Mr. Rajat Katyal and Mr. Sanjeev Joshi v. Ad vs. MUKESH YADAV & Anr.

Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. +(cid:9) WP.(C)606.W20Z & CM. NO.(cid:9) AND(cid:9) .(cid:9) S CAY. 972/2ft1 2 .....Petitioner. ALL INDiA INSTITUTE OF MEDICAL SCIENCES(cid:9) Through: (cid:9) Mr. Rajat Katyal and Mr. Sanjeev .Ios.hi, Advs. W.P.(C) Nos. 5944, 6059-68/2012(cid:9) .(cid:9) Versus MAI-TESH AND ANR . Respondents Through: Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. 1- I(cid:9) W.P.(C) 6061/2012 & CM. NO. 16377-78/2012, CAY. 973/2012 AND ALL INDIA INSTITUTE 'OF MEDICAL SCIENCES(cid:9) ......Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs. Versus Respondents GOVIND AND ANR Through: Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. W.P,(C) 6062/2012 & CM. NO. 16379-80/2012, CAV. 974/2012 AND ALL INDIA INSTITUTE OF MEDICAL SCIENCES (cid:9) .....Petitioner Through: Mr. Rajat Katyal and Mr. San] eev Joshi, Versus Advs. . AS 1-10K AND ANR(cid:9) Respondents Through: Mr.

AnuragDubey, Mr. D.P. Pandey and Mr. .Meenesh Dubey, Advs. forR2. u WOP.(C) 6063/2012 & CM. NO. 16381-82/2012 AND AL1, INDIA iNSTITUTE OF MEDICAL SCIENCES(cid:9) ......Petitioner Through: (cid:9) Mr. Rajat Katyal. and Mr. Sanjeev Joshi, Advs. Versus MIJKESI-I YADAV AND ANR .W,P,(C) Nos. 5944, 6059-68/2012(cid:9) Respondents (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:9) Through: Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. AND W.P.(C) 6064/2012 & CM. NO. 16383-84/2012 4(cid:9) ALL INDIA INSTITUTE OF MEDICAL SCIENCES(cid:9) .. .. Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Versus Advs. -1-(cid:9) -I-(cid:9) I)RARAMVIR AND .ANR .(cid:9) 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 AND ALL INDIA INSTITUTE OF MEDICAL SCIENCES ........ Petitioner Through: (cid:9) Mr. Rajat Katyal and Mr.

Sanjeev Joshi,' Versus Advs. Respondents IVftJKESH AND ANR(cid:9) Through: Mr. Anurag Duhey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. for R2. WJP.(C) 6066/2012 & CM. NO. 16387-88/2012, CAY. 977/2012 AND ALL INDIA INSTITUTE OF MEDICAL SCIENCES(cid:9) .....Petitioner Through: Mr. Rajat Katyal and Mr. Sanj eev Joshi, Versus Advs. MAMTA AND ANR Through: Mr. Anurag Duhey, Mr. D.P. P.andey and Mr. Meenesh Dubey, Advs. forR2. W.P.(C) NOS. 594, 605968/2012(cid:9) Responents (cid:9) (cid:9) (cid:127) (cid:9) (cid:9) (cid:9) 4 -I-(cid:9) W.P(C) 6067/2012 & CM. NO. 1.6389-90/2012, CAy. 97512012 AND ALL INDIA INSTITUTE OF MEDICAL SCIENCES (cid:9) .....Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Versus Advs. Respondents BALAMURGAN & ANR Through: Mr. Anurag Dubey, Mr. D.P..Pandeyand Mr. Meenesh Dubey, Advs. forR2. W.P,(C) 6068/2012 & CM. NO. 16391-92/2012, CAY. 976/2012 AND ALL INDIA INSTITUTE OF MEDICAL SCIENCES (cid:9) .....Petitioner Through: Mr.

Rajat Katyal and Mr. Sanjeev Joshi, Aclvs. Versus VIJAY AND ANR Through: Mr. Anurag Dubey, Mr. ID. P. Pandey and Mr. Meetiesh Dubey, Advs. forR2. Respondents CORAM: HON'BLE MR. JUSTICE SURESH KAIT ORDER 18.10.2012 SURESHKAIT,_JL(Oral) CAy. No 961/2012 Since the learned counsel has put appearance on behalf of the caveator, the ca\/eat stands discharged. CM. iNo 2241/2012 (for exemptj) Exemption allowed, subject to al.I just exceptions. The application stands disposed of. W.P.(C) Nos. 5944, 6059-68/2012(cid:9) (cid:9) (cid:9) (cid:9) (cid:9) (cid:127) (cid:9) W.PC)jos. 5944/2012 & 6059-6068/2012

The Sulabh International Social Service Organization, and the All India in StilLite of Medical Sciences, New Delhi, by way of the present petitions, are challenging the sustainahility of the order dated25.06.2012 passed by the Regional Labor Commissioner. Since all the petitions have arisen from the common order, therefore, thi$ Court has decided to dispose of all the petitions by this common The facts of the Writ Petition (Civil) No. 5944/2012 would be judgment. (cid:9) discussed inter al/a being the lead matter. 'flue petitioner Sulabh International Social Service Organization, and

respondent No. 3, Director All India Institute of Medical Sciences, New Delhi, by way of different writ petitions, are challenging the sustainability of the order dated

25.06.2012 passed by the Regional Labor Commissioner. The Regional Labor Commissioner, being the Authority under the Minimum Wages Act, allowed the claim petition that has been filed by the respondent No.2 under Section 20(2) of the Act. The Authority also held that the petitioner and the'respondent No.3 both are severally and jointly responsible for the payment of the claim. Facts of this case are that the petitioner and respondent No. 3 entered into an

agreement. )r deployment of the respondent No.2 for employment of cleaning and sweeping at the ]:)remises 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 CoLirt for thc piyiueriL of minimum wages. The same wa disposed of by the order dated I 7.02.201 0, 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(cid:9) (cid:127) (cid:9) application before the Authority under the Minimum Wages Act; same has been allowed by the impugned order.

