Misc. Case No. 2568 /2013 · High Court
Case Details
WP(C) 2489/2006 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY This case was initially filed by Braja Gopal Bhowmik, who retired as a Section O fficer in the Railways and was re-engaged on daily wage basis. The petitioner di ed during the pendency of the case and the deceased was substituted by his wife Smti Krishna Bhowmik through the order dated 12.9.2013 in the Misc. Case No.2568 /2013.
Legal Reasoning
2. Heard Mr. A Dasgupta, learned senior counsel appearing for the petitione r. The NF Railways is represented by the standing counsel Mr. AK Sarkar. The Cou rt also heard submission from the learned Amicus Curie Mr. I Choudhury. 3. The petitioner along with 3 other retired employees were re-engaged on d aily wage basis by the NF Railways during 1.1.1998 to 27.7.1998 for undertaking pressing administrative and accounts works which needed experienced hands. But w hen due wages were denied to them, a dispute was raised and after failure of con ciliation, the matter was referred by the Central Government for adjudication by the Central Industrial Tribunal cum Labour Court, Guwahati under Section 10 of the Industrial Disputes Act, 1947. Thereafter Reference Case No.18/2004 was regi stered and during the pendency of the dispute, the management paid wages only fo r the actual working days and salary for Sundays and other railway holidays were denied. Eventually the Industrial Tribunal was called upon to answer whether pe rsons on daily wage who work continuously over a period of time, are entitled to payment of salary for intervening holidays. 4. Through the impugned award dated 6.7.2005 (Annexure-A), the Tribunal not ed that the petitioner was engaged on daily wage basis and therefore their salar y during holidays was considered to be not payable. Since relief was refused, th e aggrieved workman has challenged the award through this petition. The Parliament enacted the Payment of Wages Act, 1936 (hereinafter refer 5. red as ’the Wages Act’) to regulate the payment of wages to employed persons of certain category. This Act is made applicable under Sub-section (4) of Section 1 , to persons employed directly or indirectly by the Railway Administration. The enactment does not provide for any separate classification for post-retired enga gement. Under Section 2(vi) (cid:28)wages (cid:29) is defined and according to Sub-clause (d), ’wages’ includes remuneration for holidays or leave period. Section 7 of the Act expects payment of full wages without deduction of any kind except those author ized by law. It may be noted that the Act does not permit deduction of wages aga inst holidays. 6. Since the core issue pertains to wages for holidays, it would be appropr iate to take note of the provisions of the Minimum Wages Act, 1948 (hereinafter referred as ’the Minimum Wages Act’). This Act was enacted for fixing minimum ra tes of wages in case of certain scheduled employments and so far as the objectiv es to be achieved, this Act and the Wages Act are complementary and share common goals. The procedure for fixing minimum rates of wages is prescribed under Sect ion 3 and Sub-section (3)(b)(ii) thereof provides that the rates of wages can be fixed by the day, by the hour or by the month. Under Section 13(i)(b), a day of rest for every seven days, is required to be provided to all employees and re muneration is required to be paid for the weekly rest day. Since penal consequen ces for defaulting employers is prescribed, the intention of the enactment is to strictly enforce the minimum payable benefits including the weekly holiday wage , as is discernable from the provisions of the Payment of Wages Act and the Mini mum Wages Act. 7. Having noted the essential provisions of the two applicable Municipal La ws on the issue of due wages, it may now be appropriate to notice Article 24 of the Universal Declaration of Human Rights, 1948, on the basis which the petitio ner has structured his claim. Under Article 24 of the Universal Declaration ever yone has the right to rest and leisure including reasonable limitation of workin g hours and paid holiday. Now the Court has to examine whether Universal Declara tion can be made applicable for addressing the holiday wage claim canvassed by t he petitioner. It must be borne in mind that the petitioner although retired was re-eng 8. aged for dealing with pressing works of the railways since the administrative an d accounts works required services of experienced persons. Therefore, the work d ischarged by the petitioner was of great utility to the railways. Now the questi on is whether the re-engaged retired employees can be treated as a different cat egory, vis-à-vis other