propriety.' demand that where a learned Single Judge or a DivisionBench does not agree with • the decision of a Bench of co-ordinate jurisdiction, the matter , \A/.P,(C) Nos. 5944, 6059-68/2012 shall be referredto a largerBench. It is a subversionofjudicial processnot tofollow thisprocedure.". The learned senior counsel has flirther refeiTed the order dated 27.11.2003 28. passed by this Court in Crl. Miscellaneous(Main) Nos. 3822, 2933 to 2936, 3820- 3821 of 2002 filed by the M/s Sulabh Internationaland Another againstthe order 'of l.aboLir EnforcementOfficer (C), Delhi 3, wherein this Court has also relied 'upon the judgmentofthe PatnaHigh Court and held thatthere is no relationshipof master and servant between the petitioner and the persons being the voluntary services.

29. The aforesaidorder was challengedby the Governmentof NCT of Delhi by way of an SLP (Crl.)No. 1693/2006dated 23.02.2007,whereinthe SupremeCourt has passed the following order:- The questionas to whethera public utility^service, M'hich is allegedlycarried on by a Societyon 'no profit no loss basis ' would he 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 Sinsh (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 lion 'hie the Chief Justice or File an appropriate application for tagging this case with Jai Bir Singh (supra). Let the records he placed before Hon'ble the Chief Justice ofIndia 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, petitioner organization submits that engaged learned Senior Advocate appearing for the petitioner in the work - of constructing is a voluntajy social W.P.(C) Nos. 5944, 6059-68/2012 ' Page 25 Qf 35 inaintaininglavatoriesand has been carryingon its activit)^on no profitand no loss basisfor the welfareofthe humanity. Mr. ' Tillsi has dra.wn attentionof this court to the CircularNo. 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 applicationto thepetitioners. Mr. Tulsi also draws attentionof the court to the order dated 27.11.2003passed by this court in Crl Mis. 2935/2002, 2936/2002,3820/2002 and 3821/2002 and the order ofthe DivisionBench ofPatnaHigh Courtin W.P.(C) no. 3408/89. Basedon the saidsubmissions,Mr. Tulsisubmits that provisionsofSections 23 arid 24 ofthe ContractLabour (R & A) Act cannot be invoked by the trial court against the petitioner. (M) Nos. 3822/2002, 2933/2002, 2934/2002,' In Crl. M.A. No. 13582/2009,theTrial Court proceedingswere stayed till tlie neKt date of hearing. 4

31. On the same issue whether the petitioneris an industrywithin the meaning of Section 2(j) of the IndustrialDisputes Act, 1947 and whether the Industrialas well as l.,abour Laws are applicableto the organization,on 07.03.2011,this Court in Crl. IVl.C. No. 3884/2009 passed the following order:- Short question for determination in this petition is whether or not is an ^industry' within the meaning of Section 2(j) of the Industrial Disputes Act and whether the indiistT-ialas well as labour laws are applicable to the organization. Sulabh International the petitioner 1 have been informed that aforesaid is • pending consideration of a Larger Bench ofSupreme Court and the finding of the Supreme Court will obviously impact decision on this petition. Thus, decision on the petition-, is deferred. The petition is, accordingly, consigned sine die with the observa tion that either of the parties may get it revived after the decision of the Supreme Court on the issue. " W.p.(C) Nos. 5944, 6.059-68/2012

32. K4r. Mukul Gupta, learned Senior Advocate, who argued the petitionsfiled • by the All India Institute of Medical Sciences has joined hands with Mr.- Tulsi, leai-ned Senior Advocate on the legal issue and has further added that the respondents have neither challenged the agreement nor the Memorandum of Understandingentered into between the Sulabh Internationaland the All India instituteof Medical Sciences. There is no evidenceon record that the respondent was employed by either of the organizationsmentioned above and the mipugned decision is withoutapplicationofmind and withoutany 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 petitioneris not an industry and the provisionsot Minimum Wages Act, 1948, are not applicableto them as it is a voluntarysocial service organizationof charitableand philanthropicnature, working on no profit and no loss basis. Therefore, it is neither an estabhshment nor an employer. It is Further submitted that the persons associated with Sulabh International are nQt employees or workers, but are associate members of Sulabh International, rendering their voluntary social services for the upliftment of scavengers. The, objecL 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) Whetlier the Minimum Wages Act, 1948 is applicable only to 'industry', W.P.(C) Nos. 5944, 6059-68/2012 Page27 of 35 3^ "'establishment'and 'enterprise',and not to voluntarysocial serviceorganizationof charitable and philanthropic nature.

