ALL INDIA INSTITUTE OF MEDICAL SCIENCES v. MAMTA AND ANR

Through: Mr. RajatKatyal and Mr. SanjeevJoshi, Versus • • Advs. V! DYA NAND SHARMAANDANR ' Through: Respondent No. 1 in person. Respondents Mr. AnuragDubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. 1C175-76/2012. CAV. 972/2012 ALL INDIA INSTITUTEOF MEDICALSCIENCES Petitioner Through: Mr. RajatKatyal and Mr. Sanjeev.loshi, W.P.(C)Nos,5944, 6059-68/2012 Advs. • Page 1of 3= Versus MAHESHAND ANR . Through; Mr. Anurag Dubey, Mr. D.P. Pandey and Respondents , Mr. Meenesh Dubey, Advs. forR2. yy.PiO 6061/2012 & CM. NO. 16377-78/2012, CAV. ALL INDIA INSTITUTE OF MEDICAL SCIENCES Petitioner Through:^ Mr.Rajat Katyal and Mr. Sanjeev Joshi, Versus Advs. GOVINDANDANR " . Respondents Through: Mr. AnuragDubey,Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. H- VV.PiQ 6062/2012 & CM. NOl 16379-80/2012, CAV. 974/2012 ALL. INDIA INSTITUTE OF MEDICAL SCIENCES Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, , •Advs. Versus ASHOKANDANR Through: Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. Respondents -I- W.PiO 6Q63/2012 & CM^ NO. 16381-82/2012 ALL. INDIA INSTITUTE OF MEDICAL SCIENCES ..... Petitioner Through: Mr. Rajat Kat3N. and Mr. Sanjeev Joshi, Versus Advs. ' , MUKESH YADAV AND ANR W,p.(C) Nos. 5944, 6059-68/2012 Respondents Page 2of 35, 1 Through; Mr. Anurag Diibey, Mr. D.P.' Pandey and Mr. Meenesh Dubey, Advs. forR2. W.FTQ 6064/2012 & CM. NO. 16383-84/2012 ALL [NDTA INSTITUTE OF MEDICAL SCIENCES ..... Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Versus Advs. DHARAMVIR AND ANR • Through: ' Mr. Anurag Dubey, Mr. D.P. Pandey and ..... Respondents Mr. Meenesh Dubey, Advs. forR2. W.P.(C) 6065/2012 & CM. NO. 16385-86/2012' AM. INDIA INSTITUTE OF MEDICAL SCIENCES ...... Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Versus Advs. MUKESH ANDANR , Respondents Through: Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. for R2. W.PiO 6066/2012 & CM. NO. 16387-88/2012, CAY, 977/2012 AM. INDIA INSTITUTE OF MEDICAL SCIENCES Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Versus Advs. MAMTAALDANR Respondents > Through: Mr. AnuragDubey, Mr. D.P. Pandey and . Mr. Meenesh Dubey, Advs. forR2. W.p.(C) Nos. 5944, 6059-68/2012 Page 3of 35 • W,PiO 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, Versus Advs. BALA.MURGAN& ANR „ , Respondents Through: Mr. AnuragDubey,Mr. D.P. Pandeyand 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. R_ajatKatyal and Mr. SanjeevJoshi, Advs. Versus ' ' V1 i AY AND ANIL Through: Mr. AnuragDubey,Mr. D.P. Pandeyand Respondents Mr. Meenesh Dubey, Advs. forR2. CO RAM: T-ION'BLE MR. JUSTICE SURESH ICAIT % SURESH KAIT, J. (Oral) ORDER 18.10.2012 CAV. No. 961/2012 " ^ ' Since the learned counsel has put appearanceon behalf of the caveator,the caveat stands discharged. CM. No. 12241/2012 (for exemption) Exemptionallowed,subjectto ail just exceptions. ThE applicationstands disposedof. W.P.iC)Mo.s.594p6059-68/2012 ' Page 4of 35 1^ W.PiC) Nos. 5944/2012 & 6059-

