All India Institute of Medical Sciences v. Ashok and Anr

ORDER %

18.10.2012 CAV. No. 974/2012 Since the learned counsel has put appearance on behalf of the caveator, the caveat stands discharged. CM. No. 16380/2012 (for exemption) Exemption allowed, subject to all just exceptions. The application stands disposed of. V/.P.fC) No. 6062/2012 In view of the common judgment rendered in W.P.(C) No.5944/2012, the instant petition is accordingly disposed of CM. No. 16379/2012 (for stay) V/ith the disposal of the petition itself, the instant application has become infructuous. The same is disposed of accord,ingly. . >

SURESH KAiT, J. OCTOBER! 8, 2012/sb W.P.(C) No. 6062/2012. Pa^elofl -I-THE HIGH COURT OF DELHI AT NEW DELHI : Date ofDecision: 18.10.2012 W"PiC^5944/2012& CM. NO. 12240-41/2012.CAV 961/2012 ^ sula'vBhinternational social service organization Petitioner Through: Mr.\AnuragDiibey,Mr. D.P. Pandeyand Mr. Meenesh Dubey, Advocates Versus REGIONALLABOURCOMMISSIONER(CENTRAL) &ORS. Respondents Through; Ms. SweetyManchanda,CGSC for Respondent No. L Mr. VidyaNand Sharma, R2. Mr. Rajat Katyal and Ml-. SanjeevJoshi, Advs. forR3. •V AND -I-W.P.(C) 6059/2012 & CM. NO. 16373-74/2012 AI.L INDIA INSTITUTE OF MEDICAL. SCIENCES ....; Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs. Versus VIDYA Ny\ND SHARMA ANDANR Respondents Through: Respondent No. 1 in person. Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. AND • .' • • -I-W.P.(C) 6060/2012 & CM. NO. 16375-76/2012, CAV. 972/2012 ALL INDIA INSTITUTE OF MEDICAL SCIENCES Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs. W.P.(C) Mos. 5944, 6059-68/2012 Versus MAHESH AND ANR ' . Respondents Through; Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. W"PiO 6061/2012 & CM. NO. 16377-78/2012, CAV. 973/2012 ALL INDIA INSTITUTE OF MEDICAL SCIENCES Petitioner Through: Mr. Rajat Katyal and Mr. SanjeevJoshi, Advs. Versus GOVIND AND ANR Respondents Through: Mr. Anurag Dtibey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. H-W.PiC) 6062/2012 & CM, NO, 16379-80/2012, CAV. 974/2012 ^ ALl. INDIA INSTITUTEOF MEDICALSCIENCES Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs. Versus ASHOK AND ANR Respondents Through: Mr. AnuragDubey,Mr. D.P. Pandeyand Mr. Meenesh Dubey, Advs. forR2. W.F.(C) 6063/2012 & CM. NO. 16381-82/2012 AL!.;INDIA INSTITUPEOF MEDICALSCIENCES Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs. Versus MUKESH YADAV AND ANR, Respondents VV.P,(C) IMOS. 5944, 6059-68/2012 Pa^e z of 35 ' Through: Mr. Anurag Dubey, Mr. D.P. Pandey and' Mr. Meenesh Dubey, Advs. forR2. -I-W.PiC) 6064/2012 & CM. NO. 16383-84/2012 -I-ALL INDIA INSTITUTE OF MEDICAL SCIENCES ..... Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs. Versus Dl-IARAMVIR AND ANR • .....Respondents Through: Mr. Anurag Dubey, Mi". D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. W.P.(C) 6065/2012 & CM. NO. 16385-86/2012 ALI. INDIA INSTITUTE OF MEDICAL SCIENCES • • Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs. Versus MUKbSH AND ANR Respondents , Through: Mr. Anurag Dubey,Mr. D.P. Pandeyand Mr. IVleeneshDubey, Advs. for 'Rl. W.P.(C) 6066/2012 & CM. NO. 16387-88/2012, CAV. 977/2012 , ALL INDIA INSTITUTEOF MEDICALSCIENCES Petitioner Through; Mr. RajatKatyal and Mr. SanjeevJoshi; Advs. Versus MAMTA A^.^D ANR Respondents Through: Mr, AnuragDubey,Mr. D.P. Pandeyand Mr. Meenesh Dtibey, Advs. forR2. W.P.(C) Nos. 594^, 6059-68/2012 'pagg3

¶12-I-W.PiO 6067/2012 & CM, NO-16389--90/2012, CAV. 97.5/2012 ALL INDIA INSTITUTE OF MEDICAL SCIENCES Petitioner . Through: Mi". Rajat Katyal and Mr. Sanjeev Joshi, Advs. Versus BALAMURGAN & ANR Respondents Through: Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. -I-W.PiC) 6068/2012 & CM. NO. 16391-92/2012, CAV. 976/2012 ALL INDIA INSTITUTE OF MEDICAL SCIENCES Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs. V ersus VI.IAY AND ANR Respondents Through: Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. HON'BLE MR. JUSTICE SURESH KAIT " . ' ORDER %

18.10.2012 SURESH KAIT, J. ('Oral) CAV. No. 961/2012 Since the learned counsel has put appearance on behalf of the caveator, the caveat stands discharged. CIVL No. 12241/2012 ("for exemption) . Hxemptionallov/ed,subjectto alljust exceptions. • The application stands disposed of. ; W.P.iC)No.s, 5944, 6059-68/2012 ' Page 4 of35 W.P.(C) Nos. 5944/2012 & 6059-6068/2012

¶1The Sulabh International Social Service Organization, and the All India histitute of Medical Sciences, New Delhi, by way of the present petitions, are challengingthe sustainabilityof the orderdated25.06.2012passedbythe Regional "^LaborCommissioner. Since all the petitionshave arisen from the common order, therefore, this Court has decided to dispose of all the petitions by this common •judgment. •The facts of the Writ Petition (Civil) No. 5944/2012 would be discussed inter alia being the lead matter.

¶2The petitioner Sulabh International Social Service Organization, and respondentNo. 3, DirectorAll IndiaInstitutesofMedicalSciences,New Delhi, by way of differentwrit petitions,are challengingthe sustainabilityofthe order dated

25.06.2012 passed by the Regional Labor Commissioner. The Regional Labor Commissioner,being the Authority under the Minimum V/ages Act, allowed the claim petitionthat has been filed by the respondentNo.2 underSection20(2) of the Act. The Authority also held that the petitioner and the respondent No.3 both are severally andJointly responsible for the payment of the claim.

¶3Facts of this case are that the petitioner and respondent No. 3 entered into an agreementfor deploymentof the respondentNo.2 for employmentof cleaningand sweeping at the premises of All India Institute of Medical Science, as such respondent No. 2 worked during the period from 25.01.2008 to 31.03.2010. Thereafter, the respondent No. 2 filed a writ petition before this Court for the payment of minimum wages. The same was disposed of by the order dated

17.02.2010, whereby the respondent No. 2 was directed to approach the appropriate Forum. Accordingly, the respondent No. 2 preferred a claim W.P.(C) Nos. 5944, 6059-68/2012 Page 5of35 application before the Authority under the Minimum Wages Act; same has been allowed by the impugned order.

¶4The moot question for the consideration in these writ petitions is thaf whether the alleged volunteers, deployed through the petitioner, namely Sulabh -international Organization, are entitled to get the minimmTi wages under the Minimum Wages Act.

