All India Institute of Medical Sciences v. Mamta and Anr

ORDER %

18.10.2012 CAV. No. 977/2012 Since the learned counsel has put appearance on behalf of the caveator, the caveat stands discharged. CM. No. 16388/2012 (for exemption) Exemption allowed, subject to all just exceptions. The application stands disposed of. W.IMCI No. 6066/2012 In view of the conunon judgment rendered in W.P.(C) No.5944/2012, the instant petition is accordingly disposed of. CM. No. 16387/2012 (for stay) With the disposal of the petition itself, the instant application has become infructuous. The same is disposed of accordingly.

SURESH KAIT, J. OCTOBER 18, 2012/sb W.P.(C) No. 6066/2012 Page 1 oft IN THE HIGH COURT OF DELHI AT NEW DELHI - Date ofDecision: 18.10.2012 W.PIC^ 5944/2012 & CMo NO. 12240-41/2012, CAV SIJL.ABHINTERNATIONALSOCIALSERVICEORGANIZATION Petitioner Through: Mr. AniiragDubey,Mr. D.P. Pandeyand Mr. Meenesh Dubey, Advocates Versus REGIONALLABOURCOMMISSIONER(CENTl^L) & ORS. • ' Respondents Through: Ms. SweetyManchanda,CGSC for Respondent No. 1. Mr. VidyaNand Sharma, R2. Mr. RajatKatyal and Mr. SanjeevJoshi, Advs. forR3. -i-W.FTO 6059/2012 & CM. NO, 16373-74/2012 AI .L INDIA INSTITUTEOF MEDICALSCIENCES ..... Petitioner Through: Mr. RajatKatyaland Mr. SanjeevJoshi, Advs. Versus • • V! DYA NAND SHARMAANDANR ' Respondents Through: RespondentNo. 1 in person. Mr. AnuragDubey,Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. 1C175-76/2012. CAV. 972/2012 ALL INDIA INSTITUTEOF MEDICALSCIENCES Petitioner Through: Mr. RajatKatyalandMr. Sanjeev.loshi, Advs. W.P.(C)Nos,5944,6059-68/2012 • Page1of 3= H-Versus MAHESHAND ANR , . Respondents Through; Mr. AnuragDubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. yy.PiO 6061/2012 & CM. NO. 16377-78/2012, CAV. ALL INDIA INSTITUTE OF MEDICAL SCIENCES Petitioner Through:^ Mr.Rajat Katyal and Mr. SanjeevJoshi, Advs. Versus GOVINDANDANR " . Respondents Through: Mr. AnuragDubey,Mr. D.P. Pandeyand Mr. Meenesh Dubey, Advs. forR2. VV.PiQ 6062/2012 & CM. NOl 16379-80/2012, CAV. 974/2012 ALL. INDIA INSTITUTE OF MEDICAL SCIENCES Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, , •Advs. Versus ASHOKANDANR Respondents Through: Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. forR2. -I-W.PiO 6Q63/2012 & CM^ NO. 16381-82/2012 ALL. INDIA INSTITUTE OF MEDICAL SCIENCES ..... Petitioner Through: Mr. Rajat Kat3N. and Mr. Sanjeev Joshi, Advs. Versus ' , MUKESH YADAV AND ANR Respondents W,p.(C) Nos. 5944, 6059-68/2012 Page 2of 35, Through; Mr. AnuragDiibey,Mr. D.P.' Pandey and Mr. Meenesh Dubey, Advs. forR2. W.FTQ 6064/2012 & CM. NO. 16383-84/2012 ALL [NDTA 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. Pandey and Mr. Meenesh Dubey, Advs. forR2. W.P.(C) 6065/2012 & CM. NO. 16385-86/2012' AM. INDIA INSTITUTE OF MEDICAL SCIENCES ...... Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs. Versus MUKESH ANDANR , Respondents Through: Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. for R2. W.PiO 6066/2012 & CM. NO. 16387-88/2012, CAY, 977/2012 AM. INDIA INSTITUTE OF MEDICAL SCIENCES Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs. Versus MAMTAALDANR Respondents > Through: Mr. AnuragDubey,Mr. D.P. Pandey and . Mr. Meenesh Dubey, Advs. forR2. W.p.(C) Nos. 5944, 6059-68/2012 Page 3of 35 • W,PiO 6067/2012 & CM. NO. 16389-90/2012, CAV-975/2012 ALL INDIA INSTITUTE OF MEDICAL SCIENCES Petitioner Through: Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs. Versus BALA.MURGAN& ANR " , Respondents Through: Mr. AnuragDubey,Mr. D.P. Pandeyand 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. R_ajatKatyalandMr. SanjeevJoshi,Advs. Versus ' ' V1iAY AND ANIL Respondents Through: Mr. AnuragDubey,Mr. D.P. Pandeyand Mr. Meenesh Dubey, Advs. forR2. CO RAM: T-ION'BLE MR. JUSTICE SURESH ICAIT ORDER %

18.10.2012 SURESH KAIT, J. (Oral) CAV. No. 961/2012 " ^ ' Since the learned counsel has put appearanceon behalf of the caveator,the caveat stands discharged. CM. No. 12241/2012 (for exemption) Exemptionallowed,subjectto ailjust exceptions. ThE applicationstandsdisposedof. W.P.iC)Mo.s.594p6059-68/2012 ' Page4of 35 # W.PiC) Nos. 5944/2012 & 6059-

¶1The Sulabh InternationalSocial Service Organization,and the All .India institute of Medical Sciences, New Delhi, by way of the present petitions, are challengingthe sustainabilityofthe orderdated25.06.2012passedby the Regional Labor Commissioner. Since all the petitionshave arisenfrom the common order, therefore,this Court has decidedto dispose of all the petitionsby this common •judgment. The facts of the Writ Petition (Civil) No. 5944/2012 would be discussed/hrer being the lead matter. The petitioner Sulabh International Social Service Organization, and respondentNo. 3, DirectorAll IndiaInstitutesofMedicalSciences,New Delhi, by way of differentwritpetitions,are challengingthe sustainabilityofthe orderdated >

5.06.2012 passed by the Regional Labor Commissioner. The Regional Labor Commissioner,being the Authorityunder the Minimum V/ages Act, allowedthe claim petitionthat has beenfiledby the respondentNo.2 underSection20(2)ofthe .Act. The Authorityalso held that the petitionerand the respondentNo.3 both are severallyandjointlyresponsiblefor the paymentofthe claim.

¶3Facts of this case are thatthe petitionerand respondentNo. 3 enteredinto an agreementfor deploymentofthe respondentNo.2 for employmentof cleaningand sweeping at the premises of All India. Institute of IMedical Science, as such respondent No. 2 worked during the period from 25.01.2008 to 31.03.2010. Thereafter,the respondentNo. 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 '7 r 1^ W.P.(C) Nou 5944,6059-68/2012. Page5of35 applicationbefore the Authorityunder the Minimum Wages Act; same has been allowed by the impugnedorder.