1. The Sulabh International Social Service Organization, and the All .India institute of Medical Sciences, New Delhi, by way of the present petitions, are challengingthe sustainabilityofthe order dated 25.06.2012passedby 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/hrer being the lead matter. r '7 0 The petitioner Sulabh International Social Service Organization, and respondentNo. 3, DirectorAll IndiaInstitutesofMedicalSciences,New Delhi, by way of different writ petitions,are challengingthe sustainabilityofthe order dated 5.06.2012 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 Authorityalso held that the petitionerand the respondentNo.3 both are severallyand jointlyresponsiblefor the paymentofthe claim. > Facts of this case are that the petitionerand respondentNo. 3 enteredinto an 3. agreementfor deploymentof the respondentNo.2 for employmentof cleaningand sweeping at the premises of All India. Institute of IMedical Science, as such respondent No. 2 worked during the period from 25.01.2008 to 31.03.2010. Thereafter, the respondentNo. 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) Nou 5944, 6059-68/2012. Page 5of 35 # application before the Authorityunder 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. The petitionerSulabh Internationalhas relied upon the judgmentdelivered 5. in Writ PetitionNo. 3408/1989by the High Court of Patna, whereinthe said Coail 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 , publicwhich need not be cleanedby the scavengernor does it require canying of any night soil on' anyone's head. Further, the jobless scavengers or other persons rendered withoiit employmentare now, being impartedvocationaltrainingin centerswhich may help them to find jobs. For this purpose it has a large number of volunteerswho are paid small sums of money as pocket money for their pocket expenses. It is true that in every case ofindustry, the elementofprofit 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 establishmentwhich is workingfor public good and in the interestof the weaker Section of the societ)c " ^ 6. Adopting the observationmade 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 relationshipofemployerand employee which is a prerequisitefor the applicationof the MinimumWages Act. He pointed out that the object of the establishmentis to liberatethe scavengersfrom the sub human occupation;and is a voluntaryphilanthropicorganizationcaiTying out its activitieson "no profit and no loss basis". Secondly,the petitionerhas relied iipom W.P.(C) Mos. 5944, 6059-68/2012 • Page 5of 35 a circulardated 03.04.2001issuedby Jt. Labor Commissioner,New Delhi wherein the applicationofLaborLaws has been excludedqua petitionerestablishment.The said circular is reproduced as under: "GOVT. OF NATIONAL CAPITAL TERRITORYOF DELHI LABOUR DEPARTMENT 15-RAJPUR ROAD: DELHI-110054 . 'No T1291 . ' CIRCULAR Dated: 03.04.2001 ' . _ That it is a Society registeredunder the SocietiesRegistration • That it is voluntaryphilanthropicorganization. That it is carryingout its activitieson "No Profitand No Loss'' Many. Chairman, M/S Sulahh International Social Service Organisation, RZ-83, Mahavir Enclave Palam, Dabri Marg, New . Delhi-110045,has appliedthat the provisionsof labour laws are not, applicable on their organization on the basis of the following grounds:- a) Act. I860. , b) c) basis. d) That it was considered as not an 'Industry" as defined in Section 2(j) ofthe IndustrialDisputesAct, 1947 by the Hon'blePligh Court of Patna and the same was acceptedby the Hon'ble Supreme Court of India. the Government of Orissa, Karnataka and Andhra e) Pradesh considering that it was neither an "Industiy" nor a "'CommercialEstablishment" issued instructionsto their officers not to enforcethe labourlaws and keep the above saidjudgmentsin view, while dealing with the said organization. - That that GovernmentofBihar also accordedexemptionto it, •f) from applicabilit)^of the provisions of the "Shop & Establishment Act", as applicable in their State. After the examinationofabove application,it appears that the above said organizationis a non-projltvoluntarysocialorganizationand is carrying out its activitieson "No Profit and No loss" basis-forthe- welfare of the humanity, and as such is neither an industry•nor an Establishment. Plence, all the subordinateoffices in differentStates have been instructedto keep the above in view, while dealingwith the That ' W.P.(C) Nos. 5944,6059-68/2012 ' . Page7.of35 International dismissed Civil Appeal that the Petitioner management/organization, Social Service Organization ahovc said organization for the purpose of enforcement of labour laws. lion 'hie 'High Court of Patna. in the matter of M/s Sulahh ' International V/s. State of Bihar & Ors. held vide their judgment dated 09.02.1990 i.e., is not an M/s Sulabh industrv within, the meaning of Section 2(j) of the Industrial Disputes Act. 1947. Hon'ble Suprme Court of India vide order dated • and Review 17.02.1994 and 20.03.1996 •Petition in the matter of "Bhartiya Sulabh Sauchalaya Karamchari Sang 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 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 differentState Governments are enclosed for ready reference. The Metropolitan Magistrate, Delhi has also decided on 22.03.1997• that the provisionsof Minimum Wages -Act are not applicableto the said Organization. Copy of the saidjudgment is also enclosed. Hence, the Brunch Officers of the Department while dealing with the above said Organization, are hereby instructed to keep the abovefacts and judgments in view for the purpose of enforcementof labour laws andfor complianceof the above said judgments in letter and spirit. in such circumstances all . - • •' • Jt. Labour Commissioner (V. KUMAR) "

1. line respondentNo.3 Director^All India Instituteof Medical Sciencesis the petitionerin the Writ PetitionsNo.'6059/2012,6060/2012,6061/2012,6062/2012, 6063/2012, 6064/2012, 6065/2012, 6066/2012, 6067/2012 & 6068/2012 •> challengingthe same on the prepositionthat the relationshipbetweenthe petitioner herein and the respondentNo. 2 is not establishedas "employer"'and "employee" as is defined in the Minitmim Wages Act. Therefore, the respondent No. 3 contends that the applicationof the provisionsof 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 , .Page 8of 35 respondeiiL No. 2. The respondentNo. 3 also,bought to the notice that the non existenceof relationshipas "employeeand employer"between the petitionei and- the respondentNo. 2would renderthat the impugnedorder is void ah initio. The Authorityunder the Act has taken note of the-pleadingsand framed the 8 following issues, namely, (i) Whether the Minimum Wages Act, 1948 is applicable only to 'industry', Establishment'and 'enterprise',and not to voluntarysocialserviceorganizationof charitable and philanthropic nature. (ii) Whether AlIMS or Sulabh International should be deemed to be the employerunder the Act havingresponsibilityto pay minimumwages. (hi) Whether the persons associatedwith Sulabh International.are 'employees' within the meaning under the Act. (iv) Whetherexemptionof employerfrom liabilityin certaincases under Section 23 applies to claim cases. (v) Vdhetherthe 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 respondentMo. 3are coveredunderthe definitionof"employer"as defined in Section2(e) ofthe Act sincethe respondentNo. 2was deployedor employedby the respondentNo. 3through,the petitioner.Therefore,the Authorityhas reached to the conclusionthat the petitionerand the respondentNo. 3 are employersfor the purpose of determiningthe liabilityunder the MinimumWages Act. Moreover,it also consideredthe fact that the duty which was performedby the respondentNo.2 was the.scheduledemploymentwhich is defined in Section 2(g) of the Minimum W,P.(C) NO.S. 5944, 6059-68/2012 P?=ipp P oF35 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 judgment of Patna High Court in Writ Petition No. 3408/1989, the Authority under the Minimum Wages Act has jDointed out that the said Judgment was not applicablein the issue of payment of Minimum V\/ages Act. It was also differentiatedon the aspect of the issues, as in • the above-saidjudgmentthe issue,was the constructionof 'latrinesand urinals' by the Petitioner for the use of the public which was held to be not "industry" whereas,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 applicationthat has been idled by the respondentNo.2.