¶5The petitionerSulabh Internationalhas relied upon the judgment delivered in Writ Petition Mo. 3408/1989 by the High Court of Patna, wherein the said Court observed as under: "The Petitioner establishment has set up lavatories and bathrooms, the construction being of very simple in nature for the use of the public which need not be cleaned by the scavenger nor does it require carrying of any night soil on' anyone's head. Further, the jobless scavengers or other persons rendered without employment are now being imparted vocational training in centers which may help them to fmd jobs. For this purpose it has a large number of volunteers who are paid small sums of money as pocket money for their pocket expenses. It is true that in everycase of industry,the elementofprofit and loss need not be there yet as I read the aforesaid decision of the Supreme Court, the definition cannot be extended to a purely voluntary organization like the Petitioner establishment which is workingfor public good and in the interest of the weaker Section of the societ)'. " '

¶6Adopting the observation made in the above judgment. Mi". K.T.S. Tulsi, learned Senior Advocate appearing on behalf of the petitioner contends that the impugnedorder is illegal, since there is no relationship of employer and employee which is a prerequisite for the application of the Minimum Wages Act. He pointed out that the object of the establishment is to liberate the scavengers from the sub human occupation; and is a voluntary philanthropic organization caiTying out its activitieson "no profit and no loss basis". Secondly,the petitionerhas reliedupon ' W.p.(C) iMos. 5944, 6059-68/2012 Page6of35 r a circular dated 03.04.2001 issued by Jt. Labor Commissioner,New Delhi wherein the applicationofLaborLaws has been excludedqua petitionerestablisliment.The, said circular is reproduced as under: '^GOVT. OF NATIONAL CAPITAL TERIUTORY OF DELHI LABOUR DEPARTMENT 15-RAJPUR ROAD: DELHI-110054 No. 1:1291 Dated: 03.04.2001 CIRCULAR Hony. Chairman, MS Siilabh International Social Service Organisation, RZ-83, Mahavir Enclave Palam, Dabri Marg, New Delhi-110045, has applied that the provisions of labour laws are not applicable on their organization on the basis of the following grounds:- a) That it is a Society^registered under the Societies Registration Act, I860. • _ • • b) That it is voluntary philanthropic organization. c) That it is carryingout its activitieson 'No ProfitandNo Loss basis. d) Thai it was consideredas not an Lndustiy" as defined in Section2(j) of the IndustrialDisputesAct, 1947 by the Hon'bleLligh Court of Patna and the same was acceptedby the Hon'ble Supreme Court of India. e) That the Government of Orissa, Karnataka and Andhra Pradesh considering that it was neither an ^Lndustiy" nor a "Commercial Establishment" issued instructions to their officers not to enforcethe labour laws and keep the abovesaidjudgmentsin view, while dea.ling M'ith the said organization. f) That that Governmentof Bihar also aecorded exemptionto it, from applicability of the provisions of the "Shop & Establishment Ad", as applicable in their State. After the examinationof above application,it appears that the above said organizationis a non-profitvoluntarysocial organizationand is carryingout its activitieson 'No Profit and No loss" basisfor the welfare of the humanit}> and as such is neither an indiistiynor an Establishment. Llence, all the subordinate offices in different States have been instructedto keep the above in view, while dealing with the W.P.(C) Nos. 5944, 6059-68/2012 Page 7of 35 \ above said oi'ganization for the purpose of enforcement of labour laws. lion 'hie High Court of Patna in the matter of M/s Sulabh International V/s. State of Bihar & Ors. held vide their judgment dated 09.02.1990 that the Petitioner management/organization, i.e., M/s Sulabh International Social Service Organization is not an industry within the meaning of Section 2(j) of the Industrial Disputes . Ad. 1947. Plon'ble Siiprme Court of India vide order dated

17.02.1994 and

20.03.1996 dismissed Civil Appeal and Review Petition in the matter of "Bhartiya Sulabh Sauchalaya Karamchari Sang vs. Sulabh International & Ors thereby upholding the same view as decided by the Hon 'ble High Court ofPatna. The Govt. of Orissa, Karnataka, Andhra Pradesh & Govt. of Bihar issued circulars/instructions to their subordinate officers to enforce the labour km>s in view of above said judgments. Copies of the above said judgments and relevant circidars as issued by different State Governments ore enclosed for ready reference. The Metropolitan Magistrate, Delhi has also decided on 22.03.1997 that the provisions of Minimimi WagesAct ^are not applicable to the said Organization. Copy ofthe said judgment is also enclosed. Hence, in such circumstances all the Branch Officers of the . Department while dealing with the above said Organization are herebv instructed to keep the above facts and judgments in view for the purpose of enforcement of labour laws andfor compliance of the above said judgments in letter and spirit. (V. KUMAR) Jt. Labour Commissioner" L

¶7The respondent No.3 Du'ector, All India Institute of Medical Sciences is the petitioner in the Writ Petitions No. 6059/2012, 6060/2012, 6061/2012, 6062/2012, 6063/2012, 6064/2012, 6065/2012, 6066/2012, 6067/2012 & 6068/2012 challenging the same on the preposition that the relationship between the petitioner herein and the respondent No. 2 is not established as "employer" and "empic^yee" as is defined in the Minimum Wages Act. Therefore, the respondent No. 3 contend;-;ihat the application of the provisions of the Minimum Wages Act would not arise; and is not liable under the Act to pay the minimum wages to the W.P.(C) Nos. 5944, 6059-68/2012 • Page 8 of35 n responclenlNo. 2. The respondentNo. 3 also bought to the notice that the non existenceofrelationshipas "employeeand employer"betweenthe petitionerand the respondentNo. 2wouldrenderthatthe impugnedorderis voidab initio. The Authorityunderthe Act has taken note ofthe"pleadingsand framed the - followingissues, namely,

(i) Whether the Minimum Wages Act, 1948 is applicableonly to 'industry', ^establishment'and 'enterprise',and not to voluntarysocialserviceorganizationof charitableand philanthropic nature.

(ii) ' Whether AITMS or Sulabh hiternational should be deemed to be the: employerunderthe Act havingresponsibilityto pay minimumwages.

(iii) Whetherthe persons associatedwith Sulabh Internationalare 'employees' within the meaning under the Act.

(iv) Whetherexemptionofemployerfrom liabilityin certaincasesunderSection 23 applies to claim cases.

(v) Whetherthe Hon'blePatnaHigh Court'sorderin CWJC No. 3408 of 1989 has a bearing on this case. On the issuesmentionedabove,the learnedAuthorityheld thatthe petitionei and the respondentNo. 3are coveredunderthe definitionof"employer"as defined in Section2(e) ofthe Act sincethe respondentNo. 2was deployedor employedby the respondentNo. 3through,the petitioner.Therefore,the Authorityhas reached to the conclusionthat the petitionerand the respondentNo. 3 are employersfor the purposeof determiningthe liabilityunder the MinimumWages Act. Moreover,it also consideredthe fact that the duty which was performedby the respondentNo.2 was the scheduledemploymentwhich is defined in Section2(g) ofthe Minimum W,P.(C) Nos. 5944, 6059-68/2012 ^ Wages Act and the Central Governmenthas-fixed minimum rate of wages vide notification No.S.O. 1994(E),dated 7.08.2008.

¶9As regards the contentionsbased on the judgmentof Patna High Court in • Wi-il. Petition No. 3408/1989, the Authority under the Minimum Wages Act has -^jointedout that the said judgmentwas not applicablein the issue of paymentof Minimum Vv'ages Act. It was also differentiatedon the aspectof the issues, as in the above said judgmentthe issue was the constructionof 'latrinesand urinals' by the Petitioner for the use of the public which was held to be not "industry" wliereas,the issue involvedin the claim applicationwas sweepingand cleaningin the establishment of the respondent No;3 by the petitioner in the capacity as a contractor or an outsourced agency. Accordingly, the Authority under the Act allowed the claim application that has been filed by the respondent No.2.

