Allahabad High Court
Madhyan Bhojan Rasoiya Mazdoor Sangh ... vs Union Of India Throu Secy.Ministry Of ... on 8 February, 2023
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 17 Case :- WRIT - A No. - 3479 of 2015 Petitioner :- Madhyan Bhojan Rasoiya Mazdoor Sangh Husainganj Lko. Respondent :- Union Of India Throu Secy.Ministry Of Human Resources And Ors. Counsel for Petitioner :- Mrinal Chandra,Pradeep Saran Counsel for Respondent :- C.S.C.,A.S.G.,Archana Singh Tomar,G.M.Kamil,Neeraj Chaurasia Hon'ble Pankaj Bhatia,J.
1. Heard Shri Mrinal Chandra, learned counsel for the petitioner; Shri Dev Rishi Kumar, learned counsel for respondent/Union of India and Shri Mukund Madhav Asthana, learned counsel appearing for the Mid Day Meal Authority.
2. Present petition has been filed highlighting the plight of workers who are engaged in preparing the mid day meals across various government run and government aided schools.
3. Contention of learned counsel for the petitioner is, that the petitioner is a union representing the persons who are employed as Cooks for preparing Mid Day Meal in the institutions run and aided by the government. The petitioner Union is a registered trade union. It is stated that with an aim of providing nutrition to the children in various schools of the District of Uttar Pradesh, Central Government and State Government, on cost sharing basis run a programme known as 'Mid Day Meal Programme' under the National Programme of Nutritional Support to Primary Education.
4. It is informed that the decision for providing nutritional support to the children initially flowed from the orders dated 28.11.2001 and 20.04.2004 passed by the Hon'ble Supreme Court in the case of People's Union for Civil Liberties v. Union of India & Ors. (Writ Petition (C) No.196 of 2001) (hereinafter referred to 'PUCL').
5. In terms of the directions given by the Supreme Court, Government Order dated 25.06.2004 (Annexure - 5) was issued wherein a decision was taken for providing Mid Day Meal to the students for a minimum period of 200 days in a calendar year. It was also provided that 25% of the expenses incurred for the said purpose shall be borne by the State through PMGY scheme, another 25% shall be provided by the State out of its own funds and the balance 50%, which includes the cost of grains,etc shall be provided by Union of India free of cost. The said Government Order also provided for constitution of a committee in the respective schools and at the Nagar Nigam levels.
6. In terms of the said Government Order, Cooks cum Helpers were to be appointed for a period of one year in different primary schools/junior high schools.
7. It is stated that Ministry of Human Resource Development, Government of India issued a letter dated 24.11.2009 whereby it was provided that the Cooks/Helpers preparing the Mid Day Meal in terms of the scheme would be entitled to an ''honorarium' of Rs.1,000/- per month.
8. It is also argued by learned counsel for the petitioner that Government Order dated 24.04.2010 (Annexure - 8) was issued for providing Mid Day Meal to various educational institutions managed by the State/local bodies, the non government aided colleges and Madarsas etc., and similar stipulation with regard to payment of honorarium of Rs.1,000/- per month was provided therein. In the said Government Order, it was further provided that the selection of the Cooks in respect of aided institutions, Madarsas, Self Help Groups and NGOs shall be done by them, however, in respect of the other institutions managed by the State and local bodies, the selection is to be done by the State. Thus, for the purpose of payment of quantum of honorarium, the institutions run by private management/madrasas on one hand and institutions run by Government/run under aid from government/managed by local bodies, on the other hand were treated on similar footing.
9. The quantum of honorarium was fixed through circular dated 29.07.10 at Rs.1,000/- per months to be paid by the Central Government and the State Government in the share as decided and recorded above.
10. Subsequently, by means of the order dated 09.07.2014 it was provided that the honorarium to the Cook cum Helper, shall be paid only for 220 working days and/or for a period of 10 months in a calendar year.
11. Learned counsel for the petitioner also places reliance on the Government Order dated 12.01.2015 wherein a similar stipulation has been made with regard to payment of honorarium for a period of 10 months. It is informed that subsequently the honorarium was increased from Rs.1,000/- per month to Rs.1,500/- per month and lastly vide Government Order dated 28.04.2022, the State Government took a decision to enhance the honorarium by a further amount of Rs.500/- to Rs.2,000/- per month, to be paid for a period of 10 months in a calendar year. Apart from the said amount of honorarium, a provision was made to pay the amount of Rs.500/- towards the dress allowance twice a year.