10. It is importantto note that the Authorityhas come to a specific conclusion that the Patna High Court judgriientis 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 to reproducethe relevantparagraphsof the saidjudgmentas underr , ''6. Concluding, therefore, I 'have no hesitation in holding,firstly, It has no sanctity of law that the so-called union is entirely spurious. nor does it represent anyone who can be treated to be a worlanan of• the Petitiorier establishment. In fact, it is a self-styled union of certain • persons whose motive is not only laudable but entirely malafide. I have also no hesitation in holding that this M>as a case, primarily, which no referenceshould have been tnade merely on the basis of a soliiary material that is the notification recognizing the Union. In the . light of the subsequent,riotifiicationas containedin Aimexure 4, the authorities should have been well advised to examine, before making' a. reference, whether the Union making the demand was a union W,P.(C)Nos.59/14, 6059-68/2012 Page 10 of 3.5 sanctified by km> and really represented the worlanen of the petitioner-estabUshinentwhich situationwas subsequentlybrought in lo light resultingin the issuance ofAnnexure 4. Even if I M'ere to assess me that the State governmentwas 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 law and it does not consist of the persons who are the workmen of the Petitioner establishment, then alsoUhe reference.and the I have, consequentialproceeding cannot be allowed to stand. therefore, no hesitation in quashing the entire reference thus renderingthe consequentialawarda nullity. Having held as above, the secondpointwhether the petitioner- 7. establishmentis an industryor not, become,entirelyacademicbecause even if it 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 worlonan of the petitioner- establishment, no award could be made against the petitionei- establishmentand the demand made in annexure 3 could not be entertained. 1, however, would like to express my opinionsuccinctly in regard to this point also. Undoubtedly, the. law has completely been crystallizedby the decision of the Supreme Court reported in AIR 1978 SC 548 (Bangalore Water Supply and SewerageBoard vs. A. Rajappa and others) relatingto types ofestablishmentsthat come within the definitionset out in Section2(J)ofthe Act. The definitionin Section 2(j) ofthe Act ofthe word. "Industry"has been given a wide meaningembracingwithin 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 establishmentis an industiywithin the meaningof Section 2(j) of the If an Act that certain relevant factual data have to he found. establishmentis undoubtedlyan industry establishedfor the purpose ofbusiness, trade, undertakingmanufactureor calling ofemployers and it includes the calling, ser.-ices, employment, handicraft, or that being an indiHrial occupation or avocation of workmen, eslahlishment.of undoubtedhas in regardto its characterof being an industrythen much ado is not required,for applyingthe provisionsoj the IndustrialDisputesAct. in all its aspect. The problemarises only when an establishmentby the very nature ofits creation,extentand its purposefor which it was establishedcannotexfacie be describedas W.P.{C) Nos. 5944, 6059-68/2012 Page il of 35 9® • really in which show the manner. 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 ascertainablefacts brought ahout by detailed incjuiryin 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 shoyv that not only they are the members of such establishment but also thai the organization is infact functioning in the manner which , brings it within the definitionof 'industryIn the instant case, apart from the bye Icnvs and the audit report of the managementandfour witnesses exainineclby the workmen, nothing has'been brought on the record the Petitioner the Petitioner establishment In fact, establishment is functioning. claim to be a voluntary organization of social workers who have (gatheredtogetherto work on a projectby which apartfrom others the harizans could be relieved from 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 thesepurposes, the Petitionerestablishmenthas been set up which is technically described- as . "Sulabh Sauchalaya". The PeliHoner 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 reciuire carrying of any night soil on ' anyone's head. Further, the jobless• scavengers or other persons rendered without employmentare now . . being impartedvocationaltraining in centerswhich may help them to find jobs. For this purpose it has cr large number of volunteerswho 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 Supreme Court, the di.efmition cannot be extended to a purely voluntary organization like the Petitioner establishment which is workingfor public good and in the interestof 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 workers. The aims and objects of any establishmentare always extensive and goes even • beyond the actual work that the establishmentundertakes. The ipso dixil offour workmen all ofwhom claim to be no longerin seiwiceof ' W.P.(C) Nos. 5944, 6059-68/2012 the e.stablishment and the aim and objects can hardly justify the Inferencethat the establishmentis an industry. Much more than this was needed, to he proved. / have, therefore, no hesitation in holding that there was no •8. sufficientevidenceon recordto 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 foregoingparagraphsin the said judgmentmakes it clear that the issue was not the applicationof the paymentof MinimumWages Act; but the IndustrialDisputes Act. Two issues were involved,primarilythe scope of the dehnitionof industrialdispute as defined in Section2(k) of the IndustrialDisputes /-Vet, and the Court ruled that the dispute which was referredwas not an industrial dispute since; it was not referredby the worlanenin the establishment.Secondly, on the issue whether the petitioner herein, namely, Sulabh Internationalis an industry or not, the Patna High Court held'that, being" a purely voluntary organi'/al.ion,workingtor the publicgood and for the benefitofweakeri^ectionsin the society the definitionof"industry"could not extentto the petitioner. It is legally "fundamentalto note that the reasoning of-the judgmentflows• 12. from the provisionsof the IndustrialDisputesAct; not from the Minimum Wages Act. Significantly,the existence of the petitioneras a voluntary organizationis" different from as compared to deployment of persons as volunteers thiough the petilioner. In the latter category the petitionerstands in the different"footing as comparedto the former; that is as an employer.Therefore,the learned,Authority under the MinimumWages Act opinedthat the saidjudgmenthas no bearingin the issue in"volved. One of the most importantaspects for considerationis that the respondent n No.2 was servingthe petitioneras avolunteer;not as an employee.Therefoie,the W.P.(C) IMos. 5944, 6059-68/2012 ^ contention"was that the existence of "employee- employer" relationship is a sine quo non lor the application of the Minimum 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 convenient to reproducethe relevantterms and conditionsin the said agreementas under; "The agreementhet]'VeenFirstParty and SecondParty witnessethas per terms and conditionssetforth hereimder. /. The Second Part).' will have to provide adequate voluntary social workers for cleaning. The timing of the deployment of the voluntarysocial workers would be accordingto the needs of the Dr. BRAIRCPI, AlIMS, Ansari Nagar. Mo 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/Monkeysetc.