¶10IL is importantto note that the Authorityhas come to a specificconclusion •^ th'at the Patna High Courtjudgmentis not applicablein the presentcase, wherein the above said circular of labor department is also based on the above said judgment. Importantly, the petitioner also strongly relies upon the dictum of W.P.No.3408/1989 of Patna High Court. In this context, it may be relevant to reproduce the relevant paragraphs of the said judgment as under: "6. Concluding, therefore, 1 have no hesitation in holding,firstly, that the so-called union is entirelyspiirioiis. It has no sanctity of law nor does It represent anyone -who can be treated to be a -worhnanof the Petitionerestablishment.Infact, it is a self-styled,union ofcertain persons whose motive is not only laudable but entirely malafide. 1 have also no hesitationin holdingthat this was a case, primarily, in ' which no referenceshould have been made merely on the basis of a solitary material that is the notification recognizing the Union. In the light of the subsequent notification as contained in Annexure 4, the authoritiesshouldhave been well advisedto examine, beforemaking a reference, whether the Union making the demand was a union W.P.(C) Mes. 59/14; 6059-GS/2012 Page.10of35 sanctified by lew and really represented the workmen of the petitioner-establishmentwhich situationwas subsequentlybroughtin . to light resultingin the issuanceofAnnexure 4. Even if, 1were to assess me that the Stategovernmentwas rightin makingthe reference ofregistrationalone, once it has come to light that the Union whose Presidenthas made the demand, is nota Union created in accordance ' with laM! and it does not consistof the persons who are the workmen of the Petitioner establishment, then also'the reference and the consequentialproceeding cannot be alloM'ed to stand. I have, therefore, no hesitation in quashing the entire reference thus renderingthe consequentialawarda nullity.

¶7Havingheld as above, the secondpointwhetherthe petitioner-establishmentis an industryor not become,entirelyacademicbecause even ifit was held to be an industry, the initiationofthe proceeding itselfbeingbadand it beingnot establishedthat the demandhas been made by or on behalf of an for a worJcman of the petitioner-establishment, no award could be made against the petitioner-establishment and the demcmd made in annexure 3 could not be entertained. 1, hoyvever, would like to express my opinion succinctly in regard to this point also. Undoubtedly, the law has completely been crvstallized by the decision of the Supreme Court reported in AIR 1978 SC 548 (Bangalore Water Supply and Sewerage Board vs. . A. I~{ajappaand others) relating to types of establishmentsthat come within the definition set out in Section 2(J)of the Act. The definition in Section 2(j) of the Act of the word "Industry" has been given a wide meaning embracing within its ambit a large number of organizations which would, come within the nature of the Institution set out but is essential in every case where the question is raised whether an establishment is an industry within the meaning of Section 2(j) of the Act that certain relevant factual data have to be found. If an establishment is undoubtedly an industry established for the purpose of business, trade, undertaking manufacture or calling of employers and it includes the calling, ser.nces, employment, hcmdicraft, or industrial occupation or avocation of worknien, that being an establishment of imdoubted has in regard to its character of being cm. industry then much ado is not recfuired for applying the provisions of the Industrial Disputes Act in all its aspect. The problem arises only' when an establishment by the very nature ofits creation, extent and its purpose for which it was established cannot exfacie be described as W.P.(C) Nos. 5944, 6059-6872012 Pagellof35 .\ an Indiistrvthen it can only be broughtin to the ambitofthe definition ofSection2(J) ofthe Act on the basis ofascertainablefacts brought about by detailedinquiryin an awardproceedingor at the levelofthe State Governmentmakingthe reference. The onus wouldlie on the so calledworkmen to bringon the record, cogentand relevantmaterials to sho^'\> that not only they are the membersofsuch establishmentbut also thai the organizationis infactfunctioningin the mannerwhich-hj-ini^s it within the definitionof 'industry'. In the instantcase, apart from the bye laws and the audit reportofthe managementandfour witnessesexaminedby the workmen, nothinghas been broughton the record to sho^•v the manner in which really the Petitioner establishmentis'functioning. In fact, the Petitioner establishment claim, to be a voluntary organization of social workers who have gatheredtogetherto work on aprojectby which apartfrom others the harizans could he relievedfrom performing the inhuman duties of carrying night soil on their heads. The other purposesfor the establishmentof the Petitioner-organization have been set out in the aims and objects and appear primarily to 'render certain specific benefitsfor the member of the public in various spheres of everyday life. For thesepurposes, the Petitioner establishmenthas been set up which is technically described as . "Sulabh Sauchalaya". The Pt'liiioner establishment has set up lavatories and bathrooms, the construction being of very simple in nature for the use of the public . which need not be cleaned by the scavenger nor does it rec[uire carrying of any night soil on' anyone's head. Further, the jobless scavengers or other persons rendered without employment are now being imparted vocational training in centers which may help them to .find jobs. For this purpose it has a large number of volunteers who are paid small sums of money as pocket money for their pocket expenses. It is true that in everycase ofindustry,the elementofprofit and loss need not be thereyet as I read the aforesaid decisionof the Supreme Court-, the definition cannot be extended to a purely voluntary organization like the Petitioner establishment which is workingfor public good and in the interest of the weakerSection of thesociety unless relevantfacts are proved. In my view, it is incorrect to say on the basis of the aims and objects of the organization that ' these cannot be accomplished by voluntary yvorkers. The aims and ' objects of any establishmentare always extensive and goes, even beyond the actual work that the establishmentundertakes. The ipso dixitoffour yvorkmenall ofwhom claim to be no longerin serviceof W.P.(C) Nos: 5944, 6059-68/2012 Page 12of35 the establishment and the aim and objects can hardly justify the inj'erencethat the establishmentis an industiy. Much more than this was needed to be proved.

¶8I have, therefore, no hesitation in holding that there was no sufficientevidenceon record to hold that thepetitioner-establishment is an industry M'ithin the meaning of Section 2(J) of the Act and the decisions of the Supreme Court.

¶11The readingof the foregoingparagraphsin the saidjudgmentmakes it clear that the issue was not the application of the payment of Minimum Wages Act; but the IndustrialDisputes Act. Two issues were involved, primarily the scope of the-deriniiion of industrial dispute as defined in Section 2(k) of the Industrial Disputes y\ct, and tlie Court ruled that the dispute which was referred was not an industrial dispute since;'it was not refen-edby the worlaiien in the establishment.Secondly, on the issue whether the petitioner herein, namely, Sulabh International is an industry or not, the Patna High Court held that, being a purely voluntary organization, working for the public good and for the benefit of weaker Sections in the society the de finition of "industry" could not extent to the petitioner.

¶12It is legally fundamental to note that the reasoning of the judgment flows from the provisionsof the IndustrialDisputesAct; not from the Minimum Wages Act. Significantly,the existence of the petitioner as a voluntary organizationis di fferent from as compared to deploymentof persons as volunteersthrough the petilioner. In the latter category the petitionerstands in the differentfooting as conipai-ed to. the former; that is as an employer.Therefore,the learned Authority underthe MinimumWages Act opinedthat the saidjudgmenthas no bearingin the issue invofved. " ^

¶13One of the most importantaspects for considerationis that the respondent No.2 was servingthe petitioneras a volunteer;not as an employee.Therefore,the W.P.(C) Nos. 5944, 6059-68/2012 Page 13 of.35 contentionwas that the existenceof "employee-employer" relationshipis a sine cjiio non for the application of the Vlinimum Wages Act. The root of this proposition was based on the agreement executed between the petitioner and respondentNo.3 as exhibitedas annexureP-3 in Writ PetitionNo.-6059/2012.The >first party in the agreementwas the respondentNo.3 whereas the petitionerwas second party. For the proper evaluationof the said aspect, it is convenientto reproducethe relevantterms and conditionsin the saidagreementas under; "The agreementbehveenFirstPartyand SecondPartywitnessethas per terms andconditionssetforth hereimder.

