Jharkhand High Court
Mohiuddin Khan vs State Of Jharkhand & Anr on 17 May, 2012
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cont. Case (Civil) No. 611 of 2010
Mohiuddin Khan ...... Petitioner
Versus
The State of Jharkhand & Another ... Respondents
CORAM: HON'BLE MR. JUSTICE D. N. PATEL
For the Petitioner : Mr. Amit Sinha, Advocate
For the Respondents : Mr. Srijit Choudhary, G.A.
06/Dated: 17
th
May, 2012
1. Counsel for the applicant (original petitioner) in W.P.(S) No. 5169 of 2002 submitted that despite the order, passed by this Court dated 31 st July, 2003, which is at Annexure1 to the memo of the petition, the applicant has not been paid any remuneration for the work actually done by the applicant.
2. It is further submitted by the counsel for the applicant (original petitioner) that it is an admitted fact by the opposite parties that the applicant has actually worked with the opposite parties looking to the order at AnnexureB to the show cause, filed by the opposite parties. The only reason canvassed by the opposite parties for nonpayment of remuneration is the so called letter written by the applicant for not to accept the remuneration and to work without any remuneration.
3. Counsel for the applicant further submitted that the applicant has never written such type of letter to the opposite parties. No such letter or oral communication has been made by the applicant to the opposite parties to work without any remuneration. Alternatively, it is submitted by the counsel for the applicant that assuming without admitting that the applicant has given in writing, then also the right to life guaranteed under Article 21 of the Constitution of India to the applicant, cannot be waived, since per day's minimum wage has been prescribed by the State of Jharkhand for the post in question, to be paid for the work actually done by a daily wager.
4. Counsel for the applicant has relied upon a decision rendered by the Hon'ble Supreme Court in the case of Basheshar Nath Vs. Commissioner of IncomeTax, Delhi and Rajasthan and others, as reported in A.I.R. 1959 SC 149.
5. Counsel for the opposite parties submitted that a detailed show cause has been filed, enclosing therewith, the order dated 4 th December, 2004 at AnnexureB, which has been passed by the opposite parties to the effect that 2. the applicant has given in writing not to accept any remuneration and to do the work without remuneration and that the applicant will do the work to gain experience and therefore, he has not been paid any remuneration.
6. Having heard counsel for both the sides and looking to the facts and circumstances of the case:
(i) it appears that the opposite parties have not placed on record any communication given by the applicant to the opposite parties, waiving his right to life i.e. right to get bare minimum remuneration for the work actually done by him. Moreover, the applicant cannot waive his fundamental rights especially which is guaranteed by Article 21 of the Constitution of India. Right to get a minimum wage has a direct nexus with the right to life.
(ii) it has been held by the Hon'ble Supreme Court in the case of People's Union for Democratic Rights and Others Vs Union of India and Others, as reported in (1982) 3 SCC 235, especially at Para11 and 14, as under:
"11. That takes us to a consideration of the other limb of the second preliminary objection. The argument of the respondents under this head of preliminary objection was that a writ petition under Article 32 cannot be maintained unless it complains of a breach of some fundamental right or the other and since what were alleged in the present writ petition were merely violations of the labour laws enacted for the benefit of the workmen and not breaches of any fundamental rights, the present writ petition was not maintainable and was liable to be dismissed. Now it is true that the present writ petition cannot be maintained by the petitioners unless they can show some violation of a fundamental right, for it is only for enforcement of a fundamental right that a writ petition can be maintained in this Court under Article 32. So far we agree with the contention of the respondents but there our agreement ends. We cannot accept the plea of the respondents that the present writ petition does not complain of any breach of a fundamental right. The complaint of violation of Article 24 based on the averment that children below the age of 14 years are employed in the construction work of the Asiad projects is clearly a complaint of violation of a fundamental right. So also when the petitioners allege nonobservance of the provisions of the Equal Remuneration Act, 1946, it is in effect and substance a complaint of breach of the principle of equality before the law enshrined in Article 14 and it can hardly be disputed that such a complaint can legitimately form the subjectmatter of a writ petition under Article 32. Then there is the complaint of non observance of the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and the InterState Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 and this is also in our opinion a complaint relating to violation of Article 21. This article has acquired a new dimension as a result of the decision of this Court in Maneka Gandhi v. Union of India and it has received its most expansive interpretation in Francis Coralie Mullin v. Administrator, 3. Union Territory of Delhi where it has been held by this Court that the right to live guaranteed under this article is not confined merely to physical existence or to the use of any faculty or limb through which life is enjoyed or the soul communicates with outside world but it also includes within its scope and ambit the right to live with basic human dignity and the State cannot deprive any one of this precious and invaluable right because no procedure by which such deprivation may be effected can ever be regarded as reasonable, fair and just. Now the rights and benefits conferred on the workmen employed by a contractor under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and the InterState Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 are clearly intended to ensure basic human dignity to the workmen and if the workmen are deprived of any of these rights and benefits to which they are entitled under the provisions of these two pieces of social welfare legislation, that would clearly be a violation of Article 21 by the Union of India, the Delhi Administration and the Delhi Development Authority which, as principal employers, are made statutorily responsible for securing such rights and benefits to the workmen. That leaves for consideration the complaint in regard to nonpayment of minimum wage to the workmen under the Minimum Wages Act, 1948. We are of the view that this complaint is also one relating to breach of a fundamental right and for reasons which we shall presently state, it is the fundamental right enshrined in Article 23 which is violated by non payment of minimum wage to the workmen.
