All India Institute of Medical Science v. Balamurgan & Anr

ORDER %

18.10.2012 CAy. No. 975/2012 Since the learned counsel has put appearance on behalf of the caveator,the caveat stands discharged. CM. No. 16390/2012 (for exemption) Exemption allowed, subject to all just exceptions. The application stands disposed of. W.P.(C) No. 6067/2012 In view of the common judgment rendered in W.P.(C) No.5944/2012, the instant petition is accordingly disposed of. CM. No. 16389/2012 (for stay) With the disposal of the petition itself, the instant application has become infructuous. The same is disposed of accordingly. elllV

SURESH KAIT, J. OCTOBER 18, 2012/sb W.P.(C) No. 6067/2012 n I N THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 18:10.2012 + VVjç)5944/2012 & CM. NO. 12240-41/2012, CAV 961/2012 SULABI-1 INTERNATIONAL SOCIAL SERVICE ORGANIZATION ......Petitioner Through: Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advocates Versus REGIONAL LABOUR COMMISSIONER (CENTRAL) & ORS. .......Respondents Through: Ms. Sweety Manchanda, CGSC for Respondent No. 1. Mr. •Viclya Nand Sharma, R2. Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs. for R3. AND 6059/2012 & CM. NO. 16373-74/2012 ALL INDIA INSTITUTE OF MEDICAL. SCIENCES ......Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs. V e is L1S VIDYA NAND SHARIVIA ANDAMR Respondents Through: Respondent No. I in person. Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. IVleenesh Dubey, Advs. forR2. AND + W.li'(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) Nos. 5944, 6059-68/2012 Versus MAE-I ESH AND ANR . Responderts Through: Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. AND A i-yjC)6061/2012 & CM. NO. 16377-78/2012, CAY. 973/2012 ALL INDIA INSTITUTE OF MEDICAL SCIENCES .....Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs. Versus GOVIND AND ANR Respondents Through: Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. AND -I-WP(C) 6062/2012 & CM. NO. 16379-80/2012, CAV. 974/2012 All, INDIA INSTITUTE OF MEDICAL SCIENCES .....Petitioner Through: Mr Rajat Katyal and Mr. Sanjeev Josh], Advs. Versus ASHOK AND ANR Respondents Through: Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. AND W.P.(C) 6063/2012 & CM. NO. 16381-82/2012 Al-I., INDIA INSTITUTE OF MEDICAL SCIENCES .....Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Josh], Advs. Versus MIJKESH YADAV AND ANR Respondents V\/,I-'.(C) Nos. 5944, 6059-68/2012 Through: Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. AND W.P.C) 6064/2012 & CM. NO. 16383-84/2012 A ALL INDIA INSTITUTE OF MEDICAL SCIENCES Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs. • Versus DHARAMVIR AND ANR Respondents Through: Mr. Anurag Dubey, Mr. D.P. Pancley and Mr. Meenesh Dubey, Advs. forR2. AND W.P.(C) 6065i'2012 & CM. NO. 16385-86/2012 ALL INDIA INSTITUTE OF MEDICAL SCIENCES ......Petitioner - Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs. Versus MIJK ESI-i AND ANR Respondents Through: Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. for R2. AND -I-WJP,(C) 6066/2012 & CM. NO. 16387-88/2012, CAV. 977/2012 ALL INDIA INSTITUTE OF MEDICAL SCIENCES .....Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs. Versus MAMTA AND ANR Respondents Through: Mr. Anurag Duhey,Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. \A/.P.(C) Nos. 5944, 6059-68/2012 Page 3 0f35 . . AND w.P.(c)6Q67/0i2 & CM. NO. 16389-90/2012, CAY. 975/2012 ALL INDIA INSTITUTE OF MEDICAL SCIENCES ..... Petitioner Through: Mr. 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. AND -1- W.P.(C) 6068/2012 & CM. NO. 16391-92/2012, CAY. 976/2012 ALL INDIA INSTITUTE OF MEDICAL SCIENCES Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Josh], Advs. Versus VIJAY AND ANR Respondents Through: Mr. Anurag Dubey, Mr. D.P. Pan dey and Mr. N4eenesh Dubey, Ad vs. forR2. CORAM: HON'BLE MR. JUSTICE SURESH KAIT ORDER

18.10.2012 SURESIII KAIIT,J.(Oral) CAV. No, 961/2012 Since the learned counsel has put appearance on behalf of the caveator, the caveat stands dischrged. CM. No. 1224112012 for exemptioiri) Exemption allowed, subject to aI.1 just exceptions. The application stands disposed of. W.P(C) Nos. 5944, 6055-68/2012 (.4 fCJj 54gL2O1

¶1The Sulabh International Social Service Organization, and the All India Institute of Medical Sciences, New Delhi, by way of the present petitions, are challenging the susta.inahility of the order dated 25.06.2012 passed by the Regional Labor Commissioner. Since all the petitions have 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 ci7ici being the lead matter.

¶2The petitioner Sulabh International Social Service Organization, and respondent No. 3, Director All India Institutes of Medical Sciences, New Delhi, by way ol'different writ petitions, are challenging the sustainability of the order dated

25.06.2012 passed by the Regional Labor Commissioner. The Regional Labor Cunimisioner, being the Authority under the Minimum Wages Act, allowed the claim petition that has been filed by the respondent No.2 under Section 20(2) of the Act. The Authority also held that the petitioner and the respondent No.3 both are severally and jointly responsible for the payment of the claim.

¶3Facts of this case are that the petitioner and respondent No. 3 entered into an agreement for deployment of the respondent No.2 for employment of cleaning and 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 I 7.02.201 0, 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 <I \\A\ 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 that whether the alleged volunteers, deployed through the petitioner, namely Sulabh International Organization, are entitled to get the minimum wages under the Minimum Wages Act. fl 5. The petitioner Sulabh International has relied upon the judgment delivered in Writ Petition No. 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 construct/on being of very simple in nature for the use of the which need not be cleaned by the scavenger nor does it require can ving of an 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 every case of industry, the element ofprofit • 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 working Jir public good and in the interest of the weaker Section of thes ociety.