3. within t^vo hours after receivingthe complaintwithoutfail. Second Party shall provide the Piouse Keepingservices-on all 4. calendardays Sundays includingGazettedPlolidaysi.e. the timing of the deploymentofthe staffwould be accordingto the needs ofthe Dr. BRAIRCH. AIJMS, Ansari Nagar.

5. The Second Party shall provide 10 Nos. of Sidabh voluntary social workers and one supervisor to cope with work load of sanitationthroiLghoutthe periodofagreement..In case, the numberof Sulabh voluntary social workers engaged, is found less while inspection by any Executive Officer of the Center, proportionate charyes will he deductedafter discussionwith Second Party the as- per charges specified in Annexure-1. The Executive Officer of this 'contract"shallbe Asstt. Admn. Officer AIIMS (as nominee of Dr. ' BEAIRCTI-AUMS, Ansari Nagar). • '

6. -The Second Party shall maintain the complaint hook for ' differentareas, which will be made availableto the supervisorystaff. W.P.(C) Nos. 5944, 6059-68/2012 The Second Party will use the manpower only at the places wherever authorized. The Second Party shall provide two sets ofApron including Dr. 7. BRAIRCH, AIIMS to its voluntary social workers and ensure that they shall wear it while on duty and maintain them clean. That the voluntary social yvorkers deputed by the Second Party S. shall not be below the age of 18 years. The voluntary social yvorkers deputed- by the. Second Party

9. shouldnot interfereyvith the duties ofyvorkersof the First Party. The Second Party shall ensure and guarantee the conduct; ID. behaviorand honestof the^ voluntarysocial yvorkersdeputedby them. Jn case of any misconduct or any other damage or theft of the propertyofthe FirstParty, the SecondPartyshall be responsiblefor all such losses or damages after it is established by holding proper enquirythat the voluntarysocialyvorkersdeputedby the SecondParty are responsible for these.

11. The voluntary social workers engaged by the Second Party shall be of good character and. sound health. And shotdd be medicallyfit and this may be checked by Senior Residents Dr. BRAIRCH, AIIMS, AnsariNagar. ^ ' In the event of any loss to the Dr. BRAIRCH,AIIMS on account 12. of nefiigenceof voluntarysocial yvorkers, Second Party shall make gooctthe loss sustainedby the Dr. BRAIRCH, AIIMS, Ansari Nagar either by the replacementor on payment of adequate compensation yvhich yvill be decided,by the Joint Committeeof both theparties after holding necessary enquiry. The First Party shall not be responsiblefor the payment of 13. honorarium to the voluntar)''social yvorkers engaged by the Second. Party and. shall ensure timelypaymentto them.

14. The SecondParty shallprovidevoluntarysocial yvorkersas per approvedterms and conditions. The same shall be monitoredby Sr. SanitationOfficer/Representativeofthe Dr. BRAIRCH, AIIMS, Ansari Nagar and ifthe strengthisfoundless, proportionaterecoveryyvill be made. W.P.(C) Nos, 1S944, 6059-68/2012 • Page 15 of 35

15. The Second Party will have, to produce the monthly hill along wilh the certificate of satisfactoryperformancefrom the Sr. Sanitation of every Officer/SanitationInspector to the submitted on the calendar month for verification by the Executive Officer and same shall bepaid within 10 days by the First Party. Second Party shall not appoint any Sub-contractor/Agent

16. cany outany obligationsunder the ayvardedperiod ofwork. The First Part)i shall provide the quality cleaning material to 17. the Second Part}^ as per requirement at its cost, but the Second Party shall make this demand in advance-so that work does not suffer. The Second Party Dr. BRAIRCH, 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 Securit)'instructions/ordersissued by the Dr. BRAIRCH, AlFMS, .AnsariNagar from time to time shall also be followedby the Second Party and voluntary social workers. - • The First Party reserves the rights to award the area for 20. cleaning, dusting etc. out of various buildings/locationsand can any time withdraw some areas or add some additional areas from the contract without assigning any reason after giving o?ie month's notice.

21. The contract ' can he terminated by the First Party Dr. BRAIRCH, AIIMS, Ansari Nagar by giving one month's notice. The Second Party can also terminatethe contractby giving one month's notice.

22. No voluntarysocial workers of the Second Party shall stay in the campus beyondprescribedduty hours. WTiile goingout ofthe Dr. BRAIRCH, AIIMS, Ansari Nagar , SecondParty will go through the check by security at various exists of the Dr. BRAIRCH, AIIMS, Ansari Nagar. W.P.(C) Nos: 5944, 6059-68/2012

23. It is further agreed that there would be absolutelyno scope of escalation payable by the First Party on account of increase in 'honorariumofvoluntarysocialworkersunless miituallyagreedto.

24. It is agreedthat in case the SecondPartyfails to performany of the terms and conditions of this agreement or commits any breach in the contract after giving contract, reasonableopportunit)^and iffound unsatisfactorythen by givingone month notice in writing to the Second Party. the First Party may cancel

25. That the Second Party shall issue the identity.card to each of the voluntarysocial worker- engaged as associate memberfor entiy into theworkpla.ee ofAIIMSpremises.

26. That in case of any dispute between the parties aforesaid in • respect, of this agreement, the matter shall be referredto a mutually • agreed upon Arbitrator by the First Party and Plony., Asstt. Director of the Second. Party and the decision of the Arbitratorso appointed shall be final and binding on both the parties.- The rates terms and conditions as per annexure I, II & III to

27. this agreementwillform an integralpart of this agreement." Indisputably/theabove said contractestablishesthe fact that the respondent 14. No.2 was deployed in the premises of respondentNo. 3 for the employment'of cleaning through the petitioner. It is true that the contract entered, between the parties refers the respondentNo. 2 as "voluntarysocial 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 .A.ct, held that the respondent No.2 is not a volunteer.

