Rajasthan High Court - Jaipur
Radhey Shyam Dhobi vs State Of Rajasthan And Ors. on 26 August, 1991
Equivalent citations: (1993)IIILLJ937RAJ, 1991(2)WLC142
JUDGMENT G.S. Singhvi, J.
1. In all these nine Writ petitions, common questions of law are involved and, therefore, it is proper to dispose them of by a common order. In order to decide the questions raised in these Writ Petitions, it would be appropriate to give a brief of the factual matrix of these Writ Petitions.
2. Petitioner Radhey Shyam Dhobi (Writ Petition No. 4656/90) was appointed as Hand Pump Mistry on temporary and contract basis by Panchayat Samiti, Jamuwa Ramgarh in pursuance of order dated 1.4.90 issued by the Vikas Adhikari, Jamuwa Ramgarh. In the order, it has been stated that the petitioner will be entitled to salary fixed by the State Government and his service is liable to be terminated in case the work is not found satisfactory and in case he is found to have violated office orders. It has also been mentioned in the order that the period of service will be extended on the basis of satisfactory performance and recommendations made by the Administrative Standing Committee of the Panchayat Samiti. The petitioner has stated that he was asked to start the duties as Hand Pump Mistry and was required to undertake the job of the repairs of hand pump in the rural areas which were initially installed by the Publi-cHealth Engineering Department. He has participated in the training of repairing of hand pumps installed by the Public Health Engineering Department. Petitioner has been discharging the duties which arc similar to those being discharged by the Mistries employed in the Public Health Department. The petitioner has been allotted 30 to 35 hand pumps for repairs. However, payment which is being made to the petitioner is not equal even to the minimum wage payable to the employees of the State of Rajasthan. The petitioner has claimed that he has a right to get salary in the regular pay scale of mistry as is admissible to persons holding the posts in corre -sponding cadre in the Public Health Department.
3. Facts given in the Writ Petition No. 4662/90 filed by Nand Kishore are more or less identical to those given in the Writ Petition of Radhey Shyam Dhobi. The main difference is that Nand Kishore was appointed in Panchayal Samiti Jamuwa Ramgarh on the basis of order dated 1.2.90, issued by Vikas Adhikari.
4. In Writ Petition No. 4729/90 filed by Inder Raj Meena the facts are similar to those set out in the Writ Petition of Radhey Shyam Dhobi. The main difference is that he was appointed under order dated 30.5.89 of the Vikas Adhikari Panchayat Samiti, Ramgarh.
5. In Writ Pettion No. 4845/90 Devki Nandan Joshi has also mentioned those facts which are set out in the Writ Petition of Radhey Shyam Dhobi. He was appointed under order dated 17.6.87.
6. All the four petitioners who have been referred to hercinabove, possess qualification of I.T.I, pass.
7. Petitioner in Writ Petition No. 521/90 has stated that it is a registered trade union. Its area of operation is in the district of Jaipur and larger number of its members have been employed throughout Jaipur district. Members of the petitioner-union have been appointed as hand pump Mistries in different Panchayat Samities of District Jaipur between 1983 to 1990. The members of the petitioner-union are required to repair and maintain the hand pumps which are installed by the State Government for the purpose of supply of potable and drinking water to the rural population of the State. The members of the petitioner-union have been forced to accept the conditions of employment which are wholly arbitrary. Under the compulsion of so-cial inequalities and poor economic conditions, they have accepted whatever conditions imposed by the Panchayat Samities for their service as hand pump Mistries. The petitioner has referred to the circular issued by the Government on 2.4.88 which contains conditions of service of the employees employed/engaged as hand pump Mistries. In the garb of appointment on the basis of contract, the members of the petitioner-union having been and are being dc- prived of the benefit of constitutional as well as legal provisions. As per provisions of Articles 14 and 16 read with Article 39(d) of the Constitution of India, the hand pump Mistries are entitled to salary at par to the employees working in the corresponding cadre in the Public Health Department. However, they arc being paid salary on yearly basis and the calculation of monthly payment is made with reference to each hand pump on which the members of the petitioner union are made to work. The petitioner has clai med that the respondents should be directed to regularise the pay scale of members of the petitioner union in parity with those who are wo rking on like posts in other departments of the State and to regularise its members in the service of the Panchayat Samities on the post of hand pump Mistries from the date of appointment. 1 The petitioner has also prayed that the condi tions contained in circular dated 23.4.88 which are unreasonable and which have been provided for making of payment less than the minimum wages be quashed and set aside.