¶4The moot question for the considerationin these writ petitions is that • whether the alleged volunteers,deployedthrough the petitioner,namely Sulabh International Organization, are entitled to get the minimum wages under the Minimum Wages Act.

¶5The petitionerSulabh Internationalhas relied upon the judgmentdelivered in Writ PetitionNo. 3408/1989by the High Courtof Patna,whereinthe said Coail 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 , publicwhich neednot be cleanedby the scavengernor does itrequire canyingof any night soil on' anyone's head. Further, the jobless scavengersor otherpersons renderedwithoiitemploymentare now, being impartedvocationaltrainingin centerswhich may help them to find jobs. For this purpose it has a large numberofvolunteerswho 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 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 establishmentwhich is workingfor publicgood and in the interestof the weakerSectionof the societ)c " ^ 6. Adopting the observationmade in the above judgment,Mr. K.T.S. Tulsi, learned Senior Advocate appearing on behalf of the petitioner contends that the impugnedorder is illegal,sincethere is no relationshipofemployerand employee which is aprerequisitefor the applicationofthe MinimumWages Act. He pointed out that the object ofthe establishmentis to liberatethe scavengersfrom the sub human occupation;and is a voluntaryphilanthropicorganizationcaiTying out its activitieson "no profitand no loss basis".Secondly,the petitionerhas reliediipom W.P.(C) Mos. 5944, 6059-68/2012 • Page 5of 35 a circulardated 03.04.2001issuedby Jt. LaborCommissioner,New Delhiwherein the applicationofLaborLaws has been excludedquapetitionerestablishment.The said circular is reproduced as under: "GOVT. OF NATIONALCAPITALTERRITORYOF DELHI . LABOUR DEPARTMENT 15-RAJPUR ROAD: DELHI-110054 'No T1291 Dated: 03.04.2001 . ' CIRCULAR Many. Chairman, M/S Sulahh International Social Service Organisation, RZ-83, Mahavir Enclave Palam, Dabri Marg, New . Delhi-110045,has appliedthat theprovisionsoflabourlaws are not, applicable on their organization on the basis of the following grounds:- ' a) That it is a Societyregisteredunder the SocietiesRegistration Act. I860. , • . _ b) That it is voluntaryphilanthropicorganization. c) That it is carryingout its activitieson "No ProfitandNo Loss'' basis. ' d) That it was consideredas not an 'Industry" as defined in Section2(j) ofthe IndustrialDisputesAct, 1947 by the Hon'blePligh Court ofPatna and the same was acceptedby the Hon'bleSupreme Court ofIndia. e) That the Government of Orissa, Karnataka and Andhra Pradesh considering that it was neither an "Industiy" nor a "'CommercialEstablishment" issued instructionsto their officersnot to enforcethe labourlaws andkeep the abovesaidjudgmentsin view, while dealing with the said organization. •f) - That that GovernmentofBihar also accordedexemptionto it, from applicabilit)^of the provisionsof the "Shop & Establishment Act", as applicable in their State. After the examinationofabove application,it appears that the above saidorganizationis a non-projltvoluntarysocialorganizationand is carryingout its activitieson "No Profitand No loss" basis-forthe-welfare of the humanity,and as such is neither an industry•nor an Establishment. Plence, all the subordinateoffices in differentStates have been instructedto keep the above in view, whiledealingwith the W.P.(C) Nos. 5944,6059-68/2012 ' . Page7.of35 ahovc said organization for the purpose of enforcement of labour laws. lion 'hie 'High Court of Patna. in the matter of M/s Sulahh ' 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 industrv within,the meaning ofSection 2(j) of the Industrial Disputes Act. 1947. Hon'ble Suprme 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 SulabhInternational & 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 laws in. view of above said judgments. Copies of the above said judgments and relevantcirculars as issued by differentState Governments are enclosed for ready reference. The MetropolitanMagistrate, Delhi has also decided on 22.03.1997• that the provisionsofMinimum Wages-Act are not applicableto the said Organization. Copy ofthe saidjudgmentis also enclosed. Hence, in such circumstances all the Brunch Officers of the Department while dealing with the above said Organization, are hereby instructedto keep the abovefacts andjudgmentsin viewfor the purpose of enforcementof labour laws andfor complianceof the above said judgments in letter and spirit. - • •' • (V. KUMAR) Jt. Labour Commissioner "

¶1line respondentNo.3 Director^All IndiaInstituteof MedicalSciencesis the petitionerin the Writ PetitionsNo.'6059/2012,6060/2012,6061/2012,6062/2012, 6063/2012, 6064/2012, 6065/2012, 6066/2012, 6067/2012 & 6068/2012 •> challengingthe same on the prepositionthat the relationshipbetweenthe petitioner herein and the respondentNo. 2 is not establishedas "employer"'and "employee" as is defined in the Minitmim Wages Act. Therefore, the respondent No. 3 contendsthat the applicationofthe provisionsof 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 , .Page8of 35 respondeiiL No. 2. The respondentNo. 3 also,bought to the notice that the non existenceof relationshipas "employeeand employer"betweenthe petitioneiand-the respondentNo. 2wouldrenderthatthe impugnedorderis voidah initio. The Authorityunderthe Act has takennote ofthe-pleadingsand framedthe followingissues, namely,

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

(ii) Whether AlIMS or Sulabh International should be deemed to be the employerunderthe Act havingresponsibilityto pay minimumwages.

(hi) Whether the persons associatedwith Sulabh International.are 'employees' within the meaning under the Act.

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

(v) Vdhetherthe Hon'blePatnaHigh Court'sorderin CWJC No. 3408 of 1989 has a bearing on this case. On the issues mentionedabove,the learnedAuthorityheld thatthe petitionei and the respondentMo. 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 conclusionthatthe petitionerand the respondentNo. 3are employersfor the purposeof determiningthe liabilityunderthe MinimumWages Act. Moreover,it also consideredthe fact that the duty whichwas performedby the respondentNo.2 was the.scheduledemploymentwhich is defined in Section2(g) of the Minimum P?=ipp P oF35 W,P.(C) NO.S. 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 judgment of Patna High Court in Writ Petition No. 3408/1989, the Authority under the Minimum Wages Act has jDointed out that the said Judgmentwas not applicablein the issue of payment of Minimum V\/ages Act. It was also differentiatedon the aspect of the issues, as in• the above-saidjudgmentthe issue,was the constructionof 'latrinesand urinals' by the Petitioner for the use of the public which was held to be not "industry" whereas,the issue involvedin the claim applicationwas sweepingand cleaningin the establishmentof 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 applicationthat has been idled bythe respondentNo.2.