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 TVlinimuni 'Wages Act.

The petitioner Sulabh International has relied upon the judgment deliyered in'Writ Petition No. 3408/1989 by the 1-ugh Court of Patna, wherein the said. Court observed as under: The Petitioner establishment his set up lavatories and bathrooms, the construct/on being of veiy simple in nature for the use of the pub/ic which need not be cleaned by the sccivenger nor does it require cu/"iiing of any night soil on' anyone's head. Further, the jobless scavengers or other persons rendered without 'employment are now being ithparted 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. iris true that in every case of industry, the element of profit . and loss ned not be there yet as I read the aforesaid decision of the Supreme Court, the definition cannot be extended to a purely voluntary organization like the Petitioner establishment which is working for public good and in the interest of the weaker Section of the society.

Adopting the observation made in the above judgment, Mr. K.T.S. Tulsi, learned Senior Advocate appearing on behalf of the petitioner contends that the impugned order is illegal, since there is no relationship of employer and employee which is a prereqLlisite for the application of the Minimum Wages Act. He pointed out that the object of the establishment is to liberate the scavengers from the sub human occupation; and is a voluntary philanthropic organization carrying out.'its activities on "no profit and no loss basis". Secondly, the petitioner has relied upon W.P.(C) Nos. 5944, 6059-68/2012(cid:9) '(cid:9) a circular dated 03.04.200 1 issued by Jt. Labor Commissioner, New Delhi wherein the. application of Labor Laws has been excluded, qua petitioner establishment. The said circular is reproduced as under: 4(cid:9) GOVT OF NA TIONAL CAPITAL TERRITORY OF DELHI LABOUR DEPARTMENT 15-RAJPUR ROAD: DELHI-1]0054 lVo.

7.(cid:9) The respondent No.3 Director, All india Institute of Medical Sciences is the,, pctitioner in the Writ Petitions No. , 6059/2012, 6060/2012, 6061/2012, 6062/2012, 6063/20i2, 6064/2012, 6065/2012, 6066/2012, 6067/2012 & 6068/2012 challenging the same on the preposition that the relationship between the petitioner herein and the respondent No. 2 is not established as "employer" and "employee" as is defined in the Minimum Wages Act. Therefore, the respondent No. 3 contends 'that the application of the provisions of the Minimum Wages Act would iot arise; and is not liable under the Act to 'pay the minimum wages to the W.P.(C) Nos. 5944, 6059-68/2012 (cid:9) respondent No. 2. The respondent No. also bought to the notice that the non existence of relationship as "employee and employer" btween the petitioner and the respondent No. 2 would render that the impugned order is void ab initio.

8.(cid:9) The Authority under the Act has taken note of thpleadings and framed the 4 following issues, namely, (i) Whether the Minimum Wages Act, 1948 is applicable only to 'industry', 'establishment' and 'enterprise', and not to voluntary social service organization of charitable and philanthropic nature. (ii) Whether A.IIMS or Sulahh International should be deemed, to be the employer under the Act having responsibility to pay minimum wages,. (iii) Whether the persons associated with Sulabh International are 'employees' 4 within the meaning 'under the Act. (iv) Whether exemption of employer from liability in certain cases uider Section 23 applies to claim cases. (v) Whether the Hon'ble Patna High Court's order in CWJC No. 3408 of 1989 has a bearing on this case. (cid:9) - On the issues mentioned above, the learned Authority held that the petitioner and the respondent No. 3 are covered under the definition of "employer" as defined in Section 2(e) of the Act since the respondent No. 2 was deployed or employed b' the respondent No. 3 through. the petitioner. Therefore, the Authority ,has reached: to the conclusion that the petitioner and the respondent No. 3 are employers for the purpose of determining the liability under the Minimum Wages Act. Moreover, it also considered the fact that the duty which was pef'formed by the respondent No.2, was the scheduled employment which is defined in Section 2(g) of the Minimum W.P.(C) Nos. 5944, 6059-68/2012 (cid:127) (cid:9) Wages Act and the Central Government has fixed minimum rate of wages vide notification No.S.O. 1994(E) dated 7.08.2008. As regards the contentions based on the judgment of Patna High Court in

9.(cid:9) Writ Petil; ion No. 3408/1989, the Authority under the Minimum Wages Act has 4 pointed out that the said judgment was not applicable in the issue of payment of Minimum Wages Act. it was also differentiated on the aspect of the issues, as in the above said judgment the issue was the construction of 'latrines and urinals' by the Petitioner for the use of the public which was held to be not "industry" whereas, the issu involved in the claim application was sweeping and cleaning in the establishment of the respondent No3 by the petitioner in the capacity as a contractor or an outsourced agency. Accordingly, the Authority iinder the Act allowed the claim application that has been filed by the respondent No.2, I 0; Ii is important to note that the Authority has come to a specific conclusion that the Patiia 1-ugh Court judgment is not applicable in the prsent case, wherein the above said circular of labor department is also based on the above said jLldgment. importantly, the petitioner also strongly relies upon the dictum of W.P.No.3408/1989 of Patna High Court. in this context, it may be relevant to reproduce the relevant paragraphs of the said judgment as under: ó. Concluding, therefore, I have no hesitation in holding, firstLy, that the so-called union is entirely spurious.