12. Contention of learned counsel for the petitioner is that while the petitioner are performing the job of Mid Day Meal,a semi skilled job, the honorarium paid to them is highly inadequate and also not even in consonance with the minimum wages which are being paid to similar persons who are performing semi skilled jobs.
13. To press the said submission, learned counsel for the petitioner places reliance on the Government Order dated 28.01.2014 wherein the State Government in exercise of powers under Section 3(1)(b) read with Section 3(2) of the Minimum Wages Act and in exercise of powers under Section 5(1)(b) of Minimum Wages Act after considering the various representations and after consulting the board re-evaluated the minimum wages in respect of the employement within various sectors and with a view to crystallize minimum wages across various sectors had taken a decision, categorizing the industries in groups from serial no 1 to 58 of the said order and rates of minimum wages payable to unskilled labour, semi skilled labour and skilled labour in respect of each of industries mentioned at Serial No.1 to 58 at the rate specified was provided for in the said Government Order.
14. He also draws my attention to entry at Serial No.22 of the said list, which includes Madarsas run by the Muslim Community where no fees is being taken, the private institutions run by religious institutions where no fees or minimum fees is being charged private coaching centres, private schools etc are clubbed together.
15. In respect of institutions included at Serial No.22, the Cooks have been placed as "semi skilled labourers", Specified institutions at entry no. 22 and the categorization of workers is quoted herein under:
परिशिष्ट - 1 परिशिष्ट - 1 के (क्रमांक 22) के सम्मुख उल्लिखित नियोजन के सम्बन्ध में श्रेणीकरण -
22 - (क) मुस्लिम सम्प्रदाय द्वारा संचालित किसी मदरसा, जहाँ विद्यार्थियों से कोई फीस नहीं ली जा रही है या नाममात्र की फीस ली जा रही है;
(ख) किसी धार्मिक या पूर्त संस्था द्वारा संचालित किसी प्राइवेट विद्यालय, जहाँ विद्यार्थियों से फीस नहीं ली जा रही है या नाममात्र की फीस ली जा रही है;
(ग) उ०प्र० बाल कल्याण परिषद द्वारा संचालित बाल वाड़ियों; और (घ) मान्यता प्राप्त किसी प्राइवेट विद्यालय, जिसे सरकार से सहायता मिल रही है, से भिन्न प्राइवेट कोचिंग कक्षाओं, प्राइवेट विद्यालयों, जिनमें नर्सरी स्कूल और निजी प्राविधिक संस्थाएं भी सम्मिलित हैं, में नियोजन ।
अकुशल - चपरासी, चौकीदार, रिक्शाचालक, माली, क्लीनर, बेलदार, मसालची. आया, बेयरा, केयर टेकर और इसी प्रकार का कार्य करने वाला कोई अन्य कर्मचारी चाहे उसे किसी भी नाम से पुकारा जाये।
अर्द्धकुशल -दफ्तरी, राजगीर (मैसन) रसोईया और इसी प्रकार का कार्य करने वाला कोई अन्य कर्मचारी चाहे उसे किसी भी नाम से पुकारा जाये।
कुशल- बस / ट्रक ड्राईवर, बढ़ई, प्लम्बर, इलेक्ट्रीशियन, लैब असिस्टेन्ट, टेलर, नर्स, कम्पाउण्डर, लिपिक/टंकक, लाईब्रेरियन / कॅशियर, कनिष्ठ लेखाकार, ज्येष्ठ लेखाकार, प्रधान लिपिक, हेड कैशियर और इसी प्रकार का कार्य करने वाला कोई अन्य कर्मचारी चाहे उसे किसी भी नाम से पुकारा जाये।
16. In the light of the same, the submission of learned counsel for the petitioner is that for the persons working as Cooks in Madarsas, the institutions managed by various religious institutions and the institutions managed by private bodies, they have been classified as semi skilled and the minimum wages have been fixed at Rs.6,325/- per month vide Governemnt Order dated 28.01.2014.
17. It is further informed that on 20.09.2022, the State Government has revised the minimum wages in respect of various categories specified in Government Order dated 28.01.2014 and the wages for the semi skilled labourers have been increased from Rs.6,325/- per month to Rs.10,483/- per month with a further provision for increase of dearness allowance every six months.
18. In the light of the said, the two-fold submission of learned counsel for the petitioner are firstly, that the charges being paid to the Cooks in pursuance to the scheme of the Union of India and the State Government being Rs.1,000/- per month enhanced to Rs.1,500/- per month and subsequently to Rs.2,000/- per month is nothing but 'another form of forced labour', which is prohibited under Article 23 of the Constitution of India and secondly,that the Union and the State are discriminating in paying wages to the petitioners members far less than what have been prescribed by the state for payment to cooks performing the same functions but employed elsewhere.