railway employees, who receive holiday salary although th ey too are engaged on daily wage basis. Under Section 2(g) of the Minimum Wages Act, scheduled employment means employment specified in the schedule, or any pro cess or branch of work forming part of such employment. Those engaged for loadin g and unloading or in ashpit cleaning in the railways are included in the schedu le to the Minimum Wages Act, through notification(s) dated 24.4.1998 and 20.8.19 83. Consequently, the railway loaders and cleaner are entitled to the prescribed rate of wages including weekly holiday pay, under Section 13 of the Minimum Wag es Act. 9. Under Article 23 of the Constitution, beggar and other forms of forced l abour is prohibited in India. Subscribing to International Law and commitment to International Treaty is expected to be fostered by the State under Article 51 o f Constitution of India. The Parliament is conferred power under Article 253 to enact laws for implementation of International Agreement. Moreover the State is obliged to secure living wages, decent standard of life and enjoyment of leisure to all employed persons under Article 43 but this is within the Chapter of Dire ctive Principles, which are aimed at securing social and economic freedom by app ropriate State action. Although the Municipal Laws of our Country do not specifi cally provide for holiday wages to re-deployed retired railway officials, an imp lied obligation is cast on the Government through Article 51(c) and Article 253 to provide for holiday wages, in consonance with Article 24 of the Universal Dec laration of Human Rights, 1948, to which India is a signatory. When Article 21 provides for protection of life as a Fundamental guarant 10. ee and since life includes livelihood, in a situation where a person is deprived of minimum wages, such denial as a logical corollary will infringe the Fundamen tal Rights guaranteed under Article 21 of the Constitution. In the above backdrop, let us now reflect on the ratio of the Supreme Co 11. urt decision in Sanjit Roy vs. State of Rajasthan reported in AIR 1983 SC 328. I n this case minimum wages were not being paid to workers in Rajasthan engaged in Government Projects. In the context of the challenge raised on behalf of the de prived workers, the Apex Court examined the purport and true meaning of Article 23 as given earlier by the Court in People’s Union for Democratic Rights vs. Uni on of India reported in AIR 1982 SC 1473. Here the Court pointed out that the Co nstitution makers found the prevalent feudal practice of (cid:28)forced labour (cid:29) which t hey wanted to address. Therefore Article 23 was inserted in the Chapter on Funda mental Rights which the Apex Court said is intended to eradicate the pernicious feudal practice of (cid:28)forced labour (cid:29). The Court declared that the exploited indivi dual is to be protected not only against the State but also against private citi zens. The Court then considered whether Article 23 is breached when less than mi nimum wages is paid and answered the issue in the affirmative. Then in Sanjit Ro y (Supra) the Apex Court declared that workers engaged in Government Famine Reli ef Projects must be paid the minimum wages and helpless situations of the worker s can’t be exploited by the State. Commenting on another dimension of the situat ion, Justice R. S. Pathak as he was then, declared in his separate judgment that providing lesser wages to workers employed in drought and famine affected areas operate against Article 14 and can’t be allowed. The Court then declared that t he Rajasthan Famine Relief Works Employees (Exemption from Labour Laws) Act (21 of 1964) excluding applicability of Minimum Wages Act to this class of employmen t is violative of Article 23 of the Constitution. 12. Next let us consider the applicability of the Universal Declaration of H uman Rights on the petitioner’s claim for holiday salary. These declaration was adopted by the U.N. General Assembly on the 10th December, 1948. The experience of the Second World War was one of the key basis for acceptance of the Declarati on and these represent the Global expression of rights to which all human beings are inherently entitled. The Universal Declaration was adopted by a vote of 48 in favour, nil against, with eight absentions/absence and India was one of the a ffirming country. Article 24 of the Universal Declaration states: (cid:28)Everyone has the right to rest and leisure, including reasonable limitation on working hours and periodic holidays with pay (cid:29). 13. As a signatory to the Universal Declaration of Human Rights, 1948, India is obliged to ensure that dignity and worth of the human persons is protected a nd efforts must be made to liberate all human from exploitative practice and dig nity and worth of the human person is not subverted in this country. 