It has no sancti of law nor does it represent anyone who can be treated to be a wothnan of the Petitioner establishment. In fact, it is a sefstyled union of certain persons whose motive is not onlj' laudable but entirely mala ficle. I hove also no hesitation in holding that this was a case, primarily, in which no refrence should have hen made merely on the basis of a solitary i'naterial that is the notUIccition recogiizing the Union. In the light of tije subsequent notfication as contained in Annexure 4, the authorittes should have been well advised to examine, before making ci reference, whether the Union making the demand was a union W.P.(C) Nos. 5944, 6039-68/2012(cid:9) 4 . Nd sanctified by law and really represen ted the workmen of the petttoner-establishment which situation was subsequently brought in to light resulting in the issuance of Annexure 4. Even lf I were to assess me that the State government was right in making the reference of registecition alone, once it has come to light that the Union whose President has made the demanc is not a Union created in accordance with Iciw and it does not consist of the persons who are the workmen I?! the Petitioner establishme'it, then also the reference and the consedjuentlal proceeding cannot be allowed to stand. I have, therefire, no hesitation in quashing the entire reference thus rendering the consequential award a nullity.

Having held as above, the second point whether the petitioner- establishment is an industry or not become, entirely academic because ever if it was held to be an industry, the initiation of the proceeding itself being bad and it being not established that the demand has been mc! c/c by or on behalf of an for a 'workman of the petitioner- establishment, no ai'vad could 'be made against the petitioner- establishment and the demand made in annexure 3 could not be entertained. I, however, would like to express my opinion succinctly in regard to this point also. Undoubtedly, the law has completely been crystallized by the decision of the Supreme Court reported in /111? 1978 SC 548 (Bangalore Water Supply and Sewerage Board vs. A. Rajappa cind others) relating to t*pes of establishments that come vvithin the definition set out in Section 2(Jof the Act. The definition in. Section 2 O) of the Act of the word "industry ' has been given a wide mnecining embracing within its ambit ci large number of organizations wIiicI'i would come within the nature of the Institution set out but is essential in every case where the question is raised whether an eshqblishl'nent is an industry within the meaning of Section 2) of the Act that certain relevant factual data have to be found.

/ have, therefore, no hesitation in holding that there was no sufficient evidence on record to hold that the petitioner-establishment is an industry within the meaning.of Section 2(J) of the Act and the decisions of the Supreme Court. 4(cid:9) 1 1. The reading of the foregoing paragraphs in the said judgment makes it clear (cid:127) that the ISSUC was not the application of the payment of Minimum Wages Act; but the Industrial Disputes Act. Two issues were inyolved, primarily the scQpe of the definition of industrial dispute as defined in Section 2(k) of the Industrial Disputes Act, and the Court ruled that the dispute which was referred was not an industrial dispute since; it was not referied by the workmen in the establishment. Secondly, on the issue whether the petitioner herein, namely, Sulabh International is an industry or not, the Patna High Court held that, being a purely voluntary organivatn, working for the public good and for the benefit of weaker Sections in the society he definition of "industry" could not extent to the petitioner. It is legally fundamental to note that the reasoning of the judgment flows

from the provisions of the Industrial Disputes Act; not from the Minimum Wages Act. Signi Icantly, the existence of the petitioner as a voluntary organization is different il'om as compared to deployment of persons as volunteers through the petilioner. In the latter category the petitioner stands in the different footing as coniparedl to the former; that is as an employer. Therefore, the learned Authority under the Minirnim Wages Act opined that the said judgment has no bearing in the ISSUC involved.

One of the most important aspects for consideration is that the respondent No.2 was serving the petitioner as a volunteer; not as an employee. Therefore, the W.P.(C) Nos. 5Y44, 6O5968/2O12 (cid:9) contention was that the existence of "errployee- employer" relationship is a sine quo non tor the application of the Minimum Wages Act. The root of this proposition was based on the agreement executeti between the petitioner and respondent: No.3 as exhibited as annexure P-3 in Writ Petition No.-6059/2012. The first party in the agreement was the respondent No.3 whereas the petitioner was 4seconcl party. For the proper evaluation of the said aspect, it is convenient to reproduce the relevant terms and conditions in the said agreement as under: 'The agreement between First Parti, and Second Party witnesseth as per terins and conditions set forth hereunder. I. The Second Party will have to provide adequate voluntary social workers for cleaning. The timing of the deployment of the voluntary social workers would be according to the needs of the Dr. B1?AJRCH, Ail/VIS, Ansari Nagar. A[ refuse/garbage will be dumped by the voluntary social

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

3. within two hours after receiving the complaint without fail. Second Party shall provide the House Keeping services on ciii . calendar clays Sundays including Gazetted Holidays i.e. the timing of

4. iPie deployment of the staff would he according to the needs of the Di. BRiI 1RCH, A iIAfS, Ansari Nagar. The Second Party shall provide 10 Nos. of Suiabh voluntary 5. social workers and one supervisor to cope with work load of sun/tat/on throughout the period of agreement. In case, the number of Suiabh voluntary social workers engagec is found less while inspection b y ny Executive Officer of the Center, proportionate chaes will he deducted after dISCUSSIOn with Second Party the as per charges spec?fied in Annexure-.!. The Executive OffIcer of this Contract siiüii be Assit. Adinn. Officer AIIMS as nominee of Dr. Bi/1 JR C[f. .4 JI1/fS, A usari Wcigai). (cid:9) -

6. diffe rent The Second Party shall maintain the complaint book for areas, which will he made available to the supervisory stc W.P.(C) Nos. 5944, 6059-68/2012(cid:9) The Second Party will use the manpower only at the places wherever authorized.