¶10It is importantto note that the Authorityhas come to a specificconclusion that the Patna High Courtjudgriientis 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 reproducethe relevantparagraphsofthe saidjudgmentas underr , ''6. Concluding, therefore,I 'have no hesitation in holding,firstly, that the so-called union is entirely spurious. It has no sanctity of law nor does it represent anyone who can be treated to be a worlananof• the Petitiorier establishment. Infact, it is a self-styled union ofcertain • persons whose motive is not only laudable but entirelymalafide. I have also no hesitation in holding that this M>as a case, primarily, in which no referenceshouldhave been tnade merely on the basis of a soliiary material that is the notification recognizing the Union. In the . light of the subsequent,riotifiicationas containedin Aimexure 4, the authorities should have been well advised to examine, before making' a. reference, whether the Union making the demand was a union W,P.(C)Nos.59/14,6059-68/2012 Page 10 of 3.5 sanctified by km> and really represented the worlanen of the petitioner-estabUshinentwhich situationwas subsequentlybroughtin lo light resultingin the issuanceofAnnexure 4. Even if I M'ere to assess me that theStategovernmentwas right in makingthe reference ofregistrationalone, once it has come to lightthat the Union whose Presidenthas made the demand, is not a Union created in accordance with law and it does not consistof the persons who are the workmen of the Petitioner establishment, then alsoUhe reference.and the consequentialproceeding cannot be allowed 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 worlonan of the petitioner-establishment, no award could be made against the petitionei-establishmentand the demand made in annexure 3 could not be entertained. 1, however, would like to express my opinionsuccinctly in regard to this point also. Undoubtedly, the. law has completely been crystallizedby the decision of the Supreme Court reportedin AIR 1978 SC 548 (BangaloreWaterSupplyand SewerageBoard vs. A. Rajappaand others) relatingto types ofestablishmentsthat come withinthe definitionset out in Section2(J)ofthe Act. The definitionin Section2(j) ofthe Act ofthe word. "Industry"has been given a wide meaningembracingwithin its ambit a. large numberoforganizations which would, come within the nature of the Institutionset out but is essential in every case where the question is raised whether an establishmentis an industiywithin the meaningofSection2(j) of the Act that certain relevantfactual data have to he found. If an establishmentis undoubtedlyan industryestablishedfor the purpose ofbusiness, trade, undertakingmanufactureor callingofemployers and it includes the calling, ser.-ices, employment, handicraft, or indiHrial occupation or avocation of workmen, that being an eslahlishment.ofundoubtedhas in regardto its characterofbeingan industrythen much ado is not required,for applyingtheprovisionsoj the IndustrialDisputesAct. in all its aspect. Theproblemarises only when an establishmentby the very natureofits creation,extentandits purposefor which it was establishedcannotexfacie be describedas W.P.{C) Nos. 5944, 6059-68/2012 Page il of 35 9® an Industry then it can only be brought in to the ambit ofthe definition ofSection2(J) of the Act on the basis of ascertainablefacts brought ahout by detailed incjuiryin an awardproceeding or at the levelof the •State Government making the reference. The onus would lie on the so called workmen to bring on the record, cogent and relevant materials to shoyv that not only they are the members ofsuch establishment but also thai the organization is infact functioning in the manner which , brings it within the definitionof 'industryIn the instant case, apart from the bye Icnvs and the audit report of the managementandfour • witnessesexainineclby 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 (gatheredtogetherto work on aprojectby whichapartfrom othersthe harizans could be 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 variousspheres of everyday life. For thesepurposes,the Petitionerestablishmenthas been set up which is technically described-as . "Sulabh Sauchalaya". The PeliHoner establishment has set up lavatories and bathrooms, the construction being of very simple in naturefor the use of thepublic which need not be cleaned by the scavenger nor does it reciuire carrying of any night soil on ' anyone's head. Further, the jobless• scavengers or other persons rendered without employmentare now . . ' beingimpartedvocationaltrainingin centerswhich may help them to find jobs. For this purpose it has cr large number of volunteerswho 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 there yet as I read the aforesaid decision of the Supreme Court, the di.efmition cannot be extended to a purely voluntary organization like the Petitioner establishment which is workingfor publicgood and in the interestof the weakerSection of the society 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 workers. The aims and objects of any establishmentare always extensive and goes even • beyond the actual work that the establishmentundertakes. The ipso dixil offour workmenall ofwhom claim to be no longerin seiwiceof W.P.(C) Nos. 5944, 6059-68/2012 Page 12 of35 the e.stablishment and the aim and objects can hardly justify the Inferencethat the establishmentis an industry. Much more than this was needed, to he proved. •8. / have, therefore, no hesitation in holding that there was no sufficientevidenceon recordto hold that thepetitioner-establishment is an industry within the meaning.of Section 2(J) of the Act and the decisions of the Supreme Court. The readingofthe foregoingparagraphsin the saidjudgmentmakes it clear that the issue was not the applicationofthe paymentofMinimumWages Act; but the IndustrialDisputesAct. Two issues were involved,primarilythe scope of the dehnitionof industrialdisputeas definedin Section2(k) of the IndustrialDisputes /-Vet, and the Court ruled that the disputewhich was referredwas not an industrial disputesince; it was not referredby the worlanenin the establishment.Secondly, on the issue whether the petitionerherein, namely, Sulabh Internationalis an industry or not, the Patna High Court held'that, being" a purely voluntary organi'/al.ion,workingtor the publicgood and for the benefitofweakeri^ectionsin the societythe definitionof"industry"could not extentto the petitioner.

¶12It is legally "fundamentalto note that the reasoningof-thejudgmentflows• from the provisionsof the IndustrialDisputesAct; not from the Minimum Wages Act. Significantly,the existenceof the petitioneras a voluntaryorganizationis" differentfrom as comparedto deploymentofpersons as volunteersthiough the petilioner. In the latter category the petitionerstands in the different"footing as comparedto the former; that is as an employer.Therefore,the learned,Authority underthe MinimumWages Act opinedthatthe saidjudgmenthas no bearingin the issue in"volved. n One of the most importantaspects for considerationis that the respondent No.2 was servingthe petitioneras avolunteer;not as an employee.Therefoie,the W.P.(C) IMos. 5944,6059-68/2012 ^ 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 respondentNo.3 as exhibitedas annexureP-3 in WritPetitionNo.-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 agreementhet]'VeenFirstParty and SecondPartywitnessethas per terms and conditionssetforth hereimder. /. The Second Part).' will have to provide adequate voluntary social workers for cleaning. The timing of the deploymentof the voluntarysocialworkers would be accordingto the needs ofthe Dr. BRAIRCPI, AlIMS, Ansari Nagar.

¶2Mo refuse/garbage will be dumped by the voluntary social workers in the open trenches, hedge.

