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Karnataka High Court · body

2011 DIGILAW 953 (KAR)

Bharathiya Mazdoor Sangha v. Union of India

2011-09-23

A.S.BOPANNA, VIKRAMAJIT SEN

body2011
ORDER A.S. Bopanna, J.— The petition in W.P. No. 30619/2009 is filed in public interest raising certain grievances with regard to the fixation of the 'wage rate' as contemplated. The very same issues have been raised in W.P. Nos. 29954-958/2009 c/w 28685-689/2009 and 32502/2009 and the relief claimed therein is also similar. However, since the issue has been raised in public interest in the first of the above noted petitions, the same would relate to the other petitioners as well and as such the petitions are heard together and disposed of by this common order. 2. The petitioners are aggrieved only insofar as the power retained by the Central Government under Section 6(1) of the. Mahatma Gandhi National Rural Employment Guarantee Act, 2005 ('Act 2005' for short) to notify 'wage rate' less than the minimum wage payable. In exercise of the said power, the Central Government by its notification dated 01.01.2009 has notified the State wise wage rate for agricultural labourers. In this regard, the issue in the instant petitions relates to the fixation of the 'wage rate' insofar as the State of Karnataka at Rs.82/- per day. Though the rate has been subsequently increased, the grievance is that the said 'wage rate' notified by the Central Government is lesser than the minimum wage fixed by the State Government for agricultural labourers in exercise of the power under Minimum Wages Act. In this regard, it is the case of the petitioners that Section 6(2) of the Act 2005 at the first instance provided for the 'wage rate' to be fixed at the same rate as the minimum wage fixed by the State Government under Section 3 of the Minimum Wages Act, 1948 ('MW Act' for short). It is therefore contended that the power under sub-section (1) to Section 6 of the Act 2005 is arbitrary and discriminatory inasmuch as it provides for fixation of wage rate which would be lesser than the minimum wage prescribed under another central enactment. It is contended that the term 'wage rate' is defined in Section 2(s) of the Act 2005 to mean the 'wage rate' defined in Section 6 and further Section 3(2) provides that every person who has done the work given to him under the scheme would be entitled to receive wages at the 'wage rate'. It is contended that the term 'wage rate' is defined in Section 2(s) of the Act 2005 to mean the 'wage rate' defined in Section 6 and further Section 3(2) provides that every person who has done the work given to him under the scheme would be entitled to receive wages at the 'wage rate'. Hence, the 'wage rate' with reference to Section 6 cannot be less than the minimum wages prescribed and therefore, the exercise of the power under Section 6(1) to reduce such wage in respect of persons undertaking work under the scheme provided under the Act would be contrary to the right guaranteed under Article 23 of the Constitution of India. Hence, Section 6(1) being contrary to the constitutional requirement is liable to be struck down is the contention. In that context, it is contended that the impugned notifications prescribing lesser wages than the minimum wages in exercise of such arbitrary power under Section 6(1) of the Act are also liable to be quashed and the difference of the 'wage rate' in comparison to the minimum wage as on the date of the notification is liable to be paid to the wage seekers. 3. While attempting to sustain the action of the respondents, it is the case of the respondents that the scheme of providing employment under the Act 2005 is for the purpose of enhancing the livelihood security of the household in rural areas of the country. Considering the basic feature of the Act 2005 and the scheme thereunder, there are other features, which are taken care by the Act 2005. It provides for atleast 100 days of guaranteed wage employment in every financial year to every household from which one adult member volunteers to do unskilled manual work. The Act 2005 also provides for payment of unemployment allowance and the other facilities indicated in Schedule I to the Act 2005. Further, the guaranteed employment and the wage paid thereunder is to supplement the income of the household where the other members of the family would be earning in the other employment. The Act 2005 also provides for payment of unemployment allowance and the other facilities indicated in Schedule I to the Act 2005. Further, the guaranteed employment and the wage paid thereunder is to supplement the income of the household where the other members of the family would be earning in the other employment. Since the entire scheme is envisaged by the Central Government and appropriate budgetary allocation is to be made depending on the number of applicants registered in different states, the wage rate also is to be fixed by the Central Government, as otherwise there would be a mismatch between the budgetary allocation and the minimum wage which is likely to be determined by the State Government without reference to this aspect of the matter. The scheme itself is to achieve the Directive principles and in that regard, Article 41 of the Constitution of India would provide that it is to be done within the limits of the economic capacity of the State. The provision contained in Section 6(2) of the Act is only a transitory provision till the Central Government was