8. The Writ petition No. 131/91 filed by Kshetriya Hand Pump Sudhar Sangharsh Sami-ti, the petitioner has staled that it is a union registered under the Trade Unions Act. Its members are working as hand pump Mistries in the Panchayal Samili, Hindaun. It has claimed that 31 persons arc its members and the writ petition has been filed on behalf of these persons. The petitioner has stated that all its members are fully trained to carry out the repair work of hand pumps. Most of them have undergone training under theDirectoratc of Technical Education of Jodhpur in the various training programmes undertaken by the District Rural Development Agency. Some of them have undertaken training under the Junior Engineers of Public Health Engincring Department. The petitioner has stated that its members are employed since January 1984 to March 1989 and they are continuously working under Panchayat Samili, Hindaun. The work undertaken by them is a whole time work. The work is allotted to them by the Gram Panchayat in accordance with the needs and availability of the persons. They are asked to undertake repairs of hand pumps in various programmes undertaken by the Public Health Engineering Department. Initially the members of the petitioner-union were given pay equal to Rs. 150/- per hand pump per year. The amount has been subsequently enhanced to Rs. 200/-per year per hand pump. At one time each hand pump Mistry had been given about 40 hand pumps but from 1987 the number has been fixed as 40. The petitioner has stated that in the garb of employment on contracl basis the State Government is exploiting the unemployed persons. Strange methodology has been adopted by the State Government to deprive the persons of the petitioner-union of salary in the regular pay scale. The petitioner has stated that Public Health Engineering Department has also in its service such hand pump Mistries and they are paid salary in the regular pay scale. The members of the petitioner-union are being subjected to discriminatory treatment. They are not being paid salary in the regular pay scale although they are carrying on the same type of work as is being carried out by hand pump Mistries employed in Public Health Engineering Department. Even the minimum wages are not being paid in terms of Section 5 of the Minimum Wages Act, 1948. The petitioner has asserted that the action of the Government as being violative of Articles 14, 16, 21, 23 and 39(d) of the Constitution of India as also in violation of the provisions of the Minimum Wages Act and the Government Notification dated June 25, 1990. The petitioner has claimed in the other writ petitions regarding payment of salary in the regular pay scale, regularisation of service and payment of at least minimum wages.
9. In Writ petition No. 283/91 Arjun Singh and Ors. it has been stated that the petitioners are employed as hand pump Mislries in various Gram Panchayats falling within the jurisdiction of Samili Weir, Dislrict Bharatpur. Other facts are similar to the the facts of the Writ Petition of Radhey Shyam Dhobi. The prayer made in this Writ Petilion is also more or less similar to the one which has been made in the other Writ Petitions.
10. In Writ Petition No. 387/91, facts are more or less similar to one set out in Writ Petition No. 5221/90. Some additional documents have been filed in this writ petition to show that the hand pump Mistries work under the control of Gram Panchayat and Panchayat Samities.
11. Petilioncrs in Writ No. 1512/91 have stated that they are employed as hand pump Mistries under Panchayat Samiti, Niwai. They are all trained persons and arc being exploited in the garb of employment on contract basis.
12. In their replies the Respondenls have admitted the factum of petitioners or members of the petitioner-unions working as hand pump mistries, however, it has been disputed that these hand pump mistries are employees of Panchayat Samities. In Radhey Shyam Dhobi's case it has been staled that the engagement of the petitioner is based on contract basis, a part-time job and not a full time job, there is nothing like relationship of master and servant between Pahchayat Samities and the hand pump mistrices. The work is of temporary nature and for undertaking this work, contractual employment has been given to the petitioners. It has been denied that they are discharging the duties at par with the hand pump mistries of Public Health Department. It has been asserted that they are not members of the Panchayat Samities and have no right either to gel salary in the regular pay scale or to get regularisation of their service. Similar replies have been filed in other Writ Petitions and the main bedrock of the contest made by the respondents is that none of the petitioners or the members of the unions are having relationship of master and servant with the Panchayat Samities. Their employment is purely of contractual nature for a specific job. They are not required to mark their attendance and are entitled to do their private work as well. The engagement is of part time nature and, therefore, none of the petitioners or the members of the petitioner-unions are entitled to the grant of salary in regular pay scale or regularisation in the service of Panchayat Samities.