¶3Removal of the dead body of Dogs/Cats/Rats/Monkeysetc. within t^vo hours after receivingthe complaintwithoutfail.

¶4Second Party shall provide the Piouse Keepingservices-on all calendardays Sundays includingGazettedPlolidaysi.e. the timingof the deploymentofthe staffwouldbe accordingto the needs ofthe Dr. BRAIRCH. AIJMS, Ansari Nagar.

¶5The Second Party shall provide 10 Nos. of Sidabh voluntary social workers and one supervisor to cope with work load of sanitationthroiLghouttheperiodofagreement..In case, the numberof Sulabh voluntary social workers engaged, is found less while inspection by any Executive Officer of the Center, proportionate charyes will he deductedafter discussionwith SecondParty the as-per charges specifiedin Annexure-1. The Executive Officer of this 'contract"shallbe Asstt. Admn. Officer AIIMS (as nominee of Dr. BEAIRCTI-AUMS, Ansari Nagar). ' • '

¶6-The Second Party shall maintain the complaint hook for ' differentareas, which will be made availableto the supervisorystaff. W.P.(C) Nos. 5944, 6059-68/2012 The Second Party will use the manpower only at theplaces wherever authorized.

¶7The Second Party shall provide two sets ofApron including Dr. BRAIRCH,AIIMSto its voluntary social workers and ensure that they shall wear it while on duty and maintain them clean. S. That the voluntary social yvorkersdeputed by the Second Party shall not be below the age of18 years.

¶9The voluntary social yvorkers deputed-by the. Second Party shouldnot interfereyvith the dutiesofyvorkersofthe First Party. ID. The Second Party shall ensure and guarantee the conduct; behaviorand honestof the^ voluntarysocial yvorkersdeputedby them. Jn case of any misconduct or any other damage or theft of the propertyofthe FirstParty, the SecondPartyshall be responsiblefor all such losses or damages after it is established by holdingproper enquirythat the voluntarysocialyvorkersdeputedby the SecondParty are responsiblefor these.

¶11The voluntary social workers engaged by the Second Party shall be of good character and. sound health. And shotdd be medicallyfit and this may be checked by Senior Residents Dr. BRAIRCH,AIIMS, AnsariNagar. ^ '

¶12In the eventofany loss to theDr. BRAIRCH,AIIMSon account of nefiigenceof voluntarysocial yvorkers, SecondParty shall make goocttheloss sustainedby the Dr. BRAIRCH, AIIMS, AnsariNagar either by the replacementor on paymentof adequate compensation yvhich yvill be decided,by the Joint Committeeof both theparties after holding necessary enquiry.

¶13The First Party shall not be responsiblefor the payment of honorarium to the voluntar)''social yvorkers engaged by the Second. Partyand.shallensure timelypaymentto them.

¶14The SecondPartyshallprovidevoluntarysocialyvorkersasper approvedterms and conditions. The same shall be monitoredby Sr. SanitationOfficer/Representativeofthe Dr. BRAIRCH,AIIMS, Ansari Nagarand ifthe strengthisfoundless,proportionaterecoveryyvill be made. W.P.(C) Nos, 1S944,6059-68/2012

¶15The Second Party will have, to produce the monthly hill along wilh the certificate ofsatisfactoryperformancefrom theSr. Sanitation Officer/SanitationInspector to the submitted on the of every calendar month for verification by the Executive Officer and same shall bepaid within 10 days bythe First Party.

¶16Second Party shall not appoint any Sub-contractor/Agent to cany outany obligationsunderthe ayvardedperiod ofwork.

¶17The First Part)i shall provide the quality cleaning material to the Second Part}^as per requirement at its cost, but the SecondParty shall make this demand in advance-so that work does not suffer.

¶18The Second Party Dr. BRAIRCH, 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, AnsariNagar or any office authorized by him/her. for execution ofday to day work ofthe campus. •The Securit)'instructions/ordersissuedby the Dr. BRAIRCH, AlFMS, .AnsariNagar from time to time shallalso befollowedby the Second Party and voluntary social workers. - •

¶20The First Party reserves the rights to award the area for cleaning, dustingetc. out of various buildings/locationsand can any time withdraw some areas or add some additional areas from the contract without assigning any reason after giving o?ie month's notice.

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

¶22No voluntarysocial workers of the SecondParty shall stay in the campus beyondprescribedduty hours. WTiilegoingout ofthe Dr. BRAIRCH, AIIMS, AnsariNagar , SecondParty will go through the check by security at various exists of the Dr. BRAIRCH, AIIMS, Ansari Nagar. W.P.(C)Nos: 5944,6059-68/2012

¶23It is further agreed that there would be absolutelyno scope of escalation payable by the First Party on account of increase in 'honorariumofvoluntarysocialworkersunlessmiituallyagreedto.

¶24It is agreedthat in case the SecondPartyfails toperformany of the terms and conditionsof this agreementor commitsany breach in contract, the First Party may cancel the contract after giving reasonableopportunit)^andiffoundunsatisfactorythen by givingone month notice in writing to the Second Party.

¶25That the Second Party shall issue the identity.card to each of the voluntarysocial worker-engagedas associatememberfor entiy into theworkpla.ee ofAIIMSpremises.

¶26That in case of any dispute between the parties aforesaid in • respect,of this agreement, the mattershall be referredto a mutually • agreedupon Arbitratorby the First Party and Plony., Asstt. Director of the Second.Party and the decisionof the Arbitratorso appointed shall befinal and binding on both theparties.-

¶27The rates terms and conditions as per annexure I, II & III to this agreementwillform an integralpart ofthis agreement."

¶14Indisputably/theabove said contractestablishesthe fact that the respondent No.2 was deployed in the premises of respondentNo. 3 for the employment'of cleaning through the petitioner.It is true that the contract entered,between the parties refers the respondentNo. 2 as "voluntarysocial worker". Despite of this reference as a voluntary social worker, the respondent No. 2 has filed claim; petition under the Minimum Wages Act; and therefore,the Authorityunder-the .A.ct, held that the respondent No.2 is not a volunteer.

¶15Moreover,it is legallysignificantto note and'examinethe nature and soope of the above contract in the light of observationsmade by the Supreme Court in Peoples Unionfor DemocraticRightsand Ors vs. Union ofIndia1982 (3) SCC..

