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2017 DIGILAW 1261 (GUJ)

Pwd Employees Union v. State Of Gujarat

2017-07-06

BELA M.TRIVEDI

body2017
JUDGMENT : Bela M. Trivedi, J. Since similar questions of law and facts are involved in both the petitions, they were heard together and are being decided by this common judgement. 2. SCA No. 15819 of 2014 has been preferred by the petitioner PWD Employees' Union through its President and 24 other petitioners, and SCA No.250 of 2015 has also been preferred by the said PWD Employees' Association and three other petitioners, seeking directions against the respondents to ensure that the minimum wages prevalent in the State are paid to the petitioners. They have also sought declaration that the action of the respondents in not paying minimum wages to the petitioners was illegal, discriminatory, arbitrary and contrary to Article 39(d) and Articles 14, 16, 21 and 23 of the Constitution of India. 3. The short facts of SCA No. 15819 of 2014 are that the respondent No.2 Board is a statutory body set up by the Government of Gujarat, Narmada Water Resources, Water Supply and Kalpsar Department, and works for the development, regulation and control of the drinking water supply in the State. The respondent No.2 Board requires employees for execution of water supply schemes, for which the respondent No.2 engages contractors for the supply of labour. As per the case of the petitioners the petitioner Nos.2 to 25 were appointed on various posts such as Valvemen, Pumpmen, Linemen, Pump Operator and Operator by the contractors for the work of the respondent No.2. Some had put in more than seven years of service. At the time of filing of the petition, the respondent No.4 was the contractor engaged by the respondent No.2 Board. It is further case of the petitioners that the petitioner Nos.2 to 25 were being paid Rs. 3,500/- per month, whereas the minimum wage as prevalent in the State, payable to the workers working in drilling operations and maintenance of tube wells in the year 2014 was approximately Rs. 6,000/- per month. Thus, the respondents were making the petitioner Nos.2 to 25 worked for less than the minimum wages. According to the petitioners, the respondent No.2 Board being a model employer is required to see that the petitioners are not being exploited by the contractors and hence, the petition has been filed. 4. 6,000/- per month. Thus, the respondents were making the petitioner Nos.2 to 25 worked for less than the minimum wages. According to the petitioners, the respondent No.2 Board being a model employer is required to see that the petitioners are not being exploited by the contractors and hence, the petition has been filed. 4. The respondent No.3 has filed the affidavit-in-reply contending inter alia that the respondent No.2 Board had resolved on 30.11.1994 that no daily-wagers be appointed in the office of the respondent No.2, and that there has been a consistent practise since 2006-07 to entrust the work of labour and maintenance to the contractors. According to the respondent no.3, the respondent Board had entered into three contracts for a period of 11 months with the respondent no.4 for the operation and maintenance of the water supply scheme for providing water to various villages of the District Dang, according to which the respondent No.4 was required to engage the workmen as per its requirement and to pay the wages accordingly. Therefore, the provisions of the payment of Minimum Wages Act were to be complied with by the respondent No.4 only. There was no employer-employee relationship between the petitioners and the respondent Board, and therefore, the details with regard to the names of workmen, their working hours, nature of job and payment made by the respondent No.4 could be ascertained from the records of the respondent No.4 only. In the further affidavit filed by the respondent No.3 it has been stated that as per the Clause 43(1)(a) as well as Clause 50 of the tender document, which the contractors were required to submit, it was made clear that the concerned contractor was required to pay fair and reasonable wages to the workmen employed by him in the contract undertaken by him and that the provisions of the Minimum Wages Act 1948 will have to be followed by the contractor. It is also contended that the respondent No.3 had never received any complaint from the petitioners about the non-payment or unreasonable payment by the concerned contractors. 5. The petition has also been resisted by the respondent No.4 by filing the reply denying the allegations made in the petition and raising preliminary objections as regards the maintainability of the petition at the instance of the PWD Employees' Union. 5. The petition has also been resisted by the respondent No.4 by filing the reply denying the allegations made in the petition and raising preliminary objections as regards the maintainability of the petition at the instance of the PWD Employees' Union. It has been contended that the petition involves highly disputed questions of facts as regards the nature and hours of duties, posts on which they were employed, etc., for which individual proceedings substantiating the cause with material on record before appropriate forum was required to be established by the petitioners. According to this respondent, the requirement of minimum wages would not be applicable where there is no continuous work done by the workmen, or the work was done for less than specified hours in a given day i.e. eight hours. If there was any violation of statutory right of any of the petitioners, they could have approached the statutory authority established under the Minimum Wages Act or the Industrial Disputes Act, as the case may be. It is further stated that out of the amount paid by the respondent Board, the respondent No.4 was paying a lump sum fixed amount to the persons, who were working on hourly basis as required. It is also contended that there was no employment for eight hours or more in a day continuously for minimum three days and many employees would not turn up for the work, if they go and get themselves employed in the Rojgari Yojna of the Government in the fields. In the further affidavit, it has been stated that the respondent No.4 was accorded the contract for 11 months from 15.10.2013 to 15.9.2014 and the said contract was further extended for a period of six months, which had ended in March 2015, and therefore, the contract being not in force, the petition qua the respondent No.4 had become infructuous. 