13. In Writ Petition No. 131/91 a detailed reply has been filed contesting the claim of the petitioners. It has been stated that the Government had issued circulars dated 12.8.83 and 23.4.88 which contains guidelines regarding maintenance of hand pumps and in accordance with these guidelines of the Government, contractual engagement is made with the persons like petitioners. They are allotted specified number of hand pumps and arc paid on the basis of the work done by them.
14. Learned counsel for the petitioners have made three fold submissions. The first argument of learned counsel for the petitioners is that the petitioners are discharging the duties which are akin to the duties and the nature of work which is being undertaken by mistries in Public Health Engineering Department. In view of the similarity in the nature of the duties and the work, hand pump mislries employed in the Panchyat Samilics are entitled to be paid salary in the regular pay scale meant for mistries in Public Health Engineering Department. Articles 14 and 16 read with Article 39(d) of the Constitution of India have been referred to by the learned counsel for the petitioners in support of their argument that the petitioners or the members of the petitioner-unions should be given salary in the regular pay scale of mistries of Public HcalthEngineeringDepartment.
15. Learned Additional Govt. Advocate has contested these claims of the learned counsel for the petitioners by asserting that there is nothing on record to show that the hand pump mistries engaged in the Panchayat Samities are doing job which is identical to the one being performed by the mistries of the Public Health Engineering Department. As a matter of fact, the work of the hand pump mistries of the Panchayat Samities is of a totally different character. They are required to undertake repairs and maintenance of hand pumps allotted to them under the contract. They are not required to work under the control of the Panchyat Samities or the Gram Panchayats. They have a total freedom of work. According to the learned Additional Govt. Advocate, the claim of equal pay for equal work is admissible only if persons belonging to the same class or similar classes are discharging identical duties. The principle of equal pay for equal work cannot be invoked by the persons who do not hold similar posts and where the employer is not the same. Unless it is established as a matter of fact that the duties being performed by the hand pump mistries engaged in various Panchayat Samities are identical to those being done by the mistries of Public Health Engineering Department. The petitioners are not entitled to claim salary in the regular pay scale.
16. From the perusal of documents which are placed on record by the petitioners and the respondents, it does appear that the petitioners or the members of the petitioners unions are being engaged by the Panchayat Samities for undertaking the work of repair and maintenance of the hand pump under the circular issued by the Government on 12.8.83. The Panchayat Samities are required to make payment to hand pump mistries. Even under the circular dated 22.3.88, it has been made clear that the payment is to be made by the Panchayat Samities and Gram Panchayats have been made responsible to supervise the work of hand pump mistries. They are appointed by Panchayat Samities. They are granted leave etc. by Panchayats. They work under the direct control and supervision of Gram Panchayat and their continuance depends on satisfactory performance of duties. Thus there exists a relationship of employer and employee between the hand pump mislrics and the Panchayat Samitics. It is altogether a different matter that the employment is being given on contract basis or that the mode of payment is determined with reference to the each hand pump allotted to such hand pump mistries. However, existence of relationship is not sufficient to sustain the claim of the petitioner for payment of salary in the regular pay scale of mistries. The post of mistry in Public Health Engineering Department falls within the subordinate service cadre. Recruitment to these posts and conditions of service of the persons appointed to these posts are regulated by the provisions contained in the Rajasthan Engineering Subordinate Service(Public Health Branch) Rules, 1967. These Rules provide for the recruitment of various categories of mistries. These posts are required to be filled in by direct recruitment and promotion in accordance with the procedure Part IV and Part V of the 1967 Rules. A perusal of the Schedule appended to 1967 Rules shows that there is no post of hand pump mistry in the Public Health Engineering Department. It is not the case of the petitioners that they have been employed by the Panchayat Samities or the State Government after following the procedure prescribed in 1967 Rules. There is only a bald assertion of the petitioners in respect of their claim that they arc doing duties which are similar or identical to the duties being performed by hand pump mistries of Public Health Engineering Department. The nature of work of the petitioners is of course specified in the Writ Petitions but what duties are being performed by mislries of Public Health Engineering Department has not been mentioned in the Writ Petitions. Therefore, it is not possible to record a finding about the similarity or identity in the nature and quantum of duties being performed by hand pump mistries of Panchayat Samities with one of the mistries of Public Health Engineering Department. The claim of parity in the matters of pay and pay scales can be sustained only when it is found that persons employed in the same or identical cards under the same employer, who are doing similar work with reference to nature and quantum of job. Although there might not be a requirement of 100% identity in the nature and quantum of job but until and unless factual similarity is established, it is not possible to accept the plea of grant of salary in the regular pay scale at par with the employees of the Department. In these cases the petitioners have failed to make out a case for grant of salary in the regular lime scale prescribed for mistries of Public Health Engineering Department. Neither the posts arc identical nor the employer is the same and at the same time it is not established that the nature and quantum of duties of the holders of these posts are identical or at any rate the similar. Therefore, the first contention urged on behalf of the petitioner, fails and is rejected.