35. On the issue framed above, the learnedAuthorityhas held that the Minimum Wages Act, 1948 is applicableto a scheduled employmentin respect of which .minimum rates of wages have been fixed by the appropriateGovernment as is evidenl. from a reading of the defmition of 'employer' and employee undei Sections 2(e) and 2(i) respectivelyof the Act. The 'AppropriateGovernment'as in respect of AIIMS is the Central defmed under Section 2(b) of the Act Government. The employment of sweeping and cleaning is a scheduled employmentunder Section 2(g) of the act and the Cential Governmenthas fixed minimum rates of wages for the said employmentvide NotificationNo. S.O. 1994 (e) dated 7.8.2008. There is no reference in the Act to terais like 'industry', 'establishment'and 'enterprise' nor is there any mention even by implicationthat 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 the control of any Government in India, scheduled employments under any loca,l authority and scheduled eniployments in any other case.

37. There is no direct or indirect mention in the Act the scheduled employment has to be caiTied on by an industry. The Act applied to an employment which is scheduled irrespective of who carries on that scheduled employnient.

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. W.P.(C) Nos. S944, 5059-68/2012 ^31 wages, the learned Authority has held that Section 2(e) of the Act defined 'employer' as "any person who employs, whether directly or anotherperson, or whether'on behalfof himselfor any person, one or more employeesin any scheduledemployment in respectofwhich minimum rates ofwages have beenfixed ." 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 cleaningby Sulabh Internationaldirectly. It is also not mdisputethat they have been deployed by AIIMS though Stilabh International in said scheduled employment. Therefore, both having satisfied the definition of 'employer' are jointly and severallyresponsiblefor paymentof minimumwages to the employed, In this case, AIIMS as employer can in no case escape the or deployed. responsibilityof paymentof minimumwages to the employedas the amountpaid by it to the Sulabh Internationalfor the purposeofpaymentto the employedis 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 Fs. 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, W.P.(C) Nos. 594^1, 6059-68/2012 ^4 why vvoiild they claim,minimum wages? Therefore,the petitioneris treating the employed persons as volunteersonly with a view to deprivingthem of minimum wages so that eitheror both ofthem gain out ofthis system. 42 On the issue whetherthe judgmentofthe High Court ofPatna, as mentioned "^^•ibove, has a bearingon the issue raised in the instantclaims,the learnedAuthority. has held as under"- the Hon'nle Court An examination of the judgment dated 9.2.1990 of " Man 'hie PatnaHigh Court in C. W.J.C. No. 3408 of1989 reveals judgment held Sulabh. in that Internationalnot to be 'industry' within the meaning of section 20) ofthe IndustrialDisputesAct, 1947. ,As it has alreadybeen^ discussed in the foregoing [paragraph that the application oj Minimum Wages Act, 1948 has nothingto do -with 'industry'and that the act is applicable to scheduledemploymentsunder the act irrespectiveofwhetherit is carried on by an industryor not, the judgment appears to have no bearing on this case. The conlention of the O.P. No. 2 that the Hon'ble High Court held that Sulabh International not being an industjy, no industrial as well as labour laws can be made application to the organization is totally out ofplace and miscjuoted. The Hon'ble High Court ^ never ruled thai no labour laws could be applied to Sulabh it may be added that the case examined by the- Further, is that of construction of latrines and Hon 'hie High Court urinals by Sulabh for the use of the piiblic which was held to be 'industry' whereas the case under this claim application is sweeping cmd 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 considei'ed 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:- W.P.(C) Nos. 5944, 6059-68/2012 ' "i) a) iv) v) -31 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, applicationhas beenfiled under section22(2) of the Act. Both the cases do not stand in the same footing. The maximumfine under section 22 A is only Rs. 500/- (Riipees Five Himdred only) M^hereas the compensation under section 20 can .go up to ten times of the amount short paid without any-higher limit. the:- Govt. of NCT whereas this • The complaintunder section 22 A has been filed by an inspector under application under section 20(2) has been filed by the employeehimself 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. 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. circular has been issued by the central government. But no such Sulabh International not being an establishnient 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 imder the Plinimum Wages Act, 1948 might not be applicable to Sulabh International: But no such stipulation exists in the jurisdiction of the central government. is a scheduled employment in respect of which minimimi.rates of wages have been fixed by ihe central government under the Minimum Wages Act, 1948. 'Sweeping and Cleaning' itself vi) _ The Hon 'ble Court did nowhere categorically rule that the Minimum. Wages Act, 1948 did not apply to Sulabh [nternational." W.P.(C) Nos. 594^, 6059-68/2012

