Mukesh Advani Vs. State of Madhya
Pradesh [1985] INSC 117 (2 May 1985)
DESAI, D.A. DESAI, D.A.
VARADARAJAN, A. (J)
CITATION: 1985 AIR 1363 1985 SCR Supl. (1)
126 1985 SCC (3) 162 1985 SCALE (1)981
ACT:
Social Action Litigation-Exploitation of the
workmen from Tamil Nadu by the Mines contractors deprecated-Need for the State
protection of the poor and needy laborers who are unable to negotiate on terms
of equality, retierated- Constitution of India, 1950. Articles 38, 41, 42, 43,
Bonded Labour System (Abolition) Act, 1974-Minimum Wages Act, 1948, Payment of
Bonus Act, 1965.
HEADNOTE:
Pursuant to an investigative report in the
"Indian Express" dated September 14, 1982, one of the advocates
practising in the Supreme Court addressed a letter to one of the Judges of the
Supreme Court depicting the horrid plight of bonded labour from Tamil Nadu
working in the stone quarries at Raisen in Madhya Pradesh. It was alleged: (a)
Everyone recruited were paid a reimbursible advance of Rs.
1,000/- but the method of accounting is so
manipulated that the debt instead of getting wiped out, increased in
geometrical proportion and no workmen can have the employment until the entire
debt repaid which is beyond the reach of the workmen; (b) The working
conditions were bad.
There was no weekly holiday. Sanitary
conditions were in deplorable state. The workmen were not paid any wages during
rainy seasons, since the mines were shut off; (c) Not a single legislation
enacted for the welfare of labour is implemented or respected and (d) Due to
the inaction of the Labour Department of the Centre and the State like absence
of a notification specifying minimum wages for the labour force employed in the
mines, resulting in poultry and meagre payment there is naked and unabashed
exploitation of workmen. The report called for by the Supreme Court from the
District Judge Bhopal confirmed the said allegations and further revealed that
(a) on a complaint preferred 48 labourers were released by the Labour
Department of Madhya Pradesh; (b) a complaint has been lodged with the police
under the Bonded Labour System (Abolition) Act, 1976; (c) two or three cases
against the Contractors were instituted in fact and the said cases were
pending; (d) the piece-rate method of paying wages for digging a standard
'Khanti' has resulted sometime to no payment at all for both the male and
female labour employed; (e) a team of police force arrived from Tamil Nadu and
liberated the workmen and repatriated them to Tamil Nadu and (f) the newspaper
publicity had a very salutary and desired effect in as much as various
contractors have given up efforts to recover the advances which was a good
achievement.
The State of Madhya Pradesh admitted the findings
of the District Judge, Bhopal and pointed out that in respect of flagstone
mines, the appropriate Government is the Central Government under the payment
of 127 Bonus Act, 1965 and the Minimum Wages Act, 1948. The Tamil Nadu
Government have clarified as to how the labourers were duped and taken to
Madhya Pradesh and confirmed the release of the labourers by their State
Police.
The Court in the circumstances directed the
Union of India as appropriate Government to issue a preliminary notification
under section 5 of the Minimum Wages Act, 1948 setting out its proposal for
information of persons likely to be affected thereby and specifying a date not
less than two months from the date of the Notification on which proposals will
be taken into consideration. The Union of India accordingly issued necessary
notification dated March 24,1982 and October 31, 1983 setting out the minimum
piece rate of wages for various occupations in flagstone mines.
Disposing of the petition, the Court ^
HELD: 1. Undoubtedly, mines have to work in
larger public and national interest. Therefore, in the very nature of things,
there will be contractors and the workmen.
Contractor as is his wont, to augment his
profit which motivates him to take contract and who is not shown to be
altruistic, is bound to exploit the workmen. The notorious method of
exploitation is, pay as much less as possible despite all pretensions of
Minimum Wages and Payment of Wages Act, take work for longer hours, prohibited
by beneficent statutes like the Mines Act, the Factories Act and like statutes.
Both these when jointly practised enlarges the profit. The law is that no
employer can pay less than the minimum wages. But this remains a paper promise
unless an effective implementation machinery not overawed by these wealthy and
generally unscrupulous contractors who can spread their tentacles over
officials is set up. [133 H; 134 A-B; D] (The court expressed the hope that
such a machinery would be set up jointly by the Union of India and the
Government of the State of Madhya Pradesh.) [134 E]
2. The State in discharge of its obligation
under Articles 38, 41, 42 and 43 must extend the umbrella of protection to
these poor and needy and unprotected workmen who are unable to negotiate on
terms of equality and who may accept any terms to stave of hunger and
destitution. It is the State which must interpose between these two unequals to
eschew exploitation. [134 B-C]
ORIGINAL JURISDICTION: Writ Petition No. 1232
of 1982.