17. The second argument of the learned counsel for the petitioners is that the petitioners are in any event entitled to grant of minimum wages fixed by the State Government under the Minimum Wages Act, 1948. By making reference to the provisions of Article 23 of the Constitution of India, learned counsel has argued that there can be no justification whatsoever for denial of benefit of minimum wages to the hand pump mistries. Learned Additional Government Advocate has reiterated his submission that the cngagenment of the hand pump mistries is purely contractual. No relationship of master and servant can be said to have come into existence.
18. Apart from what is already observed in the Judgment while dealing with the first contention raised on behalf of the petitioners, it will be appropriate to refer to the circulars of the Government in some detail. In the circular dated 12.8.83, the Government had noticed that hand pumps have been installed in rural areas with the object of providing potable water to the rural population. However, a number of hand pumps were reported to be regularly mal-functioning and the difficulties were felt in leaving the matter of repair with the Public Health Engineering Department. It was realised that it is extremely difficult for the Department to maintain the hand pumps in the normal course. Informations regarding mal-functioning of the hand pumps arc received late and the Department has to bear a lot of expenditure for repair and maintenance. The Government, therefore, took a decision in the year 1982 that maintenance of hand pumps will be undertaken by the concerned Gram Panchayat. A circular dated 8.6.82 was issued for this purpose. Subsequently, other circulars were also issued. After having evaluated the working of the new system, the Government issued circular dated 12.8.83 in order to fix the responsibilities on various agencies. In para 3 of circular dated 12.8.83 it has been provided that till the availability of hand pump mislries in the local areas, it will be the responsibility of the Department to maintain the hand pumps even after the employment of hand pump mistries in the Panchayal Samitics. Moreover repair work will have to be undertaken by the Department and the Department was to assist in the training of hand pump mistries and the filters etc. The training programmes were required to be organised by the special schemes organisations. It was the responsibility of the Panchayat Samities to see that all hand pumps in its jurisdiction functioning properly. The Panchayat Samities were required to send the hand pump mistries for training to appoint them after return from training and to make payment per month. These hand pump mislries were required to work as part time employces. It came to be provided that hand pump mistries will be entitled to undertake their personal work apart from maintenance of hand pumps. Panchayat Samilics have been made responsible for supervision and excess payment is not required to be made and if hand pump mistry does not work properly his explanation is required to be called and he could be removed by the Standing Committee in ease it is found that the work is not salisfactory. The duties of the hand pump mistries have also been specified in para 5 and Gram Panchayats have been made responsible for the day to day supervision for work of hand pump mistries. Circular dated 23.4.88 has been issued in continuation of circular daled 12.8.83. It is again emphasised in this circular that payment is made by the Panchayal Samilies lo trained hand pump mistries on parl lime basis and the specified work is lo be allolled lo these hand pump mistries. Olher co-ndilions are more or less similar lo the one contained in the previous circular. Learned counsel for the petilioncrs have placed reliance on the decisions of the Supreme Court in Dharangadhra Chemical Works Ltd. v. State of Saurashtra and Ors. AIR 1957 SC 264 :1957 (1) LLJ 477 and MA. Shining Tailors v. Industrial Tribunal II, U.P. Lucknow and Ors. 983 (2) LLJ 413. In support of their submission that even a piece-rated employee is a workman. This proposition has not been disputed by the learned counsel for the Respondents.
