SANJIT ROY Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioner is the Director of a social action group called Social Work and Research Centre operating in and around Tilonia village in Ajmer district of the State of Rajasthan. The Social Work and Research Centre is a duty registered society and since February 1972, it has been actively engaged in the work of upliftment of Scheduled Castes and Scheduled Tribes in different areas and particularly in and around Tilonia village. It operates through various groups and the present writ petition has been filed by the petitioner for the purpose of remedying gross violations of the Minimum Wages Act, 1948 which have been discovered by one such group. These violations according to the petitioner, have been taking place in the following circumstances and they need to be redressed through judicial intervention. The Public Works Department of the State of Rajasthan is construing Madanganj Harmara Road close to village Tilonia and according to the State Government, it is part of famine relief work undertaken with a view to providing relief to persons affected by drought and scarcity conditions. The State Government in the Public Works Department has engaged a large number of workers for construction of this road and they include women belonging to Scheduled Castes. It is common ground that the minimum wages for a construction worker in Rajasthan is Rs. 7/- per day and it was asserted on behalf of the petitioner and not disputed on behalf of the State Government that the Notification fixing the minimum wages of Rs. 7/- per day does not specify any particular quantity of work to be turned out by the worker in order to be entitled to this minimum wage. Now the practice followed by the Public Works Department for engaging workers for the construction work is to issue an identity card to every resident in the famine affected area who registers himself with the Halka Patwari and the identity card would show the number of members in the family of the card-holder including males, females and children. Every resident in the famine affected area would be entitled to be employed in the famine relief work undertaken by the State Government on production of the identity card. This way a large number of workers including women belonging to Scheduled Castes are engaged in the construction work of the Madanganj-Harmara Road. The workers employed in this construction work are divided into gangs of 20 persons or multiple thereof and there is a separate muster roll for each such gang and the work done by it is measured every fortnight and payment is made by the Public Works Department to the mate who is the leader of the gang according to the work turned out by such gang during such fortnight. The Public Works Department has fixed a certain norm of work to be turned out by each gang before the workmen belonging to such gang can claim the minimum wage of Rs. 7/- per day with the result that if any particular gang turns out work according to the norm fixed by the Public Works Department the mate would be paid such amount as would on distribution give a wage of Rs. 7/- per day to the workmen constituting such gang, but if less work is turned out by such gang, payment to be made to the mate of such gang would be proportionately reduced and in that event, the wage earned by each member of such gang would fall short of the minimum of Rs. 7/- per day. The petitioner has stated in the writ petition that as a consequence of this practice followed by the Public Works Department workmen belonging to most of the gangs receive a wage very much less than the minimum wage of Rs. 7/- per day as illustrated by a few instances set out in Annexure I to the writ petition. The petitioner has also averred that even within the gang itself, differential payments are made to the workmen without any visible principle or norm and it is not uncommon that a worker who has put in full day's work throughout the period of the fortnight, may get less than the minimum wage of Rs. 7/- per day, while worker who has put in much less work may get payment more than the proportionate wage due to him. This system of payment adopted by the Public Works Department created considerable discontent amongst the women workers belonging to Scheduled Castes who were engaged in this construction work and on 21st Aug., 1981 about 200 to 300 such women workers approached the Social Work and Research Centre seeking advice as to what course of action should be adopted by them for the purpose of eliminating differential payments in wages and securing payment of minimum wage of Rs. 7/- per day for each worker. Mrs. Aruna Roy, the Development Co-ordinator of the Social Work and Research Centre thereupon contacted Shri Atul Gupta, Asstt. Collector and both of them immediately proceeded to the site of the construction work. On their arrival at the site, an impromptu meeting took place where the women workers gave vent to their grievances which included inter alia complaint in regard to the "wide difference in respect of payments made by mate to several gangs for the same category of work performed" and pointed out that "differentials in payments also existed between the women workers working in the same gang and performing the same category of work." Since these differential payments in wages were made by the Public Works Department to the gangs allegedly on the basis of the quantity of work turned out by each such gang and, according to the petitioner, there were, even within the gang itself, differentials in payment of wages to the workers resulting in perpetuation of inequality, the petitioner in his capacity as Director of the Social Work and Research Centre filed the present writ petition challenging the system of payment of wages to the workers and seeking a writ of mandamus directing the State Government to "comply with the prescribed rates of minimum wages under the Minimum Wages Act, 1948 as applicable in the State of Rajasthan."