¶6Adopting the observation made in the above judgment, Mr. K.T.S. Tulsi, learned Senior Advocate appearing on behalf of the petitioner contends that the impugned order is illegal, since there isno 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 carrying out its activities on "no profit and no loss basis". Sec.ondly, the petitioner has relied upon W.P.(C) Nos. 591, 6059-68/2012 '.4 a circa tar dated 03.04.2001 issued by R. Labor Commissioner, New Delhi wherein the application oF Labor Laws has been excluded qua petitioner establishment. The said circular is reproduced as under: "GOVT OF NA TIONAL CAPITAL TEkRITOR Y OF DELHI LABOUR DEPARTMENT 15-RAJPUR ROAD: DELHI-]10054 No. 1:1291 Dated: 03.04.2001 CIRCULAR flonv. Chairman, MIS Sulabh international Social Service Orc,nisation, RZ-83, Mahavir Enclave Pa/am, Dab Marg, IVew 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 ci Society registered under the Societies Registration Act, 1860. h) That it/s voluntary philanthropic organization. C) That it is carrying out its activities on "No Profit and No Loss' hcis is. d) That it was considered as not an 'Industry" as defined ifl Section 2(l) of the Industrial Disputes Act, 1947 by the Hon'hle High Coi,i't of Putna and the same was accepted by the Hon 'ble Supreme Co-111-1, of mi ja e) Thai the Goernment of Orissa, Karnataka and Andhra Pradesh considering that it was neither an 'Industry" nor a "(ommerciol Establishment" issued instructions to their officers not to en/drce the labour laws and keep the above said judgments in view. while dealing with the said organization. That that Government of Bihar also accorded exempti'on to it, foni app//cab ili0 of the provisions of the "Shop & Establishment Act ", as applicable in their State. A fier the examination of above application, it appears that the above so/cl organ tzw ton is a non-profit voluntary social organization and is carrying out its activities on "No Profit and No loss" basis for the weiftire of the humanity and as such is neither an industry nor an Establishment. Hence, all the subordinate of in different States have been instructed to keep the above in view, while dealing with the w.P.(C) Nos. 5944,6059-68/2012 Page] of 35. \) said organization for the purpose of enforcement of labour len X. lion 'He High Court of Patna inin the matter of Ws Sulabh International V/s. State of Bihar & Ors. held vide their judgment Jciteci 09.02. 1990 that the Petitioner management/organization, i.e. A/I/s Suiabh International Social Service Organization is not an inch.istry within the meaning of Section 26) of the Industrial Disputes Act, 1947. I-Jon 'b/c Suprme Court of India vide order doted 17 02. 1994 and 20.03.1996 dismissed Civil Appeal and Review Petition in the matter of "Bhartiva Sulabh Sauchalaya Karamchari Sang VS. Sulabh International & Ors ", thereby upholding the same view as decided by the Hon 'b/c High Court of Patna. The Govt. of Orissa, Karnataka, Andhra Pradesh & Govt. of Bihar issued circulars/instructions to their subordinate officers to enforce the labour laws in view of above said judgments. Copies of the above • so/il judgments ond relevant ch'cu/ars as issued by different State Governments are enclosed for ready reJrence. The A/Jetropoiitan Magistrate, Delhi has also decided on 22.03.1997 that the provisions of Minimum Wages Act are not applicable to the so/cl Organization. Copy of the said judgment is also enclosed. Hence, in such circumstances all the Branch Officers of the

i)epaitment while dealing with the above said Organization are ins/rue/eel to keep the above ./bets one/judgments in view for iI'ie p/ipose of enforcement of labour laws and for compliance of the ' above so/c! /uclfimenls in letter and spirit. (V. KUMAR) Jt. Labour Commissioner"

¶7The respondent No.3 Director, All India Institute of Medical Sciences is the pct.ioner in the Writ Petitions No. 6059/2012, 6060/2012, 6061/2012, 6062/2012. 6063/20i2, 6064/2012, 6065/012, 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 "employee" ss is defined in the Minimum Wages Act. Therefore, the respondent No. 3 contends; Wnt the application of the provisions of the Minimum Wa ges 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 4(4 respondeni No. 2. The respondent No. 3 also bought to the notice that the non existence of relationship as "employee and employer" between the petitioner and the respondent No. 2 would render that the impugned order is void ab initio.

¶8The Authority under the Act has taken note of th e pleadings and framed the tbllowing issues, namely,

(i) Whether the Minimum Wages Act, 1948 is applicable only to industry', • establishment' and 'enterprise', and not to voluntary social service organization of charitable and philanthropi c nature.

(ii) Whether ATIMS or Sulahh International should be deemed to be the employer under the Act having responsibility to pay minimum wages. Whether the persons associated with Sulabh International are 'employees' within the meaning under the Act.

(iv) Whether exemption of employer from liability in certain cases under Section 23 applies to claitn cases. •

(v) Whether the Hon'ble Patna High Court's order in CWJC No. 3408 of 1989 has a bearing on this case. On the issues mentioned above, the learned Authority held that the petitioner and the respondent No. 3 are covered under the definition of "employer" as defined in Section 2(e) of the Act since the respondent No. 2 was deployed or emplo yed by the respondent No. 3 through the petitioner. Therefore, the Authority has reached to the conclusion that the petitioner and the respondent No. 3 are employers for the purpose of determining the liability under the Minimum Wages Act. Moreover, it also considered the fact that the duty which was performed by the respondent No.2 was the scheduled employment which is defined in Section 2(g) of the Minimum \1^ W.P.(C) Nos. 5944, 605968/2012 L11 Wages Act and the Central Government has fixed minimum rate of wages vide noti licalion No.S.O. 1994(E) dated 7.08.2008.

¶9As regards the contentions based on the judgment of Patna High Court in Writ Petition No. 3408/1989, the Authority under the Minimum Wages Act has pointed out that the said judgment was not applicable in the issue of payment of Minimum Wages Act. It was also differentiated on the aspect of the issues, as in the above said judgment the issue was the construction of 'latrines and urinals' by the Petitioner for the use of the public which was held to be not "industry" whereas, the issue involved in the claim application was sweeping and cleaning in 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.

¶10Ii. is important to note that the Authority has'come to a specific conclusion that the Pattia High Court judgment is not applicable in the present case, wherein he 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.1_).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:

¶6Concluding, therefore, I have no hesitation in holding, firstly, thf! the so-ccilleci union is entirely spurious. It has no sanctity of lavi' ,w does it represent anyone who can be treated to be a wornan of the Petitioner establishment. In fact, it is a sestyled union of certain persons ",hose motive is not on1' laudable but entirely mala fide. I have also no hesitation in holding that this was a case, primarily, in which no re/rence should have been made merely on the basis of a so/ttUi' material that is the notification recognizing the Union. In the light o/ the subsequent notfication as contained in Annexure 4, the outhorites should have been well advised to examine, before making a reference, whether the Union making the demand was a union W P(C) Not. 594, 6039-68/2012 Page 10 o F 35 \QA sanctified by law and really represented the workmen of the 1-)eti tionerest0hhu1 nt which situation was subsequently brought in. to light resulting in the issuance of Annexure 4. Even if, I were to (,ssess me that the State government was right in making the reference of registrc/tiOn alone, once it has come to light that the Union whose President has made the demand, is not a Union created in accordance .iith /O'l) and it does not consist of the persons who are the workmen of the Petitioner establishment, then also the reference and the con.veciuenh/al proceeding cannot be allowed to stand. I have, there/are, no hesitation in quashing the entire reference thus rendering the consequential award a nulli.

