Labourers Work[Ng on Salal
Hydro-Project Vs. State of Jammu & Kashmir & Ors [1983] INSC 20 (2
March 1983)
BHAGWATI, P.N.
BHAGWATI, P.N.
PATHAK, R.S.
SEN, AMARENDRA NATH (J)
CITATION: 1984 AIR 177 1983 SCR (2) 473 1983
SCC (2) 181 1983 SCALE (1)216
ACT:
Lobour Laws-Benefits and facilities provided
for workmen under Inter-State Migrant Workmen (Regulation of Employment and
Conditions of Service)Act,1979; Contract Labour (Regulation and Abolition) Act,
1970; Minimum Wages Act, 1948-Prohibition of child labour in construction work
under Art. 24 of Constitution-Implementation of.
HEADNOTE:
On the basis of a news item that migrant
workmen employed in tho Salal Hydro Electric Project were being denied the
benefits of various labour Iaws, the Peoples' Union for Democratic Rights
addressed a letter to an Hon'ble Judge of the Court requesting that the same be
treated as a writ Petition and justice be done to the workmen. The request was
acceded to and in compliance with a direction made, the Labour Commissioner,
Jammu, visited the site of the project, ascertained the position and submitted
two reports which disclosed inter alia that the project was being carried out
by the Government of India. The petition was heard on the basis of the reports
made and tho affidavits in reply filed by the Union of India pursuant to the directions
made in that behalf.
The National Hydro Electric Power Corporation
which had been entrusted with the execution of the work relating to the project
was carrying out certain portions of the work through workmen directly employed
by it and had entrusted the remaining portions to several contractors. The
contractors, in their turn, were doing a part of the work given to them through
workmen directly employed by them while the remaining part had been allotted by
them to subcontractors. The Contract Labour (Regulation and Abolition) Act,
1970 being applicable to the establishments pertaining to the project work, the
Executive Engineers of the National Hydro Electric Power Corporation having
supervision and control over the respective establishments were registered as
principal employers and the contractors to whom different portions of the work
were entrusted for execution were licensed by the licensing officers appointed
by the Central Government but the sub-contractors did not hold any licence. The
sub-con-tractors were being called 'piece-wagers' with a view to circumvent the
provisions of the Act.
The workmen employed on the project were
mostly drawn frorm other states. There was no uniform pattern of employment but
so far as Oriya workman were 474 concerned they were usually recruited by
khatedars from their villages in Orissa and given advances before being taken
to the project site. Some Bihari workmen were also found to have received such
advances. The contractors and 'piece-wagers' had not provided rest rooms,
canteens and washing facilities to the workmen employed by them. The
'piece-wagers' were making payments to workmen like Oriya labourers who were employed
in groups, through khatedars and there were complaints of deductions on account
of advances made to them, messing charges, etc., although the muster rolls did
not reflect the deductions. Payments of wages made by 'piece-wagers' were not
being supervised by any authorised representative of the principal employers or
of the Central Government and almost fifty per cent of over- time wages earned
by workmen was being taken away by khatedars. The provisions of the Inter-State
Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979
conferring benefits and advantages on workmen were not being implemented. No
weekly off day was being allowed in respect of workmen employed by
'piece-wagers. Some minors were also found employed on the project site. The
minimum wage fixed for workmen employed on the project was found to be a rupee
less than that fixed by the State Government for workmen employed in tho
construction industry.
Allowing the petition, ^
HELD: The Inter-State Migrant Workmen (Regulation
of Employment and Conditions of Service) Act, 1979 was enacted with a view to
eliminating abuses to which workmen recruited from one State and taken for work
to another State were subjected by the contractors, sardars or khatedars
recruiting them. The Act and the rules framed thereunder came into force with
effect from October 2, 1980 and became applicable to the establishments
pertaining to the project work. The Central Government ought to have enforced
the provisions contained in ss. 12 to 16 and also those relating to
registration of principal employers and licensing of contractors at least. from
June, 1982 when the various authorities contemplated under the Act were
appointed. The stand taken by the Central Government that the workers had gone to
Salal Project for work on their own and therefore, strictly speaking, they were
not migrant workmen, cannot be accepted as valid. Oriya workmen recruited by
khatedars from their villages in Orissa and brought to the project site for
work are lnter-State migrant workmen within the meaning of s. 2 (e) of the Act.