7. The Second Party shall provide two sets of Apron including Dr. BRA JRCH, AIIMS to its voluntary social workers and ensure that they shai/ wear it while on duty and maintain them clean. 4(cid:9) That the voiunta/y social workers deputed by the Second. Party L.(cid:9) shall not be below the age of 18 years. The voluntary social workers deputed by the Second Party

9.(cid:9) should not interftre with the duties of workers of the First Party. JO. The Second Party shall ensure and guarantee the conduct, behavior and honest of the voluntary social workers deputed by them. In case of any misconduct or any other damage or theft of the property of the First Paity, the Second Party shall be responsible for all such losses or damages after it is established by holding proper enquiry that the voluntary social workers deputed by the Second Party die responsible for these. ii. The voluntary social workers engaged by the Second Party shail be of good character and sound health. Aid should cc medically fit and this may be checked by Senior Pesidnts Dr. BRA IRCLI, AJI/VIS, Ansari Nagar. In the event of any loss to the Dr. BRAIRH, AJIMS on account 12. of negligence of voluntar social workers, Second Party shall make - rOOd/ the loss sustained by the Dr. BRAIRH, AIJMS, 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 àf 13. honorarium to the voluntary social workers engaged by the Second ILir/V and shall ensure timely payment to them. The Second Party shall provide voluntary social workers as pci- 14. approved terms and conditions. The same shall be monitored by Sr. San itatlon Officer/Representative of the Dr. BRAJRcH, AIIMS, Ansar Ncigar and if the strength is found less, proportioate recovery will he. ,iiade. W.P.(C) Nos. 5944, 6059-68/2012 (cid:9) (cid:127) (cid:9) (cid:9) (cid:127) (cid:9) 4(cid:9) The Second Party will have, to produce the monthly bill along 15. with the certificate ofsatisfactoryperformancefrom the Sr. Sanitation 8th of every ecileildar month for verfication by the Executive Officer and same shall be pci/cl within 10 days by the First Party. /ficer/Sanit at/on inspector to the submitted on the Second Party shall not appoint any Sub-contractor/Agent to

tarry out any obligations under the awarded period of work. 17 The First 'Party shall provide the quality cleaning material to the Second Party as per requirment at its cost, but the Second Party slicill make this demand in advance so that work does not sffer. The Second Party Dr. BRAIRH, AJIMS, Ansari Nagar shall 18. 1101 he responsible for any compensation which may be required to be pa/cl to the voluntary social workers of the Second Party consequent upon any injury/rn is hap. The Second Party shall be responsible to the Head of the Dr.

BRA 1RCH, AJIA/fS, Ansari Nagar or any office authorized by him/he' th execution of day to day work of the campus. The Sec univ instructions/orders issued by the Dr. BRA JR CH, AIIMS /insoni Ncigcir from time to drne shall also be followed by the Second Paetv and voluntary social workers. (cid:9) -

77w First Party reserves the rights to award the area J/n . clec'i'ung, dusting etc. out of vcirious buildings/locations and can any ti'ie withdraw some areas or add some additional areas from the con/cad without assigning any reason after giving one month 'S i'ioi iCE. The contract can be terminated by tile First Party Dr.

BRA JRcH, /J 1r r1 f5, Ansar J\iagcir by giving one month's notice. Tile cec O , 7d Party can also terminate the contract by giving one month 's i'i ut/cc-.

No voluntary social workers qf the Second Party shall stay in the ctt/npus beyond prescribed duty hours. While going out of the Dr. BRA IRCI-!, AIIMS, Ansani Nagar, Second Party will go throigh the check b y security cit various exists of the Dr. BRAJRCTL AIIMS, /1 usani Nagar. W.P(C) Nos'. 5944, 6059-68/2012 (cid:9) '(cid:9) It is further agreed that there would be absolutely no scope of 23. escalation payable by the First Party on account of increase in honorarium u/voluntary social workers unless mutually agreed to. It is agreed that in case the Second Party fails to perform any of 24. the terms and conditions of this agreement or commits any breach in contract, the First Party may cancel the contract after giving reasonable opportunity and if found unsatisfactory then by giving one month notice in writing to the Second Party. That the Second Party shall issue the identity cird to ecch of 25. the voluntary social worker engaged as associate member for entry into the work place of AJIMS premises. That in case of any dispute between the parties aforesaid in 26. respect of this agreement the matter shall be referred to a mutually cigi'eed upon Arbitrator by the First Party and Hony., Asstt. Director of the Second Party and the decisionofth Arbitrator so appointed shall he final and binding on both the parties.

. The rates terms and conditions as per annexure I, II & III to Ithis agreement will form an integral part of this agreement. "

14.(cid:9) Indisputably, the above said contract establishes the fact that the respondent No.2 was deployed in the premises of respondent No. 3 for the employment of cleaning through the petitioner. it is true that the cQntract entered between the . parties refers the i-espondent No. 2 as "voluntary social worker". Despite of this relerence as a. voluntary social worker, the respondent No. 2 ha.s 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. 1 5. Moreover, it is legally significant to note and examine the nature and scope ol the above contract in the light of observations made by the Supreme Court in. Peoples Union for Democratic Rights and Ors vs. Union of India 1982 (3) ScC

The relevant paragraph is reproduced as under W.P.(C) Nos. 5944, 6059-68/2012 Page 17 of3S (cid:9) (cid:9)

20. Now the next question that arises for consideration is whether there is any breach of Article 23 when a person provides labour or service to the S/ate or to any other person and is paid less than the minimum wage for it. It is obvious that' ordinarily no one would willingly supply labour or service to another for less than the minimum wage, when he knows that under the law he is entitled to get minimum wage for the labour or service provzded by him. It may therefore be legitimately presumed that when ci person provides' labour or service to another against receipt. of remuneration which is less than the minimum wage, he is acting under the force of some compvilsion which drives him to work though he is paid less than what he is entitled under law to receive. What Article 23 prohibits is forced labour' that is labour or service which aperson is forced to provide and force' which would make such labour or service forced labour' may arise in several ways.