to notify the wage rate under Section 6(1) of the Act and as such the wage seekers cannot compel the fixation of 'wage rate' in terms of Section 6(2) of the Act even after the power under Section 6(1) is exercised. It is the case of the respondents that Section 6(1) opens with a non-obstinate clause which excludes the applicability of the Minimum Wages Act and further, Section 28 of the Act 2005 provides for overriding effect to the Act notwithstanding anything inconsistent in any other law. The power therefore available under Section 6(1) of the Act has been exercised in accordance with law. It is also their contention that in any event the appropriate wage is being fixed keeping in view the consumer price index. With reference to the specific details relating to the State of Karnataka, it is contended that there has been upward revision of the 'wage rate' and presently it has been revised to Rs.125/- as against, the minimum wage of Rs.133.35. Hence, keeping in view the other advantages provided under the Act, the petitioners nor any other person can have any grievance. 4. Heard Ms. Hence, keeping in view the other advantages provided under the Act, the petitioners nor any other person can have any grievance. 4. Heard Ms. Sumana Baliga, learned counsel for the petitioners, Sri Amarendra Saran, learned senior counsel on behalf of Sri Kalyan Basavaraj, learned Assistant Solicitor General for first respondent and Sri R. Devdas, learned Government. Advocate for second respondent in the light of the above and perused the petition papers. 5. In the backdrop of the above, since reference is made to the scheme of the Act and the relevant provisions regarding which the disputed questions have arisen, at the outset, it would be appropriate to notice the basic feature and scheme of the Act. The Act 2005 is to provide for enhancement of livelihood security in rural areas of the Country by providing atleast 100 days of guaranteed wage employment in every financial year to every household whose adult members volunteer to do unskilled manual work and for matters connected therewith or incidental thereto. The said Act is made applicable to the whole of India. The Act envisages the head of a household or any of its other adult member who has applied for employment under the scheme to be the applicant as defined under Section 2(b) of the Act. Section 2(s) defines 'wage rate' as the 'wage rate' referred in Section 6. Section 3 of the Act guarantees rural employment of not less than 100 days in a financial year and sub-section (2) of the said section ensures that such person is entitled to receive wages at the wage rate for each day of work. Fixation of 'wage rate' as provided under Section 6 of the Act 2005 which is the bone of contention in these petitions reads as hereunder: 6. Wage rate. - (1) Notwithstanding anything contained in the Minimum Wages Act, 1948 (11 of 1948), the Central Government may, by notification, specify the wage rate for the purposes of this Act: Provided that different rates of wages may be specified for different areas: Provided further that the wage rate specified from time to time under any such notification shall not be at a rate less than sixty rupees per clay. (2) Until such time as a wage rate is fixed by the Central Government in respect of any area in a State, the minimum wage fixed by the State Government under section 3 of the Minimum Wages Act, 1948 (11 of 1948) for agricultural labourers, shall be considered as the wage rate applicable to that area. 6. A perusal of the same would no doubt indicate that the said section opens with a non-obstinate clause so as to exclude the applicability of the Minimum Wages Act with reference to the fixation of the 'wage rate'. In this regard the learned senior counsel representing the first respondent has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Union of India (UOI) and Another Vs. G.M. Kokil and Others, AIR 1984 SC 1022 and in the case of Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram, AIR 1987 SC 117 to contend that a non-obstinate clause is a legislative device which is employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment. Insofar as the legal position enunciated therein, keeping in view the facts which arose for consideration, there can be no dispute with regard to the said position. However, the position enunciated by the Hon'ble Supreme Court on this aspect of the matter in the decision in the case of R.S. Raghunath Vs. State of Karnataka and another, AIR 1992 SC 81 relied on by the learned counsel for the petitioner is relevant on the instant aspect. In fact in the said decision, the Hon'ble Supreme Court has also referred to the decisions relied on by the learned senior counsel for the respondent noticed supra and has thereafter considered the scope and ambit of the non-obstinate clause in the General Rules which sought to exclude the applicability of the Special Rules on the subject. The relevant observations of the Hon'ble Supreme Court is as follows: The non-obstinate clause is sometimes appended to a section or a rule in the beginning with a view to give the enacting part of that section or rule in case of conflict, an overriding effect over the provisions or Act mentioned in that clause. The relevant observations of the Hon'ble Supreme Court is as follows: The non-obstinate clause is sometimes appended to a section or a rule in the beginning with a view to give the enacting part of that section or rule in case of conflict, an