44. The learned Authority after dealing with all the issues framed have finally opined as undcr:- It goes without saying that the O.P.s have caused considerablehardship to the applicant-employeeby notpaying him his rightful dies. Consideringthe plight of the low paid applicant-employee,enormous sufferingcaused to him over a very long period, of time and above all the provisions of i\4inim.um Wages, Act, 1948providingfor compensationup to ten times of the amount short paid, I am of the considered opinion that the ends ofjustice 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, thousandeight hundred twentyfive only) is also paid to the employee over and above the amount shortpaid. Thus a total amount of Rs. 3,70590/- (Rupess Three lakh seventy thousandfive hundredninety only) is requiredto 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 Internationalbeing 'employer'under the Act are severallyand • •jointly responsible for payment of minimum wages to the applicant-employee. It is, therefore, decided in the interestof equit^'', fairnessand reasonablenessthat the amountrequiredto be paid to the applicant-employeeshould be borne equally by the O.P. No.l and O.P. No. 2. Accordingly, I direct that an amount of Rs. 185295/- (Rupees one lakh eightyfive thousand two hundred ninty^ five only) be paid by the O.P. No.2 i.e. Sulabh International to the applicant-employee. I fiirther direct that the amount as awarded above have to be depositedwith the authoritythroughdemanddrafts dra^vn in favour of the applicant-employeepayable at Neyv Delhi within 10 daysfrom 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 petitionerwas an industry under the IndustrialDisputesAct and the same issue again framed by this W.P.(C) Nos, 59^,6059-68/2012 Court, as mentionedabove. While relyinguponthe jirdgmentofPatnaHigh Court, the same view had been taken by this'Court also. However,neitherthis Court nor the Patna High Court, as strongly relied upon by the petitioner,has decided the issue on the Minimum Wages Act. The petitionermay not be an 'industry'under the Industrial Disputes Act, 1947, and may be a 'voluntaryorganization',but the 'issue in hand is whetlierfor the servicesrenderedfor the petitioner,would come in purviewof the Act and deployedpersonswould be entitledfor minimumwages, it is entitled to pay the minimum wages or riot. The petitioner organization has

46. entered, into a Memorandum of Understanding,as mentioned above, by which the services were rendered to the All India hnstituteof Medical Sciences. The poor people from the lower strata of the society have been engagedfor this puiposeand they were given the wages less than the minimum wages prescribed under the Minimum Wages Act. The ! organizationmay be a voluntary,but a poor personwho has to fill his belly as well dependent's members of the family cannot affordto be a volunteer. A person who Has acquired the minimum requirementin the life may do some voluntaryservice for a day or a two or maximum for a week but not on a peniianent basis. The •espondent.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, suich a person caimot work voluntai-y even for a day. One cannot expect he would be a volunteer for months and years together.

47. 1 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. • W.P.(C) Mqs. 5944, 6059-68/2012 Page'33of35 Therefore,no decisionhas been taken by .the SupremeCourt on the merits and the matter has been referredto the LargerBencli,which is still pending.

48. I have no hesitationto say that on one side the petitioneris working for a noble cause, on the other hand, by way of giving the colour of voluntaryservices, /it is exploitingthe poor people. 1am consciousthat the view taken by this Court was differentfrom the issue 49. in hand, therefore,there is no questionofper incuriamand the violationof law of precedent. This Court would have been gone wrong if the same issue has been decided by this Court and the contraryview is taken in the presentcase. The issue in the instant petitions is not res integra as the same has been 50. decided in Peoples Union for Democratic Rights and Ors vs. Union oJ wherein it has been held that ordinarily no one would willmgly 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 remunerationwhich is less than the minimum the labour or service providedby him clearly, falls within the scope and • wage, ambit of the words 'forced labour' under Article 23. Section 25 of the Minimum Wages Act provides that any contract or 51. agreement, whereby an employee either relinquishes or reduces his right to a minimum rate of wages or any privilegeor concessionaccruingto him under this- Act shall be null and void in so far as it puiportsto reduce the minimum rate of wages n.xed 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 tln'ough another W.P.(C)Nos,5944,6059-68/2012 Page 34 of 35. • personor whetheron behalfofhimselfor any otherpersonone or more employees in any scheduledemploymentin respect of which minimumrates of wages have been fixed ander this Act. -rherefore, finding no discrepancy in the impugned order, I confirm the 53. ^same. The presentpetitions,being withoutmerits,^re dismissed. No order as to costs. CM, No. 12240/2012(for stay) i. With the disposal of the petition itself, the instant applicationhas become infructuous. The same is disposedofaccordingly. SURESBICAIT, X OCTOBER 18, 2012 , RS/sb W.P,(C) Nos. 5944, 6059-68/2012