¶1The Second Party will have to provide adequate voluntary social workersfor cleaning. The timing of the deploymentof the voluntarysocialworkerswoiildbe accordingto the needs of the Dr. BRAfRCH, AIIMS, Ansari Nagar.

¶2No refuse/garbage will be dumped by the voluntary social workers in the open trenches, hedge.

¶3Removal of the dead body of Dogs/Cats/Rats/Monkeys etc. within Pi'\>o hours after receiving the complaint without fail.

¶4Second Party shall provide the House Keeping services on all calendar days Sundays including Gazetted Holidays i.e. the timing of the deploymentof the staff would be according to the needs of the Dr. BRAIRCH.-AIIMS, Ansari Nagar.

¶5The Second Party shall provide 10 Nos. of Sulabh voluntary social workers and one supervisor to cope with work load of sanitationthroughouttheperiod ofagreement. In case, the mmiberof Sulabh voluntary social workers engaged, is found less while inspection by 'any Executive Officer of the Center, proportionate charges yvi.ll he deductedafter discussionwith SecondParty the as per charges specifiedin Annexure-l. The Executive Officer of this Contract shall be Asstt. Admn. Officer AIIMS (as nominee of Dr BEAIUCH,AIIMS, Ansari Nagcuf - ' ~

¶6The Second Party shall maintain the complaint hook for Ifierentareas, which will be made availableto the supervisorystaff L W.P.(C) Nos. 5944, 6059-68/2012 Page 14of35 : n2> The SecondParty M>ill use the manpoweronly at theplaces wherever authorized.

¶7The SecondParty shallprovide two sets ofApron includingDr. BRAIRCH,AIIMSto its voluntarysocialworkersandensurethat tUey shall wear it while on duty and maintain them clean.

¶8That the voluntarysocial workers deputed by the SecondParty shall not be below the age of 18 years.

¶9The voluntary social workers deputed by the Second Party . shouldnot interfere with the dutiesofyvorkersoftheFirst Party. ' ' i

¶10The Second Part)/ shall ensure and guarantee the conduct, behaviorand honestofthe voluntarysocialworkersdeputedby them. In case of any misconduct or any other damage or theft of the property/ofthe FirstParty, the SecondPartyshall be responsiblefor all such losses or damages after it is established by holdingproper enquirythat the voluntarysocialworkersdeputedby the SecondPart)' are responsible for these. 'II. The voluntary social workers engaged by the Second Party shall be of good character and sound health. And should be., medicallyfit and this may he checked by Senior kesidents Dr. BRAIRCH, AIIMS, Ansari Nagar.

¶12In the event ofany loss to the Dr. BRAIRCH,AIIMS on account of negligence of voluntary social workers, Second Party shall m.ake good the loss sustained by the Dr. BRAIRCH, AIIMS, Ansari Nagar either by the replacement or on payment of adequate compensation which will be decided by the Joint Committee of both the parties after holding necessary enquiry.

¶13The First Party shall not be responsible for •the payment of honorarium to the voluntar)/ social workers engaged by the Second. Parly and shall ensure timely payment to them.

¶14The Second Party shall provide voluntary social workers as per - approved terms and conditions. The same shall be monitored by Sr. Sanitation Officer/Representative of the Dr. BRAIRCH, AIIMS, Ansari Nagar and. if the strength is'foimd less, proportionate recovery will be made. W.,P.(C) Nos. 13944, 6059-68/2012 • OA

¶15The Second Party will have,to produce the monthly hill along with the certificateofsatisfactoryperformancefrom theSr. Sanitation Officer/SanitationInspector to the submitted on the S"' of every calendar month for verificationby the Executive Officer and same shall hepaid within10 days by theFirst Party.

¶16Second Party shall not appoint any Sub-contractor/Agentto carryoutany obligationsunderthe awardedperiodofwork. / 7. • The First Party' shall provide the quality cleaning material to the SecondParty as per requirementat its cost, but the SecondParty shall make this demand in advance so that work does not suffer.

¶18The Second Party Dr. BHilRCFf, AIIMS, Ansari Nagar shall not be responsiblefor any compensationwhich may be requiredto be paid to the voluntarysocialworkers of the SecondParty consequent upon any injury/mishap.

¶19The Second Party shall be responsible to the Head of the Dr. BRAIRCH, AIIMS, Ansari Nagar or any office,authorized by him./her for execution ofday to day work ofthe campus. The Security instructions/orders issued by the Dr. BRAIRCH, AIFMS, .AnsariNagar from time to time shall also befollowed by the Second Party and. volimtary social workers.

¶20The First Party reserves the rights to award the area for cleaning, dusting etc. out of various buildings/locations and can any time withdraw some areas' or add some additional areas from, the contract without assigning any reason after giving one m.onth's notice.

¶21The contract can be terminated by the First Party Dr. BRAIRCH, AIIMS, Ansari Nagar by giving one month's notice. The Second Party can also terminatethe contract by giving one month's notice. • . '

¶22No voluntarysocialworkers of the SecondParty shall stay in the campus beyondprescribedduty hours. Whilegoingoutofthe Dr. BRAIRCPI, AIIMS, AnsariNagar , SecondParty will go through the check by security' at various exists of the Dr. BRAIRCH, AIIMS. Ansari Nagar. . ' W.P.(C) Mos: 5944, 6059-68/2012• , Page 16of35 It /V furtheragreedthat there would be absolutelyno scope of ^^scalation payable by the First Party on account of increase m honorariumofvoluntarysocialworkersunlessmutuallyagreedto. V It is acyreedthatin case the SecondPartyfails toperformany of die terms and conditionsofthis agreementor commitsany breachm contract the First Party may cancel the contr-act after giving reasonableopportunity^and iffoundunsatisfactorythen by givingone month notice in writingto the SecondParty. 7s That the SecondParty shall issue the identitycard to each of The voluntarysocial worker engagedas associatememberfor entiy into the workplace ofAllMSpremises. ?6 That in case of any dispute between tl-w parties aforesaidin respectoftitis agreement,the mattershall be referredto a nmtuaUy agreedupon Arbitratorby the FirstPartyand Hony., Asstt Director of the SecondParty and the decisionofthe Arbitratorso appointed shallbefinaland bindingon both theparties. The rates terms and conditionsas per annexure/, 11 &III to 'this agreementwillform an integralpartofthisagreement" Indisputably,tlie above said contractestablishesthe fact that the respondent No.2 was deployed in the premises of respondentNo. 3 for the employmentof cleaning through the petitioner.It is true that the contract entered between the parties refers the respondentNo. 2 as "voluntarysocial worker". Despite of this relerence as a voluntary social worker, the respondent No. 2 has filed claim petition under the Minimum Wages Act; and therefore,the Authorityunder the Act, held that the respondentNo.2 is not a volunteer.