Under Article 32 of the Constitution of
India.
Mukesh Advani Petitioner. (Not present) A.V.
Rangam, Ravindra, Bana, A.K. Sanghi, Ms. H. Khatun and R.N. Paddar for the
Respondent.
128 The Judgment of the Court was delivered
by DESAI, J. One Mukesh Advani, Advocate practising in this Court addressed a
letter to one of the Judges of this Court on September, 23, 1982 annexing
thereto a cutting from the 'Indian Express' dated September 14, 1982 depicting
the horrid plight of the bonded labour working in stone quarries at Raisen in
Madhya Pradesh.
Broadly stated the allegations were that the
contractors who operate the mines recruit labour force from Tamilnadu. Everyone
recruited to work was paid roughly an advance of Rs. 1,000 and then brought to
work at the mines.
This amount of Rs. 1,000 reimbursible by
deductions spread over from month to month from the wages payable to the bonded
labourers, but the method of accounting is so manipulated that the debt of Rs.
1,000 is never wiped out, and on the contrary it increases by geometrical
proportion.
The workman goes deeper into the mire of
indebtedness with the result that the octopus hold of the contractor becomes all
enveloping and the workmen becomes a bonded labour. The working conditions, to
say the least, were of the 18th century vintage. There is no weekly holiday.
Sanitary conditions are in deplorable state. During the rainy season the
operation of the mines is shut off and consequently the workmen are not paid
wages. Not a single legislation enacted for the welfare of labour is
implemented or respected. No workman can leave the employment until the entire
debt is repaid which is beyond the reach of the workmen. The only way to escape
the clutches of the contractor is for the workman to change the master who by a
paper advance pays off the former contractor and the cycle is repeated. It was
alleged that the functionaries of the Labour Department of the Centre and the
State by sheer inaction if not active collaboration on their part help in
exploitation of the labour. It was specifically alleged that in the absence of
a notification specifying minimum wages for the labour force employed in the
mines the payment is paultry and meagre and there is naked and unabashed
exploitation of workmen.
As part of social action litigation this
letter was treated as a writ petition under Art. 32 of the Constitution and by
the Order dated October 7, 1982 notice was ordered to be issued to the Deputy
Commissioner/Collector, Bhopal. The District Judge Bhopal was directed to
proceed to the site of stone quarries at Raisen and 129 ascertain the existence
of bonded labour and to submit a detailed report of the working conditions in the
mines. A further direction was given that the District Judge may take
assistance of Mr. N.K. Singh who had exposed and portrayed the plight of the
bonded labour in the 'Indian Express'. The Committee for Implementing Legal Aid
Schemes was directed to deposit Rs. 1,000 with the Registrar of the Supreme
Court to meet the expenses of the District Judge in carrying out his
assignments.
Pursuant to the aforementioned order, the
District Judge submitted a detailed report in which it was pointed out that the
labour force recruited from Tamil Nadu had made a complaint on May 24, 1980 to
the Secretary, Labour Department, Government of Madhya Pradesh that the quarry
contractor (Abdul Rehman) was giving inhuman treatment to Tamil labourers
working in Surai mines. This complaint was forwarded to the Superintendent of
Police, Raisen to enquire into the matter. He submitted a report that 48
workmen from Tamilnadu have been released and they have returned to Tamilnadu.
On September 8, 1980 a written report was lodged at Police Station by seven
workmen six of whom were from Tamilnadu, in which it was alleged that the
quarry contractor (Hamid Khan) was harassing them by making a claim that each
one had to repay Rs. 15,000 to Rs. 16,000 towards the advances taken by them. It
was not possible to ascertain how this huge amount was worked out. One
additional complaint was that the workmen were paid less than what was agreed
at the time of recruitment and that whenever a voice of protest was raised the
workmen were physically be laboured. It was alleged that their movements were
circumscribed and that they were not free to leave the employment or to move
away from the habitat. In short they lived a captive life. The District Judge
pointed out that on this complaint an offence was registered at the Police
Station under Bonded Labour System (Abolition) Act, 1976. At the time of the
report, the case was pending. The dilemma which the District Judge faced in the
course of enquiry was vividly described when he pointed out that when the
workman is taken into confidence and is assured of protection he gives out a
story of harassment and torture by the quarry contractor but when officially
questioned he is afraid of making necessary disclosures. But apart from this
dichotomy, the District Judge noticed that Labour Enforcement Officer
instituted two cases against the quarry contractor for recovery of Rs. 11,000
and odd for short payment and at the time of the report the cases were pending.