19. It is contended at the Bar that the Central Government itself in pursuance to the directions given by the Hon'ble Supreme Court has framed rules known as 'Code of Wages (Central) Rules, 2019' wherein certain norms have been prescribed for fixing the minimum wages. It is informed that the said Code of Wages (Central) Rules, 2019 received the assent and was notified in the Gazette on 08.08.2019. In the light of the said, he argues that non-providing the minimum wages as notified is nothing but ''exploitation' which is also prohibited under Article 23 of the Constitution of India.
20. He also argues that even the State Government has issued direction for payment of minimum wages to Cooks who are doing similar jobs but are employed by the Madarsas, other religious institutions, private educational institutions etc., and thus, there is no reason why the State Government and the Central Government should not extend the said benefit to the Cooks preparing Mid Day Meals in the government institutions.
21. He further argues that there is no rationale for fixing the limit of honorarium only for a period of 10 months in a particular calendar year.
22. He further argues that some of the Cooks making Mid Day Meals are employed on contract for a year and although in most of the cases the contracts are extended on yearly basis but in some cases the contracts are not extended without there being any remedy available to the poor cooks. In some cases the cooks making mid day meals have been employed for as long as 15 years on paltry amount of honorarium without any social security benefits being extended to them and the poor cooks,on account of their poverty are unable to make any grievance He argues that the Cooks of the Mid Day Meals are neither being given any financial security nor any social security and the Union and the State are exploiting the said Cooks.
23. He informs that this Court, noticing the plight of mid day meal cooks had passed an order in Writ - A No.9927 of 2020 (Chandrawati Devi v. State of U.P. & Ors.) wherein a similar issue ,with regard to payment of wages at the rate of Rs.1,000/- per month to the Cooks preparing Mid Day meal, was held to be other form of forced labour prohibited under Article 23 of the Constitution of India.The Court placing reliance on the judgment of the Hon'ble Supreme Court in the case of People's Union for Democratic Rights and Others v. Union of India and Others; (1982) 3 SCC 235 had allowed the writ petition and gave directions for payment of minimum wages to the Cooks across the State of Uttar Pradesh vide judgment dated 15.12.2020. He further argues that the said order was set aside in Special Appeal Defective No.123 of 2021 mainly on the ground that the relief granted by the Court was beyond what was prayed for in the said writ petition.
24. The Counsel appearing for respondents tried to justify the payment of honorarium at the rates specified by arguing that the Union Government with a view to improve health care in the school going children and with a view to impart education to the less priviledged class of the society, promoted the scheme for providing mid day meals to children, with a view to increase the reach of the scheme, fixed the honorarium, keeping in view the paucity of funds and need for maximising and achieving the laudible objective of the scheme.
25. It is further argued that the honorarium paid to cooks in terms of the scheme cannot be equated with wages, as is being argued by the petitioners.
26. In the light of rival submissions this court is to decide whether the honorarium paid to the cooks employed under the mid day meal scheme is adequate and whether they are facing discrimination vis a vis minimum wages being paid to cooks performing similar functions but in institutions other than government schools.
27. The issue as raised in the present writ petition has to be adjudged by adopting a social context judging technique while interpreting the rights of the members of the petitioner's association who are the disadvantaged section of the society being paid meagre honorarium for the jobs which they are performing in terms of the scheme.
28. The word ''honorarium' as defined in the Shorter Oxford Dictionary is ''an honorary reward, a fee for professional service rendered' and is used often mistakenly for the remuneration being paid on regular basis which are generally referred as ''salary' or ''wages'. The word ''honorarium' is generally a referable to the payments made for a performance which is for compensating some particular act.