6. The President of the petitioner No.1 Union has filed rejoinders to the affidavits-in-reply filed by the respondent Nos.3 and 4, stating inter alia that the petitioner No.1 Union had right to espouse the cause of its members and the petition ventilating the grievance of its members was maintainable in Article 226 of the Constitution of India. According to the petitioners, the respondent No.2 Board and the respondent No.4 Contractor had exploited the petitioners by consistently denying them minimum wages for the full time work. 7. According to the petitioners, the respondent No.2 Board and the respondent No.4 Contractor had exploited the petitioners by consistently denying them minimum wages for the full time work. 7. So far as the SCA No. 250 of 2015 is concerned, the petitioner Nos.2 to 4 were appointed as contract employees on the posts of Valveman and Operator. According to these petitioners also, they were being paid Rs. 3,000/- per month, whereas the minimum wages as prevalent in the State for similar work as done by the petitioners in the year 2014 was approximately Rs. 6,000/- per month. Hence, the petition has been filed. 8. The said petition has been resisted by the respondent No. 4 Kamleshbhai Lahanubhai Gargunda by filing affidavit-in-reply raising preliminary objections with regard to the maintainability of the petition and further contending inter alia that the petitioner Nos.2 and 3 were working under NREGA Scheme as transpiring from the wage list obtained from the office of the Talati-cum-Mantri produced at Annexure-R-1. According to this respondent, his contract period had come to an end on 31.3.2015, and therefore also, the petition was not maintainable against him. The respondent No.3 has also filed the reply raising similar contentions as raised in the petition being SCA No.15819 of 2014 and has prayed to dismiss the petition. The petitioners have filed rejoinders reiterating the contentions raised in the petition with regard to non-payment of minimum wages. With regard to the allegations made by the respondent No.4 that the petitioner Nos.2 and 3 were working in the NREGA Scheme, it has been contended that the wage-list produced by the respondent no.4 was dated 3.1.2014 for the muster-roll during the period from 16.12.2013 to 21.12.2013. According to the petitioners, though they were given job cards, there was no work done by them and no payment was made to them under the NREGA Scheme. It is further contended that after the contract with the respondent No.4 had ended on 31.3.2015, the petitioners were issued the certificate dated 26.12.2016 by the respondent No.4 in the capacity of the proprietor of M/s. Rahul Construction, and therefore, the respondent no.4 could not contend that he was not liable to pay the minimum wages to the petitioners after the expiration of his original contract. 9. The learned Sr. Advocate Mr. 9. The learned Sr. Advocate Mr. Shalin Mehta for the petitioners in both the petitions, relying upon the decision in the case of People's Union for Democratic Rights and Ors. v. Union of India and Ors., reported in (1982) 3 SCC 235 , has vehemently submitted that the petition under Article 226 of the Constitution without exhausting alternative remedy is maintainable, as the payment of wages less than the minimum is a direct violation of the employees' fundamental rights guaranteed under Articles 14, 16, 21, and 23 of the Constitution of India. According to him, the payment of minimum wages is a nonnegotiable obligation of the respondent Board. The petitioners, who are forced to accept less than minimum wages should not be made to go through the torment of joining various contractors, who are engaged by the respondent Board year after year. It is the obligation of the respondent Board under the contract Labour Abolition Act to ensure that the workers do not get less than minimum wages. In this regard, Mr.Mehta has relied upon the unreported decision of this Court in the case of Makavana Kankuben Mangabhai and Ors. v. State of Gujarat & Ors., SCA No.1595 of 2015 and others decided on 5.11.2015. He also submitted that a formal approach to the Board was not a must for maintaining the petition for minimum wages in the High Court and the violation of the fundamental rights cannot brook the delay. He further submitted that the contractor charges from the Board full amount by making a show that he was going to pay to the workers for full time work around the year, however, he actually pays only Rs. 3,500/- to the petitioners on the ground that the petitioners had worked only for two to three hours in a day. Relying upon the decision of the Supreme Court in case of State of Punjab and Ors. v. Jagjit Singh and Ors., reported in 2017 (1) SCC 148 , he submitted that the petitioners are entitled to the equal pay for equal work as carried out by the regular employees. According to him, there were no disputed questions of facts involved in the petition and