¶235The relevantparagraphis reproducedas under W.P.(C) Nos, 5944, 6059-68/2012

¶20Now the next question\that arises for consideration whether there is any brea'ch of Article 23-when a provideslabour or service to the State or to any other andispaidless than the minimumwagefor it. It is obvious,that' ordincirilyno one would yvillinglysupply labour or service to anotherfor less than the minimum wage, when he Icnows that under the layv heds entitled to get minimum wagefor the labour or service provided by him. It may therefore be legitimately oreswried that yvhen a person, provides labour or service to another againstreceipt of remunerationwhich is less than the minimumwage, he is actingunder theforce ofsome compulsion which drives him to work though he ispaid less than what he is entitled under law to receive. WhatArticle 23prohibits is 'forced labour' that'is labour or service which a-person is forced to provide and 'force'which yvould make such labour or service 'forced labour' may arise in several yvays. It may be physical, force which may compela person to providelabour or serviceto another or it may beforce exerted througha legalprovision such • as a provisionfor imprisonmentorfine in case the employeefails to providelabouror serviceor itmay even be compidsionarising, from hungerandpoverty-^ ^^antand destitution.Anyfactor which deprivesa person ofa choiceofalternativesand compelshim to adopt one particularcourseofaction mayproperlybe regarded as 'force'and iflabouror serviceis compelledas a resultofsuch - 'force', it yvould yve 'forced labour'. Jlfhere a person is suffering from hunger or star\>ation,yvhen, he has no resourcesat all to' fight diseaseorfeed his yvife and childrenor even to hide their nakedness,yvhere utter grindingpoverty has broken his back and reduced .him to a state of helplessness and despair and where no other employment is available to alleviate the rigor•of his povert}', he yvould have no choice but to. accept any yvork that comes him way, even if the remuneration offered to him is less than the minimum wage. He yvould be in no position to bargain with the employer; he yvould have to accept what is offered to him. And in doingso he yvouldbe acting not as afree agent yvith a choice benveen. alternatives but under the compulsion, of economic circumstances and. the labour or seiwice provided by him yvouldbe clearly'forcedlabour.' There is no reason yvhy the word 'forced'should,be read in a narrowand restrictedmanner so as to be confinedonly to physicalor legal'force'pa.rticido.rly W.P.(C) Nos. 5944, 6059-68/2012 C\ when, the national charter, its fundamental document has. • promisedto hidld a new socialistrepublic where there Will be socio-economicjusticefor all and every one shall have the'right to work, to educationand. to adequatemeans,of livelihood. The Constitutionmakers have given us one of the most remarkable.. documentsin historyfor usheringin a new socio-economicorder • and the Constitution which they haveforged for us has a social purpose and an economic mission and thereforeeveiy word or phrasein the Constitutionmustbe interpretedin a mannerwhich, would advance the socio-economic objective of the Constitution. It is not un often that in capitcdistsociety economic circumstance exertmuch greaterpressure on an individualin drivinghim to a. particularcourseofaction thanphysicalcomptdsionorforce of legislative provision. The word force' must therefore be constructed to include not onlyphysical 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 minimum wage of course, ifa person provides labour,"orservice to another against receiptof the minimumwage, it wouldnot bepossible to say that the labour or service provided by him is 'forced labour' because hegets what he is entitledunder law to receive.No inferencecan reasonably be drawn in such a case that he isforced, toprovide labour or service for the simple reason that he woidd be providinglaboiir or service against receipt of what is la.wfuUy payable to him just like any other person who is not under the force of any comptdsion. 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 Article23. Such a personwoidclbe entitledto come to the courtfor enforcementof - his fundamental right under Article23 by asking the court .to directpaymentofthe minimumwage to Him so that the labouror service provided, by him. ceases to be 'forced labour' and the breach of Article23 is remedied.It is thereforeclear that when the petitionersalleged,that minimum wage was not paid to the workmen employed,by the contractors,the complaintwas really W.P.(C) Mos. 5944, 6059-68/2012 • Page 19 of35 in effect and substance a complaint against violation of the fundamentalrightofthe worlcmenunderArticle23.

¶16Article23 ofthe Constitutionenacts a very importantfundamentalright m the tbilowing terms: Article23.: Prohibitionoftrafficin human beingsandforced labour-r

(1) Traffic in human beings and begar and othersimilarforms offorced labourare prohibitedand any contraventionofthisprovisionshall be an offencepunishablein accordancewith law.

(2) Nothing in this Article shall prevent the State from imposing compiilsorvservicefor publicpurposes,and in.imposingsuch servicethe Stateshall not make any discriminationon groundsonly ofreligion, race, caste or class or any of them. , 17; 'T1ne challengehereinis not aboutthe enforceabilityofthe said contract;but• the nature and scope ofthe same is to be examinedin the lightofArticle23 of the Constitution,with the findings as regards the differentfonns of forced labour as held in PeoplesUnionfor DemocraticRightsand Ors vs. Union ofIndia(supra) for cullingout the stand ofthe respondentNo. 3 and the petitioner.In the lightof the above,the deploymentofrespondentNo. as asocialworkeris anew methodof forced labour in the society,,which needs to be curbed. The reading of the terms and condition.sof the said contractiii'termsv/ithA.rticle23 would establishihe fact that, the respondentNo. 2was workingas an "employee"not as a"volunteer"

¶18it is also pertinentto examinethe said contractwith the provisionsof the Minimum Wages Act.

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

¶25Contractingout.- Any contractor agreement,whethermade before or after the commencement of this Act, whereby an W.P.(C) Nos. 5944, 6059-68/2012 Page 20 0135 . ipioyee either 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 so far as it purports to reduce the minimum,rate ofwagesfixed under this Act.

¶20Therefore,the contractentered between the petitionerand the respondent No. 3, would not disentitlethe claim ofthe respondentNo. 2 as an employee for minimumwages underthe MinimumWagesAct.

¶21This Court in judgment delivered on 24.02.2010 in Writ Petition No. 3785/2007 held as under: i "16 The object,and policy of the Legislaturein enacting the Minimum. Wages Act is to prevent exploitationof the workers and, for that purpose, it aims at fixation of minimum wages which the employer must pay. The Legislature undoubtedly' intendedto applythe Act to those industriesor localitiesin which, bv reason of causessuch as unorganizedlabour or absence of machineryfor regulationof wages, the wages paid to workers were, in the light of the general level of wages, and subsistence level, inadequate.Conditionsof labor vaiy in differentindxistries and from, locality to localit}^, and the expediency of fixing minimum wages, and threats thereof depends largely upon diversefactors which in their very nature are variableand can . properlybe ascertainedby the Governmentwhich is in chargeof the administration of the State. It is to carry out effectivelythe purpose of this enactment that power has been given-to the appropriate Government to decide, with reference to local conditions, yvhetherit is desirable that minimumwages should be fixed in regard to any scheduled trade or industry, in any-.- locality,andifit be deemedexpedientto do.so, the ratesatyvhich the yvages should, be fixed, in respect of that industry in the locality" •22: • In order to protect the interest of the employees,the scope under the Minimum Wages'Actis in widerperspectivethan the IndustrialDisputesAct. The Minimum.Wages Act "Section2 definesas follows; W.P.{C) No^. .S944,6059-68/2012 21 of 35 ern

23.