¶7Having held as above, the second point whether the petitioner-L)si7lhlishn/ent is an industry try or not become. entirely academic because even if it was held to be an industry, the initiation of the proceeding live/f being bad and it being not established that the demand has been ainde by or on behalf of anfor a workman of the petitioner-e,s't(Ih/ishmen t, no award could be made against the petitioner-establishment and the demand made in annexure 3 could not be entertained I, however, would like to express my o ct pinion succinly in i'egarcl to this point also. Undoubtedly, the law has completely ted bccn crystallized by the decision of the Supreme Court reor AIR 1978 SC 548 (Bangalore Water Supply and Sewerage Board vs. /?ajapp(,j and others) relating to types of establishments that come within the definition set out in Section 2(J)of the Act. The definition in Section 2j) of the Act of the word "Industry" has been given a wide meaning embracing within its ambit a large number of organizat ions hicti would come within the nature of the Institution set out but is ev,vcniia/ in every case where the question is raised whether an establishment is an industry within the meaning of Section 2) of the Act that certain relevant factual data have to be found. If an. establishmen t is undoubtedly an industry established for the purpose of business, trade, undertaking manufacture or calling of employers cind it includes the calling, ser.•'ices, employment, handicraft, or ou/uvtriul occupation or avocation of workmen, that being aiq cs/uhf ishnient of undoubted has in regard to its character of being an o(/uvt1y then mitch ado is not rec juii'ed for applying the provisions of the Industrial Disputes Act in all its aspect. The problem arises only when an establishment by the very nature of its creation, extent and its p-t1jpose .fbr which it was established cannot ex facie be described as W.P.(C) Nos. 594, 6059-68/2012 - (7 t7 liiclustrv then it can only be brought in to the ambit of the definition of Section 2(J) of the Act on the bass of ascertainable facts brought ' about by detailed inquiry in an award proceeding or at the level of the State Government making the reference. The onus would lie on the s cal/eel workmen to bring on the record,cogent and relevant materials to show that not only they are the members of-such establishment but a/so that the organization is in fact functioning in the manner which it within the definition of 'industr y '. In the instant case, apart frolli the b ye laws and the audit report of the management and four witnesses examined by the workmen, nothing has been brought on the . record to show the manner in which really the Petitioner establishment is functioning. In fact, the Petitioner establishment claim to be a voluntary organization of social workers who have gutlieied together to work on a project by which apart from others the huri±cins could he relieved from peiforming the inhuman duties of carrying night soil on their heads. The other purposes jr the establishment of the Petitioner —organization have been set out in the atm.s and objects and appear primarily to render certain specc hcneflts for the member of the public in various spheres of everyday lifo For these purposes, the Petitioner establishment has been set up iiIiich is technically described as "Sulabh Sauchaiaya ". The Pet /1(r)/icr 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 tlnd abs. 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 every case of industry, the element ofprofit 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 voluntai organization like the Piitioner establishment which is i'orking foi-public good and in the interest of the weaker Section of the society unless relevant facts are proved. In my view, it is incorrect ta say on the basis of the aims and objects of the organization that these cannot be accomplished by voluntary workers. The aims and objects of anj.•' establishment are always extensive and goes even beyond the actual work that the establishment undertakes. The ipso ciixit of four workmen all of whom claim to be no longer in service of Ip VV,P.(C) Nos. 5944, 505968/2012 the establishment and the aim and objects can hardly justify the /n/rence that the establishment is an indust. Much more than this wcis needed to be proved.

¶8/ have, therefore, no hesitation in holding that there was no iif/icient evidence on record to hold that the petitioner-establishment is ciii inclustr within the meaning of Section 2(J) of the Act and the decisions 0! the Supreme Court. 1 1. The reading of the foregoing paragraphs in the said judgment makes it clear that the issue was not the application of the payment of Minimum Wages Act;. but the Industrial Disputes Act. Two issues were involved, primarily the scope of the deliuttion at industrial dispute as defined in Section 2(k) of the Industrial Disputes Act, and the Court ruled that the dispute which was referred was not an industrial dispute since; it was not referred by the workmen in the establishment. Secondly, • on the issue whether the petitioner herein, namely, Sulabh International is an • indusiry 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 he definition of "industry" could not extent to the petitioner.

¶12Ii is legally fundamental to note that the reasoning of the judgment flows loin the prO\/iSiOflS of the Industrial Disputes Act; not from the Minimum Wages Act. S ignificantly, the existence of the petitioner as a voluntary organization is different from as compared to deployment of persons as volunteers through the petitioner. In the latter category the petitioner stands in the different footing as compared to the former; that is as an employer. Therefore, the learned Authority under the Minimum Wages Act opined that the said judgment has no bearing in the issue involved.

¶13One of the most important aspects for consideration is that the respondent No.2 was serving the petitioner as a volunteer; not as an employee. Therefore, the W.P.(C) Nos. S94, 6059:68/2012 contention was that the existence of "employee-employer" relationship is a sine quo non lor the application of the Minimum Wages Act. The root of this proposition was based on the agreement executed between the petitioner and respondent No.3 as exhibited as annexure P-3 in Writ Petition No.-6059/2012. The first party in the agreement was the respondent No.3 whereas the petitioner was -A second party. For the proper evaluation of the said aspect, it is convenient to reproduce the relevant terms and conditions in the said agreement as under: 'The agreement between First Party and Second Party witnesseth as per terms and conditions set forth hereunder. / The Second Party will have to provide adequate voluntary, 'ociai workers for cleaning. The timing of the deployment of the voii.intary social workers would be according to the needs of the Dr. BRA JRCH, AJILVIS, Ansari Nagar.