130 The District Judge further pointed out
that there is a piece rate method of paying wages. The piece rate ranges from
Rs. 10 to Rs. 20 for a standard 'Khanti' which is of the size 10'x10'x1'
(depth). A pair consisting of a male and a female is assigned to a 'Khanti' and
after a hard-day's toil the average earning ranges between Rs. 5 to Rs. 10 per
day out of which unauthorized and impermissible deductions are made leaving the
workman very little to survive. The chances of not earning any thing even after
a hard day's work were very high in as much as after the 'Khanti' is dug, the
flagstone appears and that stone is to be cut nicely into slabs of specified
sizes. If the slabs are not properly severed from the stone, the workman is not
paid anything.
The total earning also depends upon the
number of slabs cut by the workman. The rate is usually around Rs. 2 per cubic
foot. Though the Labour Department was of the view that unofficially a workman
could earn Rs. 650 per fortnight, in practice this, was shown to be a paper
figure.
On the enquiry by the District Judge, the
contractor admitted that advance payment is made to every workman and it is
recovered by deduction from the wages earned by each workman at the time of
payment.
It also transpired that workmen from
Tamilnadu were so harassed that on a complaint received by the Tamilnadu
Government, a team of the police force arrived from Tamilnadu, liberated the
workmen and repatriated them to Tamilnadu.
The District Judge also found that restraints
were put on the workmen leaving the job but once a quarry contractor on being
subjected to detailed enquiry, gave up any claim to recover the advances made
by him, the restraints disappeared with the result that according to the
District Judge, at the relevant time of the enquiry, there was no bonded
labour.
The District Judge concluded that the
newspaper publicity had a very salutary and desired effect in as much as
various contractors have given up efforts to recover the advances and according
to the District Judge it was a good achievement. A note of caution is sounded
that if the appropriate follow-up action is not taken by the District Vigilance
Committee and District Magistrate to ensure that quarry contractors who were
then making an oral announcement of giving up of advances debts of the workmen
without executing documents evidencing valid discharge, a sinister attempt may
131 be made to go back upon discharge of debts and one may return to square
one.
The District Judge also pointed out that
there is total absence of implementation of the labour laws applicable to these
quarries. It was pointed out that as the Central Government is the appropriate
Government it has appointed only one inspector for II districts with the result
that provisions of several laws beneficial to workmen are flouted with
impunity. A glaring case pointed out was that provisions of the Payment of
Bonus Act, 1965 would apply to some of the quarries proprio vigor but there is
no whisper of its implementation.
The District Judge concluded that the
follow-up action as indicated by him will relieve harassment of workmen and
ameliorate the working conditions.
The State of Madhya Pradesh in its counter-affidavit
broadly admitted the findings of the learned District Judge and it is pointed
out that in respect of flagstone mines, the appropriate Government is the
Central Government. It was also pointed out that the Central Government has
taken no steps to prescribe minimum wages under the Minimum wages Act.
As the report of the District Judge showed
that the workmen who were complaining of harassment and torture were already
released and discharged and at the relevant time there was no bonded labour the
Court concentrated on giving direction for taking suitable steps for
implementation of the labour laws. In this connection the Court gave high
priority to the statutory prescription of minimum wages that the quarry
contractor would be bound to pay and which would also simultaneously provides
shield against unauthorised deductions or exploitation by paying less than the
minimum.
With this end in view the Court directed by
its order dated November 23, 1982 to serve notices of the petition on the State
of Tamil Nadu and the Union of India.
One Thirumati J. Anjani Dayanand,
Commissioner and Secretary, Social Welfare Department, Government of Tamilnadu
filed an affidavit in response to the notice issued by this Court. The recitals
therein are blood- curdling. It was pointed out that instances of kidnapping
families of gullible illiterate rural poor from various parts in Tamilnandu to
Madhya Pradesh under the guise of providing 132 them lucrative employment on
attractive remuneration and then unlawfully confining them as bonded labour in
Raisen and other districts in Madhya Pradesh came to the notice of Tamilnadu
Police. A police team thereupon from Pudukottai visited Raisen and rescued II
persons including 5 females during July. 1982. The police found that the workmen
were held in bondage and that there was no adequate provision for food and
shelter and that they were forcibly detained and effectively prevented from
communicating with their relations by tampering with their mails. The police
staff which went to enquire in the matter received hostile treatment from the
quarry contractors. Another police team visited Raisen on August 20, 1982 and
rescued 20 persons including 8 females belonging to 6 families from the
quarries in Raisen district. It transpired that one A.L.