15. Moreover,it is legally significantto note and'examinethe nature and soope of the above contract in the light of observationsmade by the Supreme Court in Peoples Union for DemocraticRights and Ors vs. Union ofIndia 1982 (3) SCC.. 235. The relevant paragraph is reproducedas under W.P.(C) Nos, 5944, 6059-68/2012

20. Now the next question \that arises for consideration whether there is any brea'ch of Article 23-when a provides labour or service to the State or to any other and ispaid less than the minimumwagefor it. It is obvious,that' ordincirilyno one would yvillingly supply labour or service to another for less than the minimum wage, when he Icnows that under the layv heds entitled to get minimum wagefor the labour or service provided by him. It may therefore be legitimately oreswried that yvhen a person, provides labour or service to another against receipt of remunerationwhich is less than the minimum wage, he is actingunder theforce ofsome compulsion which drives him to work though he is paid less than what he is entitled under law to receive. What Article 23prohibits is 'forced labour' that'is labour or service which a-person is forced to provide and 'force'which yvould make such labour or service 'forced labour' may arise in several yvays. It may be physical, force which may compela person to provide labour or service to another or it may beforce exerted through a legalprovision such • as a provisionfor imprisonmentorfine in case the employeefails to providelabouror serviceor it may even be compidsionarising, from hunger andpoverty-^ ^^ant and destitution.Anyfactor which deprives a person ofa choice of alternativesand compels him to adopt one particularcourse of action may properlybe regarded as 'force'and if labour or serviceis compelledas a result of such 'force', it yvould yve 'forced labour'. Jlfhere a person is suffering from hunger or star\>ation, yvhen, he has no resources at all to' fight disease orfeed his yvife and children or even to hide their nakedness, yvhere 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 povert}', he yvould have no choice but to. accept any yvork that comes him way, even if the remuneration offered to him is less than the minimum wage. He yvould be in no position to bargain with the employer; he yvould have to accept what is offered to him. And in doing so he yvould be acting not as a free agent yvith a choice benveen. alternatives but under the compulsion, of economic circumstances and. the labour or seiwice provided by him yvould be clearly 'forced labour.' There is no reason yvhy the word 'forced'should,be read in a narrow and restrictedmanner so as to be confinedonly to physicalor legal 'force'pa.rticido.rly - W.P.(C) Nos. 5944, 6059-68/2012 C\ its fundamental document has. • when, the national charter, promisedto hidld a new socialistrepublic where there Will be socio-economicjusticefor all and every one shall have the'right to work, to educationand. to adequate means,of livelihood. The Constitutionmakers have given us one of the most remarkable.. documentsin historyfor ushering in a new socio-economicorder • and the Constitution which they haveforged for us has a social purpose and an economic mission and therefore eveiy 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 capitcdist society economic circumstance exert much greater pressure on an individualin drivinghim to a. particularcourse ofaction than physicalcomptdsionorforce 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 minimum wage of course, if a person provides labour,"or service to another against receipt of the minimumwage, it wouldnot bepossible to say that the labour or service provided by him is 'forced labour' because he gets what he is entitledunder law to receive. No inferencecan reasonably be drawn in such a case that he isforced, to provide the simple reason that he woidd be labour or service for providing laboiir or service against receipt of what is la.wfuUy payable to him just like any other person who is not under the force of any comptdsion. 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 woidcl be entitledto come to the courtfor enforcementof his fundamental right under Article23 by asking the court .to directpaymentofthe minimumwage to Him so that the labouror service provided, by him. ceases to be 'forced labour' and the breach of Article23 is remedied. It is thereforeclear that when the petitionersalleged, that minimum wage was not paid to the workmen employed,by the contractors,the complaintwas really - W.P.(C) Mos. 5944, 6059-68/2012 • Page 19 of 35 in effect and substance a complaint against violation of the fundamentalrightofthe worlcmenunderArticle23.

16. Article23 of the Constitutionenacts a very importantfundamentalright m the tbilowing terms: Article23.: Prohibitionof traffic in human beingsandforced labour-r (1) Traffic in human beings and begar and other similarforms offorced labourare prohibitedand any contraventionofthis provisionshall be an offencepunishablein accordancewith law. (2) Nothing in this Article shall prevent the State from imposing compiilsorvservicefor publicpurposes, and in. imposingsuch service the State shall not make any discriminationon grounds only of religion, race, caste or class or any of them. , 'T1ne challengeherein is not about the enforceabilityof the said contract;but• 17; the nature and scope ofthe same is to be examinedin the light ofArticle23 of the Constitution,with the findings as regards the differentfonns of forced labour as held in Peoples Unionfor DemocraticRightsand Ors vs. Union ofIndia (supra) for cullingout the stand ofthe respondentNo. 3 and the petitioner.In the light of the above, the deploymentofrespondentNo. as a socialworkeris a new method of forced labour in the society,,which needs to be curbed. The reading of the terms and condition.sof the said contractiii'termsv/ith A.rticle23 would establishihe fact that, the respondentNo. 2 was workingas an "employee"not as a "volunteer"

18. it is also pertinent to examine the said contractwith the provisionsof the Minimum Wages Act.

19. Section 25 of the Minimum Wages Act reads as follows;

25. Contractingout.- Any contractor agreement, whether made before or after the commencement of this Act, whereby an W.P.(C) Nos. 5944, 6059-68/2012 Page 20 0135 . ipioyee either relinquishesor reduces his right to a minimum rate of wages or any privilege or concession accruing to him under this Act shall he null and void in so far as it purports to reduce the minimum,rate of wagesfixed under this Act. Therefore, the contract entered between the petitionerand the respondent 20. No. 3, would not disentitlethe claim ofthe respondentNo. 2 as an employee for minimumwages underthe MinimumWages Act.