(2.) When the writ petition reached hearing before us, the State Government produced the Rajasthan Famine Relief Works Employees (Exemption from Labour Laws) Act, 1964 (hereinafter referred to as the Exemption Act) and relying upon this statute, the State Government contended that since the construction work of Madanganj-Harmara Road was a famine relief work, the Minimum Wages Act, 1948 was not applicable to employees engaged on this construction work by reason of Section 3 of this Act. The Exemption Act is a Rajasthan statute enacted on 7th September, 1964 and it is deemed to have come into force with effect from 1st July, 1963. Section 2, Clause (b) of this Act defines "famine relief works" to mean "works already started or which may hereafter be started by the State Government to provide relief to persons affected by drought and scarcity conditions" and "Labour Law" is defined in Section 2 Clause (c) to mean " any of the enactments as in force in Rajasthan relating to labour and specified in the Schedule". The Minimum Wages Act, 1948 is one of the enactments specified in the Schedule to the Exemption Act. Then Section 3 of the Exemption Act proceeds to enact that "Notwithstanding.................. any such law." Section 4 of the Exemption Act excludes the jurisdiction of Courts and provides that "no Court shall take cognizance of any matter in respect of an employee of famine relief works under any Labour Law", which includes the Minimum Wages Act, 1948. Now if the Exemption Act were a valid piece of legislation, it is obvious that no workman employed in a famine relief work would be entitled to complain that he is paid less than the minimum wage because the applicability of the Minimum Wages Act, 1948 would be excluded by reason of Section 3 of the Exemption Act and the women workers engaged in the construction work of Madanganj Harmara Road would have to be content with whatever wage is paid to them even though it be less than the minimum wage of Rs. 7/- per day and their only complaint which would then survive would be that there is discrimination by reason of differential payment of wages to workmen doing the same quantity of work. The petitioner therefore sought leave to amend the writ petition by including a challenge to the constitutional validity of the Exemption Act and on such leave being granted, the petitioner filed an amended writ petition in this Court. The principal grounds on which the constitutionality of the Exemption Act was challenged were based on Arts. 14 and 23 of the Constitution. I am, for reasons which I shall presently state, of the view that the challenge under Article 23 is well founded and it is therefore not necessary to investigate the facts relating to the violation of Art. 14 and I accordingly propose to confine my judgment only to a consideration of the attack based on Article 23. If the Exemption Act is unconstitutional on the ground that it violates Article 23, it would be out of the way so far as the claim of the workmen for the minimum wage of Rs. 7/- per day is concerned and the only question then would be whether the workmen are entitled to the minimum wage of Rs. 7/- per day in any event or any deduction can be made from such minimum wage on the ground that the workmen have not turned out work according to the norm set down by the Public Works Department.

(3.) This Court had occasion to consider the true meaning and effect of Article 23 in a judgment given on 18th September, 1982 in Writ Petn. No. 8143 of 1981 - Peoples Union for Democratic Rights v. Union of India (reported in AIR 1982 SC 1473). The Court pointed out that the constitution makers, when they set out to frame the Constitution, found that the practice of 'forced labour' constituted an ugly and shameful feature of our national life which cried for urgent attention and with a view to obliterating and wiping out of existence this revolting practice which was a relic of a feudal exploitative society totally incompatible with the new egalitarian socio-economic order which "We the people of India" were determined to build, they enacted Article 23 in the Chapter on Fundamental Rights. This Article, said the Court, is intended to eradicate the pernicious practice of 'forced labour' and to wipe it out altogether from the national scene and it is therefore not limited in its application against the State but it is also enforceable against any other person indulging in such practice. It is designed to protect the individual not only against the State but also against other private citizens. The Court observed that the expression "other similar forms of forced labour" in Article 23 is of the widest amplitude and on its true interpretation it covers every possible form of forced labour, begar or otherwise, and it makes no difference whether the person forced to give his labour or service to another is remunerated or not. Even if remuneration is paid, labour supplied by a person would be hit by this Article if it is forced labour, that is, labour supplied not willingly but as a result of force or compulsion and the same would be the position even if forced labour supplied by a person has its origin in a contract of service. The Court then considered whether there would be any breach of Article 23 when a person provides labour or service to the State or to any other person and is paid less than the minimum wage for it and observed (para 15) :