29. The Hon'ble Supreme Court in the case of Karbhari Bhimaji Rohamare v. Shanker Rao Genuji Kolhe; (1975) 1 SCC 252 explained that for determining the payments made, it is the substance rendering the form of the essence of payment rather than its nomenclature which should be the guiding factor for determining the nature of payments made irrespective of the use of word ''honorarium' or ''salary' or ''allowance'. The Hon'ble Supreme Court recorded in Para - 6 as under:
"6. The whole controversy centres around the honorarium payable to the members of the Wage Board. It is contended on behalf of the appellant that Item 11 specifically lays down that the compensatory allowance shall mean the travelling allowance, the daily allowance or such other allowance which is paid to the holder of the office for the purpose of meeting the personal expenditure in attending the meeting of the committee or body or in performing any other function as the holder of the said office, and honorarium which is not mentioned there cannot be brought within the meaning of the words "such other allowance" found in that item as it is not an allowance. Reference is made to the dictionary meaning of the word "honorarium" and it is said that while the daily allowance is expected to meet the expenses of the member concerned while attending the meeting of the Board, the honorarium is in the form of a fee for performing his duties on those days. The Shorter Oxford Dictionary gives the meaning of the word "honorarium" as an honorary reward, a fee for professional service rendered, while one of the meanings of the word "salary" is, fixed payment made periodically to a person as compensation for regular work, remuneration for services rendered, fee, honorarium. Thus, in one aspect honorarium and fee are used almost as though they are interchangeable terms Even so, what was paid to the first respondent cannot be said to be a salary. It was not a fixed payment made periodically as compensation for regular work. We do not think that the dictionary meaning is of much help here. We are of opinion that the matter must be considered as a matter of substance rather than of form, of the essence of payment rather than its nomenclature. Even so, it is urged on behalf of the appellant that the payment of honorarium in this case could not have been for any purpose other than payment for services rendered on particular days on which the meetings of the Wage Board were held. We are not able to accept this contention."
30. The Code on Wages, 2019 defines the ''wages' in Section 2(y) as under:
"2. In this Code, unless the context otherwise requires.-
(y) "wages" means all remuneration whether by way of salaries, allowances or otherwise, expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and includes,--
(i) basic pay;
(ii) dearness allowance; and
(iii) retaining allowance, if any, but does not include--
(a) any bonus payable under any law for the time being in force, which does not form part of the remuneration payable under the terms of employment;
(b) the value of any house-accommodation, or of the supply of light, water, medical attendance or other amenity or of any service excluded from the computation of wages by a general or special order of the appropriate Government;
(c) any contribution paid by the employer to any pension or provident fund, and the interest which may have accrued thereon;
(d) any conveyance allowance or the value of any travelling concession;
(e) any sum paid to the employed person to defray special expenses entailed on him by the nature of his employment;
(f) house rent allowance;
(g) remuneration payable under any award or settlement between the parties or order of a court or Tribunal;
(h) any overtime allowance;
(i) any commission payable to the employee;
(j) any gratuity payable on the termination of employment;
(k) any retrenchment compensation or other retirement benefit payable to the employee or any ex gratia payment made to him on the termination of employment:
Provided that, for calculating the wages under this clause, if payments made by the employer to the employee under clauses (a) to (i) exceeds one-half, or such other per cent. as may be notified by the Central Government, of the all remuneration calculated under this clause, the amount which exceeds such one-half, or the per cent. so notified, shall be deemed as remuneration and shall be accordingly added in wages under this clause:
Provided further that for the purpose of equal wages to all genders and for the purpose of payment of wages, the emoluments specified in clauses (d), (f), (g) and (h) shall be taken for computation of wage.
Explanation.--Where an employee is given in lieu of the whole or part of the wages payable to him, any remuneration in kind by his employer, the value of such remuneration in kind which does not exceed fifteen per cent. of the total wages payable to him, shall be deemed to form part of the wages of such employee;"
31. Considering the fact that the amount called as ''honorarium' is paid to the Cooks on a regular basis for a regular work being done, it is nothing but wages as defined under Section 2(y) of the Code on Wages, 2019.
32. The Central Government in exercise of powers conferred by Section 67 of the Code on Wages, 2019 read with Section 24 of the General Clauses Act has notified the rules known as the Code on Wages (Central) Rules, 2019 and have been made applicable to the whole of India.
33. To test the other argument of learned counsel for the petitioner that the honorarium as being paid is nothing but other form of forced labour, it is relevant to notice the judgment of the Supreme Court in the case of People's Union for Democratic Rights (supra) wherein the Hon'ble Supreme Court has held as under:
12. Article 23 enacts a very important fundamental right in the following terms:
"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 purposes, 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."