[480-H; 481-F; 482 A-E]
2. Not only a contractor but also a sub
contractor who comes within the definition of the term 'contractor in s. 2 (c)
of the Contract Labour Regulation and Abolition) Act, 1970 is bound to obtain a
licence under sub-s. (I) of s. 12 thereof before he can undertake or execute
any work through contract labour. Sections 16 to 21 of the Act read with rs. 41
to 62 provide for making various facilities available to workmen employed by
contractors for securing their health and welfare and 'piece-wagers' or
sub-contractors who are 'contractors' within the meaning of s 2 (c) cannot
escape their obligations under these provisions by not applying for a licence
under sub-s. (1) of s. 12. In fact, if sub- contractors under 475 take or
execute any work through contract labour without obtaining a licence under
sub-(l) of s. 12, they would be guilty of a criminal offence punishable under
8. 23 or s. 24. [483 G; 484 B-D]
3. Sub.s. (2) of s. 21 of the Contract Labour
(Regulation and Abolition) Act, 1970 requires that every principal employer
shall nominate a representative duly authorised by him to be present at the
time of disbursement of wages by the contractor and it shall be the duly of
such representative to certify the amount paid as wages in such manner as may
be prescribed and under sub-s. (3) of s. 21 it is the duty of the contractor to
ensure that disbursement of wages is made in the presence of the authorised
representative of the principal employer. Wages due to workmen employed by the
'piece-wagers' or sub-contractors must be paid directly to the workmen without
the intervention of khatedars, and no deductions can be made from the wages on
account of any advances alleged to have been made by the khatedars to the
workmen. [487 C-F] Peoples' Union for Democratic Rights & ors. v. Union of
India & ors.(Asiad workers' Case) [1983] I S.C.R. 456, referred to.
4. Under Art. 24 of the Constitution no child
below the age of 14 years can be employed in 'construction work' which has been
declared to be a hazardous employment in the Asiad Workers' case. This
constitutional prohibition must be enforced. The children of construction
workers living at or near the project site should be given facilities for
schooling and this may be done either by the Central Government itself or if
the Central Government entrusts the project work or any part thereof to a
contractor, necessary provisions to this effect may be made in the contract
with the contractor. [485 G-H; 486 D-G] Asiad Worker's Case, referred to.
5. There can be no doubt that the minimum
rates of wages fixed by the Central Government include the element of weekly
day of rest and that no extra wages are legally payable to the workmen for the
weekly off days. The complaint made is not that extra wages are not being paid
for the weekly off days but that weekly paid off days are not being given to
the workmen, meaning thereby that the workmen are required to work even on
their weekly paid off days These complaints have to be remedied by the Central
Government by taking appropriate action and the only way in which this can be
done effectively is by carring out periodically detailed inspections. [488 G-H;
489 A-B] The following directions were made by the Court:
(i) The Central Government will at once
proceed to identify inter-state migrant workmen employed in the project work
and adopt necessary measures for ensuring to them the benefits and advantages
provided under the Inter-State Migrant Workmen (Regulation of Employment and
Conditions of Service) Act, 1979. [482- F] (ii) The Central Government will
take immediate steps for ensuring that 'piece-wagers or the sub-contractors do
not execute any portion of tho project 476 work without obtaining a licence
under sub-s. (I) of s. 12 of the Contract Labour (Regulation and Abolition)
Act, 1970 and that they carry out their obligations under that Act and Rules
framed thereunder. It will also take immediate steps for ensuring that canteen,
rest rooms and washing facilities are provided by the contractors and
piece-wagers' or sub- contractors to the workmen employed by them in accordance
with the requirements of ss. 16, 17 and 18(c) read with rs. 41 to 50 and 57.
[484 G, 485 D-E] (iii) The Central Government will tighten up its enforcement
machinery and ensure that thorough and careful inspections are carried out by
fairly senior officers at short intervals with a view to investigating whether
the labour laws are being properly observed, particularly in relation to the
workmen employed either directly or through khatedars by the contractors as
well as the 'piece wagers' or sub-contractors. The Central Government must also
strictly enforce the requirement that payment of wages particularly to workmen
employed either directly or through khatedars by the 'piece-wagers' or
sub-contractors is made in the presence of an authorised representative
appointed by the National Hydro E1ectric Power Corporation or the Central
Government and wages are paid directly to the workmen without the intervention
of khatedars and free from any deductions whatsoever, except those authorised
by law. When payment of overtime wages is made to the workmen, the Central
Government must ask its authorised representative to check-up with reference to
the over-time work done by the workmen, whether they are receiving the full
amount of over- time wages due to them or any part of it is being taken away by
tho khatedar"s, [489 D-H, 490 A-C] (iv) The Central Government will take
note of the anomalous situation in which a workman employed in the Salal
Project is getting a minimum wage of only Rs. 91- per day because it is a work
which is being carried out by the Central Government whereas a workman employed
in construction industry in the State of Jammu and Kashmir would be entitled to
Rs. 10/- per day. [490 F-H, 491 A] (v) The Central Government will file an
affidavit setting out the steps taken by it in respect of directions (i) to
(iii) above within one month from the date of the judgment. [485E, 490 C-D]
ORlGINAL JURISDICTION: Writ Petition (Crl.)
No. 1179 of 1982.
(Under Article 32 of the Constitution of
India) Govind Mukhoty for the Petitioner.
Altaf Ahmed, Girish Chahdra and Miss A.