the respondents had created a smokescreen to get out of their obligations under the Act. 10. Mr. According to him, there were no disputed questions of facts involved in the petition and the respondents had created a smokescreen to get out of their obligations under the Act. 10. Mr. H.S. Munshaw, learned Advocate appearing for the respondent Nos.2 and 3 has submitted that there was no employer-employee relationship between the Board and the petitioners, as the petitioners were never employed by the respondent Board. They having worked with the contractors only, the Board did not have any details about the employment of the petitioners. The petitions are also bad for non-joinder of necessary parties as the petitioners have not joined the contractors, who had employed them in the past and who were liable to pay the wages to them as per the Minimum Wages Act. He also submitted that the petitioners had never complained to the Board at any point of time with regard to unfair or less than minimum wages being paid to them by the respective contractors, which otherwise was made obligatory by the Board upon the contractors to pay the minimum wages as per Clause 50 of the tender document. 11. The learned Advocate Mr. Nirav Mishra for the respondent no. 4 in both the petitions has vehemently submitted that the petitioners had not come with clean hands and had distorted the facts. According to him, the petitioners have alternative efficacious remedies available under the Minimum Wages Act, Industrial Disputes Act and Contract Labour (Regulation and Abolition) Act, and therefore, without exhausting statutory remedies available to them, the petitioners could not have approached this Court by filing petitions under Article 226 of the Constitution of India. He further submitted that there are many disputed questions of facts involved in the petitions, inasmuch as some of the petitioners had never worked with the respondent No.4 at any point of time as transpiring from the document produced by the petitioners themselves. Challenging the very authenticity of the contents of the petition, he submitted that the President of the petitioner No.1 Union could not have filed affidavits on behalf of the other petitioners distorting the facts. Challenging the very authenticity of the contents of the petition, he submitted that the President of the petitioner No.1 Union could not have filed affidavits on behalf of the other petitioners distorting the facts. Mr.Mishra relying upon the documents produced by the petitioners themselves submitted that the petitioner Nos.2, 8, 12 and 22 to 25 of the SCA No.15819 of 2014 had never worked with the respondent No.4 Contractor M/s. Lotus, inasmuch as the respondent No.4 was not awarded the contract for the Yojna of Pipaldahad or Mahardar Juth, where the petitioners were working during the period 2013-14. He also pointed out that the pumping register of the petitioner No.4 Pavar Jaysinhbhai Mangubhai did not show his signatures in the said register, which shows that he was not working on daily-wages. According to him, the petitioner Nos.2 and 3 of SCA No.250 of 2014 were working with the NREGA Scheme of the Government and were gainfully employed, which fact was suppressed by the petitioners. 12. In the instant petitions, only prayer sought against the respondents is to direct the respondents to pay the minimum wages to the petitioners. Before adverting to the issues involved in the petition on merits, it would be necessary to advert to the preliminary issues raised by the learned Advocates for the respondents as regards the maintainability of the petition. At the outset, it is required to be noted that none of the concerned petitioners i.e. the petitioner Nos.2 to 25 in SCA No.15891 of 2014 and petitioner Nos.2 to 4 in SCA No.250 of 2015 have filed any affidavit giving exact details about their employment either with the respondent Board or with the various contractors. The affidavit affirming the petition and the affidavit-in-rejoinder have been filed by the President of the petitioner No.1 Union in both the petitions. The Court fails to understand as to how the President of the Union could file the affidavit on behalf of the other petitioners with regard to the factual aspects of their service details, more particularly when the said details have been seriously disputed by the respondents. 13. The Court fails to understand as to how the President of the Union could file the affidavit on behalf of the other petitioners with regard to the factual aspects of their service details, more particularly when the said details have been seriously disputed by the respondents. 13. It is further required to be noted that though as per the case of the petitioners the respondent Board for its work had engaged various contractors since 2006, with whom the petitioners had allegedly worked as per the details given in the petitions, the said contractors have not been impleaded as the party respondents in the petition, except the respondent No.4. The contract of respondent No.4 in both the petitions was only for a period of 11 months from 15.10.2013 to 15.9.2014, which was further extended for a period of six months and had ended in March 2015. Hence, without impleading the other contractors with whom the petitioners had allegedly worked, it is difficult to ascertain as to whether the petitioners had, in fact, worked with the said contractors or not. Again as transpiring from the record of the petitions some of the petitioners were working at such schemes, whose work was not allotted to the respondent No.4. The petitioners have not even bothered to submit the details of the contractors with whom they were working and the period during which they had worked. Thus, the petitions are not only bad for non-joinder of necessary parties, namely the concerned contractors with whom the concerned petitioners had allegedly worked, it lacks incorporation of the basic facts. 