It may be physical force which may compel a person to provide labour or service to ai'iother or it may be force exerted through a legal provision such as a provision for imprisonment or fine in case the employee fails to provide labour or service or it may even be compulsion arising from hunger and poverty, want nd destitution. Any factor which deprives ci person of a choice of alternatives and compels him to ac/opt one particular course of action may properly be regarded as 'force' and Ulabour or service is compelled as a result of such 'Thrce', it would we 'forced labour'. Where a person is suffering. from hungei' or starvation, when he has no resources at all to tight disease or feed his wft and children or even to hide their nakedness, where utter grinding poverty has broken his back and reduced him to a state of helplessness and despair and where no other employment is available to alleviate the rigor of his poverty, he would have no choice but to accept any work that comes hith way, even. f the remuneration offered to him is less il-icin the minimum wage.

He would be in no position to bargain with the employer; he t.'ould have to accept what is offered to h/rn. And in doing so he would he acting not as a free agent with a choice between alternatives but under the compulsioi of ecoi'iO'mC circumstanCes and the labour or service provided by h/rn would he clearly rced labour.' There is n.o reason why the vi'ord forced' should be read in a narroi' and restricted manner so as to he cor?flned only to physical or legal force' particularly w. p .(c) Nos. 5944, 6059-68/2012(cid:9) 'v-I when the national charter, its fundamental document has promised to build a new socialist republic where . there Will be soco-economjc justice for all and every one shall have the right to work, to education and to adequate means of livelihood. The Constitution makers have given us one of the most remarkable documents in history for ushering in a new socio-economic order , and the Constitution which they have forged foi' us .has a social purpose and an economic mission and therefore every word or phrase in the Constitution must be interpreted in a manner which i'i'ouid advance the socio-economic objective of the Constitution.

S. It/s not un often that u-i capitalist society economic circumstance (cid:127) exert much greater pressure on an individual in driving him to a part/cit/ar course of action than physical compulsion or force of legislative provision. The word force' must therefore be constructed to include not only physical or legal force but also fhrce arising from th compulsion of economic circumstance which leaves no choice of alternatives to a person in want and (cid:127) compels him to provide labour or service even though the remuneration received for it is less than the minimum wage of course, if ci person provides labour "or service to another against receipt of the minimum wage, it would not be possible to say that the labour Or service provided by him is forced labour' because he gets what he is entitled under law to receive. No inferenc can reasonably be drawn in such a case that he is forced to provide icibour or service for the simple reason that he would be provldtng labour or service against receipt of what is lawfully payable to him just like any other person who is not under the force of any compulsion.

We are therefore of the view tha/ where a person provides labour or service to another fur (cid:127). remuneration which is less than the minimum wage, the labour or service provided by him clearly, .falls within the scope and ambit of the words forced labour under Article 23. Such a person would be entitled to come to the court far enforcement of his fundamental right, under Article 23 by asking the court to direct payment of the minimum wage to him so that the labour or service provided by h/ni ceases to be forced labour' and the bi'each of Article 23 is remedied. It is therefore clear that when the petitioners alleged that minimum wage was not paid to the workmen employed by the contractors, the complaint was real! W.P.(C) Nos. 5944, 6059-68/2012(cid:9) (cid:127) (cid:9) in effect and substance a complaint against violation of the fundamental right of the workmen under Article 23. (cid:9)16.(cid:9) Article 23 of the Constitution enacts a very important fundamental right in the lollowing terms: 1 . I Article 23: Prohibition of traffic in human beings and forced labour- (1) Traffic in human beings and hegar and other similar forms of forced Ia hour ore prohibited and any contravention of this provision shall be an qj!ence punishable in accordance with law.

(2) Nothing in this Article shall prevent the State from imposing compulsoiy service for public purposes, and in. imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them. 7 The challenge herein is not about the enforceability of the said contract; but. the nature and scope of the same is to he examined in the light of Article 23 of the Constitution., with the findings as regards the different forms of forced labour as held in Peoples Union for Democratic Rights and Ors vs. Union of India (supra) for culling out the stand of the respondent No. 3 and the petitioner. In the light of i;he above, the deployment of respondent No. as a social worker is a new method of lorcecl labour in the society, which needs to be curbed. The reading of the terms and conditions of the said contract in terms with Arficle 23 would establish the fact that, the respondent No. 2 wa.s working as an "employee" not as a "volunteer" I 8.(cid:9) It is also pertinent to examine the said contract with the provisions of the Minimum Wages Act.

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

Contracting out. - Any contract or agreement, before or after the commencement of this Act, whether made whereby an. W.P.(C) Nos. 5944, 6O5O68/2O12 (cid:9) (cid:9) employee either relinquishes or reduces .his right to a minimum rate of wages or any privilege or concession abcruing to him under this Act shall be null and void in so far as it purports to jeduce the minimum rate of wages fixed under this Act.

20. Thererore, the contract entered between the petitioner and the respondent 4 No. 3, would not disentitle the claim of the respondent No. 2 as an employee for minimum wages under the Minimum Wages Act.

21. This Court in judgment delivered on 24.02.2010 in Writ Petition No. 3785/2007 held as under: '/6 The object qnd policy of the Legislature in enacting the lVfinimum Wages Act is to prevent exploitation of the workers andl for that purpose, it aims at fixatior of minimum wages iihich the employer must pay. The Legislature undoubtedliv intended to apply the Act to those industries or localities in which b y reason of causes such as unorganized labour or cibsence of iiachinry 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 vaiy in different industries and from locality tO locality, and the expediency of fixing ni in/mum wages, and threats thereof depends largely upon c//verse factors which in their ver y nature are variable and can propelly be ascertained by the Government which is in charge of ihe administration of the State. Ii is to carry out efftctively the(cid:127) pui'pose of this enactment that power has been given to the appropriate Government to decide, with reference to local conditions, whether it is desirable that minimum wages should be fixed in regard to any scheduled trade or industry, in any locality, cind if it be deemed expedient to do so, the rats at which the wages should be fixed in respect of that industi'y in the loCal/f)) . In order to protect the interest of the employees, the scope under the