Now many of the fundamental rights enacted in Part III operate as limitations on the power of the State and impose negative obligations on the State not to encroach on individual liberty and they are enforceable only against the State. But there are certain fundamental rights conferred by the Constitution which are enforceable against the whole world and they are to be found inter alia in Articles 17, 23 and 24. We have already discussed the true scope and ambit of Article 24 in an earlier portion of this judgment and hence we do not propose to say anything more about it. So also we need not expatiate on the proper meaning and effect of the fundamental right enshrined in Article 17 since we are not concerned with that article in the present writ petition. It is Article 23 with which we are concerned and that article is clearly designed to protect the individual not only against the State but also against other private citizens. Article 23 is not limited in its application against the State but it prohibits "traffic in human being and begar and other similar forms of forced labour" practised by anyone else. The sweep of Article 23 is wide and unlimited and it strikes at "traffic in human beings and begar and other similar forms of forced labour" wherever they are found. The reason for enacting this provision in the Chapter on Fundamental Rights is to be found in the socio-economic condition of the people at the time when the Constitution came to be enacted. The Constitution-makers, when they set out to frame the Constitution, found that they had the enormous task before them of changing the socio-economic structure of the country and bringing about socio-economic regeneration with a view to reaching social and economic justice to the common man. Large masses of people, bled white by wellnigh two centuries of foreign rule, were living in abject poverty and destitution, with ignorance and illiteracy accentuating their helplessness and despair. The society had degenerated into a status-oriented hierarchical society with little respect for the dignity of the individual who was in the lower rungs of the social ladder or in an economically impoverished condition. The political revolution was completed and it had succeeded in bringing freedom to the country but freedom was not an end in itself, it was only a means to an end, the end being the raising of the people to higher levels of achievement and bringing about their total advancement and welfare. Political freedom had no meaning unless it was accompanied by social and economic freedom and it was therefore necessary to carry forward the social and economic revolution with a view to creating socio-economic conditions in which every one would be able to enjoy basic human rights and participate in the fruits of freedom and liberty in an egalitarian social and economic framework. It was with this end in view that the Constitution-makers enacted the directive principles of state policy in Part IV of the Constitution setting out the constitutional goal of a new socio-economic order. Now there was one feature of our national life which was ugly and shameful and which cried for urgent attention and that was the existence of bonded or forced labour in large parts of the country. This evil was the relic of a feudal exploitative society and it was totally incompatible with the new egalitarian socio-economic order which "we the people of India" were determined to build and constituted a gross and most revolting denial of basic human dignity. It was therefore necessary to eradicate this pernicious practice and wipe it out altogether from the national scene and this had to be done immediately because with the advent of freedom, such practice could not be allowed to continue to blight the national life any longer. Obviously, it would not have been enough merely to include abolition of forced labour in the directive principles of state policy, because then the outlawing of this practice would not have been legally enforceable and it would have continued to plague our national life in violation of the basic constitutional norms and values until some appropriate legislation could be brought by the legislature forbidding such practice. The Constitution-makers therefore decided to give teeth to their resolve to obliterate and wipe out this evil practice by enacting constitutional prohibition against it in the Chapter on Fundamental Rights, so that the abolition of such practice may become enforceable and effective as soon as the Constitution came into force. This is the reason why the provision enacted in Article 23 was included in the Chapter on Fundamental Rights. The prohibition against "traffic in human beings and begar and other similar forms of forced labour" is clearly intended to be a general prohibition, total in its effect and all pervasive in its range and it is enforceable not only against the State but also against any other person indulging in any such practice.
13. The question then is as to what is the true scope and meaning of the expression "traffic in human beings and begar and other similar forms of forced labour" in Article 23? What are the forms of "forced labour" prohibited by that article and what kind of labour provided by a person can be regarded as "forced labour" so as to fall within this prohibition? When the Constitution-makers enacted Article 23 they had before them Article 4 of the Universal Declaration of Human Rights but they deliberately departed from its language and employed words which would make the reach and content of Article 23 much wider than that of Article 4 of the Universal Declaration of Human Rights. They banned "traffic in human beings" which is an expression of much larger amplitude than "slave trade" and they also interdicted "begar and other similar forms of forced labour". The question is what is the scope and ambit of the expression "begar" and other similar forms of forced labour'? Is this expression wide enough to include every conceivable form of forced labour and what is the true scope and meaning of the words "forced labour"? The word "begar" in this article is not a word of common use in English language. It is a word of Indian origin which like many other words has found its way in the English vocabulary. It is very difficult to formulate a precise definition of the word "begar", but there can be no doubt that it is a form of forced labour under which a person is