21. This Court in judgment delivered on 24.02.2010 in Writ Petition No. 3785/2007 held as under: i "16 The object,and policy of the Legislature in enacting the Minimum. Wages Act is to prevent exploitationof the workers and, for that purpose, it aims at fixation of minimum wages which the employer must pay. The Legislature undoubtedly' intendedto apply the Act to those industriesor localitiesin which, bv reason of causes such as unorganizedlabour or absence of machineryfor regulation of wages, the wages paid to workers were, in the light of the general level of wages, and subsistence level, inadequate. Conditionsof labor vaiy in differentindxistries and from, locality to localit}^, and the expediency of fixing minimum wages, and threats thereof depends largely upon diversefactors which in their very nature are variable and can . properlybe ascertainedby the Governmentwhich is in chargeof the administration of the State. It is to carry out effectivelythe purpose of this enactment that power has been given- to the appropriate Government to decide, with reference to local conditions, yvhetherit is desirable that minimumwages should be fixed in regard to any scheduled trade or industry, in any-.- locality, and ifit be deemedexpedientto do.so, the rates atyvhich the yvages should, be fixed, in respect of that industry in the locality" • In order to protect the interest of the employees, the scope under the •22: Minimum Wages'Actis in wider perspectivethan the IndustrialDisputesAct. The Minimum.Wages Act "Section2 definesas follows; W.P.{C) No^. .S944, 6059-68/2012 21 of 35 (e) "employer"means any person who employs whether or Jhrough anotherperson or whether on behalfof himselfor anv other person one 'or more employees in any scheduled employmentin respect of which minimum rates of wages have beenfixed under this Act and includes except in sub-Section(3) ofSection 26 (i) in a factory where there is carriedon any scheduled employmentin respectof 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 thefactory; (ii)' in any scheduledemploymentunder the controlofany governmentin India in respectofwhich minimumrates of wages have been fixed under this' Act the person or authority appointed by such government for supervisionand controlof employeesor where no person or authorit)' is so appointed the head of the.department; (Hi) 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 appointedthe 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 responsibleto the ownerfor the supervisionand control of the employeesorfor the paymentofwages;

23. Whereasthe liulustrialDisputesActs, Section2(g) defines employer: (g) "Employer" means— (i) in relation to an industrycarried on by or under the authority of anv department of 3fithe Central Government or a State Governmentj,die authorityprescribedin this behalf or,whereno authorit]' isprescribed, the head of the departmem, W.P.(C) Nor.. 59t4, 6059-68/2012 (ii) in relationto an indiistiycarriedon by or on behalfofa local authority,the chiefexecutiveofficerofthat authority; It is importantto note thatthe definitionofemployerin the MinimumWages 24. Act prescribes that "any person who employees" falls -under the category of employer wherein 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 relationshipof the petitionerand respondentNoN 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 Advocatehas further submittedthat since there is no relaLionshipoF employer and employee and the petitionerbeing the voluntary organization,therefore.Section2 (j) ofthe IndustrialDisputesAct, 1947 cannot be applied on such organization. • • . .

26. He' has relied upon a case of Ratiiram and Others Vs. State of-Madhya 'Pradesh, (2012) 4 SCC 5J6, wherein while relying upon the case, of Union of India Vs.RaghubirSingh, (1989) 2 SCC 754, the Supreme Court has held that a pronouncementof law by a DivisionBench or a smallernumber ofJudges, 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, ihe Constitution Bench, speaking through R. S. Pathak, CJ, has held thus:-(SCCp. 778, para 28) W.P.(C) Nos. 6059-68/2012 "28. We are of opinion that a pronouncementof law by a DivisionBench of this Court is binding on a Division Bench ofthe same or a smallernumberofJudges, and in order that such decision be 'binding, it is not necessary that it shoidd be a decision rendered by the Full Court or a Constitution Bench of the Court. " XXX XXX

25. 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 Raghubir Singh

29. Thus viewed, Bhooraji .(supra) was a binding precedent, and when in ignorance of 'it subsequentdecisions have been rendered, the concept,ofper incuriam.wouldcome intoplay. '

27. He has further relied upon the judgment of Ors. Vs. Collector, Thane Maharashtra & Ors., (1989) 3.SCC 396, wherein the SupremeCourt has observedas follows;- "14. The other limb of the- argument of counsel for appellants relates to the manner in which the High Court disposedof the matter. It was said that a decision of this Court has been disregarded and a binding decision of ci co-ordinate • Bench of the same Court has been ignored. XXX XXX • XXX It would be difficultfor us to appreciate the judgment of .18. the High Court. One must remember that pursuit of the law, howeverglamorousit is, has its own limitationon the Bench. In a multi-judgecourt, the Judges are bound by precedentsand procedure. They could use their discretiononly when there is no declaredprincipleto be found, no ride and no authority.The judicial decorum and legal propriety demand that where a learnedSingle Judge or a DivisionBench does not agree with the decision of a Bench of co-ordinatejurisdiction, the matter , W.P.(C) Mos. 5944, 6059-68/2012 shall be referredto a largerBench. It is a subversionofjudicial processnot tofollow thisprocedure.". • , ,

28. The learned senior counsel has further refen-edthe order dated 27.11.2003 by this Court in Crl. Miscellaneous(Main) Nos. 3822, 2933 to 2936, 3820- 3821 002002 fded by the M/s SulabhInternationaland Another againstthe order, of Labour EnforcementOfficer (C), Delhi 3, wherein this Court has also relied upon the judgmentofthe PatnaHigh Courtand heldthattheie is no relationshipof master and servant between the petitioner and the persons being the voluntary services. The aforesaidorder was challengedby the GovernmentofNCT ofDelhi by 29. way of an SLP (Crl.)No. 1693/2006dated 23.02.2007,whereinthe SupremeCourt has passed the followingorder:- ^ • - The questionas to whetherapublic utilityservice, which is allegedlvcarried,on by a Societyon 'no profitno loss basis , would be an industry within the meaning of the provisionsof the IndustrialdisputesAct, 1947, beingpendingdecisionbefore a seven Judge Bench in State of UP. vs Jai Bir Sinsh, (JT2005 (5) SC 170), .we are of the opinion that the matter should be referred to a larger bench. The parties are given libertyto mention the matterbefore Hon 'ble the ChiefJustice or File an appropriateapplicationfor taggingthis case with Jai BirSingh (supra). Let the records be placed before Hon 'hie the Chief Justice ofIndiafor passing appropriate orders.''

