Karnataka High Court
The President Cinema Workers Union ... vs The Secretary Social Welfare And Labour ... on 28 January, 2005
Equivalent citations: ILR2005KAR1889, 2005(3)KARLJ621, (2005)IIILLJ63KANT, 2005 AIR - KANT. H. C. R. 717, (2005) 3 LAB LN 1114, 2005 LABLR 648, (2005) 3 KANT LJ 621, (2005) 3 LABLJ 63
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
ORDER Mohan Shantanagoudar, J.
1. The petitioner has sought for quashing the purported order of the 3rd respondent dated 22-1-2004 vide Annexure-'G' and also sought for a direction to respondents 1 to 3 to review and revise the minimum wages for Cinema workers as per the Minimum Wages Act, 1948 (the Act' for short),
2. On perusal of the document at Annexure-'G', it cannot be said that it is an order passed by the Labour Minister. It is only an opinion expressed by the Labour Minister and consequently, the same cannot be termed as an order of the State Government, and therefore, the first relief as prayed for in the writ petition by the petitioner cannot be granted.
3. In so far as the second relief as prayed for in the writ petition is concerned, the learned Counsel for the petitioner Smt. Sarojini Muthanna submitted that the Notification was issued in the month of July 1992 fixing the minimum wages and thereafter, no fresh Notification is issued by the State Government fixing the minimum wages for the Cinema workers till this day. She further submitted that, the Government should have reviewed and revised the minimum wages at least once in five years. Learned government pleader, per contra, submits that revising of minimum wages within five years is not mandatory and is directory.
To decide the said issue, it is relevant to note the provisions of Section 3(1) of the Act, which read thus:
"Section 3: Fixing of minimum rates of wages : (1) The appropriate Government shall, in the manner hereinafter provided.-
(a) fix the minimum rates of wages payable to employees employed in an employment specified in Part I or Part II of the Schedule and in an employment added to either Part by notification under Section 27:
Provided that the appropriate Government may, in respect of employees employed in an employment specified in Part II of the Schedule, instead of fixing minimum rates of wages under this clause for the whole state, fix such rates for a part of the State or for any specified class or classes of such employment in the whole State or part thereof;
(b) review at such intervals as it may think fit, such intervals not exceeding five years, the minimum rates of wage so fixed and revise the minimum rates, if necessary;
Provided that where for any reason the appropriate Government has not reviewed the minimum rates of wages fixed by it in respect of any scheduled employment within any interval of five years, nothing contained in this clause shall be deemed to prevent it from reviewing the minimum rates after the expiry of the said period of five years and revising them, if necessary, and until they are so revised the minimum rates in force immediately before the expiry of the said period of five years shall continue in force."
The aforesaid provisions make it clear that the minimum wages to be paid to the employees shall be reviewed and revised within the period not exceeding five years. However, if for any reason, the appropriate Government has not reviewed the minimum rates of wages fixed by it in respect of any schedule employment within any interval of five years, the minimum rates of wages in force shall continue to exist. In this case also, the minimum wages fixed in the Notification of July 1992 are in operation as on today in view of non-revising of the minimum rates of wages subsequently. It is not in dispute that the employment of the workers of petitioner Union is the schedule employment. The intention of the legislature can be gathered from the objects and reasons for enacting the Minimum Wages Act are as under:
"Objects and Reasons: The justification for statutory fixation of minimum wages is obvious. Such provisions which exist in more advanced countries are even more necessary in India, where workers' organisations are yet poorly developed and the workers' bargaining power is consequently poor.
2. The Bill provides for fixation, by the Provincial Governments, of minimum wages for employments covered by the Schedule to the Bill. The items in the Schedule are those where sweated labour is most prevalent or where there is a big chance of exploitation of labour. After a time, when some experience is gained, more categories of employments can be added and the Bill provides for additions to the Schedule. A higher period is allowed for fixation of minimum wages for Agricultural labour as administrative difficulties in this case will be more than in the other employments covered by the Schedule. The Bill also provides for periodical revision of the wages fixed.
3. Provision has been made for appointment of Advisory Committees and Advisory Boards, the latter for co-ordination of work of the Advisory Committees. The Committees and the Boards will have equal representation of employers and workmen. Except on initial fixation of minimum wages, consultation with the Advisory Committees will be obligatory on all occasions of revision.
4. In cases where an employer pays less than the minimum wages fixed by Provisional Governments, a summary procedure has been provided for recovery of the balance with penalty and for subsequent prosecution of the offending party.