Subhashini for the Respondents.
The Judgment of the Court was delivered by
477 BHAGWATI, J. The issue of Indian Express dated 26th August A 1982 carried a
news item that a large number of migrant workmen from different States
including the State of Orissa were working on the Salal Hydro Electric Project
in difficult conditions and they were denied the benefits of various labour
laws and were subjected to exploitation by the contractors to whom different
portions of the work were entrusted by the Central Government. The People's
Union for Democratic Rights thereupon addressed a letter to Mr. Justice D.A. Desai
enclosing a copy of the news report and requesting him to treat the letter as a
writ petition so that justice may be done to the poor labourers working in the
Salal Hydro Electric Project. The letter was placed before a Bench of this
Court and it was treated as a writ petition and by an order dated 10th
September, 1982 this Court directed that the Union of India, the. State- of
Orissa, the Labour Commissioner, orissa at New Delhi. the State of Jammu and
Kashmir and the Labour Commissioner (J & K) should be shown as respondents
to the writ petition and issued notice to the Union of India, the State of
Orissa and the Assistant Labour Commissioner of Orissa at New Delhi to show
cause against the writ petition. This Court also directed the Labour Commissioner,
Jammu to visit the site of the Salal Hydro Electric Project and ascertain (i)
whether there are any bonded labourers employed on this project and if so, to
furnish their names; (ii) whether there are any migrant workers who have come
from other States; (iii) what are the conditions in which the workers are
living; and (iv) whether the labour laws enacted for their benefit are being
observed and implemented Pursuant to this order made by the Court, the Labour
Commissioner Jammu visited the site of the Salal Hydro Electric Project and
made an interim report on 11th October, 1982 and this was followed by a final
report dated 15th October, 1982. The writ petition there- P after came up for
hearing on 3rd November 1982. and on that date, the Court pointed out that the
Secretary, Union of India, Ministry of Home Affairs, the State of Orissa, the
Labour Commissioner orissa at New Delhi, the State of Jammu and Kashmir and the
Labour Commissioner (J & K) had already been impleaded as respondent Nos. I
to S but since the reports made by the Labour Commissioner, Jammu disclosed
that the Salal Hydro Electric Project was being carried out by the . Government
of India, the Court directed that the Union of India in the Labour Ministry as
also the Chief Labour Commissioner (Central) may also be added as respon- 478
dents Nos. 6 and 7 to the writ petition and that notice of the writ petition
shall go immediately to them alongwith copies of the two reports. The Court
also directed that the Union of India and the Chief Labour Commissioner
(Central) should file their affidavit or affidavits within two weeks from the
date of the order dealing with the various averments made in the two reports of
the Labour Commissioner, Jammu and particularly the final report made by him,
since the final report disclosed prima facie that there were certain violations
of labour laws committed by the Central Government and the contractors. The
Court also directed following its decision given on 18th September 1982 in
People's Union for Democratic Rights v. The Union of India(l) that "the
Union of India and the Chief Labour Commissioner (Central) shall ensure that
hereafter minimum wage is paid directly by the Central Government or the
contractors as the case may be, to the workmen employed by them without the
intervention of any sub-contractors or jamadars or khatedars and without any
deduction whatsoever except such as may be authorised statutorily. The
reference to sub-contractors in this order will be confined only to those sub
contractors who have not been licenced under the Contract Labour (Regulation
and Abolition? Act 1 956 because if any such sub-contractors have been
licenced, they would fall within the definition of contractor and would
therefore be liable for payment of minimum wage directly to the workers without
any deduction. The Union of India and the Chief Labour Commissioner (Central)
will also, in the meanwhile, ensure that sections 16 to 19 of the Contract
Labour (Regulation and Abolition) Act, 1956 read with the relevant rules made
under that Act are complied with, as the same are mandatory and the Central
Government is the appropriate authority to enforce the provisions of those'
sections." It appears that the Union of India and the Chief Labour
Commissioner (Central) were not able to file their affidavit or affidavits
within the time granted to them with the result that the time had to be
extended twice and ultimately an affidavit dated 14th December, 1982 was made
by one H.S. Raju, Deputy Secretary to the Government of India in the Ministry
of Labour and Rehabilitation and it was filed in court on behalf of the Union
of India. It was on the basis of the two reports made by the Labour
Commissioner, Jammu and the affidavit in reply filed by H.S Raju on behalf of
the Union of India alongwith certain other documents produced at the hearing
that the writ petition was argued before us, 479 The Salal Hydro Electric
Project is a power project undertaken by the Government of India with a view to
increasing the generation of electric power in the country by utilising the
waters of river Chenab. It is a gigantic project located near village Salal in
Jammu and the Government of India has entrusted it to the National Hydro
Electric Power Corporation for execution on 'agency basis'.