¶15Moreover,it is legallysignificantto note and'examinethe nature and scope of the above contractin the light of observationsmade by the Supreme Court in Peoples Unionfor DemocraticRightsand Ors vs. Union ofIndia1982 (3)-SCC 2jS. The'relevantparagraphis reproducedasunder W.P.(C) Mo.'^. 5944, 6059-68/2012 70 Now the next question-that arises for consideration is ],hether there is any breach of Article23 when a person provideslabour or serviceto the State or to any otherperson andis paidless than the minimumwagefor it. It is obvious^that ordinarifym one woidd willinglysupply labour or service to. anotherfor less than the mihimiim wage, when he biows that •under the law he is entitledto get minimumwagefor the labour or service provided bv him. It may therefore be legitimately oreswved that when a person provides labour_ or service to 'anotheragainstreceiptof remunerationwhich is less than the nnnimum.mge, he is actingunder theforce ofsome compulsion ,vhich drives him to work though he is paid less than whathe is entitledunder law to receive. WhatArticle23 prohibitsis 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 physiccd force which may compelapersonto providelabouror sei^nceto anotheror it may beforce exertedthrougha legalprovisionsuch as aprovisionfor imprisonmentorfine in case the employeejaUs to providelabouror serviceor it may even be compulsionarising h-om hungerandpoverty,wantand destitution.Anyfactorwhich ''deprivesapersonofa choiceofalternativesand compelshim to adopt one particularcourseofaction mayproperlybe regarded as 'force'and iflabouror sei-viceis compelledas a residtofsuch- 'force', it would we 'forcedlabour'. Where a person is suffering, from-hunger or stai-A'ation,when he has no resourcesat all to fight diseaseorfeed his wife and childrenor even to hide their' nakedness,where uttergrindingpovertyhas broken his backand. reduced him to a state of helplessness and despair and yvhere no other employment is available to alleviate the rigor•of his povert).', he would have no choice but to accept any work that comes him way, even if the remuneration offered to him.^is less than the minim.um wage. He would be in no position to bargain with the employer; he would have to accept what is offered to him. And in doingso he wouldbe acting not as afree agent with a choice between alternatives but under the compulsion of economic circumstances and the labour or service provided by hirn wouldbe clearly'forcedlabour.' There is no reason why the 'forced'shouldbe read in a narrow and restrictedmanner wora so as to be confinedonly to physicalor legal'forc^j'particularly W.P.(C) Nos. 59^4, 6059-68/2012 ^7 M'hen the national charter, its fundamental document has promisedto build a new socialistrepublicwhere there Will be socio-economicjusticefor all and every one 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 docum.entsin historyfor ushering in a new socio-economicorder and the Constitution which they haveforged for us has a social purpose and an economic mission and thereforeevery word or phrasein the Constitutionmust be interpretedin a mannerwhich would advance the socio-economic objective of the Constitution. It is not un often that in capitalist society economic circimistance exert much greaterpressureon an individualin drivinghim. to a particularcourseofaction thanphysicalcompulsionorforce of legislative provision. The word force' must therefore be constructed to include not only physical or legal force but also force arising from the compulsion of economic circumstance which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration receivedfor it is less than the minimimi wage'of course, ifa person provides labour "or sei^ice to another against receipt of the minimumwage, it wouldnot bepossible to say that Ihe labour or service provided by him is forced labour' because he gets what he is entitled under law to receive. No inference ccua 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 M'ho is not under the ' force of any compulsion. We are therefore of the view thai where a person provides labour or service to another for reinuneration 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 courtfor enforcementoj 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 rem.edied. Jt is therefore clear that when the petitioners alleged that minim.um wage yvas not paid to the workmen employed by the contractors, the complaint yvas really W.P.(C) Mos. 5944, 6059-68/2012 Page19 of 35 in effect and substance a complaint against violation of the. fimdainentalrightofthe worknienunderArticle23.

¶16Article23 ofthe Constitutionenacts a very importantfimdamentalright in the following terms: Article23 : Prohibitionoftrafficin human beingsandforced labour- (/) Traffic in human beings and begar and othersimilarforms offorced labourare prohibitedand any contraventionofthisprovisionshall be an offencepunishablein accordancewithlaw.

(2) Nothing in this Article shall prevent the State from imposing compulsoryservicefor publicpurposes,and in. imposingsuch servicethe State shall not mcike any discriminationon grounds only of religion, race, caste or class or any ofthem.

¶17'T^he challengeherein is not about the enforceabilityof the said contract:but-the nature and scope of the same is to be examinedin the lightof Article23 of the Constitution., with the findings as regards the different forms of forced labour as held in Peoples Unionfor Democratic Rights and Ors vs. Union ofIndia (supra) . for culling out the stand ofthe respondent No. 3 and the petitioner. In the light of the above, the deployment of respondent No. as a social w^orkeris a new method of forced labour in the society, which needs to be curbed'. The reading of the terms and conditions ofthe said contract in terms with Ai-ticle 23 would establish the fact that, the respondent No. 2 was working as an "employee" not as a "volunteer"

¶18It is also pertinent to examine the said contract with the provisions ofthe Minimum Wages Act.

¶19Section 25 ofthe Minimum Wages Act reads as follows;

2.5. Contracting out.- Any contract or agreement, whether made before or after the commencement of this Act, whereby an W.P.(C) Nos. 5944, 6059-68/2012 Page 20 of35 employeeeither relinquishesor reduces his right to a minimum. rate of wages or any privilegeor concessionaccruing to him •under this Act shall he null and void in sd far as it purports to reduce the minimum,rate ofwages fixed under this Act. •

¶20HiereFore,the contract entered between the petitionerand the respondent ^No. 3, would not disentitlethe claim of the respondentNo. 2as ah employee .for minimumwages underthe MinimumWages Act.

¶21This Court in judgment delivered on 24.02.2010 in Writ Petition No. 3785/2007 held as under; "16 The object and policy of the Legislature in enacting the Minim.u.m. Wages Act is to prevent exploitation of the workers and, for that purpose, it aims .at fixation of minimim wages . which the employer must pay. The Legislature undoubtedly intended to apply the Act to those industries or localities in which hv reason of causes such as unorganized labour or absence of machinery for regulation of wages, the wages paid to workers Were, in the light of the general level of wages, and subsistence level, inadequate. Conditions of labor vary in different industries and from locality to localit)', and the expediency of fixing minimum wages, and threats thereof depends largely upon diverse factors which in their very nature are variable and can properly be ascertained by the Government which is in charge of the administration of the State. It is to carry out effectively the purpose of this enactment that power has been given to the appropriate Government to decide, with reference to local conditions, whether it is desirable that minimimiwages should be fixed in regard to any scheduled trade or industiy, in any • locality, and if it be deemed expedient to do so, the rates at which the wages should be fixed in respect of that industry in the locality" •

¶22\n order'to protect the interest of the employees, the scope under the Minimum Wages Act is in wider perspectivethan the IndustrialDisputes Act. The Minimum Wages Act "Section 2 defmes as follows; V\/.P,(C)l\io^, S9U, 6059-68/2012 Page 21 of35

(e) "employer"meam any person who employswhetherdirectly^ or through anotherperson or whether on behalfof any other person one or more employees in any scheduled emplovmentin respectofwhich minimtim rates beenfixed under this Act and includesexceptmsub-Section(^) %n"l^ctorywhere there is carriedon any scheduled emplovmentin respectofwhich minimumrates ofwages have beenfixed under this Act any person named under. clause (f) ofsub-Section(!) ofSection7ofthe Facto)les Act 1948 (63 of1948)as managerofthefactory;

(ii) in anyscheduledemploymentunderthe controlofany governmentin India in respectofwhichminimumrates of lages have been fixed tmder thitr Act the person or authoriiy' appointed by such government for the stmervisionand controlofemployeesor where no pa son or authorit)^is so appointedthe headofthe department,