30. The Coordinate Bench of this Court on 16.11.2009 in Crl.' M:C. No.

3.884/2009passed the order as follows:- - - • Mr.Tulsi, learned Senior Advocate appearing for " petitioner submits that the petitioner is a voluntaiy social, organization engaged in the work df constructing and W.P.(C) Nos. 5944, 6059-58/2012. maintaininglavatoriesand has been carryingon its activityon no profitand no loss basisfor the welfareofthe humanity. Mr. Tillsi has drawn attentionofthis 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 the petitioners. Mr. Tulsialso draws attentionof the court to the order dated 27.11.2003passed by this court in (M) Nos. 3822/2002, 2933/2002, 2934/2002, 2935/2002, 2936/2002, 3820/2002 and 3821/2002 and the order ofthe DivisionBench ofPatnaHigh Courtin W.P.(C) no. 3408/89. Basedon the said submissions,Mr. Tulsisubmits that provisionsofSections 23 and 24 ofthe ContractLabour (R & A) Act cannot be •invoked by the trial court against the petitioner. ' Crl. Mis. In Crl. M.A. No. 13582/2009,theTrial Court proceedingswere stayed till the next date, of hearing. . On the same issue whetherthe petitioneris an industrywithin the meaning 31 of Section 2(j) of the IndustrialDisputesAct, 1947 and whether the Industrialas, well as 1.,about-Laws are applicableto the organization,-on07.03.2011,this Court in Ci-1. M.C. No. 3884/2009 passed the following order:- Short question for determincition in this petition is- the petitioner Sulabh International is an whether or not /.nduslry'withinthe meaning of Section 20) of the Industrial DisputesAct and whetherihe^ industidalas well as labour laws are applicable to the organization. I have been informed that aforesaid legal issue is pendingconsiderationofa LargerBench ofSupremeCoint and the finding of the Suprenre Court will obviously irnpact the •decision on this petition. Thus,-decision on the petition-is deferred. The petition is, accordingly,consignedsine die with the observationthat either of theparties may get it revivedafter the decisionof the SupremeCourton the issue. " W.P.IC) Nos,'5944,6059-68/2012. Page'26o1 3i r 32 Mr. Mukul Gupta, learned'SeniorAdvocate,who argued the petitionsfiled by the All India Institute of Medical Sciences has joined hands with Mr. Tulsi, learned Senior Advocate on the legal issue and has farther 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 organizationsmentionedabove and the impugned 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 petitioner,is not an industry and the provisionsof 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 neitheran establishmentnor an employer. It is further submitted that the persons associated with Sulabh Internationalare npt employees or workers, but are associate members of Sulabh International, rendering their voluntary social services for-the upliftmentof scavengers. The •object of the associatemembers of SulabhInternationalis to render social service, and not to attain personal benefits, and also because they aie not rendering any services'for the organizationbut are using the organizationto coordinateand guide their activitiesalong with the activitiesof other similarlyminded social workersto help them attain their goal of social welfare, therefore, no wages/salariesare payable to these volunteers. 34 (i) On the minimum wages, the leatried Authorityframed an issue that Whether the Minimum Wages Act, J948 is applicable only to Tndustry', .W.P.(C) Nos. 5944, 6059-68/2012. Page 27.of35, "'establishment'and 'enterprise',and not tD voluntarysocial serviceorganizationof, charitable and philanthropic nature. ^55 Qii rhe issue framed above, tlie learnedAuthorityhas held that the Ivliriimuni Wages Act, 1948 is applicableto a scheduled employmentin respect of which minimum rates of wages have been fixed by the appropriateGovernment,as is evident from a reading of the definition of 'employer' and employee undei Sections 2(e) and,2(i) respectivelyof the Act. The 'AppropriateGovernment'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 employmentunder Section 2(g) of the act and the Central Govermmenthas fixed minimum rates of wages for the said employmentvide NotificationNo. S.0..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 implicationthat the Act applies only to them. . 36. On the contrary,while definingthe term 'employer'under Section 2(e) of ^ the Act, the Act has made clear that it is. applicableto scheduled eimployments carried on in a factory, scheduled employments under the control of any GovernnTcnt in India, scheduled employments under any local authority and scheduled employments in any other case. , There is no direct or indirect mention in the Act that the scheduled 37. employment has to be carried on by an industry. The Act applied tq an employment which is scheduled irrespective of who carries on that scheduled employment. 38 On the issue No. (ii) W^hether A.IIlVfS or Sulabh Internationalshould be deemed to be the employer under the xA.ct having responsibilityto pa}'' minimum \A/'.P.(C) Nos. 5944, 6059 -68/2012 wages, the learned Authority has held; that Section 2(e) of the Act .defined 'employer' as '^any person who employs, whether directly or through anotherperson, or whether'on behalfofhimselfor any other 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 yolunteers have been deployed in the scheduled employmentof sweeping and cleaningby Sulabh Internationaldirectly. It is also not in disputethat they have been deployed by AIIMS though Siilabh International in said scheduled employment. Therefore, both having satisfied the definition of 'employer are jointly and severallyresponsiblefor paymentof minimumwages to the employed or deployed. In this case, AIIMS as employer can in no case escape the 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) Whetherthe persons associatedwith Sulabh International are 'employees'v/ithinthe meaningunderthe Act, the learnedAuthorityhas relied upon a case decidedby JharkhandHigh Court titled Robert Toppo Vs. State of Jharkhand, wherein it has been observedthat "thereis no provisionin the Act or. in the Rules that any 'shramdan' shouldriot be treated as labour." . • • 41. The learned Authorityhas observed that the Sulabh Internatio.nalmay be a voluntaryorganization,but it does not necessarilymean that the persons deployed in it are all volunteers. The very fact that the persons emplpyed or deployed by Sulabh Internationalhave claimed the minimum wages under the Act by filing their claims establishesthat they are not volunteers. Had they been volunteers, PageZ9of35 W,P.(C) Nos. 5944. 6059-68/2012 why would they claim minimum wages? Therefore,the petitioneris treating the employed persons as volunteersonly with aview to deprivingthem of minimum wages so that eitheror both ofthem gain out ofthis system.