19. Article 47 of the Constitution of India; which finds place in Chapter IV, imposes a duty on the State to raise the level of nutrition and standard of living into improved public health. This is treated as primary duty of the State. Providing of potable and drinking water to the majority of the population of the State which lives in villages, is thus not only a moral but a constitutional obligation of the State. Precisely, in order to discharge its constitutional obligation, the State has installed hand pumps in different parts of the State. This activity has been undertaken by the Public Health Engineering (Department. Repair and maintenance of these hand pumps is of the same importance as is their instalment. State is under obligation to make provisions for repair and maintenance of the hand pumps. In the absence of continuous repair and maintenance, the object of providing potable and drinking water to the rural population will certainly be defeated. Initially the burden of repair and maintenance was of the Public Health and Engineering Department. However, due to administrative difficulties, it was decided by the Government that this responsibility should be transferred to the Panchayat Samities and Gram Panchayats. The various circulars issued by the Government do show the anxiety of the Government that the repair and maintenance work of the hand pump should be given top priority and should be done continuosly. Obviously, for doing this job, the Public Health and Engineering Department employed its own staff, when this job was being done by the Deparment. Panchayat Samities and Gram Panchayats also required staff for this very purpose. The work of repair and maintenance can only be done by technically trained persons and, therefore, schemes were devised to impart training to those who desired lo undertake this work. Employment of these persons as hand pump mistries is due to the necessity of the continued repair and maintenance of the hand pumps However, while employing these persons a noble mechanism has been evolved by the Respondents of engaging these persons by way of contract. This was being done by providing employments in their factories and industries and is still being done. They engage persons on contract basis and make payment on piece rate basis. This is precisely what has been done by 5 the Respondents in the present case by issuing orders seeking to engage hand pump mistries on contract basis. Payment is made to them on annual basis with reference to each hand pump which is required to repair and maintain by such ] hand pump mistries. Since the respondents had the absolute say in the matter of employent/ engagement of these persons, they laid down terms and conditions according to their choice and the petitioners were hardly in a position to bargain or to dictate the terms on the question of conditions of service. Nevertheless, it is more than clear that howsoever disguise the conditions of service are, the hand pump mistries are engaged by the respective Panchayat Samitics. They were employed under the supervision and control of Panchayat Samities and Gram Panchayts. Their continuance depends on satisfactory performance of duties. Leave etc., is sanctioned by the Panchayat Samities/Gram Panchayats. Their contractual service can be terminated at any time if the performance is found to be unsatisfactory.
20. In Central Inland Water Transport Corporation Limited and Anr. v. Brojonath Ganguly and Anr. 1986-II LLJ 171, their Lordships of Supreme Court had considered the justification of the unreasonable conditions of employment in the form of terms of contract and after an elaborate and lucid analysis of various provisions of the Contract Act and a discussion with reference to the various English and American cases, their Lordships observed as under:-
"Under which head would an unconscionable bargain fall ? If it falls under the head of undue influence, it would be voidable but if it falls under the head of being opposed to public policy, it would be void. No case of the type before us appears to have fallen for decision under the law of contracts before any Court in India nor has any case on all fours of a Court in any other country been pointed out to us. The word "unconscionable" is defined in the Shorter Oxford English Dictionary, Third Edition, Volume II, page 2288, when used with reference to actions etc. as "showing no regard for conscience; irreconcilable with what is right or reasonable". An unconscionable bargain would, therefore, be one which is irreconcilable with what is right or reasonable.'' "The normal rule of Common Law has been that a party who seeks to enforce an agreement which is opposed to public policy will be non-suited. The case of A. Schroeder Music Publishing Co. Ltd. v. Macaulay, however, establishes that where a contract is vitiated as being contrary to public policy, the party adversely affected by it can sue to have it declared void. The case may be different where the purpose of the contract is illegal or immoral. In Kedar Nath Molani v. Prahlad Rai, reversing the High Court and resorting the decree passed by the trial court declaring the appellants, title to the lands in suit and directing the respondents who were the appellants' benamidars to restore possesion, this Court, after discussing the English and Indian Law on the subject, said (atpage873):
"The correct position in law, in our opinion, is that what one has to see is whether the illegality goes so much to the root of the matter that the plaintiff cannot bring his action without relying upon the illegal transaction into which he had entered. If the illegality be trivial or venial, as staled by Williston and the plaintiff is not required to rest his case upon that illegality, then public policy demands that the defendant should not be allowed to take advantage of the position. A strict view, of course, must be taken of the plaintiff's conduct, and he should not be allowed to circumvent the illegality by resorting to some subterfuge or by misstating the facts. If, however, the matter is clear and the illegality is not required to be pleaded or proved as part of the cause of action and the plaintiff recanted before the illegal purpose was achieved, then, unless il be of such a gross nature as to outrage the conscience of the Court the plea of the defendant should not prevail.