14. The Court also finds substance in the objection raised by the learned Advocates for the respondents that the petitioners without exhausting the alternative efficacious remedies available under the various statutes namely the Industrial Disputes Act, 1947, the Contract Labour (Regulation and Abolition) Act, 1970 and the Minimum Wages Act, 1948, could not have invoked the extraordinary jurisdiction of this Court by way of a petition under Article 226 of the Constitution of India, more particularly when the petitions involve highly disputed questions of facts. It is needless to say that there are statutory forums available under the said Acts, for settling or resolving the grievances and disputes between the employees and the employers. It is needless to say that there are statutory forums available under the said Acts, for settling or resolving the grievances and disputes between the employees and the employers. When the petitioners have prayed for the issuance of writ of mandamus directing the respondent authorities to pay the minimum wages as prevalent in the State, they were required to approach the authority under Section 20 of the Minimum Wages Act, created to hear and decide the claims arising out of payment of less than the minimum rates of wages. Similarly the Contract Labour (Regulation & Abolition) Act, 1970 has been enacted to regulate the employment of contract labour in the establishment. Any violation of any of the provisions of the said Act entails penal consequences. It is not disputed that the petitioners have never raised any objection or made any complaint before any authority or even before the respondent Board with regard to the violation of any of these statutes. It is for the first time the petitioners have raised such grievance in the present petition, which in the opinion of the Court could not be entertained. Unless there are justifiable reasons, no person could be permitted to undermine the authority or the forum specially created under the statute. 15. The learned Sr. Advocate Mr. Shalin Mehta has placed heavy reliance on the decision of the Supreme Court in the case of People's Union for Democratic Rights and Ors. v. Union of India and Ors. (supra) to submit that non-payment of minimum wages is a breach of fundamental right guaranteed under Article 23 of the Constitution of India and that the violation of the Labour Laws must be viewed with strictness. There could not be any disagreement with the ratio of the judgement relied upon by Mr.Mehta, however, in absence of specific details as to how much wages were paid to the petitioners and by which of the contractors and during which period, it is difficult to hold any of the respondents responsible in the present petition, when the said contractors, except respondent No.4, are not joined as party respondents, and also when the petitioners had never raised such grievance before the said contractors or before any authority for so many years. 16. 16. Before concluding, it deserves to be noted that the primary object of the Contract Labour Abolition Act is to stop exploitation of contract labourers by the contractors or the establishments, however, the Act does not purport to abolish contract labour in its entirety, nor to treat the employees of the contractor as the employees of the establishment. Nonetheless, a duty is cast upon the principal employer under Section 21 of the said Act to ensure that the wages are paid to the workers employed by the contractor in the manner prescribed under the Act. Though the contractor is responsible for payment of wages to each worker employed by him as contract labour, the principal employer is obliged to nominate a representative duly authorised by him to be present at the time of disbursement of wages by the contractor. Such representative is required to certify the amounts paid as wages. The duty is also cast upon the contractor to ensure the disbursement of wages in presence of the authorised representative of the principal employer. If the contractor fails to make payment of wages within the prescribed period or makes short payment, then the principal employer is liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contract labour employed by the contractor. Contravention of any of the provisions regarding employment of contract labour attracts penal consequences and also revocation or suspension of the licence granted under the said Act. Similarly, under Section 12 of the Minimum Wages Act, the employer is liable to pay to every employee engaged in a scheduled employment under him wages at a rate not less than the minimum rate of wages fixed for such class of employees. In case of grievance or claim of the employee as regards non-payment or less payment than the minimum rate of wages, the Authority created under Section 20 of the said Act is empowered to take appropriate action and pass appropriate orders as stated therein. In view of the said provisions of the said Acts, it is expected that the respondent Board and the respondent Contractor shall follow the provisions of the said Acts. 17. In view of the said provisions of the said Acts, it is expected that the respondent Board and the respondent Contractor shall follow the provisions of the said Acts. 17. Subject to afore-stated observations, the petitions involving highly disputed questions of facts, lacking requisite details and material, filed without exhausting alternative, efficacious statutory remedies and without impleading necessary parties, deserve to be dismissed and are dismissed accordingly.