There are certain portions of the work in
connection with the Project which are being executed by the National Hydro
Electric Power Corporation itself through workmen directly employed by it,
while certain other portions of the work are entrusted to contractors of whom
the principal four are Hindustan Construction Company Limited, Gammon India
Limited, T.R. Gupta Private Ltd. and Asia foundation Construction Company.
These contractors in their turn are doing a part of the work entrusted to them
through workmen directly employed by them while a part of the work has been
allotted by them to sub-contractors described as 'piece wagers'. The workmen
employed by the National Hydro Electric Power Composition, the contractors and
the sub-contractors are mostly from other States such as U.P., Bihar and
Orissa.
There is no uniform pattern of employment in
regard to these workmen but so far as Oriya workmen are concerned, they are
usually recruited by khatedars from their villages in Orissa and given advances
before being taken for work. So also some Bihari workmen were found by the
Labour Commissioner (J & K) to have received such advances before coming to
the project site. Now the Contract Labour (Regulation and Abolition) Act 1970
(hereinafter referred to as Contract Labour Act) being applicable to the
establishments pertaining to the project work, the Executive Engineers of the
National Hydro Electric Power Corporation having supervision and control over
the .respective establishments are registered as principal employers and the
contractors to whom different portions of the work are entrusted for execution
are licensed under the provisions of that Act. Since the project work is being
carried on by or under the authority of the Central Government. the Central
Government is the appropriate Government in relation to the establishments
pertaining to the project work and the contractors are licensed by the
Licensing officers appointed by the Central Government. The sub-contractors to
whom different portions of the work are entrusted by the contractors, however,
do not hold any licence, through they fall within the definition of the word
'contractor' in clause (c) of section 2 of the Contract labour (Regulation and
Abolition) Act 1970 and it is pre- 480 cisely in order to circumvent the provisions
of the Contract Labour(Regulation and Abolition) Act, that they are called
"piece wagers' instead of sub-contractors. The project work is thus
carried out by workmen employed by the National Hydro Electric Power
Corporation or by contractors licensed under the provisions of the Contract
Labour (Regulation and Abolition) Act or by sub-contractors who are euphemistically
described as 'piece wagers'.
The question raised in this writ petition is
whether the workmen employed in the project work are ensured the rights and
benefits provided to them under various labour laws such as Contract Labour
(Regulation and Abolition) Act, 1956, the Minimum Wages Act, 1948 and the Inter
State Migrant Workmen (Regulation of Employment and Conditions of Service) Act.
1979. So far as the Inter State Migrant Workmen (Regulation of Employment and
Conditions of Service Act, 1979 (hereinafter referred to as the Inter State
Migrant Workmen Act) is concerned, the final report of the Labour Commissioner
(J & K) clearly shows that its provisions have not beeen implemented at all
and the workmen are denied many of the benefits and advantages provided under
it. This statement in the final report of the Labour Commissioner (J&K) is
not denied on behalf of the Union of India in the affidavit in reply made by
H.S. Raju, Deputy Secretary to the Government of India, Ministry of Labour and
Rehabilitation and the only explanation offered is that the lnter State Migrant
Workmen Act though passed in 1979 did not come into force until 2nd October
1980 and the relevant notifications appointing various authorities under that
Act were issued only in June, 1982 and that was the reason why "no action
could be taken by the officers of CRM earlier".
It is also averred in the affidavit in reply
that "most of the workers from other States have gone to Salal Project for
work OD their own and are therefore strictly speaking not migrant workmen"
within the meaning of the definition of that term contained in the Inter State
Migrant Workmen Act.