42. On the issue whetherthe judgment:ofthe High CourtofPatna, as mentioned '• above, has abearingon the issue raisedin the instantclaims,the learnedAuthority, has held as under"- , ' An examination of the judgment dated 9.2.1990 of ' the Hon 'nle Court Hon 'hie PatnaPligh Court in C. W.J.C. No. 3408 of1989 reveals in that judgment held Sulabh Internationalnot to he 'industry'within the meaningofsection 2(j) ofthe Ind.ustrialDisputesAct, 1947. As it has alreadybeen discussed in the foregoing'paragraph that the application of Mininn/m Wages Act, 1948 has nothingto do with 'industry'and that the act is applicableto scheduledemploymentsunder the act. irrespectiveofwhetherit is carriedon by an industryor not, the judgment appears to have no bearing on this case. The content'ionof the O.P. No. 2 that the Hon'ble High Court held that SulabhInternationalnot being an industry, no industrialas well as labour laws can be made application to the organization is totallyout ofplaceand misquoted. The Hon'ble,TP"-'' never ruled thai no labour laws could be applied Further, it may be added that the case examined by the Hon'ble High Court is that of construction of latrines and urinals by Sula.bhforthe use ofthe publicwhich was held to he not 'industry'whereas the case under this claim applicationis sweepingand cleaningin the establishmentofAIIMS by Sulabh in the ccipacit}>as a contractoror an outsourcedagency. 1 nole that' the learned Authority under the Minimum. Wages Act has 43. consideredeach and every aspect raised by the petitionersincludingthe judgment dated 27.11.2003 of this Court passed in Crl. Misc. (M) PetitionNo. 3821/2002. The relevantportion reads as under:- * . , W.P.(C) Nos. 5944, 6059-68/2012 "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 applicationhas beenfiled undersection22(2) ofthe Act: Both the cases do not fand in the samefooting. The maximumfine 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 withoutany'higher limit. a) •Hi) iv) v) The complaintunder section 22 A has been filed by an tho Govt. of NOT whereas this 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 aggrievedperson filing the claim case himself under section 22(2) could certainly not be a volunteer. The judgmentof 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. : ofNCTofDelhi to the effect thatSulabhInternationalis neither an industry nor an establishment. But no such circular has been issued by the central government. Sulabh International not being an establishment under the Shops and EstciblishmentAct as decided by various High Courts, the minimum,rates of wages fixed by the governmentofNCT ofDelhi in respectof all shops and establishments the Minimum Wages Act, 1948 might not' be applicableto SulabhInternational. But no such stipulationexists in the jurisdiction of the central government. 'Sweeping and Cleaning' itself is a scheduled employmentin respect ofwhich 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 Sidabh • [nternational. " ' \A/.P.(C) Nos. 5944, 6059-68/2012 Page.31 of 35 The learned Authorityafter dealing with all the issues framed have finally

44. opined as under:- \ Jt goes without saying that the O.P.s have caused considerablehardshipto 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 Minimum. 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 applicanti.e. (Rs. 61765 X 5 3088257- (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. 3,7059.0.6 (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 responsiblefor 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. llo. 2. Accordingly, I direct that an • amount of Rs.1852957- (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. 1 further direct that the amount as awarded above have to be deposited,with the authoritythroughdemanddrafts drawn in favour of the applicant-employeepayable at Neyv Delhi within 10 daysfrom the date of receiptof this order." yVfter hearing the learned counsel for the petitioner,it is emerged that the 45. 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. S944, 6059-68/2012 CoLirl,,asmentionedabove. While relyingupon the judgmentofPatnaHigh Court, • the same view had been taken by this Coiirtalso. 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 liand is whetherfor the servicesrenderedfor the petitioner,would come in purviewof the Act and deployedpersonswould be entitledfor minimumwages, it is entitled'to pay the minimum wages or hot. The petitioner organization has

46. entered into a Memorandum of Understanding,as mentioned above, by which the services were rendered to the All India Instituteof Medical Sciences. .The poor people from the lower strata of • the society have been engagedfor this puiposeand they were giventhe wages less than the minimum wages prescribed under the Minimum' Wages Act. The organizationmay be a voluntary,but apoor personwho has to fill his belly as well 'dependent'smembers of the family cannotaffordto be avolunteer. Apersonwho Has acquired the minimum requirementin the life may do some voluntaryservice foi- a day or a two or maximum for a week but not on a peimanentbas.is. The I'espondentNo. 2 is a personwhose survivaldependsupon whatevergiven/paidby the employeror who is taking his services. If he works voluntaryeven 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 volunteerfor months and years together. . - • p,

47. 1am consciousthat againstthe judgmentof the PatnaHigh Court, the.Union of India filed an SLP before the Supreme Court, which was dismissed as withdrawn and thereaftera review was filed and the same was also dismissed. • W.P.(C) Nqs. 5944,6059-68/2012 ' • " Page33of35 VA Therefore,no decisionhas been taken by ;the SupremeCourt on the meritsand the matter has been referredto the LargerBench, which is still pending.

48. 1have no hesitationto say that on one side the petitioneris working for a noble canse, on the other hand, by way ofgiving the colour ofvoluntaryservices, it is exploitingthe poor people. 9 '49. 1am consciousthat the view takenby this Courtwas differentfrom the issue. 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 decidedby this Court and the contraryvie:w is taken in the presentcase.

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 Imiks(supra),wheve\uit 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 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 puiqaortsto 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 tlirough another W.P.(C) Nos. 5944, 6059-68/2012 person or whetheron behalfofhimselfor any otherpersonone or more employees in any scheduled employmentin respect of which minimum rates of wages have been Fixed under this Act. "I'herefore, finding no discrepancy in the impugned order, I confirm the 53 same. The presentpetitions,being withoutmerits,ure dismissed. No order as to costs. CM. No. J2?-4»/2012 (for stay) With the disposal of the petition itself, the instant application-has become inlfuctuoLis. The same is disposedof accordingly. OCTOBER 18, 2012 RS/sb SURESH ICAIT, J. W.P.(C) Nos. 5944, 6059-68/2012