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

¶3Removal of the c/cad body of Dogs/Cats/Rats/Monkeys etc. within two hours after receiving the complaint without fail. I. Second Party shall provide the House Keeping services on all calendar clays Sundays including Gazetted Holidays i.e. the timing of the deployment of the staff won/cl he according to the needs of the Di. BlA JRCH, A JIMS, Ansari Nagar.

¶5The Second Party shall provide 10 Nos. of Suiabh voluntary social workers and one supervisor to cope with work load of son/lotion throughout the period of agreement. In case, the number of Sii/bh voluntary social workers engaged, is found less vh i/c inspection by tiny Executive Officer of the Center, proportionate charges will he deducted after Jtscuss ton with Second Party the as per charges specified in Annexute-l. The Executive Officer of this Coutict s/ia!! be Asstt. Admn. Officer AIIMS (as nominee of Dr. o BE/i JRCH, .4 JJA/fS, A nsari Nagai). - The Second Party shall maintain the complaint book for Ji//drent areas, which will he made available to the supervisory stcff. wP.(C) Nos. 5944, 6059-68/2012 The Second Party will use the manpower only at the places wherever authorized. 7 The Second Party shall provide two sets of Apron including Dr. BRA /RCF/, A JJS to its voluntary social workers and ensure that they Shall wear it while on duty and maintain them clean. That the voluntary social workers deputed by the Second Party shall not be below the age of 18 years.

¶9The voluntary social workers deputed by the Second Party shoi i/cl not interfere with the duties of workers of the First Party. /0. The Second Party shall ensure and guarantee the conduct, behavior and honest of the voluntary social workers deputed by them. In case of any misconduct or any other damage or theft of the property of the First Party, the Second Party shall be responsible for all such losses or damages after it is established by holding proper enquiry that the voluntary social workers deputed by the Second Party cue revpons lb/cfor these. e Second Party Atd should be Residents Dr. /I. The voluntary social workers engaged by th s/ia/i be of good character and sound health. medically fit and this may be checked by Senior Bl?A/RCH, AJI/VIS, Ansari Nagar.

¶12In the event of any loss to the Dr. BRAJRH, AJIMS on account 0/, negligence of voluntary social workers, Second Party shall make good the loss sustained by the Dr. BRAIRH, AJIMS, 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 ho/cling necessary enquiry.

¶13The First Party shall not he responsible for the payment f honorarium to the voluntary social workers engaged by the Second PLI/t y cind s/ia/f ensure timely payment to them. 14 The Second Party shall provide voluntry social workers as per approved terms and conditions. The same shall be monitored by Sr. Sanitation Officer/Representative of the Dr. BRA JR H, AJIMS, A nsari Nagar and if the strength is found less, proportionate recovery will he made. W.P.(C) Nos. 594.4, 6059-68/2012 15 The Second Party will have, to produce the monthly bill along with the cert/Icate of satisfactory performance from the Sr. Sanitation Officer/Sanitation inspector to the submitted on the 8" of every calendar month for verication by the Executive Officer and same s17071 be paid within 10 days by the First Party. 16, Second Party shall not appoint any Subcontractor/Agent to carry out any obligations under the awarded period of work. 17 The First Party shall provide the quality cleaning material to the Second Party as per requirement at its cost, but the Second Party shall make this demand in advance so that work does not suffer. l. The Second Party Dr. BIRCH, AIIMS, Ansari Nagar shall not he responsible for any compensation which may be required to be paid to the voluntary social workers of the Second Party consequent upon am) injury/mishap. a /9. The Second Party shall be responsible to the Head of the Dr. BRA JRCH, ,4JfAS, Ansari Nagar or any of authorized by him/her fur execi.ition of day to day work of the campus. The Security instructions/orders issued by the Dr. BRA JR cH, AIIM 4;iscri Ngcir from time to time shall also be ollowed by the Second [Iortil Cl/id voluntary social workers. - The First Pci nv reserves the rights to award the area . c/coning, 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 month's l'7OIiCC.

¶21The contract can he terminated by the First Party Dr. BR/I JR CR, 1111,111S, Ansani Nagarby giviflg o ne month's notice. The Second Par/i' can also terminate the contract by giving one month notice. 22 No voluntary social workers of the Second Party shall stay in I/ic campus beyond prescribed duty hours. While going out of the Di-. Bl?AIRCFI, AJIMS, Ansari Nagar , Second Party will go through the check b y security at various exists of the Dr. BRAIRCH, AIIM .4 flSO/i Ndlai', S \A/.P(C) No. 5944, 6059-68/2012

¶23It is /iirther agreed that there would be absolutely no scope of escalation payable by the First Party on account of increase in honorer/urn of voluntary social workers unless mutually agreed to.

¶24It is agreed that in case the Second Party fails to perform any of the terms and conditions of this agreement or commits any breach in contract, the First Party may cancel the contract after giving reasonable opportunity and iffound unsatisfactory then by giving one month notice in writing to the Second Party.

¶25That the Second Party shall issue the identity card to each of the voluntary social worker engaged as associate member for entry into the work place of AJIMS premises. -

¶26That in case of any dispute between the parties aforesaid in respect of this agreement the matter shall be referred to a mutually agreed upon Arbitrator by the First Party and Hony., Asstt. Director o/ the Second Party and the decision of the Arbitrator so appointed shall be final and binding on both the parties.

¶27The rates terms and conditions as per annexure I, II & III to this agreement v0,//form an integral pc/it of this agreement."

¶4Indisputably, the above said contract establishes the fact that the respondent No.2 was deployed in the premises of respondent No. 3 for the employment of. . cleaning through the petitioner. It is true that the contract entered between the parties refers the respondent No. 2 as "voluntary social 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 Authority under the Act, held that the respondent No.2 is not a volunteer.