We do not think that this justification given
in the affidavit in reply for not ensuring the benefits and facilities provided
under the Inter State Migrant Workmen Act to atleast some of the workrnen and
particularly Oriya workmen can be accepted as valid. lt is clear- from the
Statement of objects and Reasons that the Inter State Migrant Workmen Act was
enacted with a view to eliminating abuses to which workmen recruited from one
State and taken for work to another State were subjected by the contractors,
sardars or khatedars recruiting them. The mal- 481 practices indulged in by the
contractors, sardars or khatedars in A regard to workmen recruited by them for
work outside their State may be found briefly summarised as follows in the
Statement of objects and Reasons:
"Though the Sardars promise at the time
of recruit ment that wages calculated on piece rate basis would be settled
every month, the promise is not usually kept once the worker comes under the
clutches of the con- tractor, he takes him to a far-off place on payment of
railway fare only. No working hours are fixed for these workers and they have
to work on all the days in a week under extremely bad working conditions. The
provisions of the various labour laws are not being observed in their case and
they are subjected to various malpractices." It was felt that since Inter
State migrant workmen are generally illiterate and unorganised and are by
reason of their extreme poverty, easy victims of these abuses and malpractices,
it was necessary to have a comprehensive legislation with a view to securing
effective protection to Inter State migrant workmen against their exploitation
and hence the Inter State Migrant Workmen Act was enacted. This Act received
the assent of the President on 11th June, 1979 but it was brought into force
only on 2nd October 1980 by a notification issued under section J sub-section
(3). The Interstate Migrant Workmen (Regulation of employment and Conditions of
Service) Rules 980 (hereinafter referred to as the Central p Inter State
Migrant Workmen Rules) were also made by the Central Government and brought
into force with effect from 2nd October 1980. But, unfortunately, through the
Inter State Migrant Workmen Act and the Central Inter State Migrant Workmen
Rules came into force from 2nd October, 1980, the bureaucratic appratus for
implementing the provisions contained in the Act and theP Rules wls not set up
by the Central Government for a period of more than 20 months and it was only
in the month June. 1982 that the Central Gnvernment appointed various
authorities such as Registered ol1icers, Licensing officers and [nspeclors.Lven
so we fail to see why the obligations of contractors set out in section l2 and
wages, welfare and other facilities provided in jsections 13 to l(i of the
Inter State Migrant Workmen Act could 482 not be made available to Inter State
migrant workmen employed in the project work and the Central Government as the
appropriate Government could not enforce the saLne from and after 2nd october
1980. When the Act aod the Rules came into force with effect from 2nd october,
1980, the provisions contained in s. 12 and ss. 13 to 16 became clearly
applicable to the establishments pertaining to the, project work and there was
no justification for the Central Government to delay any longer the
implementation of these provisions in, so far as Inter State migrant workmen
were concerned. The Central Government in any event ought to have enforced the
provisions relating to registration of principal employers and licensing of
contractors as also the provisions set out in s. 12 and ss. 13 to 16 from June,
1982 when the various authorities contemplated under the Act were appointed by
the Central Government. We do not think the Central Government can escape its
obligation to enforce the provisions of the Inter State Migrant Workmen Act on
the plea that there are no later State migrant workmen employed in the project
work The final report of the Labour Commissioner (J & KJ clearly shows that
Orriya workmen employed on the project site were recruited by khatedars from
their villages in Orissa and brought to the project site for work and they
would clearly be Inter State migrant workmen within the definition of that term
clause (e) of section (2) of the Inter State Migrant Workmen Act. We would
therefore direct the Central Government to take immediate steps for enforcement
of the provisions of the Inter State Migrant Workmen Act in regard to Inter
State migrant workmen employed is the project work. The Central Government will
at once proceed to identify 'Inter State migrant workmen' from amongst the
workmen employed in the project work and adopt necessary measures for ensuring
to them the benefits and advantages provided under the inter State Migrant
Workmen Act. We would like the Central Government to file as affidavit within
one month from today setting out what steps have been taken for securing
implementation of the provisions of the enter State Migrant Workmen Act at the
project site whether the executive engineers of the Central Government or the
National Hydro Electric Power Corporation have been registered as principal
employers under section 4 and the contractors, sub contractors or 'piece
wagers', khatedars and sardars have been licensed under section 8, whether the
contractors and sub-contractors or piece wagers are carrying out the
obligations imposed upon them under section 12 and whether wages and allowances
stipulated in sections 13. 14 and 15 and other facilities provided in section
16 are being 483 made available to the inter State migrant workmen employed in
the project work.
That takes us to the question whether the
provisions of the Minimum Wages Act and the Contract Labour Act are being
followed in relation to the workmen employed on the project site. But before we
consider this question, we may point out that, in regard to the suggestion made
in the writ petition that there are amongst the Oriya workmen bonded labourers
who are forced to provide labour by the khatedars who have recruited them, the
final report of the Labour Commissioner (J & K) points out that. "by
and large there is no evidence of any worker having been detained and not
allowed to go home against his wish" and "there is no bonded labourer
in the project whether the employment is direct or through the contractors or
sub-contractors". We must therefore proceed on the basis that there is no
violation of the provisions of the Bonded Labour System (Abolition) Act, 1976.
But so far as the Minimum Wages Act and the Contract Labour Act are concerned,
the report of the Labour Commissioner (J and K) does reveal that there are
violations of the provisions of these two statutes. Section 2 clause (c) of the
Contract Labour Act defines "contractor" in relation to an
establishment, to mean "a person who undertakes to produce a given result
for the establishment, other than a mere supply of goods or articles of
manufacture to such establishment, through contract labour or who supplies
contract labour for any work of the establishment and included a "sub-
contractor." (emphasis supplied). Section 12 sub-section (1) then proceeds
to enact that with effect from such date as the appropriate Government may, by
notification in the official Gazette, appoint, no contractor to whom this Act
applies, shall undertake or execute any work through contract labour except
under and in accordance with a' licence issued in that behalf by the licensing
officer. It is therefore clear that not only a contractor but also a
sub-contractor who comes within the definition of the term 'contractor' in
section 2 clause (e) is bound to obtain a licence under section 12 subsection
(1) before he can undertake or execute any work through contract labour. Now
according to the final report of the Labour Commissioner (J & K), the
contractors at the project site have undoubtedly obtained the requisite licence
under section 12 sub-section (1) but the 'piece wagers' who are really nothing
but sub- contractors, have-not cared to obtain such licence and yet they have
undertaken and are executing portions of the project work entrusted to them by
the contractors, through work 484 men employed by them either directly or
through khatedars.