(Hi) in any scheduled employment under any local authoritj^ in respect of which minimum rates ofwages have beenfixed under this Act the persons appointedby such authority for the supervision and control of employeesor where no person is so appointedthe chief executiveofficerof the local authorit)^;

(iv) in any other-case where there is carried on any scheduledemploymentin respectof which minimum rates of ages have been fixed under this Act any person responsibleto the oMmerfor the supervisionand control ofthe employeesorfor thepaymentoj wages; Whereasthe industrialDisputesActs, Section2(g) definesemployer: "Employer" means—

(i) in relationto an industry^carriedon by orunderthe authoriiy of any department of 3 the Central Government or a State GovernmentI, ihe authority^prescribedin this behalfor where no authorit).'is prescribed,the headofthe department; \A/.P.(C) Nof^. 'SQH 6059-68/2012 :>)

(ii) In relationto an industrycarriedon by oron behalfofa local authority,the chiefexecutiveofficerofthatauthority;

¶24It is importantto notethatthe defniitionofemployerin the MinimumWages ^Act prescribes that "any person who employees" falls under the category of employerwherein the definitionof the employerin the IndustrialDisputesAct is solely based on the definitionof industry.Therefore,both the petitionerand the respondentNo.3 qualifiesthe testto be calledas employeras per the provisionsof Minimum Wages Act; In the lightofthe above discussions,the relationshipofthe petitionerand respondentNo.3 with respondentNo. 2 is establishedas employer and employee.RespondentNo.2 is entitledto get the minimumwages as per the scheme of the Constitution of India as well as the object of the Minimum Wages Act, 1948. Accordingly, interference under Articles 226 and 227 of the Constitution of India is not warranted.

¶25Mr.'Tulsi, learned Senior Advocate has further submitted that since there is no relaLionship of eniployer and employee and the petitioner being the voluntary organization., therefore. Section 2 (j) of the Industrial Disputes Act,1947 cannot be applied on such organization.

¶26He has relied upon a case of Rattiram and Others Vs. Pradesh, (2012) 4 SCC 516, wherein while relying upon the case of India Vs.RisghubirSingh, (1989) 2 SCC 754, the Supreme Court has held that a pronouncementof law by a DivisionBench or a smallernumber of Judges, and in order tiial such decision would be binding. It has-been held as under:- "26. In Union of India v. Raghubir Singh, (1989) 2 SCC 754, the Constitution Bench, speaking through R. S. Pathak, CJ, has ' held thi/s;- (SCCp. 778, para 28) W,P,(C) Nos. 594^, 6059-68/2012 Page 23 of35 XXX "28. We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller niimherofJudges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench ofthe Court. " XXX XXX

¶28In Chandra Prakash v. State of UP, (2002) 10 SCC 710 : 2003 SCC (L&S) 808 , a subsequent Constitution Bench reiterated the view that had already been stated in Raghubij\ Singh (supra).

¶29Thus viewed, Bhooraji (supra) was a binding precedent^ and. when in ignorance of it subsequent decisions have been' • rendered, the concept ofper incuriam would come intoplay. " T!. He has further relied upon the judgment of Sundarjas Kanyalal Ehatija & Ors. Vs. Collector, Thane Maharashtra & Ors,, (1989) 3 SCC 396, wherein the Supreme Court has observed as follows:- "14. The other limb of the argument of counsel for the appellants relates to the manner in which the High Court disposed of the matter. It was said that a decision of this Court has been disregarded and a binding decision of a co-ordinate Bench oj the same Court has been ignored. XXX XXX XXX

¶18It would be difficultfor us to appreciate thejudgment of the High Court. One m.ust remember that pursvdt of the laM^', however glamorous it is, has its own limitation on the Bench. In a miiltifudge court, the Judge'); are bound by precedents and procedure. They could use their discretion only when there is no declaredprincipleto befound, no rule and no authority^The , judicial decorum and legal propriety.' demand that where a learnedSingleJudge or a DivisionBench does not agree with • the decision of a Bench of co-ordinate jurisdiction, the matter \A/.P,(C)Nos. 5944, 6059-68/2012 Page 24of35 shallbe referredto a largerBench.It is a subversionofjudicial processnottofollow thisprocedure.".

¶28The learned senior counsel has flirtherrefeiTedthe order dated 27.11.2003 passed by this Court in Crl. Miscellaneous(Main)Nos. 3822, 2933 to 2936, 3820-3821 of2002 filed by the M/s SulabhInternationaland Anotheragainstthe order 'of l.aboLir EnforcementOfficer (C), Delhi 3, wherein this Court has also relied 'upon the judgmentofthe PatnaHigh Courtand heldthatthereis no relationshipof master and servant between the petitionerand the persons being the voluntary services.

¶29The aforesaidorderwas challengedby the GovernmentofNCT ofDelhi by way ofan SLP (Crl.)No. 1693/2006dated 23.02.2007,whereinthe SupremeCourt has passed the followingorder:- The questionas to whethera public utility^service,M'hich is allegedlycarried on by a Societyon 'noprofit no loss basis' • would he an industry within the meaning of the provisions of' the Industrial disputes Act, 1947, beingpending decision before a seven Judge Bench in State of U.P. vs Jai Bir Sinsh (JT 2005

(5) SC 170), .we are of the opinion that the matter should be referred to a larger bench. The parties are given liberty to mention the matter before lion 'hie the Chief Justice or File an appropriate application for tagging this case with Jai Bir Singh (supra). Let the records he placed before Hon'ble the Chief Justice ofIndia for passing appropriate orders. "

¶30The Coordinate Bench of this Court on

16.11.2009 in Crl. M.C. No. 3884/2009 passed the order as follows Mr.Tulsi, learned Senior Advocate appearing for the petitioner submits that the petitioner is a voluntajy social organization engaged in the work - of constructing and W.P.(C) Nos. 5944, 6059-68/2012 ' Page 25 Qf 35 inaintaininglavatoriesand has been carryingon its activit)^on no profitand no loss basisfor the welfareofthe humanity. Mr. ' Tillsi has dra.wnattentionofthis courtto the CircularNo. 1291 dated 3.4.2001 issued by the GNCT, whereby the Labour Department has notified all the Branch Officers of the Department that provisions of labour law would not be applicationto thepetitioners. Mr. Tulsialso drawsattentionof the court to the order dated 27.11.2003passed by this court in Crl Mis.

(M) Nos. 3822/2002, 2933/2002, 2934/2002,' 2935/2002, 2936/2002,3820/2002 and 3821/2002 and the orderofthe DivisionBenchofPatnaHigh Courtin W.P.(C)no. 3408/89. Basedon the saidsubmissions,Mr. Tulsisubmitsthat provisionsofSections23 arid 24 ofthe ContractLabour (R & A) Act cannot be invoked by the trial court against the petitioner. In Crl. M.A. No. 13582/2009,theTrial Court proceedingswere stayed till tlie neKt date of hearing.