compelled to work without receiving any remuneration. Molesworth describes ''begar' as "labour or service exacted by a Government or person in power without giving remuneration for it". Wilson's Glossary of Judicial and Revenue Terms gives the following meaning of the word "begar":"a forced labourer, one pressed to carry burthens for individuals or the public. Under the old system, when pressed for public service, no pay was given. The begari, though still liable to be pressed for public objects, now receives pay. Forced labour for private service is, prohibited." "Begar" may therefore be loosely described as labour or service which a person is forced to give without receiving any remuneration for it. That was the meaning of the word "begar" accepted by a Division Bench of the Bombay High Court in S. Vasudevan v. S.D. Mital [AIR 1962 Bom 53 : 63 Bom LR 774 : (1961-62) 21 FJR 441] . "Begar" is thus clearly a form of forced labour. Now it is not merely "begar" which is unconstitutionally (sic) prohibited by Article 23 but also all other similar forms of forced labour. This Article strikes at forced labour in whatever form it may manifest itself, because it is violative of human dignity and is contrary to basic human values. The practice of forced labour is condemned in almost every international instrument dealing with human rights. It is interesting to find that as far back as 1930 long before the Universal Declaration of Human Rights came into being, International Labour Organisation adopted Convention No. 29 laying down that every member of the International Labour Organisation which ratifies this convention shall "suppress the use of forced or compulsory labour in all its forms" and this prohibition was elaborated in Convention No. 105 adopted by the International Labour Organisation in 1957. The words "forced or compulsory labour" in Convention No. 29 had of course a limited meaning but that was so on account of the restricted definition of these words given in Article 2 of the Convention. Article 4 of the European Convention of Human Rights and Article 8 of the International Covenant on Civil and Political Rights also prohibit forced or compulsory labour. Article 23 is in the same strain and it enacts a prohibition against forced labour in whatever form it may be found. The learned counsel appearing on behalf of the respondents laid some emphasis on the word "similar" and contended that it is not every form of forced labour which is prohibited by Article 23 but only such form of forced labour as is similar to "begar" and since "begar" means labour or service which a person is forced to give without receiving any remuneration for it, the interdict of Article 23 is limited only to those forms of forced labour where labour or service is exacted from a person without paying any remuneration at all and if some remuneration is paid, though it be inadequate, it would not fall within the words "other similar forms of forced labour". This contention seeks to unduly restrict the amplitude of the prohibition against forced labour enacted in Article 23 and is in our opinion not well founded. It does not accord with the principle enunciated by this Court in Maneka Gandhi v. Union of India [(1978) 1 SCC 248 : AIR 1978 SC 597 : (1978) 2 SCR 621] that when interpreting the provisions of the Constitution conferring fundamental rights, the attempt of the court should be to expand the reach and ambit of the fundamental rights rather than to attenuate their meaning and content. It is difficult to imagine that the Constitution-makers should have intended to strike only at certain forms of forced labour leaving it open to the socially or economically powerful sections of the community to exploit the poor and weaker sections by resorting to other forms of forced labour. Could there be any logic or reason in enacting that if a person is forced to give labour or service to another without receiving any remuneration at all, it should be regarded as a pernicious practice sufficient to attract the condemnation of Article 23, but if some remuneration is paid for it, then it should be outside the inhibition of that article? If this were the true interpretation, Article 23 would be reduced to a mere rope of sand, for it would then be the easiest thing in an exploitative society for a person belonging to a socially or economically dominant class to exact labour or service from a person belonging to the deprived and vulnerable section of the community by paying a negligible amount of remuneration and thus escape the rigour of Article 23. We do not think it would be right to place on the language of Article 23 an interpretation which would emasculate its beneficent provisions and defeat the very purpose of enacting them. We are clearly of the view that Article 23 is intended to abolish every form of forced labour. The words "other similar forms of forced labour" are used in Article 23 not with a view to importing the particular characteristic of "begar" that labour or service should be exacted without payment of any remuneration but with a view to bringing within the scope and ambit of that article all other forms of forced labour and since "begar" is one form of forced labour, the Constitution-makers used the words "other similar forms of forced labour". If the requirement that labour or work should be exacted without any remuneration were imported in other forms of forced labour, they would straightaway come within the meaning of the word "begar" and in that event there would be no need to have the additional words "other similar forms of forced labour". These words would be rendered futile and meaningless and it is a well-recognised rule of interpretation that the court should avoid a construction which has the effect of rendering any words used by the legislature superfluous or redundant. The object of adding these words was clearly to expand the reach and content of Article 23 by including, in addition to "begar", other forms of forced labour within the prohibition of that article. Every form of forced labour, "begar" or otherwise, is within the inhibition of Article 23 and it makes no difference whether the person who is 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. Take for example a case where a person has entered into a contract of service with another for a period of three years and he wishes to discontinue serving such other person before the expiration of the