¶15Moreover, it is legally significant to note and examine the nature and scope of the above contract in the light of observations made by the Supreme Court in Peoples Union for Democratic Rights and Ors vs. Union of India 1982

(3) SCC

¶235The relevant paragraph is reproduced as under VV-P-(C) Nos. 5944, 6059-68/2012 Page, 17 0f35

¶20Now the next question that arises for consideration is whether there is any breach of Article 23 when a person provides labour or service to the State or to any other person and is paid less than the minimum wage for it. It is obvious that' ordinarily no one would willingly supply labour or service to another fbr less than the minimum wage, when he knows that under the law he is entitled to get minimum wage for the labour or service provided b; him. It may therefore be legitimately presumer! that when a person provides labour or service to another against receipt of remuneration which is less than the . minimum wage, he is acting under the force of some compulsion which drives him to work though he is paid less than what he is entitled under law to receive. What Article 23 prohibits is forced labour' that is labour or service which a-person is forced to provide and! force' which would make such labour or service '/!rccd labour' may arise in several ways. It may be physical jorce which may compel a person to provide laboir or service to another or it may be force exerted through a legal provision suc! OS a provision for imprisonment or fine in case the employee fails to provide labour or service or it may even be compulsion arising from hunger and poverty, want and destitution. Any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action may properly be regarded as 'fdice' and if labour or service is compelled as a result of such 'frrce', it would we 'forced labour'. Where a person is suffering from hunger or starvation, when he has no resources at all to frglit disease or feed his wfe and children or even to hide their acilcedness, where utter grinding pover' has broken his back and reduced hitti. to ci state of helplessness and despair and where no other employment is available to alleviate the rigor of his /7OVed), he vi'oulcl have no choice but to accept any work that comes him way, even if the remuneration offered to him is less t/'icmn the n-minimum wage. He would be in no position to bargain with the employer; he would hove to accept what is offered to him. And in doin g so he would he acting not as afree agent with achoice between. alternatives but under the compulsion of economtc cic.imsonees and the labour or service provided by iiir,i would be clearly freed labour.' There is no reason why, the word 'orced' should be read in a narrow and restricted manner so as to he con /mnecl only to physical or legal force' particularly W.P.(C) Nos. 5N4,6059-68/2012 A when the national charter, its fundamental document has promised to build a new socialist republic where there Will be socio-econo/nic justice for 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 d ocuments in history for ushering in a new socio-economic order cinci the Constitution which they have forged for us has a social purpose and an economic mission and therefore eveiy word or phrase in the Constitution must be interpreted in a manner which would advance the socio-economic objective of the Constitution. It is not un often that in capitalist society economic circumstance exert much greater pressure on an individual in driving him to a particular course of action than physical compulsion or force of legislative provision. The word force' must therefore be 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 received for it is less than the minimum wage of course, if ti person provides labour "or service to another against receipt of the minimum wage, it would not be possible to say that the labour or service provided by him is forced labour' because he gets what he is entitled under law to receive. No inference can reasonably be drawn in such a case that he is forced to provide . labour or service for the simple reason that he would be providing labour or service against receipt of what is lawfuh5; • payable to him just like any other person who is not under the frce of any compulsion. We are therefore of the view that where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly, falls within the scope and ambit of the words forced labour under Article

¶23Such ci person would be entitled to come to the court for enforcement of his finc/amental right under Article 23 by asking the court to direct payment of the minimum wage to him so that the labour or service provided ky him ceases to be forced labour' c,,.7'Z(-1 the breach of Article 23 is remedied. It is therefore clear that when the petitioners alleged that minimum wage was not paid to the workmen employed by the contractors, the complaint was rca/b; W.P.(C) Nos. 5944, 6059-68/2012 22c A S . in efJct and substance a complaint against violation of the fUndomental right of the workmen under Article 23.

¶16Article 23 of the Constituti011 enacts a very important fundamental right in the ollowing terms: /1/tic/C 23 : Prohibition of traffic in human beings and forced labour

(I) Ti'ciffic in human beings and hegar and other similar forms offorced labour are prohibited and any contravention of this provision shall be an offence punishabl e in accordance with law.

(2) Nothing in this Article shall prevent the State from imposing compuISollY service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.

¶17The challenge herein is not about the enforceability of the said contract; but the r lure and scope of the same is to he examined in the light of Aicle 23 of the Constiwtion., with the findings as regards the different forms of forced labour as held in Peoples L inion or Democratic Rights and Ors i's. Union of India (supra) hr culling out the stand of the respondent No. 3 and the petitioner. In the fight of the above., the deployment of respondent No. as a social, worker is a new method of hrcccl labour in the society, which needs to be curbed. The reading of the terms and conditions of the said contract in terms with Article 23 would establish the fact that, the respondent No. 2 was working as art "employee" not as a "volunteer" I 8. It is also pertinent to examine the said contract with the provisions of the Minimum Wages Act.

¶19Sec Lion 25 of the Minimum Wages Act reads as follows;

¶25Contracting out.- Any contract or agreement whether made before or after the commencement of this Act, whereby c/n W.P.(C) Nos. 5944, 6059-68/2012 A employee either relinquishes or reduces his right to a minimum rate of wages or any privilege or concession accruing to him under this Act shall be null and void in so far as it purports to reduce the minimum rate of wages fixed under this Act.

¶20Therelore, the contract entered between the petitioner and the respondent No. 3, would not clisentitle the claim of the respondent No. 2 as an employee for - minimum wages under the Minimum Wages Act.

¶21This Court in judgment delivered on 24.02.20 10 in Writ Petition No. 375/2007 held as under: 16 The object and policy of the Legislature in enacting the A/finimum Wages Act is to prevent exploitation of the workers and, for that purpose, it aims at fixation' of minimum wages which the employer must pay. The Legislature undoubtedly intended to apply the Act to those industries or localities in which /j ien 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 locality, and the expediency of fixing minimum wages, and threats thereof depends largely upon c/h;ersejactors which in their very nature are variable and can propei .iy 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 minimum wages should be fixed in regard to any scheduled trade or industry, in any locali, 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 /0CC/It V

¶22In order to protect the interest of the employees, the scope under the Minimum Wages Act is in wider perspective than the Industrial Disputes Act. The Minimum Wages Act "Section 2 defines as follows; WP(C) Not;. 594, 6059-68/2012 . A &

(e) "employer" means any person who employs whether directly or through another person or whether on behalf of himself or on.Y other person one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act and includes except in sub-Section (3) of Section 26

(I) in a factory where there is carried on any scheduled employment in respect of which minimum rates Of wages have been fixed under this Act any person named under clause of sub-Section (1) of Section 7 of the Factories Act 1948 (63 of/948) as manager of the factory;

(ii) in any scheduled employment under the control of any government in India in respect of which minimum rates of wages have been fixed under this Act the person or authori appointed by such government for the supervision and control of employees or where no person or cnirhorii is so appointed the head of the department;

(iii) in any scheduled employment under any local authority in respect of which minimum rates of wages have been fixed under this Act the persons appointed by such auihori' for the supervision and control of employees or where no person is so appointed the chief e ex('utive officer of the local authori; (7') in any other case where there is carried on any scheduled employment in respect of which minimum rates of wages have been fixed under this Act any person responsible to the owner for the supervision and control o • the employees or for the pa yment of wages; Whereas the 1ic1ustriai Disputes Acts, Section 2(g) defines employer: (ç "Employer" means--