22. Minimum Wages Act is in 'ider perspective than the Industrial Disputes ACt(cid:127) The Minimum Wages Act "Section 2 defines as follows; wP(C) Nos. 5944, 6059-68/2012 (cid:9) 1,0 (e) "employer" means any person who employs whether directly or through another person or whether on behalf of himself or cmv other person one or more eniplo ,vees in any scheduled employment in respect of which minimum rqtes of wages have been fixed under this Act and includes except in sub-Section (3) of Section 26 (i) in a factory where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act any person named under clause of sub-Section (1) of Section 7 of the Factories Act 1948 (ö3 of1 948) as manager of the factory; (ii) in any scheduled employment under the control of any government in India in respect of which minimum rates of wages have been fixed under this- Act the person or authority appointed by such government for the supervision and control of employees or where no person or ciuthority is so appointed the head of the. department; (7/i in any scheduled employment under any local authority in respect of which minimum rates of wages have been fixed under this Act the persons appointed by such authority for the supervision and control of employees or where no person is so appointed the chief executive officer of the local authority; (7v in any other case where there is carried on any scheduled employment in respect of which in inim urn rates of wages have been fixed under this Act any person responsible to the owner for the supervision and control o!the employees or for the pa yment of wages; .

23.(cid:9) Whereas the Tndustrial Disputes Acts, Section 2(g) defines employer: (g) "Employer" means-- (i in relation to an industry carriecl on b r under the authority of any depci)iment of 3*ithe Central Government or a State GOvernment!, the authority prescribed in this behalf or where no outhorTh-' is prescribed the head of the depart ment; W.P.(C) Non. 59:4 , 6059-68/2012 (cid:9) (10 in i'eiation to an industry carried on by or on behalf of a local aithority, the chief executive officer of that authority,

It is important to not that the definition of employer in the Minimum Wages Act prescribes that "any person who employees. " falls under the category of employer wherein the definition of the employer in the Industrial Disputes Act is solely based on the definition of industry. Therefore, both the petitioner and the (cid:127) respbndent No.3 qualifies the test to be called as employer as per the provisions of Minimum Wages Act. In the light of the above discussions, the relationship of the petitioner and iespondent No.3 with respondent No. 2 is established as employer and employee. Repondent No.2 is entitled to get the minimum wages as per the scheme of the Constitution of India as well as the object of the Minimum Wages Act, 1 942. Accordingly, interference under Articles 226 and 227 of the Constitution of India is not warranted.

25. Mr.Tulsi, learned Senior Advocate has further submitted that since there is no relationship ci employer and employee and thc petitioner being the voluntary (cid:127) . oigaiiiation. therefore, Section 2 (j) of the Industrial Disputes Act, 1947 cannot he applied on such organization.

He has relied upon a case of Rattiram and Others Vs. State of Madhya Pradesh, (20J2 4 SCC 516, wherein while relying upon the case of Union of India Vs. Raghubir Singh, (1989) 2 SCC 754, the Supreme Court has held that .a pronorceme1it of law by a Division Bench or a smaller number of Judges, and in order that. such decision would be binding. It has been held as under:- "26. In Union of India v. Raghubir Singh, (1989) 2 8CC 754, ti-ic Constitution Bench, speaking through R. S. Pathak, J, has held thus:- SCCp. 778, para 28) W.P.(C) Nos. 5944, 6059-68/2012(cid:9) '28. We are of opiniQn that a pronouncement of law by a Division Bench of this 'Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. " 4

In Chanclra Prakash v. State of UP, (2002) JO SCC 710.' 2003 8CC (L&S) 808, a subsequent Constitution Bench reiterated the view that had already been stated in Raghubir Singh ('supra,)

Thus viewed, Bhooraji 'iupra,.) was a binding vrecedent, and when in ignorance of' it subsequent decisions have been renderec the concept of per incuriam would come into picy.

27. Re has further relied upon the judgment of Sundarjas Kanyaiai Bhatija & Ors. Vc. Colleclor, Thane Maharashtra & Ors, (1989) 3 SCC 396, 'wherein the Supreme Coui has observed as follows:- "/4. The other limb of the argument of counsel for the appellants relates to the manner in which the high Court disposed of the matter. It was said that a decision of this Court has been: disregarded and a binding decision of co-orciinat Bench of the same Court has been ignored. xxx (cid:9) xxx (cid:9) /8. 1/ vouldl be difficult for us to appieciate the judgment of the J-Iigl'i Court. One must remember that pursuit of the law,, however glamorous it is, has its own limitation on the Bench. fri a multi-judge court, the Judge are bound by precedents and procedure. They could 'use their discretion only ivhen there is no declared principle to he found, no rule and no authority. The fudicia! decorum and legal propriety demand that where learned Single Judge or a Division Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matter W.P,(C) Nos. 5944, 6059-68/2012(cid:9) (cid:127) (cid:9) shall be referred to a larger ench. It is a subversion of/udicial process not to follow this procedure. ".