14. On implementation of International Convention, the Supreme Court in Vish aka vs. State of Rajasthan (AIR 1997 SC 3011) has shown us the way to fill the v acuum in existing legislation. In this case the Court was considering a class ac tion to devise suitable mechanism to prevent sexual harassment of working women in all work places through judicial process. In the absence of suitable legislat ive measure, the Court after looking at the Fundamental Rights guaranteed by Art icle 14, 19, and 21 of the Constitution of India, went on to consider of the Uni versal Declaration and declared that International Convention which are not inco nsistent with the Fundamental Rights and are in harmony with our constitutional spirit must be read into the municipal laws of the country to promote constituti onal guarantee for our citizens. These guarantees include right of non-discrimin ation under Article 14 and right of life under Article 21. Referring to the obli gation of the Government under Article 51 and Article 253, the Supreme Court dec lared that in the absence of domestic law occupying the field, right to work wit h human dignity under Article 14 and 21 are to be ensured and interpretation of the Court should be to provide for application of the International Convention w hen non-discrimination is fundamental to out constitutional goal. The Court held that in the absence of any enacted domestic law in the field when there is no i n-consistency between the international Convention and domestic laws, the Intern ational Convention are to be read into and the lacunae in the domestic law can t herefore be filled up by borrowing from the International Convention. Through su ch interpretive exercise, the Apex Court in Vishaka (supra) has filled the gap t o ensure protection from sexual harassment in work place by laying down elaborat e guidelines which operated as the nation’s law till the void in the legislative measure was suitably addressed in 2013 by the Parliament. What therefore emerge s is that Vishaka ratio permits the court to borrow from the International Laws and Convention, when the domestic laws do not specifically provide for enforceme nt of obligations under International Conventions like the Universal Declaration of Human Rights, 1948. 15. In our country the Payment of Wages Act, which applies to employment und er the railways, holiday wages under Section 2(vi) is envisaged and Section 7 m akes it obligatory to pay full wages unless deduction is authorized by law. Simi larly Section 3(b)(iii) of the Minimum Wages Act provide for wages by the hour, by the day or by the month and Section 13(i)(b) provides for a weekly rest for e very 7 working days. Significantly the railway workmen who are engaged in loadin g/unloading and cleaning works, by virtue of being included in the schedule to t he Minimum Wages Act are entitled to holiday wages and since similar benefit is being denied to the petitioner, there is apparent breach of Fundamental Rights g uaranteed under Article 14 of the Constitution since both categories are engaged under the Railways and the work they perform are essential for the employer. Si nce the retired petitioner was re-deployed for addressing the pressing needs of the Railways and since their service was utilized for many months, the petitione r in my view can’t be paid lesser benefit as compared to those, who are engaged for other kinds of railway works like loading, clearing, etc. Article 24 of the Universal Declaration of Human Rights, 1948 envisages 16. right to rest and leisure and holiday with pay. Similarly Section 13(i)(b) of th e Minimum Wages Act also provides for a paid rest day for every 7 working days. Therefore if we read this in the context of the constitutional guarantees of Art icle 14, 21 and Article 23, by applying the ratio of People’s Union for Democrat ic Rights (Supra) and Vishaka (supra) it has to be declared that the petitioner is entitled to salary for the intervening holidays, although he was engaged on daily wage basis. Therefore the contrary finding of the Industrial Tribunal, Guw ahati in the Reference Case No.18/2004 is held to be incorrect and the same is q uashed. Here since the workman has died, the railways are directed to ensure dis bursal of the holiday wages for the relevant period to the legal heir, who has s ubstituted herself in place of the deceased writ petitioner. The dues should be disbursed expeditiously and in any case not latter than 3 months from today. 17. ost. With the aforesaid direction, the case stands allowed with no order on c