14. 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 State 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 provided by him. It may therefore be legitimately presumed that when a 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 compulsion 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 a person is forced to provide and "force"
which would make such labour or service "forced labour" may arise in several ways. It may be physical force which may compel a person to provide labour or service to another 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 and destitution. Any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action may properly be regarded as "force" and if labour or service is compelled as a result of such "force", it would be "forced labour". Where a person is suffering from hunger or starvation, when he has no resources at all to fight disease or to feed his wife 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 rigour of his poverty, he would have no choice but to accept any work that comes his way, even if the remuneration offered to him is less than the minimum wage. He would be in no position to bargain with the employer; he would have to accept what is offered to him. And in doing so he would be acting not as a free agent 4. with a choice between alternatives but under the compulsion of economic circumstances and the labour or service provided by him would be clearly "forced labour". There is no reason why the word "forced" should be read in a narrow and restricted manner so as to be confined only to physical or legal "force" particularly when the national charter, its fundamental document has promised to build a new socialist republic where there will be socioeconomic justice for all and everyone shall have the right to work, to education and to adequate means of livelihood. The Constitutionmakers 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 for 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 would advance the socioeconomic objective of the Constitution. It is not unoften that in a capitalist society economic circumstances exert much greater pressure on an individual in driving him to a particular course of action than physical compulsion or force of legislative provision. The word "force" must therefore be construed to include not only physical or legal force but also force arising from the compulsion of economic circumstances which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wage. Of course, if a 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 inference can reasonably be drawn in such a case that he is forced to provide labour or service for the simple reason that he would be providing 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 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 would be entitled to come to the court for 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 him ceases to be "forced labour" and the breach 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 really in effect and substance a complaint against violation of the fundamental right of the workmen under Article 23.
(Emphasis Supplied) Right to livelihood is included in the right to life because no person can live without means of living i.e. means of life. Non payment of the minimum wage is breach of Article 23 of the Constitution of India.
(iii) In view of the aforesaid decision, right to get a minimum wage is also a right to life and therefore, assuming without admitting that the applicant has given any communication in writing to the applicant it has got no value in the eye of law. The applicant is working since 5. long as alleged by the counsel for the applicant i.e. since 17.10.1998 to 31.07.2003 except 12.06.1999 to 22.07.1999. It ought to be kept in mind that the State is an ideal employer. There is a highly inequality so far as bargaining power is concerned. Mighty State is at one side and the poorest applicant on the other side. Nobody work without any remuneration, without any salary with the State. Applicant is not a professional that he is ready to work with the opposite partyState to get the experience.
(iv) Counsel for the applicant submitted that the applicant is only Matriculate and thus, the applicant was doing the highest work of ClassIII posts or he was performing duties of ClassIII.
7. In view of the above facts, I hereby, direct the opposite partyState to point out daily wage of ClassIII posts. I also direct the State to point out the exact period in terms of the day for which the applicant has worked. The applicant was working at the office of Civil Surgeon, Jainagar, Koderma and as per the counsel for both the sides he was preparing some mixture.
8. Post this matter on 19th May, 2012 to be listed under the heading "For Final Disposal".
9. Dr. Sunil Oraon, S/o Late Khudi Oraon, working as Civil Surgeon cumChief Medical Officer, Koderma, who is present before this Court, is directed to remain present before this Court on the next date of hearing also.
(D.N. Patel, J.) VK