¶31On the same issue whetherthe petitioneris an industrywithin the meaning of Section 2(j) of the IndustrialDisputesAct, 1947 and whetherthe Industrialas well as l.,abourLaws are applicableto the organization,on 07.03.2011,this Court in Crl. IVl.C. No. 3884/2009 passed the following order:- Short question for determination in this petition is whether or not the petitioner Sulabh International is an ^industry' within the meaning of Section 2(j) of the Industrial Disputes Act and whether the indiistT-ialas well as labour laws are applicable to the organization. 1 have been informed that aforesaid legal issue is • pending consideration ofa Larger Bench ofSupreme Court and the finding of the Supreme Court will obviously impact the decision on this petition. Thus, decision on the petition-, is deferred. The petition is, accordingly, consigned sine die with the observa tion that either of the parties may get it revived after the decision of the Supreme Court on the issue. " W.p.(C) Nos. 5944, 6.059-68/2012 Page 25 of35

¶32K4r. Mukul Gupta, learned SeniorAdvocate,who arguedthe petitionsfiled • by the All India Instituteof Medical Sciences has joined hands with Mr.- Tulsi, leai-ned Senior Advocate on the legal issue and has further added that the respondents have neither challenged the agreement nor the Memorandum of Understandingentered into between the Sulabh Internationaland the All India instituteof Medical Sciences. There is no evidenceon recordthat the respondent was employed by either of the organizationsmentionedabove and the mipugned decision is withoutapplicationofmind and withoutany basis. Therefore,the same has to be set aside.

¶33Before the learned Authority under the Minimum Wages Act, 1948 and Regional Labour Commissioner(Central),New Delhi and before this Court the same issue was raised that the petitioneris not an industry and the provisionsot Minimum Wages Act, 1948, are not applicableto them as it is a voluntarysocial service organizationof charitableand philanthropicnature, working on no profit and no loss basis. Therefore, it is neither an estabhshment nor an employer. It is Further submitted that the persons associated with Sulabh International are nQt employees or workers, but are associate members of Sulabh International, rendering their voluntary social services for the upliftment of scavengers. The, objecL of the associate members of Sulabh International is to render social service and not to attain personal benefits, and also because they are not rendering any, services for the organization but are using the organization to coordinate and guide their activities along with the activities of other similarly minded social workers to help them attain their goal of social welfare, therefore, no wages/salaries are payableto these volunteers. ^

¶34On the minimum wages, the learned Authority framed an issue that " (i) Whetlier the Minimum Wages Act, 1948 is applicable only to 'industry', W.P.(C) Nos. 5944, 6059-68/2012 Page27 of 35 3^ "'establishment'and 'enterprise',and not to voluntarysocialserviceorganizationof charitable and philanthropic nature.

¶35On the issue framed above,the learnedAuthorityhas held thatthe Minimum Wages Act, 1948 is applicableto a scheduledemploymentin respect of which .minimum rates of wages have been fixed by the appropriateGovernmentas is evidenl. from a reading of the defmition of 'employer' and employee undei Sections2(e) and 2(i) respectivelyof the Act. The 'AppropriateGovernment'as defmed under Section 2(b) of the Act in respect of AIIMS is the Central Government. The employment of sweeping and cleaning is a scheduled employmentunder Section2(g) of the act and the Cential Governmenthas fixed minimum rates of wages for the said employmentvide NotificationNo. S.O. 1994

(e) dated 7.8.2008. There is no reference in the Act to terais like 'industry', 'establishment'and 'enterprise'nor is there any mentioneven by implicationthat the Act applies only to them.

¶36On the contrary, while defining the term 'employer' under Section 2(e) of the Act, the Act has made clear that it is applicable to scheduled employments carried on in a factory, scheduled employments under the control of any Government in India, scheduled employments under any loca,l authority and scheduled eniployments in any other case.

¶37There is no direct or indirect mention in the Act that the scheduled employment has to be caiTied on by an industry. The Act applied to an employment which is scheduled irrespective of who carries on that scheduled employnient.

¶38On the issue No. (ii) Whether AIIMS or Sulabh International should be deemed to be the employer under the Act having responsibility to pay minimum. W.P.(C) Nos. S944, 5059-68/2012 ^31 wages, the learned Authority has held that Section 2(e) of the Act defined 'employer' as "any person who employs, whether directly or anotherperson,or whether'on behalfofhimselfor any person,one or more employeesin any scheduledemployment in respectofwhich minimumrates ofwages have beenfixed under this Act, and ."

¶39It is recorded in the impugned order that in the instantcase, the so called volunteers have been deployed in the scheduled employmentof sweeping and cleaningby SulabhInternationaldirectly. It is also not mdisputethat they have been deployed by AIIMS though Stilabh International in said scheduled employment. Therefore, both having satisfiedthe definitionof 'employer' are jointlyand severallyresponsiblefor paymentof minimumwages to the employed, or deployed. In this case, AIIMS as employer can in no case escape the responsibilityof paymentof minimumwages to the employedas the amountpaid by it to the SulabhInternationalfor the purposeofpaymentto the employedis less than the minimum rates of wages fixed by the Government.

¶40On issue No. (iii) Whether the persons associated with Sulabh International are 'employees' within the meaning under the Act, the learned Authority has relied upon a case decided by Jharkhand High Court titled: Robert Toppo Fs. State of Jharkhand, wherein it has been observed that "there is no provision in the Act or in the Rules that any 'shramdan' should not be treated as labour."

¶41The learned Authority has observed that the Sulabh International may be a voluntary organization, but it does not necessarily mean that the persons deployed in it are all volunteers. The very fact that the persons employed or deployed by Sulabh International have claimed the minimum .wages under the Act by filing their claims establishes that they are not volunteers. Had they been volunteers, W.P.(C) Nos. 594^1, 6059-68/2012 ^4 why vvoiild they claim,minimum wages? Therefore,the petitioneris treatingthe employed persons as volunteersonly with aview to deprivingthem of minimum wages so that eitheror both ofthem gain out ofthis system. On the issue whetherthe judgmentofthe High CourtofPatna,as mentioned "^^•ibove, has abearingon the issue raisedin the instantclaims,the learnedAuthority. has held as under"- " An examination of the judgment dated 9.2.1990 of Man 'hie PatnaHigh Courtin C. W.J.C. No. 3408of1989 reveals that the Hon'nle Court in that judgment held Sulabh. Internationalnot to be 'industry'within the meaningofsection 20) ofthe IndustrialDisputesAct, 1947. ,As it has alreadybeen^ discussed in the foregoing [paragraph that the application oj MinimumWagesAct, 1948 has nothingto do -with 'industry'and that the act is applicable to scheduledemploymentsunder the act irrespectiveofwhetherit is carried on by an industryor not, the judgment appears to have no bearing on this case. The conlention of the O.P. No. 2 that the Hon'ble High Court held that Sulabh International not being an industjy, no industrial as well as labour laws can be made application to the organization is totally out ofplace and miscjuoted. The Hon'ble High Court ^ never ruled thai no labour laws could be applied to Sulabh Further, it may be added that the case examined by the-Hon 'hie High Court is that of construction of latrines and urinals by Sulabh for the use of the piiblic which was held to be not 'industry' whereas the case under this claim application is sweeping cmd cleaning in the establishment ofAIIMS by Sulabh in the capacity as a contractor or an outsourced agency. ''

¶43I note that the learned Authority under the Minimum Wages Act has considei'ed each and every aspect raised by the petitioners including the judgment dated 27.11.2003 of this Court passed in Crl. Misc. (M) Petition No. 3821/2002, The relevant portion reads as under:- W.P.(C) Nos. 5944, 6059-68/2012 ' -31 "i) The Petition No. 3821 of 2002 has been filed as prosecution complaint against^ Sulabh International under section 22 A of the Act whereas the instant claim, applicationhas beenfiled undersection22(2) ofthe Act. Both the cases do not stand in the same footing. a) The maximumfine under section 22 A is only Rs. 500/- (RiipeesFive Himdred only) M^hereas the compensation under section 20 can .go up to ten times of the amount short paid withoutany-higherlimit. The complaintunder section 22 A has beenfiled by an inspector under the:- Govt. of NCT whereas this • application under section 20(2) has been filed by the employeehimself Therefore, it is likely that thepersons associated with the complaint under section 22 A were volunteers, but the aggrieved person filing the claim, case himself under section 22(2) could certainly not be a volunteer.