This is clearly in violation of the
prohibition enacted in section 12 subsection (1). It is obvious that the object
of the 'piece wagers' or the sub-contractors in not applying for a licence
under section 12 sub-section (I) is to evade their obligations under sections
16 to 21 read with Rules 41 to 62 of the Contract Labour (Regulation and
Abolition) Central Rules. 1971 hereinafter. referred to as the Contract Labour
Central Rules) and to render these provisions difficult of application in
relation to the Sections 16 to 21 read with Rules 41 to 62 provide for making
various facilities available to workmen employed by contractors for securing
their health and welfare and 'piece wagers' or subcontractor who are
'contractors' within the meaning of that term in section 2 clause (c) cannot
escape their obligations under these provisions by not applying for a licence
under section 12 sub-section (1). In fact, if sub- contractors undertake or
execute any work through contract labour without obtaining a licence under
section 12 sub- section (1), they would be guilty of a criminal offence
punishable under section 23 or section 24. We would therefore direct the
Central Government as the enforcing authority to take immediate steps for ensuring
that the 'piece wagers' or sub-contractors do not execute any portion of the
project work without obtaining a licence under sec.
12 sub-section (I) and that they carry out
their obligations under sections 16 to 21 read with Rules 41 to 62. Of course,
if the contractors who have employed 'piece wagers' or sub- contractors have
provided the facilities set out in sections 16 to 21 read with Rules 41 to 62
not only to the workmen employed directly by them but also to the workmen
employed by the 'piece wagers' or sub-contractors, nothing more may remain to
be done by the 'piece wagers' or sub-con-tractors.
But there can be no doubt that the 'piece
wagers' sub- contractors are equally responsible for implementing the
provisions contained in these sections. The Central Government will in the
report to be submitted by it on or before state whether the 'piece wagers' or
sub-contractors have obtained the requisite licence under section 12 sub-
section (1) or they are executing the portion of the project work entrusted to
them without obtaining such licence and whether the provisions set out in
sections 16 to 21 read with Rules 41 to 62 are being implemented in relation to
the workmen employed by the 'piece wagers' or subcontractors.
The final report of Labour the Commissioner
(I&K) also points out that whereas the National Hydro Electric Power
Corporation 485 has provided canteens and rest rooms to its workmen as required
A by sections 16 and 17 of the Contract Labour Act and Rules 41 to 50 of the
Contract Labour Central Rules, the contractors and 'piece wagers' or
sub-contractors have not provided such canteens and rest rooms in breach of
their obligations under these provisions. It is also mentioned in the final
report of the Labour Commissioner (J & K) that adequate washing facilities
are not provided at work sites, though there is clearly as obligation on the
contractors and 'piece wagers' or sub-contractors to do so under clause (c)
section 18 read with Rule 57. The Central Government has, in the affidavit in
reply made on its behalf by H. S. Raju stated rather half heartedly that
facilities for canteens are reasonably made but conceded that "as canteens
provided by the contractors are not of the prescribed specifications action has
been taken by the Regional Labour Commissioner for prosecution of the
contractors for their failure to provide canteens with specified
specifications". We would therefore direct the Central Government to take
immediate steps for ensuring that canteens, rest rooms aud washing facilities
are provided by the contractors and 'piece wagers' or sub-contractors to the
workmen employed by them in accordance with the requirements of sections 16, 17
and 18, clause (c) read with Rules 41 to 50 and 57 and the Central Government
will make a report to this Court on or before 30th April, 1983 setting out what
steps have been taken for securing implementations; of these provisions and
whether these provisions have been complied with by the contractors and
'piece-wagers' or sub-contractors.