period of three years. If a law were to provide that in such a case the contract shall be specifically enforced and he shall be compelled to serve for the full period of three years, it would clearly amount to forced labour and such a law would be void as offending Article 23. That is why specific performance of a contract of service cannot be enforced against an employee and the employee cannot be forced by compulsion of law to continue to serve the employer. Of course, if there is a breach of the contract of service, the employee would be liable to pay damages to the employer but he cannot be forced to continue to serve the employer without breaching the injunction of Article 23. This was precisely the view taken by the Supreme Court of United States in Baily v. Alabama [219 US 219 : 55 L Ed 191] while dealing with a similar provision in the Thirteenth Amendment. There, a legislation enacted by the Alabama State providing that when a person with intent to injure or defraud his employer enters into a contract in writing for the purpose of any service and obtains money or other property from the employer and without refunding the money or the property refuses or fails to perform such service, he will be punished with a fine. The constitutional validity of this legislation was challenged on the ground that it violated the Thirteenth Amendment which inter alia provides:"Neither slavery nor involuntary servitude ...... shall exist within the United States or any place subject to their jurisdiction." This challenge was upheld by a majority of the Court and Mr Justice Hughes delivering the majority opinion said:
"We cannot escape the conclusion that although the statute in terms is to punish fraud, still its natural and inevitable effect is to expose to conviction for crime those who simply fail or refuse to perform contracts for personal service in liquidation of a debt, and judging its purpose by its effect that it seeks in this way to provide the means of compulsion through which performance of such service may be secured. The question is whether such a statute is constitutional."
The learned Judge proceeded to explain the scope and ambit of the expression "involuntary servitude" in the following words:
"The plain intention was to abolish slavery of whatever name and form and all its badges and incidents, to render impossible any state of bondage; to make labour free by prohibiting that control by which the personal service of one man is disposed of or coerced for another's benefit, which is the essence of involuntary servitude."
Then, dealing with the contention that the employee in that case had voluntarily contracted to perform the service which was sought to be compelled and there was therefore no violation of the provisions of the Thirteenth Amendment, the learned Judge observed:
"The fact that the debtor contracted to perform the labour which is sought to be compelled does not withdraw the attempted enforcement from the condemnation of the statute. The full intent of the constitutional provision could be defeated with obvious facility if through the guise of contracts under which advances had been made, debtors could be held to compulsory service. It is the compulsion of the service that the statute inhibits, for when that occurs, the condition of servitude is created which would be not less involuntary because of the original agreement to work out the indebtedness. The contract exposes the debtor to liability for the loss due to the breach, but not to enforce labour."
and proceeded to elaborate this thesis by pointing out:
"Peonage is sometimes classified as voluntary or involuntary, but this implies simply a difference in the mode of origin, but none in the character of the servitude. The one exists where the debtor voluntarily contracts to enter the service of his creditor. The other is forced upon the debtor by some provision of law. But peonage however created, is compulsory service, involuntary servitude. The peon can release himself therefrom, it is true, by the payment of the debt, but otherwise the service is enforced. A clear distinction exists between peonage and the voluntary performance of labour or rendering of services in payment of a debt. In the latter case the debtor though contracting to pay his indebtedness by labour or service, and subject like any other contractor to an action for damages for breach of that contract, can elect at any time to break it, and no law or force compels performance or a continuance of the service."
It is therefore clear that even if a person has contracted with another to perform service and there is consideration for such service in the shape of liquidation of debt or even remuneration he cannot be forced, by compulsion of law or otherwise, to continue to perform such service, as that would be forced labour within the inhibition of Article 23. This article strikes at every form of forced labour even if it has its origin in a contract voluntarily entered into by the person obligated to provide labour or service (vide Pollock v. Williams [322 US 4 : 88 L Ed 1095] ). The reason is that it offends against human dignity to compel a person to provide labour or service to another if he does not wish to do so, even though it be in breach of the contract entered into by him. There should be no serfdom or involuntary servitude in a free democratic India which respects the dignity of the individual and the worth of the human person. Moreover, in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, a contract of service may appear on its face voluntary but it may, in reality, be involuntary, because while entering into the contract, the employee, by reason of his economically helpless condition, may have been faced with Hobson's choice, either to starve or to submit to the exploitative terms dictated by the powerful employer. It would be a travesty of justice to hold the employee in such a case to the terms of the contract and to compel him to serve the employer even though he may not wish to do so. That would aggravate the inequality and injustice from which the employee even otherwise suffers on account of his economically disadvantaged position and lend the authority of law to the exploitation of the poor helpless employee by the economically powerful employer. Article 23 therefore says that no one shall be forced to provide labour or service against his will, even though it be under a contract of service.