Subramaniam and Chokkalingam of Tamilnandu,
assisted by his relations and in collusion with quarry contractors
systematically carried on this trade of enticing gullible poor people drawing
rosy picture of employment and then torturing them by exploiting them.
Ultimately a team of two police Inspectors, 3 sub-inspectors, 2 head-constables
and 2 police constables from the Crime Branch, C.I.D. assisted by Armed Escort
Party from Madurai were deputed with a demi- official letter from the Deputy
Inspector General of Police, C.I.D. Crime Branch Madras to his counterpart in
Madhya Pradesh seeking assistance to break this cell of slavery. We need not
further describe the gory details but ultimately it was pointed out that after
these workmen were released it transpired that the inhuman quarry contractors
had bled them white. Being victims of total exploitation, the Chief Minister of
Tamilnadu sanctioned a sum of Rs.
1,000 per family for the rehabilitation and
till the date of the affidavit, Rs. 63,000 were spent in this behalf.
By our order dated February 18, 1983 the
Union of India was directed to come out with proposals setting out concrete
steps to prescribe minimum wages on piece rate basis for various occupations in
flagstone mines and also suggest effective steps for improving the life-style
of workmen working in these mines, as also the machinery for effective
implementation.
As the progress was analogous to slow-motion
news, Mr. K. G. Bhagat, Additional Solicitor General of India appeared and
assured us that Union of India would extend all co- operation to help the
workmen and take up necessary follow- up steps.
133 As the thing moved very slowly, the Court
directed Union of India as appropriate Government to issue a preliminary
notification under Sec. 5 of the Minimum Wages Act, 1948 setting out its
proposal for information of persons likely to be affected thereby and
specifying a date not less than two months from the date of the notification on
which proposals will be taken into consideration.
After taking a number of adjournments, one
Bishamber Nath, Under Secretary to the Government of India in the Department of
Labour filed his affidavit in reply on behalf of the Union af India
specifically stating therein that the question of issuing of notification under
Sec. 5 is under active consideration by the Ministry of Labour and
Rehabilitation, Department of Labour. It was further pointed out that as
minimum wages are likely to be piece rate wages, it may become necessary to
appoint a Committee or pre- publication of the proposals. It was stated that
some data has to be collected and for this purpose on a priority basis a team
of officers is being sent to Raisen to collect the required information. When
the matter came up before this court on September 26, 1983, Mr. Gujral, learned
counsel who appeared on behalf of the Union of India made a statement that a
preliminary notification would be issued by the end of the first week of
November, 1983. The Union of India did take the promised action and a
preliminary notification dated October 31, 1983 was placed on record. The
schedule to the notification sets out minimum piece rate of wages for various
occupations in flagstone mines. On April 16, 1980, a copy of the notification
dated March 24, 1982 issued by the Government of India, Ministry of Labour and
Rehabilitation specifying the minimum wages for various occupations in flagstone
mines was submitted to the Court. There ends the first step to be taken as part
of a vigorous campaign to eschew exploitation by person who on account of money
power exploit the poor and the needy. This is not the end of the journey. It is
just a beginning.
This petition must now stand disposed of
because the report of the District Judge referred to in the earlier part of
this judgment clearly shows that there is no bonded labour working in flagstone
mines at Raisen.
Undoubtedly, mines have to work in larger
public and national interest. Therefore, in the very nature of things, there
will be contractors and the workmen. Contractor as is his wont, to augment 134
his profit which motivates him to take contract and who is not shown to be
altruistic, is bound to exploit the workmen.
The notorious method of exploitation is, pay
as much less as possible despite all pretensions of Minimum Wages and Payment
of Wages Act, take work for longer hours, prohibited by beneficent statutes
like the Mines Act, the Factories Act and like statutes. Both these when
jointly practised enlarges the profit. The State in discharge of its obligation
under Arts. 38, 41, 42 and 43 must extend the umbrella of protection to these
poor and needy and unprotected workmen who are unable to negotiate on terms of
equality and who may accept any terms to stave off hunger and destitution. It
is the State which must interpose between these two unequals to eschew
exploitation.
As a first step, the notification prescribing
minimum wages has been issued. The law which need not be restated is that no
employer can pay less than the minimum wages. But this remains a paper promise
unless an offective implementation machinery not overawed by these wealthy and
generally unscrupulous contractors who can spread their tentacles over
officials, is set up. We conclude with a hope that such a machinery would be
set up jointly by the Union of India and the Government of the State of Madhya
Pradesh.
With these observations, the petition stands
disposed of.
S.R.
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