So far as medical facilities are concerned,
we are glad to know that according to the final report of the Labour
Commissioner (J & K), adequate medical care is provided to the workmen
employed on the project site. It is pointed out in the final report of the
Labour Commissioner (J & K) that some minors were found to have been
employed on the project site but the explanation given was that "these
minors accompany make members of their families on their own and insist on
getting employed". This Court has pointed out in its judgment in the Asiad
Workers case(l) that construction work is a hazardous employment and therefore
under Article 24 of the Constitution, no child below the age of 14 years can be
employed in construction work. We are aware that the problem of child labour is
a H 486 difficult problem and it is purely on account of economic reasons that
parents often want their children to be employed in order to be able to make
two ends meet. The possibility of augmenting their meagre earnings through
employment of children is very often the reason why parents do not send their
children to schools and there are large drop outs from the schools. This is an
economic problem and it cannot be solved merely by legislation. So long as
there is poverty and destitution in this country, it will be difficult to
eradicate child labour. But even so an attempt has to be made to reduce, if not
eliminate the incidence of child labour, because it is absolutely essential
that a child should be able to receive proper education with a view to
equipping itself to become a useful member of the society and to play a
constructive role in the socioeconomic development of the country. We must
concede that having regard to the prevailing socioeconomic conditions, it is
not possible to prohibit child labour altogether and in fact, any such move may
not be socially or economically acceptable to large masses of people. That is
why Article 24 limits the prohibition against employment of child labour only
to factories, mines or other hazardous employments Clearly, construction work
is a hazardous employment and no child below the age of 14 years can therefore
be allowed to be employed in construction work by reason of the prohibition
enacted in Article 24 and this constitutional prohibition must be enforced by
the Central Government. The Central Government would do well to persuade the
workmen to send their children to a nearby school and arrange not only for the
school fees to be paid but also provide, free of charge, books and other
facilities such as transportation. We would suggest that whenever the Central
Government undertakes a construction project which is likely to last for some
time, the Central Government should provide that children of construction
workers who are living at or near the project site should be given facilities
for schooling and this may be done either by the Central Government itself or
if the Central Government entrusts the project work or any part thereof to a
contractor, necessary provisions to this effect may be made in the contract
with the contractor.
That takes us to the question whether wages
are being paid to the workmen in accordance with the provisions of the relevant
statutes. The final report of the Labour Commissioner (J & K) agrees that
there is hardly any irregularity in so far as payment of wages to the 487
workmen employed by the National Hydro Electric Power Corporation and the
contractors is concerned but points out that in case of workmen employed by the
'piece wagers' or sub-contractors, payment of wages is made directly only to
those workmen "who are employed individually" and to other workmen,
like Oriya labourers who are employed in groups, wages are paid through
khatedars and in this latter case, there are complaints of deductions by
khatedars on account of advances made to the workmen in their native places,
messing charges etc., though "the muster rolls prepared and maintained do
not reflect the deductions." Now this Court has held in Asiad Workers case
(supra) that the minimum wages must be paid to the workmen directly without any
deductions save and except those authorised by the statute. Wages due to the
workmen employed by the 'piece wagers' or sub contractors must therefore be
paid directly to the workmen without the interventation of khatedars, and no
deductions can be made from the wages on account of any advances alleged to
have been made by the khatedars to the workmen. If there are any advances
repayable by the workmen to the khatedars or any messing charges are to be
paid, they may be paid by the workmen to the khatedars after they receive the
full amount of wages due to them from the 'piece wagers' or sub-contractors.
But on no account can any deductions be made from such wages and they must be
paid to the workmen directly without the intervention of any middleman.
Moreover, section 21 sub-section (2) of the Contract Labour Act - requires that
every principal employer shall nominate a representative duly authorised by him
to be present at the time of disbursement of wages by the contractor and it
shall be the duty of such representative to certify the amount paid as wages in
such manner as may be prescribed and under sub-section (3) of section 21, it is
the duty of the contractor to ensure that disbursement of wages is made in the
presence of the authorised representative of the principal employer. It is
stated in the final report of the Labour Commissioner (J&K) that this
statutory obligation under sub sections (2) and (3) of section 21 is also not
carried out and so far as the workmen employed by the 'piece wagers' or
sub-contractors are concerned, payment of G wages to them is Dot supervised by
any authorised representative of the contractors or the National Hydro Electric
Power Corporation or the Central Government nor is the payment of wages made in
the presence of such authorised representative and the workmen are left to the
mercy of the 'piece wagers' or sub-contractors and their staff. This statement
is, of course, disputed in the affidavit is reply filed on behalf of the
Central Government but we have our own doubts 488 whether this denial is well
founded of the requirement of sub-sections (2) and (3) of section 21 is
strictly carried out and payment of wages to the workmen employed by the 'piece
wagers' or sub-contractors is made in the presence of an authorised
representative of the National Hydro Electric Power Corporation of the Central
Government, there is no reason why the workmen should complain to the Labour
Commissioner (J & K) in regard to payment of wages because in that event they
would he receiving their full wages directly from the 'piece wagers' or
sub-contractors without the intervention of khatedars and free from any
deductions whatsoever Moreover it is also pointed out by the Labour
Commissioner (J & K) in his final report that over-time wages earned by
workmen are not received by them in their entirety and almost 50 per cent is