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 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.
34. In the light of what has been held by the Hon'ble Supreme Court, it is clear that the payment of Rs.1,000/- per month subsequent enhanced to Rs.1,500/- per month and then Rs.2,000/- per month is far below the minimum wages and is nothing but another form of forced labour.
35. In the affidavit filed by the respondents, there is no justification provided with regard to the quantum of amounts fixed by the Union of India except in Para - 12 of the counter affidavit it has been stated that the Programme Approval Board - Mid Day Meal Scheme has sanctioned the payment of honorarium at the rate of Rs.1,000/- per Cook cum Helper only in order to implement the Mid Day Meal Scheme, which is to be shared in the ratio as prescribed in between the Central Government and the State Government.
36. The said stand of the respondents, without there being any justification, clearly makes the same exploitative in nature. It is well settled that the State while framing a scheme/providing for beneficial measures has to take within its sweep that the method in achieving laudable objective of the schemes should also be within the framework of law and cannot be such so as to be exploitative in nature. The plight of the Cooks cum Helpers can be gazed from the fact that they are pursuing the litigation since the year 2015 and are fighting with the might of the State for a claim which is guaranteed to them under law by virtue of Article 23 & 24 of the Constitution of India.
37. Owing to their position in the society, they have done a commendable job in approaching this Court for agitating for their rights against the exploitation as guaranteed by the Constitution of India. Thus, I have no hesitation in holding that the payment of honorarium at rates far below minimum wages, to the Cooks cum Helpers who are engaged in providing Mid Day Meal is another form of forced labour and clearly prohibited under Article 23 and 24 of the Constitution of India.
38. Coming to the question of discrimination; it has been already recorded above that the State Government itself has classified various industries/establishments on the basis of the nature of the work being done by them and has further classified the workers in the category of skilled, semi skilled and unskilled and has kept the Cooks making Mid Day Meal in the institutions classified at Serial No.22 as semi skilled workers and has prescribed minimum wages for them at the rate of Rs.6,325/- per month through Government Order dated 28.01.2014 and which has been subsequently enhanced to Rs.10,483/- in terms of the Government Order dated 20.09.2022, there is no reason why the petitioners who are performing the same job but employed with the Government should not be extended the benefit of minimum wages as has been extended to the persons performing similar jobs but engaged by different employers. Thus, on that count also, the petitioners have been discriminated.
39. This Court cannot lose sight of the fact that the State has to act fairly being a welfare State and cannot take any decision which has the tendency to violate the fundamental values of our democracy which has to ensure dignity and equality of all human beings and good governance. In the present case by providing the honorarium of Rs.1,000/- per month, the Central and the State both have failed in ensuring the dignity of these Cooks cum Helpers and the said action certainly cannot be termed as good governance.
40. Thus, for all the reasons recorded above, the writ petition deserves to be allowed and ordered accordingly.
41. A mandamus is issued to the Central Government and the State Government to make necessary amendments in their circulars and to ensure payment of minimum wages to the Cooks cum Helpers employed and preparing the Mid Day Meal across the State of Uttar Pradesh in terms of the various circulars issued from time to time and the mandate of the Code of Wages (Central) Rules, 2019.
42. Although, there is no prayer made in the writ petition with regard to payment of arrears, this Court deems it fit and feels that it is the duty of the Court to extend the relief even if the same is not prayed for, particularly in respect of disadvantage section of the society namely Cooks who are working in pitiable conditions and for paltry amounts, as such, this Court deems it appropriate to issue directions to the respondents Union of India and the State Government to ensure payment of minimum wages fixed from time to time to the persons employed as Cooks cum Helpers for preparation of Mid Day Meals from the year 2014, the date on which a decision was taken by the State Government to hold that the Cooks preparing the meals in the institution would be classified as semi skilled and would be entitled to minimum wages w.e.f. 28.01.2014. The arrears of wages shall be paid to all the persons employed as cook cum helper individually after deducting the honorarium already paid to them within a period of four months from today. The Central Government and the State Government shall bear the burden in the ratio in which the honorariums were being paid by them. It is clarified that with effect from the date of delivery of this judgment, the Cooks cum helpers shall be paid remuneration at the rate of minimum wages fixed and modified from time to time,the burden shall be shared by the Central Government and the State Government in the Ratio in which they are bearing the financial burden under the scheme.
Order Date :- 8.2.2023 [Pankaj Bhatia, J.]
nishant