overriding effect over the provisions or Act mentioned in that clause. Such a clause is usually used in the provision to indicate that the said provision should prevail despite anything to the contrary in the provision mentioned in such non-obstinate clause. But it has to be noted at this stage that we are concerned with the enforceability of special law on the subject in spite of the general law. In Maxwell on The Interpretation or Statutes, this principle of law is stated as under: (11th edn., page 168) "A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non derogant, or, in other words," where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act." On a conspectus of the above authorities it emerges that the non-obstinate clause is appended to a provision with a view to give the enacting part of the provision an overriding effect in case of a conflict. But the non-obstinate clause need not necessarily and always be co-extensive with the operative part so as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpretation on a plain and grammatical construction of the words the non-obstinate clause cannot cut down the construction and restrict the scope of its operation. In Such cases the non-obstinate clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the Special Rules. In Such cases the non-obstinate clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the Special Rules. As already noted, there should be a clear inconsistency between the two enactments before giving an overriding effect to the non-obstinate clause but when the scope of the provisions of an earlier enactment is clear the same cannot be cut down by resort to non-obstinate clause. In the instant case we have noticed that even the General Rules of which Rule 3(2) forms a part provide for promotion by selection. As a matter of fact Rules 1(3)(a) and 3(1) and 4 also provide for the enforceability of the Special Rules. The very Rule 3 of the General Rules which provides for recruitment also provides for promotion by selection and further lays down that the methods of recruitment shall be as specified in the Special Rules, if any. In this background if we examine the General Rules it becomes clear that the object of these Rules only is to provide broadly for recruitment to services of all the departments and they are framed generally to cover situations that are not covered by the Special Rules of any particular department. In such a situation both the Rules including Rule 1(3)(a), 3(1) and 4 of General Rules should be read together. If so read it becomes plain that there is no inconsistency and that amendment by inserting Rule 3(2) is only an amendment to the General Rules and it cannot be interpreted as to supersede the Special Rules. The amendment also must be read as being subject to Rules 1(3)(a), 3(1) and 4(2) of the General Rules themselves. The amendment cannot be read as abrogating all other Special Rules in respect of all departments. In a given case where there are no Special Rules then naturally the General Rules would be applicable. Just because there is a non-obstinate clause, in Rule 3(2) it cannot be interpreted that the said amendment to the General Rules though later in point of time would abrogate the special rule the scope of which is very clear and which co-exists particularly when no patent conflict or inconsistency can be spelt out As already noted Rules 1(3)(a). Just because there is a non-obstinate clause, in Rule 3(2) it cannot be interpreted that the said amendment to the General Rules though later in point of time would abrogate the special rule the scope of which is very clear and which co-exists particularly when no patent conflict or inconsistency can be spelt out As already noted Rules 1(3)(a). 3(1) and 4 of the General Rules themselves provide for promotion by selection and for enforceability of the Special Rules in that regard. Therefore there is no patent conflict or inconsistency at all between the General and the Special Rules. 7. Keeping in view the above observations and considering the situation that Act 2005 seeks to exclude the applicability of MW Act 1948, the nature and scope of the said enactment is necessary to be understood. In that regard, it is noticed that the Act 2005 is an Act which is enacted for the purpose of providing guaranteed wage employment in every financial year to every household. Therefore, it is a general law which seeks to provide employment for guaranteed number of days for which he would be paid wages. The power to specify the appropriate wage rate is contained in Section 6(1) and while fixing such wage, it seeks to exercise such right notwithstanding MW Act 1948. In this background, it is evident that MW Act 1948 is a law enacted by the Parliament for the special purpose of ensuring minimum rates of wages in certain employment. The type of employment sought to be provided under Act 2005 is also one of the types of employment for which the MW Act 1948 also applies cannot be disputed. In fact Section 6(2) of Act 2005 makes it applicable till the power to notify under Section 6(1) of the Act 2005 is invoked. Therefore, when a special Act containing specific provisions and procedure for the purpose of fixing minimum rates of wages is occupying the field and it includes the types of employment sought to be provided under the Act 2005, the rate of wage which is fixed by the appropriate Government for such employment cannot be excluded by use of non-obstinate clause, when there is no conflict between the two provisions inasmuch as no particular procedure has been provided under the Act 2005 for the purpose of fixing the wage rate. 8. 