(e) "employer"means any person who employswhether or Jhrough anotherperson or whether on behalfofhimselfor anv other person one 'or more employees in any scheduled employmentin respect ofwhich minimum rates ofwages have beenfixed under this Act and includesexcept in sub-Section(3) ofSection 26

(i) in afactory where there is carriedon any scheduled employmentin respectofwhich minimum rates ofwages have beenfixed under this Act any person named under . clause (f ofsub-Section(1) ofSection 7 of the Factories Act 1948 (63 of1948)as manager ofthefactory;

(ii)'in any scheduledemploymentunder the controlofany governmentin India in respectofwhich minimumratesof wages have been fixed under this' Act the person or authority appointed by such government for the supervisionand controlof employeesor where no person or authorit)'is so appointed the head ofthe.department;

(Hi) in any scheduled employment under any local authority in respect of which minimum rates of wages have beenfixed under this Act the persons appointed by such authority for the supervision and control of employeesor where no person is so appointedthe chief executive officer of the local authority;

(iv) in any other-case where there is carried on any\ scheduled employmentin respect of which minimum rates • of wages have been fixed under this Act any person responsibleto the ownerfor the supervisionand control ofthe employeesorfor thepaymentofwages; Whereasthe liulustrialDisputesActs, Section2(g) definesemployer:

(g) "Employer" means—

(i) in relationto an industrycarriedon by or under the authority of anv department of 3fithe Central Government or a State Governmentj,die authorityprescribedin this behalf or,whereno authorit]' isprescribed, the head ofthe departmem, W.P.(C) Nor.. 59t4, 6059-68/2012

(ii) in relationto an indiistiycarriedon by or on behalfofa local authority,the chiefexecutiveofficerofthatauthority;

¶24It is importantto notethatthe definitionofemployerin 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 MinimumWages Act. In the lightofthe above discussions,the relationshipof the petitionerand respondentNoN with respondentNo. 2 is establishedas employer- • and employee.RespondentNo.2 is entitledto get the minimumwages as per the • scheme of the Constitutionof 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 SeniorAdvocatehas further submittedthat since there is no relaLionshipoF employerand employee and the petitionerbeing the voluntary organization,therefore.Section2 (j) ofthe IndustrialDisputesAct, 1947 cannotbe applied on such organization. • • . .

¶26He' has relied upon a case of Ratiiram and Others Vs. State of-Madhya 'Pradesh, (2012) 4 SCC 5J6, wherein while relying upon the case, of Union of India Vs.RaghubirSingh, (1989) 2 SCC 754, the SupremeCourt has held that a pronouncementoflaw by a DivisionBench or a smallernumberofJudges, and in • order that such decision would be binding. It has been held as under:- , • "26. In Union of India v. Raghubir Singh, (1989) 2 SCC 754, ihe Constitution Bench, speaking through R. S. Pathak, CJ, has held thus:-(SCCp. 778,para 28) W.P.(C) Nos. 6059-68/2012 XXX "28. We are ofopinionthat a pronouncementoflaw by a DivisionBench of this Court is binding on a Division Benchofthe same ora smallernumberofJudges, and in order that such decision be 'binding, it is not necessary that it shoidd be a decision rendered by the Full Court or a Constitution Bench ofthe Court. " XXX

¶25In 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 Raghubir Singh

¶29Thus viewed, Bhooraji .(supra) was a bindingprecedent, and when in ignoranceof 'it subsequentdecisions have been rendered, the concept,ofper incuriam.wouldcome intoplay. '

¶27He has further relied upon the judgment of Ors. Vs. Collector, ThaneMaharashtra & Ors., (1989) 3.SCC396, whereinthe SupremeCourthas observedas follows;- "14. The other limb of the-argument of counsel for the appellants relates to the manner in which the High Court disposedof the matter. It was said that a decisionof this Court has been disregarded and a bindingdecision of ci co-ordinate • Bench ofthe same Court has been ignored. XXX XXX • XXX .18. It would be difficultfor us to appreciate thejudgment of the High Court. One must remember thatpursuit of the law, howeverglamorousit is, has its own limitationon the Bench. In a multi-judgecourt, the Judges are bound by precedentsand procedure. They could use their discretiononly when there is no declaredprincipleto be found, no ride andno 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-ordinatejurisdiction,the matter W.P.(C)Mos. 5944, 6059-68/2012 Page 24 of35

¶28shallbe referredto a largerBench.It is asubversionofjudicial processnot tofollow thisprocedure.". • , , The learned senior counsel has further refen-edthe order dated 27.11.2003 by this Court in Crl. Miscellaneous(Main)Nos. 3822, 2933 to 2936, 3820-3821 002002 fded by the M/s SulabhInternationaland Anotheragainstthe order, of Labour EnforcementOfficer (C), Delhi 3, wherein this Court has also relied upon the judgmentofthe PatnaHigh Courtand heldthattheieis 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. 1693/2006dated23.02.2007,whereinthe SupremeCourt has passed the followingorder:- ^ - • The questionas to whetherapublicutilityservice,which is allegedlvcarried,on by a Societyon 'noprofitno loss basis , would be an industrywithin the meaning of the provisionsof the IndustrialdisputesAct, 1947, beingpendingdecisionbefore a sevenJudgeBench in Stateof UP. vs Jai BirSinsh, (JT2005

(5) SC 170),.we are of the opinion that the matter should be referred to a larger bench. Thepartiesare given libertyto mentionthe matterbefore Hon 'ble the ChiefJusticeor File an appropriateapplicationfor taggingthis case withJai BirSingh (supra). Let the records be placed before Hon'hie the Chief Justice ofIndiafor passing appropriate orders.''

¶30The Coordinate Bench of this Court on 16.11.2009 in Crl.' M:C. No.