(i) relation to an industry cariedl on y or under the authority 0! any clej,cirtment of 3 *[the Central Government or a State Government!, the authority prescribed in this behalf or where no (/uthor is piesciibe the head of the department; WP.(C) Non. 59'4 , 609.68/2012 Page 22 0f3

23. A

(ii) in relation to an industry carried on by or on behalf of ci local cijthoritv, the chief executive officer of that authority;

¶24It is important to note that the definition of employer in the Minimum Wages Act prescribes that "any person who employees" falls under the category of employer wherein the definition of the employer in the Industrial Disputes Act is solely based on the definition of industry. Therefore, both the petitioner and the respondent No.3 qualifies the test to be called as employer as per the provisions of Minimum Wages Act. In the light of the above discussions, the relationship of the petitioner and respondent No.3 with respondent No. 2 is established as employer and employee. Respondent No-2 is entitled to get the minimum wages as per the scheme of the Constitution of India as well as the object of the Minimum Wages Act, 1 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 1-el.j ji () Ii slup of employer and employee and th petitioner being the voluntary • orgaui7.atiou therefore, Section 2 (j) of the Industrial Disputes Act, 1947 cannot he applied on such organization. 26 He has relied upon a case of Rattiram and Others Vs. State of Madhya Pradesh, (20I2) 4 8CC 516, wherein while relying upon the case of Union of India VRaghuhir Singh, (1989) 2 8CC 754, the Supreme Court has held that a. pronouncement of law by a Division Bench or a smaller number of Judges, and in order that such decision would he binding. It has been held as under:- "26. In Union of India v. Raghubir Singh, (1989) 2 8CC 754, the Constitution Bench, speaking through R. S. Pathal CJ, has lie/c! thus:- (8CC p. 778, para 28) \NP.(C) Nos. 594, 6059-68/2012 Page 23 of 3S A S

¶28We are of opiniqn that a pronouncement of/ow by ci Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or ci Constitution Bench of the Court" x.xx xxx xxx

¶28In Chandra Prakash v. State of UP, (2002) 70 SCC 710 . 2003 5CC (L&S 808 , a subsequent Constitution Bench reiterated the view that had already been stated in Raghubir Singh (supra). 29 Thus viewed, Bhooraji (supra) was a binding precedent. ond when in ignorance of it subsequent decisions have been rendered, the concept ofper incuriam would come into play.

¶27Ne has further relied upon the judgment of Sundarjas Kanyalal BhatUa & Ors. Vs. Colledoi, Thane Maharashtra & Ors, (1989) 3 SCC 396, wherein the SupremeCourt 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 0 binding decision of a co-ordinate Bench of the same Court has been ignored. xxx xxx xxx /8. 1/ ivouldl be clffice!t for us to appreciate the judgment of the High Court. One must remember that pursuit of the law, however glamorous it is, has its own limitation on the Bench. .10 a multi-fudge court, the Judge 5 are bound by precedents and procedure. They could use their discretion only, when there is no c/colored principle to hefounc no rule and no authori. The fudicial decorum and legal propuie' demand that where c learned Single Judge or a Division Bench does not agree with the decision of a Bench of co-ordinate jurisdiction, the matteJ W.P.(C) Nos. 5944, 605968/201-2 to shall he refrrecl to ci larger Bench. It is a subversion ofjudicial process not to follow this procedure. ".

¶28The learned senior counsel has further referred the order dated 27.11.2003 passed by Ihis Court in Cr1. Miscellaneous (Main) Nos. 3822, 2933 to 2936, '820 82 1 oF 2002 Filed by the M/s Sulabh International and Another against the order oF Labour Enforcement Officer (C), Delhi 3, wherein this Court has also relied upon the judgment of the Patna High Court and held that there is no relationship of master and servant between the petitioner and the persons being the voluntary services.

¶29'The aforesaid order was challenged by the Government of NCT of Delhi by way oFan SLP (0r1.) No. 1693/2006 dated 23 .02.2007, wherein the Supreme Court has passed the following order:- The question as to whether a public utility service, which is allegedly carried on by a Society on 'no profit no loss basis', won/d be an industry within the meaning of the provisions of the Industrial disputes Act, 1947, being pending decision before a seven Judge Bench in State of UP. vsJai Bir Sing, (JT 2005 •

(5) SC 1 70), 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 I-/on 'h/c the chief Justice or File an appropriate application for tagging this case with Jai Bir Singh (supra. Let the records be placed before Hon 'ble the Chief Justice oylndta for passing appropriate orders."

¶30The Coordinate Bench of this Court on 16.11.2009 in Cr1. M.C. No. 3884/2009 passed the order as follows:- Ai. Ta/si, learned Senior Advocate appearing for the petitioner submits that the petitioner is a voluntary social organization engaged in the work of constructing and W.P(C) Nos. 5944, 605968/2012 inctintain lug lavatories and hcis been carrying on its activity on no profit and no loss basis for the welfare of the humanity. Mr. Tn/si has drawn attention of this court to the Circular No. 1291 doted 3.4.2001 issued by the GNCT, whereby the Labour Deportment has notified all the Branch Officers of the Department that provisions of labour lavv would not be application to the petitioners. Mr. Tulsi also draws attention of the court to the order dated 27.11.2003 passed by this court in Cr!. Al l's . (M) Nos. 3822/2 002, 293312002, 293412002, 2935/2002, 293612002, 382012002 and 382112002 and the order of the Division Bench of Patna High Court in W.P. (C) no. 3408189. Based on the said submissions, Mr. Tulsi submits that provisions u/Sections 23 and 24 of the Contract Labour (R & 4) Act cannot be invoked by the trial court against the Petitioner. In Cr1. M.A. No. 1 . 3582/2009, the Trial Court proceedings were stayed till the next date of hearing. 3 I. On the same issue whether the petitioner is an industry within the meaning o[ Section 20) of the industrial Disputes Act, 1947 and whether the Industrial as well as I ,abour L.,aws are applicable to the organization, on 07.03 .2011, this Cou in (.11. 1VI.C. No. 3884/2009 passed the following order:- . Short question for delentition in this petition is rmi whetbyr or not the petitioner Sulabh International is an 'indz.isiry' within the meaning u/ Section 2(j) of the Industrial Disputes Act and whether the industrai as well as labour laws ore applicable to the organization. / have been informed that aforesaid legal issue 7S pending consideration of Larger Bench of Supreme Court and the finding of the Supreme Court will obviously impact the c/eriion on this petition. Thus, decision on the petition is defdrred. The petition is, accordingly, consigned sine die with the observation that either of the parties may get it revived after the decision of the Supreme Court on the issue. \ii.P.(C) No. S944, O5968/2012

¶32Mr. IVIukul Gupta, learned Senior Advocate, who argued the petitions filed by the All India institute of Medical Sciences has joined hands with Mr. Tulsi, learned Senior Advocate oil legal issue and has further added that the respondents have neither challenged the agreement nor the Memorandum of Understanding entered into between the Sulabh International and the All India Institute o[Medical Sciences. There is no evidence on record that the respondent was employed by either of the organizations mentioned above and the impugned decision is without application of mind and without any basis. Therefore, the same has to be set aside.