iv) Thejudgment of the Hon 'ble High. Court has inter-alia taken in to consideration a circular bearing No.' 1291 dated 3.4.2001 issued by the Labour Department of Govt. .of NCT of Delhi to the effect that Sulabh International is • neither an industry nor an establishment. But no such circular has been issued by the central government.

v) Sulabh International not being an establishnient under the Shops and Establishment Act as decided by various High Courts, the minimum, rates of wages fixed by the government of NCT of Delhi in respect of all shops and establishments imder the Plinimum Wages Act, 1948 might not be applicable to Sulabh International: But no such stipulation exists in the jurisdiction of the central government. 'Sweeping and Cleaning' itself is a scheduled employment in respect ofwhich minimimi.rates of wages have been fixed by ihe central government under the Minimum Wages Act, 1948.

vi) The Hon 'ble Court did nowhere categorically rule that the Minimum. Wages Act, 1948 did not apply to Sulabh _ [nternational." W.P.(C) Nos. 594^, 6059-68/2012 Page 31 of35

¶44The learned Authorityafter dealingwith all the issues framed have finally opined as undcr:- It goes without saying that the O.P.s have caused considerablehardship to the applicant-employeeby notpaying him his rightful dies. Consideringthe plight of the low paid applicant-employee,enormoussufferingcausedto him over a very long period, of time and above all the provisions of i\4inim.um Wages, Act, 1948providingfor compensationup to - ten times of the amount short paid, I am of the considered opinion that the ends ofjustice shall be met if compensation equivalent to five times of the amount short paid to the applicanti.e. (Rs. 61765 X5 = 308825/- (Rupees Three lakh eight,thousandeight hundredtwentyfive only) is also paid to the employee over and above the amountshortpaid. Thus a total amount of Rs.3,70590/- (Rupess Three lakh seventy thousandfive hundredninetyonly) is requiredto bepaidto the applicant-employee. As already discussed, both the O.P. Nos. 1 i.e All India Institute of Medical Sciences and O.P. No. 2 i.e. Sulabh Internationalbeing 'employer'under the Act are severallyand • •jointly responsible for payment of minimum wages to the applicant-employee.It is, therefore, decidedin the interestof equit^'',fairnessand reasonablenessthat the amountrequiredto be paid to the applicant-employeeshould be borne equally by the O.P. No.l and O.P. No. 2. Accordingly, I direct that an amount of Rs.185295/- (Rupees one lakh eightyfive thousand two hundred ninty^ five only) be paid by the O.P. No.2 i.e. Sulabh International to the applicant-employee. I fiirther direct that the amount as awarded above have to be depositedwith the authoritythroughdemanddraftsdra^vn in favour of the applicant-employeepayable at Neyv Delhi within 10daysfrom the date ofreceipt ofthis order."

¶45After hearing the learned counsel for the petitioner,it is emerged that the issue decided by the Patna High Court was that whether the petitionerwas an industryunder the IndustrialDisputesAct and the same issue again framed by this W.P.(C) Nos, 59^,6059-68/2012 Court,as mentionedabove. WhilerelyinguponthejirdgmentofPatnaHigh Court, the same view had been takenby this'Court also. However,neitherthis Courtnor the Patna High Court, as stronglyrelied upon by the petitioner,has decided the issue on the Minimum Wages Act. The petitionermay not be an 'industry'under the IndustrialDisputesAct, 1947, and may be a 'voluntaryorganization',but the 'issue in hand is whetlierfor the servicesrenderedfor the petitioner,would come in purviewof the Act and deployedpersonswould be entitledfor minimumwages, it is entitledto pay the minimum wages or riot.

¶46The petitioner organization has entered, into a Memorandum of Understanding,as mentionedabove, by which the serviceswere renderedto the All India hnstituteof Medical Sciences. The poor people from the lower strataof the societyhave been engagedfor this puiposeand they were giventhe wages less than the minimum wages prescribed under the Minimum Wages Act. The ! organizationmay be avoluntary,but apoorpersonwho has to fill his belly as well dependent's membersof the family cannotaffordto be a volunteer. Apersonwho Has acquired the minimumrequirementin the life may do some voluntaryservice for a day or a two or maximum for a week but not on a peniianent basis. The •espondent.No. 2 is a person whose survival depends upon whatever given/paid by the employer or who is taking his services. If he works voluntary even for a day, - his whole, family would be starving. Therefore, suich a person caimot work voluntai-y even for a day. One cannot expect he would be a volunteer for months and years together.

¶471am conscious that against the judgment of the Patna High Court, the Union of India filed an SLP before the Supreme Court, which was dismissed as withdrawn and thereafter a review was filed and the same was also dismissed. • W.P.(C) Mqs. 5944, 6059-68/2012 Page'33of35 Therefore,no decisionhas been taken by.the SupremeCourton the merits and the matterhas been referredto the LargerBencli,whichisstillpending.

¶48I have no hesitationto say that on one side the petitioneris working for a noble cause, on the other hand, by way of givingthe colourof voluntaryservices, /it is exploitingthe poor people.

¶491am consciousthatthe viewtakenby this Courtwas differentfrom the issue in hand, therefore,there is no questionofper incuriamand the violationof law of precedent. This Court would have been gone wrong if the same issue has been decidedby this Courtand the contraryview is takenin the presentcase.

¶50The issue in the instant petitions is not res integra as the same has been decided in Peoples Union for Democratic Rights and Ors vs. Union oJ wherein it has been held that ordinarily no one would willmgly supply labour or service to another for less than the minimum wage, when he knows that under the law he is entitledto get minimum wages for the labour or service provided by him. In view of that it is held that where a person provides labour or service to another for remunerationwhich is less than the minimum wage, the labour or serviceprovidedby him clearly, falls within the scope and • ambit of the words 'forced labour' under Article 23.

¶51Section 25 of the Minimum Wages Act provides that any contract or agreement, whereby an employee either relinquishesor reduces his right to a minimum rate of wages or any privilegeor concessionaccruingto him under this-Act shall be null and void in so far as it puiportsto reduce the minimum rate of wages n.xed under this Act.

¶52Moreover, Section 2(e) of the Minimum Wages Act provides that the employer means any person who employs whether directly or tln'ough another W.P.(C)Nos,5944,6059-68/2012 Page 34 of 35. • personor whetheron behalfofhimselfor any otherpersonone or moreemployees in any scheduledemploymentin respectof which minimumrates of wages have been fixed ander this Act.

¶53-rherefore, finding no discrepancyin the impugned order, I confirm the ^same. The presentpetitions,beingwithoutmerits,^re dismissed. No order as to costs. i. CM, No. 12240/2012(for stay) With the disposalof the petitionitself, the instantapplicationhas become infructuous.The same is disposedofaccordingly. OCTOBER 18, 2012 , RS/sb SURESBICAIT, X W.P,(C) Nos. 5944, 6059-68/2012 Page 35 of35

* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 6062/2012 & CM. NO. 16379-80/2012, CAV. 974/2012 ALL INDIA INSTITUTE OF MEDICAL SCIENCES Petitioner Through: Mi*. Rajat Katyal and Mr. Sanjeev Joshi, Advs. Versus ASHOK AND ANR Respondents Tlirough: Mr. Anurag Dubey, Mr. D.P. Pandey and Ml-. Meenesh Dubey, Advs. forR2. CORAM: HON'BLE MR. JUSTICE SURESH KAIT