28. The learned senior counsel has ftirther rfened the order dated 27.11.2003 passed by this Court in Cr1. Miscellaneous (Main) Nos. 3822, 2933 to 2936, 3820- 3821 o[ 2002 filed by the MIs Sulabh International and Another against the order ol Labour Enforcement Officer (C), Delhi 3, wherein this Court has also relied upon the judgment of the Patna High Court and held that there is no relationship of master and servant between the petitioner and the persons being the voluntary services. The aloresaid order was challenged by the Government of NCT of Delhi by

29. way olan SLP (Cr1.) No. 1693/2006 dated 23 .02.2007, wherein the Supreme Court has passed the following order:- .(cid:9) The question as to whether a public utility service, which is title gedly carried on by a Society on 'no profit no loss basis', would be an industry within the meaning of.the provisions of the Industrial disputes Act 1947, being pending decision before a seven Judge Bench in State of UP. vs Jai Bir SingjJT 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 f-Ion 'b/c the Chief Justice or File an appropriate appiicq'tion for tagging this case with Jai Bir Singh (supra. Let the records be placed before Hon 'ble the Chief Justice of India or passing appropriate orders. "

The Coordinate Bench of this Court on 16.11.2009 in Cr1. M.C. No. 3884/2009 passed the order as follows:- M. Tulsi, learned Senior Advocate appearing for the' petitioner submits that the petitioner is a voluntary social. organization engaged in the work of constructing anti W,P.(C) Nos. 5944, 6059-68/2012 (cid:9) mcitntainiflg lavatories and has been carrying on its activity on no profit and no loss basis f6r the welfare of the humanity. Mr. Tuisi has drawn attention of this court to the Circular No. 1291 dated 3.4.2001 issued by the GNCT, whereby the Labour Department has not ijied all the Branch Officers of the(cid:127) Department that provisions of labour law would not be 4 application to the petitioners. Mr. Tulsi also draws attention of the court to the order dated 27.11.2003 passed by this court in Cr1 Mis. (M) Nos. 3822/2002, 2933/2002, 2934/2002, 2935/2002, 2936/2002, 3820/2002 and 382 1/2002 and the order of the Division Bench of Patna High Court in W.P. ( no. 3 408/89. Based on the said submissions, Mr. Tulsi submits that provisionS of Sections 23 and 24 of the Contract Labour (1? & A) Act cannot be invoked b y the trial court against the petitioner. In Cr!. MA. No. 13582/2009, the Trial Court proceedings were stayed till the. next date of hearing. 3 1. On the same issue whether the petitioner is an industry within the meaning of Section 2(j) of the industrial Disputes Act, 1947 and whether the Industrial as well as Labour Laws are applicable to th organization, on 07.03.2011, this Court in Cr1. M.0 No. 3884/2009 passed the following order:- Short question for determintition in this petition is whether or not the petitiOner Sulabh International is an 'indz.islry' within the meaning of Section 2U of the Industrial Disputes Act and whether the industrial as well as labour laws are applicable to the organization. I have been informed that aforesaid legal issue is pending consideration of a Larger Bench of Supreme Court and the finding of the Szmprenie Court will obviously impact the dedcion on this petition. Thus, decision on. the petition is clefirred. The petition is, accordingly, consigned sine die with the observation that either of the parties may get it revived after the decision of the Supreme Court on the issue. " W.P (C) Nos. 5944, 6059-68/20 12(cid:9). (cid:9) .(cid:9) Page 26 ol 3

Mr. lVfukul Gupta, learned Senior Advocate, who argued the petitions filed by the All India Institute of Medical Sciences has Soined hands with Mr. Tulsi, learned Senior Advocate on the legal issue and has further added that the respondenl.s have neither challenged the agreement nor the Memorandum of JncIerstanding entered into between the Sulabh International and the All India lnsttuie of Medical Sciences. There is ro evidence on record that the respondent was employed by either of the organizations mentioned above and the impugned (cid:127) decision is without application of mind and without any basis. Therefore, the sarn has to be set aside.

Before the learned Authority under the Minimum Wages Act, 1 948 and Regional Labour Commissioner (Centrai), New Delhi and before this Court the same issue was raised that the petitioner is not an industry and the provisions of \ in!mum Wages Act, 1948, are not applicable to them as it is a voluntary social service organization of charitable and philanthropic nature, working on io profit and no loss basis. Therefore, it is neither an establishment nor an employer. It is Further submitted that the persons associated with Sulabh International are nt employees or workers, but are associate members of Sulabh International, rendering their voluntary social services for the upliftment of scavengers. The object ol the associate members of Sulabh International is to render social sQrvice 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 1ayable to these volunteers.

On the minimum wages, the learned Authority framed an issue that " (i) Whether the Minimum Wages Act, 1948 is applicable only to industry', W.P.(C) Nos. 594 6059-68/2012(cid:9) Page 27 cf 35 'estahiishment' and 'enterprise', and not to voluntary social service organization of charitable and philanthropic nature.

On the issue framed above, the learned Authority has held that the Minimum Wages Act, 1 948 is applicable to a scheduled employment in respect of which 4 minimum rates of wages have been fixed by the appropriate Government as is evident from a reading of the definition of 'employer' and 'employee' under , Sections 2(c) and 2(i) respectively of the Act. The 'Appropriate Government' as de[inecl under Section 2(b) of the Act in respect of AIIMS is the Central Government. The employment of sweeping and cleaning is a scheduled employment under Section 2(g) of th at and the Central Government has fixed minimum rates of wages for the said employment vide Notification No. S.O. 1994 (e) dated 7.8.2008. There is no referehce in the Act to terms like 'industry', 'establishment' and 'enterprise' nor is there any mention even by implication that the Act applies only to them.

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 S carried on in a factory, scheduled employments under the control of any Government in India, scheduled employments under any local authority and scheduled employments in any other case.

There is no direct or indirect iention in the Act that the scheduled employment has to he carried on by an industry. The Act appiicd to an employmelil; which is scheduled irrespective of who carries on tha.t sbhcduled crimp1 oymeni.

On the issue No. (ii) Whether AI1MS or Sulabh International should he deemed to he the em p loyer under the Act having responsibility to pay minimum W.P.(C) Nos. 944, 6O5963/2O12(cid:9) Page 23 ot35 wages, the learned Authority has held that .Section 2(e) of the Act defined 'employer' as '(cid:9) "any person who employs, whether directly or through another person, or whether on behalf of himself or any other person, one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act, and -------------."