¶33Bel Ore, the learned Authority under the Minimum Wages Act, 1.948 and Regional Labour Commissioner (Central), New Delhi and before this Coui the same iSsue was raised that the petitioner is not an industry and the provisions of Minimum Wages Act, 1948, are not applicable to them as it is a voluntary sociai service organization of charitable and philanthropic nature, working oil no profit and no loss basis. Therefore, it is neither an establishment 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 object of th-associate members of Sulabh Intemational 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 welthre, therefore, no wages/salaries are payable to these volunteers.

¶34On the minimum wages, the learned Authority framed an issue that (i Whether the Minimum Wages Act, 1948 is applicable only , to industry', Pa W.P.(C) Nos. 5944, 6059-68/2012 ge 27 ef 35 / / El 'establishment' and 'enterprise', and not to voluntary social service organization of charitable and philanthropic nature.

¶35On the issue framed above, the learned Authority has held that the Minimum Wages Act, 1 948 is applicable to a scheduled employment in respect of which rnmimUm rates of wages have been fixed by the appropriate Government as is evident, from a reading of the definition of 'employer' and 'employee' under Sections 2(c) and 2(1) respectively of the Act. The 'Appropriate Government' as dehnecl under Section 2(b) of the Act in respect of AIJMS is the Central Government. The employment of sweeping and cleaning is a scheduled employment under Section 2(g) of the act and the Central Government has fixed minimum rates of wages for the said employment vide Notification No. SO. 1994 (e.) (Ilated 7.8.2008. There is no reference in the Act to terns like 'industry', 'estaHishment' and 'enterprise nor is there any mention even by implication that 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 lactory, scheduled employments under the control of any Government in India, scheduled employments under any local authority and sch(AUICCI employments in any other case.

¶37There is no direct or indirect mention in the Act that the scheduled cmpioymcnt has to he carried on by an industry. The Act applied to an employment which is scheduled irrespective of who carries on tha.t sbhcduled e P1°Y ment.

¶33On the issue No. (ii) Whether AI1MS or Sulabh International should he deemed to he the em p loyer under the Act having responsibility to pay minimum .P.(C) Nos. 594, 605968/2012 . . wages. the teamed Authority has held that Section 2(e) of the Act dafined 'employer' as "anp person who employs, whether directly or through another person, or whether on behalf of himself r any other person, one or more employees in any scheduled employment in respect of which rninimUfl rates of wages have been fixed under this Act, and -------------

¶39fl is recorded in the impugned order that in the instant case, the so called volunteerS have been deployed in the scheduled employment of sweeping and cleaning by Sulabh International directly. It is also not in dispute that they have AUMS though Sulabh International in said scheduled been deployed by emptoymelit Therefore, both having satisfied the definition of 'employer' are jointly and severally responsible for payment of minimum wages to the employed or deployed. In this case, AIIMS as employer can in no case escape the responsibility of payment of minimum wages to the employed as the amount paid ed is less by ii to the Sulabh international for the purpose of payment to the employ than the mi n mum rates of wages fixed by the Government. /10. On issue No. (iii) Whether the persons associated with Sulabh International are mployees' within the meaning under the Act, the learned Authority has relied s. Stale of upon a case decided by iharkhand High Court titled Robert Toppo V ,Jharkl,and, 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." Lj 1. '[he learned Authority has observed that the Sulabh international may be a vol iinary organization, but it does not necessarily mean that the persons deployed in ii are all volunteers. The very fact that the persons employed or deployed by Sulhh International have claimed the minimum wages under the Act b y filing their claims establishes that they are not volunteers. Had they been volunteers, V\/P(C) Nos. 594, 6059-68/2012 why WoUld they claim minimum wages? Therefore, the petitioner is treating the employed persons as volunteers only with a view to depriving them of minimum wages so that either or both of them gain out of this system.

¶42On the issue whether the judgment of the High Court of Patna, as mentioned above has a bearing on the issue raised in the instant claims, the learned Authority has held as under" - •An examination of the judgment dated 9.2.1990 of 1-Ion 'h/c Patna High Court in C.W.J.C. No. 3408 of 1989 reveals that the Hon 'n/c Court in that judgment he/cl Sulcibh JnternatiOflat not to be 'indistry' within the meaning of section 2U of the Industrial Disputes Act, 1947. As it has already been discussed in the foregoing paragraph that the application of A//in/mum Wages Act, 1948 has nothing to do with 'industry' and that the act is applicable to scheduled employments under the act irrespective of whether it is carried on by an industry or fbi, the judgment appears to have no bearing on this case. The content/on of the O.I. No. 2 that the Hon'ble High Court held that Suiabh International not being an industry, no industrial as n.e/I as labour laws can be made application to the organization is totally out of place and misquoted. The Hon 'ble High Cowl . never ,'uled that no labour laws could be applied to Suiabh international. Further, it may he added that the case examined by the f/on 'hie High Court is that of construction of latrines and urinals by Suiabh for the use of the public which was held to he not 'industry' whereas the case underjhis claim application is sn'eeping cincl cleaning in the establishment of AIMS by Suiabh in the capaci as a contractor or an outsourced agency.