taken away by khatedars but the muster sheets do not reflect the correct
position and "are treated as mere formality". The Central Government
has not dealt specifically with this complaint in its affidavit in reply beyond
merely denying that over-time wages are not paid. It may be noted that this
complaint has been made by the Labour Commissioner (J & K) after making a
full and detailed enquiry from the workmen employed by the 'piece wagers' or
sub-contractors and there is no reason why these workmen should have given
false information to the Labour Commissioner (J & K) or the Labour
Commissioner (J & K) should have made a statement in his final report which
was not borne out by the enquiry made out by him. The Labour Commissioner
(J&K) also states that according to the information gathered by him from
the workmen, he found that no weekly off day is allowed to the workmen
"except in case of labour directly employed by the National Hydro Electric
Power Corporation or other contractors". The Central Government in its
affidavit in reply has denied that the workmen are not being granted weekly off
day with wages and pointed out that the minimum rates of wages fixed by the
Central Government are inclusive of the element of weekly day of rest and no
extra wages are legally payable to the workmen under the Minimum Wages Act. Now
there can be no doubt that the minimum rates of wages fixed by the Central
Government include the element of weekly day of rest and that no extra wages
are legally payable to the workmen for the weekly off days. But the complaint
made in the final report of the Labour Commissioner (J &; K) is not that
extra wages are not 489 being paid to the workmen for the weekly off days but
that weekly paid off days are not given to the workmen, meaning thereby that
the workmen are required to work even on their weekly paid off days. These
complaints have to be remedied by the Central Government by taking appropriate
action and the only way in which this can be done effectively is by carrying
out periodically detailed inspections and insisting that every payment of wages
must be made by the 'piece wagers' or sub-contractors in the presence of the
authorised representative of the National Hydro electric power Corporation or
of the Central Government. The Central Government has averred in its affidavit
in reply that its officers are regularly carrying out inspections and it has
given various dates on which such inspections were carried out during the year
1982. The particulars of inspections given by the Central Governments would
show that during a period of 12 months, only for inspections were carried out
in case of three contractors, two inspections in case of one contractor and one
inspection each in case of three other contractors. We find it difficult to
accept that these inspections carried out by the officers of the Central Government
were adequate. It is necessary to carry out more frequent inspections and such
inspections have to be detailed and thorough, for then only it will be possible
to ensure scrupulous observance of the labour laws enacted for the benefit of
workmen. We would therefore direct the Central Government to tighten up its
enforcement machinery and to ensure that thorough and careful inspections are
carried out by fairly senior officers at short intervals with a view to
investigating whether the labour laws are being properly observed, particularly
in relation to workmen employed, either directly or through khatedars, by the
contractors as well as the 'piece wagers' or sub- contractors'. The Central
Government must also strictly enforce the requirement that payment of wages
particularly to workmen employed either directly or through khatedars by the
'piece wagers' or sub-contractors is made in the presence of an authorised
representative appointed by the National Hydro Electric Power Corporation or
the Central Government and wages are paid directly to the workmen without the
intervention of khatedars and free from any deductions whatsoever, except those
authorised by law. It is not enough merely to go periodically and examine the
muster rolls or muster sheets showing payment of wages, because even where
wages are paid through khatedars and deductions are made, the muster rolls or
muster sheets would invariably show payment of 490 full wages and would not
reject the correct position. The Central Government must ensure, and that is
the direction we give, that every payment of wages, whether it be normal wages
or over-time wages, shall be made directly to the workmen, without any
deductions in the presence of an authorised representative of the National
Hydro Electric Power Corporation or the Central Government. When payment of
overtime wages is made to the workmen, the Central Government must ask its
authorised representative to check up with reference to the overtime work done
by the workmen, whether they are receiving the full amount of over-time wages
due to them or any part of it is being taken away by the khatedars. This evil
can to a large extent be eliminated if payment of over-time wages is made
directly to the workmen instead of routing it through the khatedars. The
Central Government will promptly carry out these directions which are being
given by us and will make a report to this Court on or before 30th April, 1983,
setting out what steps it has taken for carrying out these directions and how
far they have been implemented. It is only if the officers of the National
Hydro Electric Power Corporation and the Central Government are sensitive to
the misery and suffering of workmen arising from their deprivation and
exploiation that they will be able to secure observance of the labour laws and
to improve the life conditions of the workmen employed in such construction
projects.
There is also one other matter to which our
attention has been drawn by the Labour Commissioner (J & K). He has p
pointed out in his final report that the National Hydro Electric Power
Corporation as also the contractors and 'piece wagers' or sub-contractors are
paying to the workmen employed by them wages at the rate of Rs. 9 per day,
whereas the minimum wage payable to workmen in the construction industry as per
the notification issued by the State of Jammu & Kashmir is Rs. 10 per day.
The result is that whereas a workman employed in construction industry in the
State of Jammu & Kashmir would be entitled to a minimum wage of Rs. 10 per day
a workman employed in the Salal Project which is being carried out in the State
of Jammu & Kashmir would be getting only Rs. 9 per day because it is a work
which is being carried out by the Central Government. This is a 491 rather
anomalous situation to which we may draw the attention of A the Central
Government.
We accordingly adjourn this writ petition to
6-5-1983 We shall take it up for further hearing after we have received the
report from the Central Government in accordance with the directions given in
this judgment.
H.L.C. Petition allowed.
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