5. It is not ordinarily proposed to make any exemptions in regard to employees of undertakings belonging to the Central Government except that difficulties might arise where the sphere of duty of such an employee covers more than one Province and when the rates of minimum wages fixed by the different Provinces may be different. For this purpose, a provision has been included that the minimum wages fixed by a Provincial Government will not apply to employees in any undertaking owned by the Central Government or employees of a Federal railway, except with the consent of the Central Government".
Thus it is clear that in order to avoid exploitation of Labour, this Enactment was passed. Looking to the said intention of the Legislature, while enacting the Minimum Wages Act, 1948, the Government should not have failed to review the minimum rates of wages fixed by it as back as in the year 1992. It is unfortunate that there is no revision of minimum wages for the last 13 years. The Government cannot take shelter under proviso to Section 3(1) (b) of the Act for postponing to issue the revised notification after five years. The Government cannot indefinitely postpone the issuance of revised notification fixing minimum wages, particularly in view of the intention of the Legislature. The Government shall as far as possible review the minimum rates of wages at such intervals not exceeding five years. Wherever, for any reason, the wages are not reviewed within the period of five years the same have to be reviewed within the reasonable period thereafter. In this case, as aforesaid, there is no revision of minimum wages for 13 long years. Definitely, the period of 13 years cannot be said to be reasonable period.
4. The wages to be paid to the workman are the expenses which have to be met whether the Company works, makes a profit or not. So far as minimum wages due to a workers are concerned, the law requires that they should be paid first. Ordinarily no one would willingly supply labour or service to another for less than the minimum wages, 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. Where a person is suffering from hunger or starvation, when he has no resources at all to fight disease or to feed his family, where utter grinding poverty has reduced him to a state of helplessness and where no other employment is available to overcome his poverty, he would have no choice but to accept any work, even if the remuneration offered to him is less than the minimum wage. He would be in no position to bargain with the employer and consequently, he would have to accept what is offered to him. Thus, the services provided by him under the compulsion of economic circumstances would be clearly 'forced labour1 which is prohibited under Article 23 of the Constitution of India. The word 'force1 not only means physical or legal force, but also force arising from compulsion of economic circumstances which leaves no choice of alternatives to a person in need and compels him to provide services even if the remuneration received is less than the minimum wage.
Though in this matter, the workers of the petitioner Union are paid wages in terms of the minimum wages fixed in the year 1992, the same cannot be said to be adequate, in as much as, the minimum wages fixed in the year 1992 are not updated as and when required under law. Thus, under such circumstances it can be very well said that the inaction on the part of the Government in not reviewing & refixing the minimum rates of wages for 13 long years, is violative of Article 23 of the Constitution of India. At this stage, it will be useful to refer to the observations of the Apex Court in the case of PEOPLE'S UNION FOR DEMOCRATIC RIGHTS AND ORS. v. UNION OF INDIA AND ORS., (1982) 3 Supreme Court Cases 235 which read thus;
"Para 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 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 socio-economic 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 ceased 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."
The Division Bench of the Kerala High Court in the case of GOVERNMENT ENGINEERING COLLEGE v. SREENIVASAN, (1993) II LLJ 213 has observed thus:
"Minimum Wages Act is a pre-constitution enactment and the provisions contained therein have to be read subject to the provisions of the Constitution where a person is compelled by force of circumstances like hunger or poverty to provide labour or service to another for wages which is less than the minimum charges, the labour or service provided by him clearly falls within the scope and ambit of the words 'forced labour' under Article 23 of the Constitution of India. In such a situation unless the infraction of the Constitutional rights is writ large, this court has the obligation to enforce the Constitutional guarantee contained in Article 23 of the Constitution of India."
In view of the above, it is clear that the Government's inaction in this case is violative of Article 23 of Constitution of India.
The Notification of July 1992 was issued as per the cost price index that prevailed in the year 1992. Having regard to the present day cost of living, the State Government should have made efforts to issue notification fixing the revised minimum rates of wages to the workers of the petitioner-Union. Thus, in order to enforce the Constitutional guarantee contained in Article 23 of Constitution of India, the following order is made:
The 1st respondent is directed to review and revise the minimum wages for Cinema workers in accordance with law, particularly having regard to Sections 3, 4 and 5 of the Act within six months from today after hearing the management, as well as, the representatives of the petitioner's Union.
Writ petition is disposed of accordingly.