Indian Kanoon - Search engine for Indian Law

Gujarat High Court

Gujarat Water Supply And Sewerage Board vs Pwd And Forest Employees Union on 1 August, 2023

Author: Ashutosh Shastri

Bench: Ashutosh Shastri

                                                                                  NEUTRAL CITATION




     C/LPA/727/2022                               ORDER DATED: 01/08/2023

                                                                                  undefined




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/LETTERS PATENT APPEAL NO. 727 of 2022
                                In
           R/SPECIAL CIVIL APPLICATION NO. 2516 of 2018
                               With
       CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2020
                                 In
             R/LETTERS PATENT APPEAL NO. 727 of 2022
==========================================================
          GUJARAT WATER SUPPLY AND SEWERAGE BOARD
                           Versus
               PWD AND FOREST EMPLOYEES UNION
==========================================================
Appearance:
MR HS MUNSHAW(495) for the Appellant(s) No. 1,2
for the Respondent(s) No. 9
ADITI S RAOL(8128) for the Respondent(s) No. 1,2,3,4,5,6,7
MR JAINIL PARIKH, AGP for the Respondent(s) No. 8
==========================================================
 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
       and
       HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                            Date : 01/08/2023

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)

1. By way of this appeal under Clause 15 of the Letters Patent, appellants- original respondent Nos.2 and 3, have challenged the legality and validity of order dated 30.9.2019 passed by learned Single Judge in Special Civil Application No.2516 of 2018 by virtue of which appellants have been made responsible jointly to pay minimum wages as per the provisions of Payment of Minimum Wages Act to original opponent Nos.1 to 7 herein.

                                Page 1 of 12

                                                      Downloaded on : Sat Sep 16 23:42:25 IST 2023
                                                                               NEUTRAL CITATION




     C/LPA/727/2022                           ORDER DATED: 01/08/2023

                                                                              undefined

2. Brief facts leading to rise of present Letters Patent Appeal are that original petition was filed by opponents for seeking the reliefs which are set out in the original petition basically raising a grievance that on the basis of principle of 'Equal Pay for Equal Work' under Article 39(d) of the Constitution of India, present appellants be directed to pay minimum wages commensurate with minimum wages prevalent in the State and same being not paid, a petition was brought before this Court with a consequential relief to pay interest at the rate of 12% till date of actual payment since their initial appointment.

3. Original petitioner No.1 is PWD & Forest Employees' Union, whereas petitioner Nos.2 to 7 are employees working on the basis of Lineman and Operator. All have passed on more than 5 years' period in service and they were originally engaged by contractor, i.e. original respondent No.2 Board. Since respondent No.2 Board is set up by Government of Gujarat and is a State instrumentality, is bound to pay wages as per wages prevalent in the State Policy and by enumerating figures of wages, a contention is raised that since Board is not ensuring Page 2 of 12 Downloaded on : Sat Sep 16 23:42:25 IST 2023 NEUTRAL CITATION C/LPA/727/2022 ORDER DATED: 01/08/2023 undefined that present opponents be paid minimum wages, a grievance is voiced out. After hearing both learned advocates appearing for the respective sides at length, by a detailed order dated 30.9.2019, learned Single Judge was pleased to allow the petition and it is this judgment and order which is made the subject matter of present Letters Patent Appeal under clause 15 of the Letters Patent before us.

4. Learned advocate Mr. H.S. Munshaw appearing on behalf of the appellants has vehemently contended that there are no pleadings to the effect that either the contractor or the appellant is not ensuring minimum wages prevalent at a relevant point of time and as such in absence such, learned Single Judge ought not to have granted the relief. It has been contended further that respondent Board is a Statutory Board, might be set up by State Government, but every policy of the State is not automatically made applicable, more particularly in respect of payment of wages. By raising a contention that learned Single Judge has passed order as if every policy is automatically applicable to the present appellant Board and its set-up and as such, such erroneous order which has been Page 3 of 12 Downloaded on : Sat Sep 16 23:42:25 IST 2023 NEUTRAL CITATION C/LPA/727/2022 ORDER DATED: 01/08/2023 undefined passed is not sustainable in the eye of law.

5. It has been further contended that there are no details since they were employees of the contractor and have retired or were discontinued since several years and as such, it is not possible for appellants now to implement the order and directions contained in the impugned judgment, more particularly in absence of any details about it and and as such, has contended that order deserves to be quashed and set aside.