3.884/2009passed the orderas follows:- - - • " Mr.Tulsi, learned Senior Advocate appearing for the petitioner submits that the petitioner is a voluntaiy social, organization engaged in the work df constructing and W.P.(C) Nos. 5944,6059-58/2012. Page 25 of35 maintaininglavatoriesand has been carryingon its activityon no profitand no loss basisfor the welfareofthe humanity. Mr. Tillsi has drawnattentionofthis 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 draws attentionof 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 said submissions,Mr. Tulsisubmitsthat provisionsofSections23 and 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 the next date, of hearing. . On the same issue whetherthe petitioneris an industrywithinthe meaning ofSection 2(j) ofthe IndustrialDisputesAct, 1947 and whetherthe Industrialas, well as 1.,about-Laws are applicableto the organization,-on07.03.2011,this Court in Ci-1. M.C. No. 3884/2009 passed the following order:- Short question for determincition in this petition is-whether or not the petitioner Sulabh International is an /.nduslry'withinthe meaningofSection 20) of the Industrial DisputesAct and whetherihe^industidalas well as labourlaws are applicable to the organization. I have been informed that aforesaid legal issue is pendingconsiderationofa LargerBenchofSupremeCointand the finding of the Suprenre Court will obviously irnpact the •decision on this petition. Thus,-decision on the petition-is deferred. The petition is, accordingly,consignedsine die with the observationthat eitheroftheparties mayget it revivedafter the decisionofthe SupremeCourton the issue." W.P.IC) Nos,'5944,6059-68/2012. Page'26o1 3i r Mr. Mukul Gupta, learned'SeniorAdvocate,who arguedthe petitionsfiled by the All India Instituteof Medical Scienceshas joinedhands with Mr. Tulsi, learned Senior Advocate on the legal issue and has farther added that the respondents have neither challenged the agreement nor the Memorandum of Understandingentered into between the Sulabh Internationaland the All India InstituteofMedical Sciences. There is no evidenceon recordthat the respondent was employed by either of the organizationsmentionedabove and the impugned 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 petitioner,is not an industryand the provisionsof 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 neitheran establishmentnor an employer. It is further submitted that the persons associatedwith Sulabh Internationalare npt employees or workers, but are associate members of Sulabh International, rendering their voluntary social services for-the upliftmentof scavengers. The •objectofthe associatemembersof SulabhInternationalis to rendersocial service, and not to attain personal benefits, and also because they aie not rendering any services'for the organizationbut are using the organizationto coordinateand guide their activitiesalong with the activitiesofothersimilarlymindedsocial workersto help them attain their goal of social welfare, therefore, no wages/salariesare payable to these volunteers. On the minimum wages, the leatried Authorityframed an issue that

(i) Whether the Minimum Wages Act, J948 is applicable only to Tndustry', .W.P.(C) Nos. 5944,6059-68/2012. Page 27.of35, "'establishment'and 'enterprise',and not tD voluntarysocialserviceorganizationof, charitableand philanthropic nature. ^55 Qii rhe issue framedabove,tlie learnedAuthorityhas heldthatthe Ivliriimuni Wages Act, 1948 is applicableto a scheduledemploymentin respect of which minimum rates of wages have been fixed by the appropriateGovernment,as is evident from a reading of the definition of 'employer' and employee undei Sections2(e) and,2(i)respectivelyofthe Act. The 'AppropriateGovernment'as defined 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 Central Govermmenthas fixed minimum rates of wages for the said employmentvide NotificationNo. S.0..1994

(e)'dated 7.8.2008. There is no reference in the Act to terms like 'industry', 'establishment'and 'enterprise'nor is there any mentioneven by implicationthat the Act applies only to them. .36. On the contrary,while definingthe term 'employer'under Section 2(e) of the Act, the Act has made clear that it is. applicableto scheduledeimployments ^ carried on in a factory, scheduled employments under the control of any GovernnTcnt in India, scheduled employments under any local authority and scheduled employments in any other case. ,

¶37There is no direct or indirect mention in the Act that the scheduled employment has to be carried on by an industry. The Act applied tq an employment which is scheduled irrespectiveof who carries on that scheduled employment. On the issue No. (ii) W^hether A.IIlVfS or Sulabh Internationalshould be deemed to be the employerunder the xA.ct having responsibilityto pa}'' minimum \A/'.P.(C)Nos. 5944, 6059-68/2012 wages, the learned Authority has held; that Section 2(e) of the Act .defined 'employer' as '^any person who employs, whether directly or through anotherperson,or whether'on behalfofhimselfor any other person,one or more employeesin any scheduledemployment in respectofwhich minimum'rates ofwages have beenfixed under this Act, and • .

¶39it is recorded in the impugnedorder that in the instantcase,.the so called yolunteers have been deployed in the scheduled employmentof sweeping and cleaningby SulabhInternationaldirectly. It is also not in disputethat they have been deployed by AIIMS though Siilabh International in said scheduled employment. Therefore, both having satisfiedthe definitionof 'employer are jointlyand severallyresponsiblefor paymentofminimumwages 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) Whetherthe personsassociatedwith SulabhInternational are 'employees'v/ithinthe meaningunderthe Act, the learnedAuthorityhas relied upon a case decidedby JharkhandHigh Courttitled Robert Toppo Vs. Stateof Jharkhand, wherein it has been observedthat "thereis no provisionin the Act or. in the Rules that any 'shramdan' shouldriot betreatedas labour." . • • 41. The learned Authorityhas observedthat the Sulabh Internatio.nalmay be a voluntaryorganization,but it does not necessarilymean thatthe personsdeployed in it are all volunteers. The very fact that the persons emplpyedor deployed by Sulabh Internationalhave claimed the minimum wages under the Act by filing their claims establishesthat they are not volunteers. Had they been volunteers, W,P.(C) Nos. 5944. 6059-68/2012 PageZ9of35 why would they claim minimumwages? Therefore,the petitioneris treating the employed persons as volunteersonly with aview to deprivingthem of minimum wages so that eitheror both ofthemgain out ofthis system.

¶42On the issue whetherthejudgment:ofthe High CourtofPatna,as mentioned '• above, has abearingon the issueraisedin the instantclaims,the learnedAuthority, has held as under"- , An examination of the judgment dated 9.2.1990 of ' Hon 'hiePatnaPlighCourtin C. W.J.C. No. 3408of1989 reveals that the Hon'nle Court in that judgment held Sulabh Internationalnot to he 'industry'within the meaningofsection ' 2(j) ofthe Ind.ustrialDisputesAct, 1947. As it has alreadybeen discussed in the foregoing'paragraph that the applicationof Mininn/m WagesAct, 1948has nothingto do with 'industry'and that the act is applicableto scheduledemploymentsunder the act. irrespectiveofwhetherit is carriedon by an industryornot, the judgment appears to have no bearing on this case. The content'ionof the O.P. No. 2 that the Hon'bleHigh Court held that SulabhInternationalnot beingan industry,no industrialas well as labour laws can be made applicationto the organization is totallyout ofplaceand misquoted. The Hon'ble,TP"-'' never ruled thai no labour laws could be applied Further, it may be added that the case examinedby the Hon'ble High Court is that of construction of latrines and urinals by Sula.bhforthe use ofthepublicwhich was held to he not 'industry'whereas the case under this claim applicationis sweepingand cleaningin the establishmentofAIIMSby Sulabh in the ccipacit}>as a contractororanoutsourcedagency.