8. The respondents no doubt have put: forth the contention that the Act 2005 is enacted having regard to the mandate contained in Article 41 of the Constitution of India as Directive Principle of State Policy and that such employment can only be guaranteed within the limits of its economic capacity. Though the economic capacity will have to be kept in view while implementing such schemes and policies, it is for the Parliament to apply such checks and balances in that regard to achieve the object without effecting the right which is already available under other enactments covering the same field relating to living wage. Certainly, the State being the employer cannot: be heard to contend that they are entitled to exploit the labour because they have ensured certain other benefits and the employment is only to enhance the income of the household. This is moreso when the MW Act 1948 itself has been enacted by the State to discharge the constitutional obligation imposed upon it by the Directive Principles of State Policy contained in Article 43 of the Constitution of India and the same cannot be negatived by taking shelter under another Directive principle and by employing a non-obstinate clause so as to avoid payment of minimum wage. Further, the right to be protected against exploitation is a fundamental right guaranteed under Article 23 of the Constitution of India. 9. On that aspect of the matter, it would be appropriate to notice the decision of the Hon'ble Supreme Court in the case of Sanjit Roy Vs. State of Rajasthan, AIR 1983 SC 328 relied on by the learned counsel for the petitioner. In the said case, the Hon'ble Supreme Court had examined the validity of Sections 1 and 3 of the Rajasthan Famine Relief Works Employees (Exemption from Labour Laws) Act, whereby the applicability of Minimum Wages was excluded in relation to workmen employed on famine relief and the Court observed as hereunder: If this be the correct position in law, it is difficult to see how the constitutional validity of the Exemption Act in so far as it excludes the applicability of the Minimum Wages Act 1948 to the workmen employed in famine relief works can be sustained. Article 23, as pointed out above, mandates that no person shall be required or permitted to provide labour or service to another on payment of anything less than the minimum wage and if the Exemption Act, by excluding the applicability of the Minimum Wages Act 1948, provides that minimum wage may not be paid to a workman employed in any famine relief work, it would be clearly violative of Article 23. The respondent however contended that when the State undertakes famine relief work with a view to providing help to the persons affected by drought and scarcity conditions, it would be difficult for the State to comply with the labour laws, because if the State were required to observe the labour laws, the potential of the State to provide employment to the affected persons would be crippled and the State would not be able to render help to the maximum number of affected persons and it was for this reason that the applicability of the Minimum Wages Act, 1948 was excluded in relation to workmen employed in famine relief work. This contention, plausible though it may seem is in, my opinion, unsustainable and cannot be accepted. When the State undertakes famine relies work it is no doubt true that it does so in order to provide relief to persons affected by drought and scarcity conditions but none the less, it is work which enures for the benefit of the State representing the society and if labour or service is provided by the affected persons for carrying out such work, there is no reason why the State should pay anything less than the minimum wage to the affected persons. It is not as if a dole or bounty is given by the State to the affected persons in order to provide relief to them against drought and scarcity conditions nor is the work to be carried out by the affected persons worthless or useless to the society so that under the guise of providing work what the State in effect and substance seeks to do is to give dole or bounty to the affected persons. The court cannot proceed on the basis that the State would undertake by way of famine relief work which is worthless and without utility for the society and indeed no democratic State which is administered by a sane and sensible Government would do so because it would be sheer waste of human labour and resource which can usefully be diverted into fruitful and productive channels leading to the welfare of the community and creation of national asset or wealth. It is difficult to appreciate why the State should require the affected persons to provide labour or service on work which is of no use to the society, instead of simply distributing dole or bounty amongst the affected persons. There is no reason why the State should resort to such a camouflage. The presumption therefore must be that the work undertaken by the State by way of famine relief is useful to the society and productive in terms of creation of some asset or wealth and when the State exacts labour or service from the affected persons for carrying out such work, for example, a bridge or a road, which has utility for the society and which is going to augment the wealth of the State, there can be no justification for the State