6. As against this, learned advocate appearing on behalf of the opponents has submitted that order is passed by learned Single Judge after due application of mind and after relying upon broad proposition of law applicable to the controversy involved in the present proceedings and therefore when proposition of law has been kept in mind while exercising the discretion, such a well-reasoned order may not be interfered with. According to learned advocate, in exercise of appellate jurisdiction, even if a different view is possible, then in absence of any distinguishable material, such possible view may not be disturbed and as such has requested that Letters Patent Appeal Page 4 of 12 Downloaded on : Sat Sep 16 23:42:25 IST 2023 NEUTRAL CITATION C/LPA/727/2022 ORDER DATED: 01/08/2023 undefined being merit-less, same be dismissed.

7. Having heard learned advocates appearing for the parties and having gone through the material on record, ex-facie view of the order clearly indicates that while granting the reliefs sought by the original petitioners, learned Single Judge has not only minutely examined the facts but in co-relation to it, proposition of law laid down in catena of decisions is also taken into consideration and after assigning proper reasons, every material placed before him has been properly scrutinized and as such it is not possible for this Court to construe such order as suffering from any infirmity or any perversity. Since we are of this view, we may deem it proper to quote hereunder the observations contained in the relevant paragraphs of the order passed by learned Single Judge:

3.2 It is the case of the petitioners that that they are paid Rs.5000/- and Rs.4000/- only per month for the services rendered by them. It was stated that minimum wages prevalent in the State payable to the workers working in the drilling operations and maintenance of Tube Wells presently is Rs.7930/- per month approximately. The petitioners are paid less than the minimum wages, it is their clear grievance. It was further stated that the State Government Resolution dated 17th October, 1988 whereby the daily rated workman like the petitioners are given the various benefits on the basis of completion of particular number of years of service, came to be adopted by the respondent No.2 Board by issuing circular dated 08th June, 1989. Several daily rated workman Page 5 of 12 Downloaded on : Sat Sep 16 23:42:25 IST 2023 NEUTRAL CITATION C/LPA/727/2022 ORDER DATED: 01/08/2023 undefined doing work under the respondent No.2 Board, it was stated, have been clamoring for regularisation but the Board has not been extending justice. It was further stated that in order to stifle right of the daily rated employees, the respondent Board started to engage contract laborers for their works from the year 2005-2006. The daily wagers under the contract who are paid a meager amount as above and are being exploited.

4.1 When it was asserted on behalf of the petitioners that they were in service nevertheless, learned advocate for the Board was at his receiving end.

5. As far as the claim for minimum wage is concerned, it is the responsibility of the principal employer as well as the contract labourers even if the case of the respondent Board is taken on demur. Non payment of minimum wages to the labourers amounts to exploitation which is prohibited in law. Article 23 of the Constitution confers rights against exploitation, which reads as under, "23. Prohibition of traffic in human beings and forced labour:-(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

(2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose, 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.

5.1 The rights conferred under Article 23 of the Constitution is one such exception fundamental right which could be claimed not only against the State but against the private person as well. The right against exploitation by not paying minimum wages would be therefore claimable against the private contractor. 5.2 Section 21 of the Contract Labour (Regulations and Abolition Act), 1970 extracted hereinbelow mandates that payment of minimum wages is statutory responsibility of the principal employer as well as the contractor.

"21. Responsibility for payment of wages. -

(1) A contractor shall be responsible for payment of wages to each worker employed by him as contract labour and such wages shall be paid before the expiry of such period as may be prescribed.

(2) Every principal employer shall nominate a representative duly Page 6 of 12 Downloaded on : Sat Sep 16 23:42:25 IST 2023 NEUTRAL CITATION C/LPA/727/2022 ORDER DATED: 01/08/2023 undefined authorised by him to be present at the time of disbursement of wages by the contractor and it shall be the duty of such representative to certify the amounts paid as wages in such manner as may be prescribed.

(3) It shall be the duty of the contractor to ensure the disbursement of wages in the presence of the authorised representative of the principal employer.

(4) In case the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the the contractor and recover the amount so paid from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor."

                                Page 7 of 12

                                                         Downloaded on : Sat Sep 16 23:42:25 IST 2023
                                                                                    NEUTRAL CITATION




C/LPA/727/2022                                     ORDER DATED: 01/08/2023

                                                                                   undefined




5.4      In PWD Employees Union through President (supra), the

Letters Patent court considered the law emanating from the joint reading of Article 23 of the Constitution and provisions of the Contract Labour (Regulations and Abolition Act), 1970, further informed by the principles laid down in Peoples' Union for Democratic Rights (supra), held thus "6 Having considered the submissions of the learned advocates for the respective parties, we are inclined to accept the submission of Shri Shalin Mehta that the appellants could not have been ousted from seeking a relief of payment of minimum wages under Article 226 of the Constitution of India. The Supreme Court in the case of People's Union for Democratic Rights (supra)., has held as under:

"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 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 Page 8 of 12 Downloaded on : Sat Sep 16 23:42:25 IST 2023 NEUTRAL CITATION C/LPA/727/2022 ORDER DATED: 01/08/2023 undefined 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 socio-economic justice for all and everyone 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 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 alternatives to a person in want and compels him to provide labour or 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 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."