¶431 note that the. learned Authority under the Minimum Wages Act has considered each and every aspect raised by the petitioners including the jcdgment dated 27.11.2003 of this Court passed in CO. Misc. (M) Petition No. 3821/2002. The relevant portion reads as under:- W.P.(C) Nos. 594, 6059-68/2012 ' 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 application has been filed under section 22(2) of the Act. Both the cases do not stand in the same footing. ii The maximum fine under section 22 A is only Rs. 500/- (Rupees Five Hundred only) wh&eas the compensation under section 20 can .go up to ten times of the amount short paid without any higher limit. The complaint under section 22 A has been filed by cia inspector under the : Govt. of NCT whereas this • application under section 20(2) has been filed by the employee himself Therefore, it is likely that the persons 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) The judgment of the Hon 'ble High Court has inter-alic taken in to consideration a circular bearing No. 129! 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) Sulcibh international not being an establishment under the Shops and Establishment Act as decided by various High Courts, the minimum rates of wages fixed b y the government of NCT of Delhi in respect of all shops and establishments under the Minimum Wages Act, 1948 might not be applicable to Sulabh International. But no Slid] stipulation exists in the jurisdiction of the central government. 'Sweeping and Cleaning' itself is a scheduled employment in respect of which minimum rates of wages have been fixed by the central government under the Minimum Wages Act, 1948.

vi) The f-Ion 'b/c Court did nowhere citegorically rule that the Minimum Wages Act, 1948 did not apply to Suiabh Jnternatic)ndIl. W.P.(C) Nos. 59'I, 5059-68/2012 \,0

¶44The learned Authority after dealing with all the issues framed have finally opined as under:- It goes without saying that the O.P.s have caused considerable hardship to the applicant-employee by not pciying him his righlyui dies. Considering the plight of the low paid appliccint-emploYee enormous suffering caused to him over a very long period of time and above all the provisions of Minimum Wages, Act, 1948 providing for compensation up to lea times of the amount short paid, I am of the considered opinion that the ends of justice shall be met if compensation equivalent to five times of the amount short paid to the Rupees Three lakh applicant i.e. (Rs. 61765 X 5 = 3088251- ( eight thousand eight hundred ven five only) is also paid to the employee over and above the amount short paid. Thus a total amount of R,3.3,70590. 1- (Rupess Three lakh seventy thoi isanci lye hundred nine' only) is required to be paid to the cipplican i_ employe e. As already discussed, both the O.P. Nos. 1 i.e All Indict Institute of Medical Sciences and O.P. No. 2 i.e. Sulobh international being 'employer' under the Act are severally and jointly responsible for payment of minimum wages to the app!iCant_enlPloTee it is, therefore, decided in the interest of • equili!, ,jhirness and reasonableness that the amount required to he paid to the applicant.-employee should be borne equally by the 0. P. No. I and O.P. No. 2. Accordingly, .1 direct that an amount of Rs. 1852951-Rupees one lakh eighty , five thousand two hundred n inty five only) be paid by the O.P. No.2 i.e. Sulobh International to the applicant-employee. I I direct that the amount as awarded above have to be deposited wi/h the authority through demand drafts deciwn in thvoi.11 of the applicant-employee payable at New Delhi within 10 days from the date of receipt of this order.

¶45After hearing the [earned counsel for the petitioner, it is emerged that the issue decided by the Patna High Court was that whether the petitioner was an induSi ry under the Industrial Disputes Act and the same issue again framed Ny this w.P.(C) Nov '9 L 1, 605968/2012 Court, as mentioned above. While relying upon the judgment of Patna High Coui, the same view had been taken by thi Court also. However, neither this Court nor the Patna High Court, as strongly relied upon by the petitioner, has decided the issue on the Minimum Wages Act. The petitioner may not be an 'industry' under the Industrial Disputes Act, 1947, and may be a 'voluntary organization', but the issue in hand is whether for the services rendered for the petitioner, would come in pLirvieW o1 the Act and deployed persons would be entitled for minimum wages, it • is entitled to pay the minimulTi wages or not.

¶46The petitioner organization has entered into a Memorandum of Understanding, as mentioned above, by which the services were rendered to the All India Institute of Medical Sciences. The poor people from the lower strata of the society have been engaged for this purpose and they were given the wages less than the minimum wages prescribed under the Minimum Wages Act. The organization may be a voluntary, but a poor person who has to fill his belly as well dependents members of the family cannot afford to be a volunteer. A person who has acquired the minimum requirement in the life may do some voluntary service for a day or a two or maximum for a week but not on a permanent basis. The respondent No. 2 is a person whose survival dependsupon 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, such a person cannot work voluntary even for a day. One cannot expect he would be a volunteer for months and years together.

¶471 am conscious that against the judgment of the Patna High Court, the Union o[ 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. \J\\ WP(C) Nos. 5944, 6059-681/2012 Page 33 o135 Thereihre, no decision has been taken by the Supreme Court on the merits and the matter has been referred to the Larger Bench, which is still pending.

¶481 have no hesitation to say that on one side the petitioner is working for a noble cause, on the other hand, by way of giving the colour of voluntary services, it is exploiting the poor people.

¶9I am COnSCIOUS that the view taken by this Court was different from the issue in hand, therefore, there is no question of per incuriam and the violation of law of precedent. This Court would have been gone wrong if the same issue has been decided by this Court and the contrary view is taken in the present case.

¶50The issue in the instant petitions is not res integra as the same has been decided in People,,; Union Jr Democratic Rights and Ors vs Union of !,d,0(1ii u ia) wherein it has been held that ordinarily no one would willingly NJ supply labour or service to another for less than the minimum wage, when he knows that, under the law he is entitled to get minimum 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 remuneration which, is less than the minimum wage, the labour or service provided by him clearly, 'falls within the scope and ambit oltlie words 'forced labour under Article 23. 5 1. Section 25 of the Minimum Wages Act provides that any contract or agreement, whereby an employee either relinquishes or reduces his right to a minimum rate of wages or any privilege or concession accruing to him under this Act shall he null and void in so far as it purports to reduce the minimum rate of Wilges Hxecl under this Act.

¶52Moreover, Section 2(e) of the Minimum Wages Act provides that the employer means any person who employs whether directly or through another WI(C) Nos. 594, 6059-68/2012 person or whether on behalf of himself or any other person one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under this Act.

¶53Therefore, finding no discrepancy in the impugned order, I confirm the same. The present petitions, being without merits, re dismissed. No order as to costs. CM. NoiWOLQL2 IfOr stay) With the disposal of the petition itself, the itant application has become inftuCtuOLlS. The same is disposed of accordingly. SURESH KAJT I OCTOBIIR 81) 202 R.S/sb I, . O age 35 of35 w.P3 C ) NOS 59 6059-68/2012 P

* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 6067/2012 & CM. NO. 16389-90/2012, CAy. 975/2012 ALL INDIA INSTITUTE OF MEDICAL SCIENCES .....Petitioner Through: Mr. 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. CORAM: • HON'BLE MR. JUSTICE SURESH KAIT