It is recorded in the impugned order that in the instant case, the so called volunteers have been deployed in the scheduled employment of sweeping and cleaning by Sulabh International directly. It is also not in dispute that they have been deployed by AIIMS though SUlabh International in said scheduled employment. Therefore, both having satisfied the definition of 'ernployer are jointly and severally responsible for payment of minimum wages to the employed or deployed. In this case, AIIMS as employer can in no case escape the responsibility of payment of minimum wages to the employed as the amount paid by it to the Sulabh international for the pirpose of payment to the employed is less than the minimum rates of wages fixed by the Government. S40. On issue No. (iii) Whether the persons associated with Sulabh International are 'employees' within the meaning under the Act, the learned Authority has relied upon a case decided by Jharkhand High Court titled Robert Toppo Vs. State of Jharkha;'id, 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. "

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, wP.(C) Nos. 594, 6059-68/2012 Page 29 o135 why would they claim minimum wages' Therefore, the petitioner is treating the employed persons as volunteers oniy with a view to depriving them of minimum wages so tha.t either or both of them gain out of this system.

C)n the issue whether the judgment:of the High Court of Patna, as mentioned. Above, has a bearing on the issue raiseçl in the instant claims, the learned Authority has held as under" (cid:127) An examination of the judgment dated 9.2.1990 of I-Jon 'ble Patna High Court in C. WI C. No. 3408 of 1989 revea7s that the Hon 'nie Court in that judgment held Sulal2h International not to be 'inchistry' within the meaning of section of the Industrial Disputes Act, 1947. As it has already been 2 6i discussed in the foregoing paragraph that the application of Minimum Wages Act, 1948 Eas nothing to do with 'industry' and that the act is applicable to scheduled employmnts under the act irrespe'tive of whether it is carried on by an industry or not the judgment appears to h .ive no bearing on this case. The contention of the OP. No. 2 thai the Hon'ble High Court held that Sulabh International not being an industry, no industrial as well as labour laws can be thade application to the organization is total!)) out of place and misquoted.

The learned Authority after dealing with all the issues framed have finally opined as under:- It goes without saying that the O.P.s have caused considerable hardship to the applicant-employee by not paying him his righ'ful dies. Considering the plight of the low paid appiiccntemploYee, enormous suffering caused to him over a very long period of /ime and above all the provisions of A/fin/mu/n Wages, Act, 1948 providing for compensation up to . ten times of the amount short paid, I am of the considered opinion that the ends of justice shall be met f compensation equivalent to five times of the amount short paid to the appliccint i.e. (Rs. 61 765 X 5 308825/- (Rupees Three lakh' eight thousand eight hundred twenty five only) is also paid to the employee over and above the amount short paid. Thus a total amount of Rs.3,70590/- (Rupess Three lakh seventy thousand ye hundred ninety only) is required to be paid to the applicant-employee.

The petitioner organization , has entered into a Memorandum of Undersi; anding, as mentioned above, by which the services were rendered to the All India institute of Medical Sciences. The poor people from the lower strata of the society have been engaged for this putpose and they were given the wages less than the minimum wages prescribed, under the Minimum Wages Act. The organization may be a voluntary, but a poor person who has to fill his belly as well dependents members of the family cannot afford to be a volunteer. A person who bas acquired the minimum requirement in the life may do some voluntary service 'for a day or a two or maximum for a week but not on a permanent basis. The respondent No. 2 is a person whose survival depends .upon whatever given/paid by the employer or who is taking his services. If he works voluntary even for a day, his whole ftmily would be starving. Therefore, such a person cannot work vo j uniLiry even fr a day. One cannot epect he would be a volunteer for months and years together. 47, 1 am COnSCiOUS that aga.inst the judgment of the Patna High Court, the Union of India p led an SLP before the Supreme Court, which was dismissed as \ithdlrawn and thereafter a review was filed and the same was also dismissed. W.P.(C) Nos. 5944, 6059-68/2012 Page 33 o135 (cid:9) Therefire, no decision has been taken by the Supreme Court on the merits and the matter has been referred to the Larger Bench, which is still pending. I have no hesitation to say that on one side the petitioner is working for a

noble cause, on the other hand, by way of giving the colour of voluntary services, - it is exploiting the poor people. 1 am conscious that the view taken by this Court was different from the issue 49. in hand, therefore, there is no question of per incuriam and the violation of law of precedent. This Court would have been gone wrong if the same issue has been decided by this Court and the contrary vie:w is taken in the present case.

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 Jfldw(sw/a),wherei n it has been held that ordinarily no one wQuld willingly supply labour or service to another for less tha.n the minimum wage, when he knows thai. under the law he is entitled to get minimum wages for the labour or service pmvided by him. In view of that it is held that where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly, falls within the scope and ambit of the words forced labour' under Article 23. 5 1. Section 25 of the Minimum Wages Act provides that any contract or agreement,- whereby an employee either relinquishes or redtices his right to a minimum rate of wages or any privilege or concession accruing to him undeithis Act shall be null and void in so far as it puiorts to reduce the minimum rate of wages lixed under this Act.

Moreover, Section 2(e) of the Minimum Wages Act provides that the employer means any person who employs whether directly or through another WP.(C) Nos. 5944, 6059-68/2012(cid:9) -(cid:9) rage 34 of35 person or whether on behalf of himself or any other person one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act. 'i'herefore, finding no discrepancy in the impugned order, I confirm. the

53.(cid:9) ame. The present petitions, being without merits, re dismissed. No order as to costs.. cM. No0 i224Of2Q ffor stayl With the disposal of the petition itself the instant application has become inftuctuous. The same is disposed of accordingly. SURESH KAiT J. OCR)BER 18, 20112 R.S/sb S W.P.(C) Nos. 5944, 6059-68/20 12(cid:9).(cid:9)