not to pay minimum wage to the affected persons. The State cannot be permitted to take advantage of the helpless condition of the affected persons and an exact labour or service from them on payment of less than the minimum wage. No work of utility and value can be allowed to be constructed on the blood and sweat of persons who are reduced to a stale of helplessness on account of drought and scarcity conditions. The State cannot under the guise of helping these affected persons extract work of utility and value from them without paying them the minimum wage. No work of utility and value can be allowed to be constructed on the blood and sweat of persons who are reduced to a stale of helplessness on account of drought and scarcity conditions. The State cannot under the guise of helping these affected persons extract work of utility and value from them without paying them the minimum wage. Whenever any labour or service is taken by the State from any person, whether he be affected by drought and scarcity conditions or not, the State must pay, at the least, minimum wage to such person on pain of violation of Article 23 and the Exemption Act in so far as it excludes the applicability of the Minimum Wages Act, 1948 to workmen employed on famine relief work and permits payment of less than the minimum wage to such workmen, must be held to be invalid as offending the provisions of Article 23. The Exemption Act cannot in the circumstances be relied upon by the respondent as exempting it from the liability to pay minimum wage to the workmen engaged in the construction work of Madanganj Harmara Road. 10. In the above noticed case, the Hon'ble Supreme Court was of the view that the work undertaken by the State by way of famine relief is useful to the society and productive in terms of creation of some asset or wealth when the State extracts labour or service from such persons and there can be no justification for the State not to pay the minimum wage. In fact, in the case on hand, the very object of enacting Act 2005 is to provide legal guarantee for at least 100 days of employment, to begin with, on asset-creating public works programmes every year at minimum wages for at least one able bodied person in every rural, urban-poor and lower middle class household. Though a provision is made for payment of unemployment: allowance, that in itself cannot be a basis to deny the minimum wage for the work performed. Therefore, the above referred decision of the Hon'ble Supreme Court; would apply to the instant case to arrive at the conclusion that the notification to specify the wage rate cannot exclude the minimum wage prescribed under the MW Act 1948. Therefore, the above referred decision of the Hon'ble Supreme Court; would apply to the instant case to arrive at the conclusion that the notification to specify the wage rate cannot exclude the minimum wage prescribed under the MW Act 1948. We however notice that in the said decision, though the conclusion was unanimous, the basis for the decision of one of the learned Judges was based on 'Forced Labour' while the other has based the decision on the breach of Article 14 of the. Constitution of India. In the instant case, the Act 2005 provides for making application seeking employment and there are other procedures to be followed and as such though it is not forced labour, the denial of minimum wages is a breach of Article 14 and also offends Article 23 of the Constitution of India. Though the learned senior counsel for the respondent sought to contend that the wage seekers under the scheme are engaged for work such as soil 'conservation and they being unskilled labourers are not similar to the agricultural labourers who requires certain amount of skill, we are unable to accept the artificial distinction sought to be made out for the reasons noticed above. Even otherwise, the impugned notification fixing the wage rate notified in terms of Section 6(1) of the Act 2005 indicates that the wage rate fixed is in respect of the agricultural labourers. 11. Thus, having given our thoughtful consideration, we are of the opinion that the exercise of power by the first respondent to notify the 'wage rate' under Section 6(1) at the rate lesser than the minimum wages notified for the particular area is not sustainable. As such, it is declared that the power exercisable by the Central Government under Section 6(1) of Act 2005 to notify the wage rate shall be in such manner that the 'wage rate' notified shall not be less than the minimum wage fixed by the State Government under Section 3 of the MW Act, 1948, for agricultural labourers applicable to that area. 12. Consequent on the above, the notification dated 01.01.2009 notifying the wage rate for agricultural labourers in Karnataka at Rs.82/- is quashed and it is held that the appropriate 'wage rate' with effect from the said date shall be treated as Rs.119.42. 12. Consequent on the above, the notification dated 01.01.2009 notifying the wage rate for agricultural labourers in Karnataka at Rs.82/- is quashed and it is held that the appropriate 'wage rate' with effect from the said date shall be treated as Rs.119.42. The subsequent revision of minimum wage shall be treated as the wage rate from the relevant date of fixation of the minimum wage. The respondents shall take steps for payment of the difference of the amount to the wage earners who had worked during the said period. 13. The above petitions stand allowed in the above terms. No order as to costs.