The types of contracts to which the principle formulated by us above applies are not correct which are tainted with illegality but are contracts which contains terms which are so unfair and unreasonable that they shock the conscience of the Court. They arc opposed to public policy and require to be adjudged void."
21. The aforesaid principle was applied by their Lordship of the Supreme Court on a rule framed by the Company which contains a term that the scvicc of an employee can be terminated at any time without assigning any reason by giving three months notice or pay in lieu thereof. The court held that such a provision was wholly unconstitutional and unreasonable and opposed to public policy.
22. On the strength of the aforesaid decision it must be held that the conditions laid down in the contract of employment of the petitioners which indirectly results in the denial of even of the minimum wages to the hand pump mistries is wholly arbitrary and opposed to public policy and is liable to be declared as violative of the Article 14 of the Constitution of India. 2
23. In Sanjit Roy v. State of Rajasthan 1983(1) LLJ 220 the Supreme Court had an occasion to consider denial of minimum wages to the employees who are engaged for famine relief work etc. Bhagwati, J. with whom Pathak J., concurred had laid down that every person who provides labour or service to another is entitled at least to the minimum wages. Para 3 of that Judgment contained the observations of the Court in the following words: -
"It is obvious that ordinarily no one would willingly supply labour or service to another for less than minimum wage, when he knows that under the law he is entitled to get minimum wage for the labour or service provi- " ded 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 t 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 t o 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 regaas '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 the 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 character, 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 education. 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 provisions. 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 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 remuneralion 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..."
24. Principle laid down in that case is applicable to the present cases and the petitioners arc entitled to be paid at least the minimum wage.
25. The third argument advanced by the learned counsel for the petitioners is that the Respondents should be directed to regularise their services because they have been in service for many years. In support of his submission, the learned counsel for the petitioners placed reliance on Catering Cleaners of Southen Railway v. Union of India: 1987-I LLJ 345, Daily Rated Casual Labour Employed under P & T Department v. Union of India and Ors : 1988-I LLJ 370 and Manu Khan and Ors. v. Union of India and Ors. 1989 Supp. (2) SCC 99.
26. I have gone through the decisions referred to by the learned counsel for the petitioners. In Daily Rated Casual Labour v. Union of India (supra) and in other cases, their Lordships of the Supreme Court have observed that it is not wise also that the employees are kept on temporary basis or are engaged as casual labour for long periods. The Court, therefore, directed the Government to formulate a scheme for regularisation of the services of temporary/casual employees working in P & T. Department and also in Railways. In my opinion, it is an eminently fit case in which the Government should consider the matter objectively and formulate a scheme for regularising the services of hand pump mistries employed in various Panchayat Samities. I would refrain from giving specific direction on the modalities of the scheme because it should be left to the Government to; decide as to what terms and conditions should be settled for regularising the service of these provisions.
27. The Writ Petitions are, therefore, allowed in part. The Respondents are directed to pay minimum wages as declared by the Government of Rajasthan to the petitioners and the members of the petitioner-unions with effect from 1.1.91. This dale has been chosen for the purpose of uniformity. The Respondents are directed to formulate a scheme for regularisation of the service of the hand pump mistries employed in various Panchayat Samities in the State of Rajasthan within a period of six months and then take steps of regularisation of services of these persons within next two months. The claim of the petitioners for grant of salary at par with mistries in Public Health Engineering Department is rejected. Parties are left to bear their own costs.