6.1 Therefore, a person is entitled to come to the Court for enforcement of his fundamental right under Article 23 of the Constitution of India asking the Court to direct payment of minimum wages. In effect it was a complaint against violation of Article 23 of the Constitution of India.

6.2 In the other judgment rendered by this Court in Writ Petition (PIL)No. 244 of 2014 after referring to decisions of the Supreme Court, this Court specifically observed as under: Page 9 of 12 Downloaded on : Sat Sep 16 23:42:25 IST 2023

NEUTRAL CITATION C/LPA/727/2022 ORDER DATED: 01/08/2023 undefined

"7. Reference could be made to the decision of the Supreme Court in the case of Hindustan Lever Limited Vs. B.N. Dongre and others, reported in AIR 1995 SC 817, wherein the Supreme Court explained the importance of the wages in life of the working classes. In the said judgment, the Supreme Court held that wages are among the major factors in the economic and social life of the working classes and the workers and their families depend almost entirely on wages to provide themselves with the three basic requirements of food, clothing and shelter. The other necessities of life like children's education, medical expenses, etc., must also come out of the emoluments earned by the breadwinner. Workers are therefore concerned with the purchasing power of the paypacket he receives for his toil. If the rise in the paypacket does not keep place with the rise in prices of essentials the purchasing power of the paypacket fails reducing the real wages leaving the workers and their families worse off. Therefore, if on account of inflation prices rise while the paypacket remains frozen, real wages will fall sharply. This is what happens in periods of inflation. In order to prevent such a fall in real wages different methods are adopted to provide for the rise in prices. In the costofliving sliding scale systems the basic wages are automatically adjusted to price changes shown by the costofliving index. In this way the purchasing power of worker's wages is maintained to the extent possible and necessary. However, leapfrogging must be avoided. If the prices of food, clothing and other necessities of life which even the lowest wage earner purchases month after month rise and the basic wage remains constant, real wage actually falls creating a problem for survival for the lowest wage earner and it is a common knowledge that this frequently happens during the period of inflation."

8. From the aforesaid discussion at length, as perused by us, we are of the view opinion that there appears no illegality or irregularity of any nature. Simply because as apprehended by learned advocate Mr. Munshaw that there may not be any relevant details, same would not be an excuse for not observing the order which has been passed after hearing at length and granting appropriate opportunity. In absence of any infirmity or in absence of any distinguishable material or in absence of any Page 10 of 12 Downloaded on : Sat Sep 16 23:42:25 IST 2023 NEUTRAL CITATION C/LPA/727/2022 ORDER DATED: 01/08/2023 undefined perversity of any nature, discretion exercised by learned Single Judge is clearly in consonance with proposition of law and as such we are of the clear opinion that no case is made out to call for any interference.

9. It is trite law that in absence of any perversity or material irregularity or in absence of any distinguishable material, possible view which has been adopted by the Court on the basis of material available, same may not be substituted and as such, keeping in view such proposition of law and in absence of any peripheral scope of Letters Patent Appeal, we are of the view that present Letters Patent Appeal is not entertainable. At this stage, we may deem it proper to quote relevant observations on the issue of scope of interference in Letters Patent Appeal which are contained in the decision in the case of Management of Narendra & Company Private Limited v. Workmen of Narendra & Company reported in (2016) 3 SCC 340:-

"5. Once the learned Single Judge having seen the records had come to the conclusion that the industry was not functioning after January 1995, there is no justification in entering a different finding without any further material before the Division Bench. The Appellate Bench ought to have noticed that the statement of MW 3 is itself part of the evidence before the Labour Court. Be that as it may, in an intra-court Page 11 of 12 Downloaded on : Sat Sep 16 23:42:25 IST 2023 NEUTRAL CITATION C/LPA/727/2022 ORDER DATED: 01/08/2023 undefined appeal, on a finding of fact, unless the Appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief."

10. In view of the aforesaid situation, as discussed above, we are of the opinion that present Letters Patent Appeal being merit-less, same is accordingly DISMISSED and order passed by learned Single Judge dated 30.9.2019 in Special Civil Application No.2516 of 2018 is hereby CONFIRMED.

11. Since main appeal is dismissed, pending Civil Application stands DISPOSED OF.

Sd/-

ASHUTOSH SHASTRI, J) Sd/-

(DIVYESH A. JOSHI,J) OMKAR Page 12 of 12 Downloaded on : Sat Sep 16 23:42:25 IST 2023