¶431 nole that' the learned Authority under the Minimum. Wages Act has consideredeach and every aspectraised by the petitionersincludingthe judgment dated 27.11.2003ofthis Court passed in Crl. Misc. (M) PetitionNo. 3821/2002. The relevantportionreads as under:- , * . W.P.(C) Nos. 5944,6059-68/2012 Page 30 of35 "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 instantclaim applicationhas beenfiledundersection22(2) ofthe Act: Both the casesdo notfand in the samefooting. a) The maximumfine under section 22 Ais only Rs. 500/- (Rupees Five Hundredonly) whereas the compensation under section 20 can go up to ten times of the amount-shortpaid withoutany'higher limit. •Hi) The complaintunder section 22 A has beenfiled by an inspector under tho Govt. of NOT whereas this application under section 20(2) has been filed by the employeehimself. Therefore,it is likelythat thepersons associated with the complaint under section 22 A were volunteers, but the aggrievedperson filing the claim case himself under section 22(2) could certainly not be a volunteer.

iv) The judgmentof the Hon'ble High Court has inter-alia taken in to consideration a circular bearing No. 1291 dated 3.4.2001 issued by theLabour Department of Govt. : ofNCTofDelhi to the effectthatSulabhInternationalis neither an industry nor an establishment. But no such circular has been issued by the central government.

v) Sulabh International not being an establishment under the Shops and EstciblishmentAct as decided by various High Courts, the minimum,rates of wagesfixed by the governmentofNCT ofDelhi in respectofall shops and establishments under the Minimum Wages Act, 1948 might not'be applicableto SulabhInternational. But no such stipulationexists in the jurisdictionof the central government. 'Sweeping and Cleaning' itself is a scheduled employmentin respect ofwhich minimumrates of wages have been fixed by the 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 Sidabh • [nternational. " ' \A/.P.(C)Nos. 5944, 6059-68/2012 Page.31 of 35

¶44The learned Authorityafter dealingwith all the issues framed have finally opined as under:- Jt goes without saying that the O.P.s have caused considerablehardshipto the applicant-employeeby notpaying him his rightfuldies. Consideringthe plightof the low paid \ applicant^employee,enormoussufferingcaused to him over a very long period of time and above all, the provisions of Minimum. Wages, Act, 1948providingfor compensationup to ten times of the amount short paid, I am of the considered . opinion that the ends ofjusticeshall be met if compensation equivalent to five times of the amount short paid to the applicanti.e. (Rs. 61765 X5 3088257- (Rupees Three lakh eight thousandeight hundredtwentyfive only) is also paid to the employee over and above the amountshortpaid. Thus a total amount of Rs.3,7059.0.6 (Rupess Three lakh seventy^' thousandfive hundredninetyonly) is requiredto bepaid to 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 responsiblefor payment of minimum wages to the applicant-employee.It is, therefore,decidedin the interestof equit)'',fairnessand reasonablenessthat the amountrequiredto be paid to the applicant-employeeshouldbe borne equally by the O.P. No.l and O.P. llo. 2. Accordingly, I direct that an • amount ofRs.1852957- (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. 1further direct that the amount as awarded above have to be deposited,with the authoritythroughdemanddraftsdrawn in favour of the applicant-employeepayable at Neyv Delhi within 10 daysfrom the date ofreceiptofthis order."

¶45yVfter 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 ' industryunderthe IndustrialDisputesAct and the same issue againframed by this W.P.(C) Nos. S944, 6059-68/2012 CoLirl,,asmentionedabove. WhilerelyinguponthejudgmentofPatnaHigh Court, • the same view had been takenby this Coiirtalso. However,neitherthis Courtnor the Patna High Court, as stronglyrelied upon by the petitioner,has decidedthe 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 liand is whetherfor the servicesrenderedfor the petitioner,would come in purviewof the Act and deployedpersonswould be entitledfor minimumwages,it is entitled'to pay the minimum wages or hot.

¶46The petitioner organization has entered into a Memorandum of Understanding,as mentionedabove, by which the serviceswere renderedto the All India Instituteof Medical Sciences. .The poor peoplefrom 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'smembersofthe familycannotaffordto be avolunteer. Apersonwho Has acquired the minimumrequirementin the life may do some voluntaryservice foi-a day or a two or maximum for a week but not on a peimanentbas.is. The I'espondentNo. 2 is apersonwhose survivaldependsuponwhatevergiven/paidby the employeror who is takinghis services. Ifhe works voluntaryeven for a day,- his whole family would be starving. Therefore, such a person cannot work voluntaryeven for a day. One cannotexpecthe would be a volunteerfor months and years together. . - • p,

¶471am consciousthat againstthe judgmentof the PatnaHigh Court,the.Union of India filed an SLP before the Supreme Court, which was dismissed as withdrawn and thereaftera review was filed and the same was also dismissed. • W.P.(C)Nqs. 5944,6059-68/2012 ' • " Page33of35 VA Therefore,no decisionhas been taken by;the SupremeCourton the meritsand the matterhas been referredto the LargerBench,whichis stillpending.

¶481have no hesitationto say that on one side the petitioneris working for a noble canse, on the other hand, by way ofgivingthe colourofvoluntaryservices, it is exploitingthe poorpeople. '49. 1am 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 contraryvie:w is takenin the presentcase.

¶50The issue in the instantpetitions is not res Integra as the same has been -decided in Peoples Union for Democratic Rights and Ors vs. .Union of Imiks(supra),wheve\uit has been held that ordinarily no one would willingly supply labour or service to another for less than the minimum wage, when he knows that under the law he is entitledto get minimum wages for the labour or service provided by him. In view of that it is held that where aperson provides labour or service to another for remunerationwhich is less than'the minimum• wage, the labour or service providedby 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 ofwages or any privilegeor concessionaccruingto him under this. Act shall be null and void in so far as it puiqaortsto reduce the minimumrate of ' wages fixed under this Act.

¶52Moreover, Section 2(e) of the Minimum Wages Act provides that the . employer means any person who employs whether directly or tlirough another W.P.(C) Nos. 5944, 6059-68/2012 person or whetheron behalfofhimselfor any otherpersonone or more employees in any scheduledemploymentin respectof which minimumrates of wages have been Fixed under this Act. "I'herefore, finding no discrepancy in the impugned order, I confirm the same. The presentpetitions,being withoutmerits,ure dismissed. No order as to costs. CM. No. J2?-4»/2012 (for stay) With the disposal of the petitionitself, the instant application-has become inlfuctuoLis. The same is disposedof accordingly. OCTOBER 18, 2012 RS/sb W.P.(C) Nos. 5944, 6059-68/2012

SURESH ICAIT, J.

* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 6066/2012 & CM. NO. 16387-88/2012, CAV. 977/2012 ALL INDIA INSTITUTE OF MEDICAL SCIENCES Petitioner Through: Mr. RajatKatyaland Mr. SanjeevJoshi, Advs. Versus MAMTA AND ANR Respondents Through: Mr. AnuragDubey,Mr. D.P. Pandeyand Mr. Meenesh Dubey, Advs. forRZ. CORAM: HON'BLE MR. JUSTICE SURESH KAIT