IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 11.05.2011 Coram THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.A.No.3560 of 2002 1.Elisamma 2.Ramaiah 3.Narasaiah 4.Guruvaiah 5.Erukkalamma 6.Pulla Kondamma 7.Peddamariamma 8.Kottaiah 9.Marathamma 10.Chinnamma .. Appellants / Petitioners vs. 1.The Corporation of Madras, rep. By its Commissioner, Rippon Buildings, Chennai – 600 003. 2.The Conservancy Inspector, 30, Special Division, Corporation of Madras, 84, Davidson Street, Chennai – 600 001. .. Respondents/ Respondents PRAYER: Appeal filed under Clause 15 of the Letters Patent against the order passed by the learned single Judge in W.P.No.3206 of 2000 dated 28.03.2002 after the Judgment was dictated in the open Court it was not signed and the matter was posted on 5.7.2002 for being spoken to and the Court passed the order on 5.7.2002 presented to this court under Article 226 of the constitution of India to issue a writ of mandamus directing the respondents to continue to employ the petitioner as sanitary workers according to law. For Appellants : Mr.K.Shanmugakani For RR 1 : Mr.V.Bharathidasan https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT M.VENUGOPAL,J. The Appellants/Petitioners/Workers have filed the present Writ Appeal as against the order dated 28.3.2002 in W.P.No.3206 of 2000 passed by the Learned Single Judge and the subsequent order dated 5.7.2002 passed under the caption 'Being Spoken to'. 2.The Appellants/Workers earlier have been employed as Sanitary Workers in the Internal Sweeping Sanitation Work at Kothawalchavadi Market. The said work has been carried out through a Private Contractor, since the said market has been a private one. During the year 1974, there has been a heavy flood and spread of contagious diseases. Therefore, the Private Contractor fled away absconding and remained absconding. Hence, in the interest of public, the 1st Respondent/Corporation of Madras has taken the Internal Sanitation Work at the Kothawalchavadi Market. The Appellants/ Petitioners approached the 1st Respondent/Corporation of Madras for absorption of their services. The 1st Respondent, by an order dated 1.9.1974, has taken over the services of the Appellants by means of a written agreement. 3.The Appellants/Petitioners initially have been paid a sum of Rs.75/- for a male worker and Rs.65/- for a female worker. The 1st Respondent has been maintaining 53 special division inside the Kothawalchavadi Market heeded by Conservancy Inspector to control, pay the wages and supervise the work of the Appellants. The necessary tools and instruments for the purpose of cleaning and sweeping viz., groomstick, baskets etc. have been provided by the 1st Respondent. The workers have to sign in the register maintained by the Conservancy Inspector on signing the acquittance register. The Appellants/Workers' pay have been deducted for any leave taken by them. 4.The Appellants filed a Claim Petition before the Labour Court claiming backwages. In the counter, the 1st Respondent/Corporation of Madras accepted the absorption of the services of the Appellants. Later, the Appellants filed a Writ Petition No.11956 of 1996 before this Court seeking regularisation of the services. The Respondent filed a counter. This Court, by an order dated 29.7.88, has directed the Appellants to raise the dispute before an appropriate forum. Aggrieved against the order, the Appellants preferred Writ Appeal No.1039/88 and the same has been dismissed by this Court on 12.3.91. 5.The Appellants filed P.W.No.40 of 1992 before the Appropriate Authority for the payment of wages. The Appropriate Authority viz., Deputy Commissioner of Labour-I, by an order dated 6.10.1993, has directed the 1st Respondent/Corporation of https://hcservices.ecourts.gov.in/hcservices/ Madras to pay the wages at par with other regular workers employed by the Corporation of Madras. Against the order, the 1st Respondent/Corporation of Madras filed W.P.No.5934 of 1994 and this Court directed the 1st Respondent/ Corporation of Madras to pay 50% of the backwages ordered by the Authority. Even thereafter, the Management has not provided the wages on par with other workers. The Respondent/Management has been continuously paying Rs.100/- per month. Payment of wages at the rate of Rs.100/- per month is an illegal inhuman arbitrary, unjust one. Therefore, the Petitioners/Workers have filed P.W.No.19/1996 before the concerned authority viz., The Deputy Commissioner of Labour-18 [under Tamil Nadu Industrial Establishments, Conferment of Status Act, 1981] for payment of wages and the said Authority has directed the Management to pay the wages on par with other workers. 6.The Appellants filed W.P.No.18732 of 1996 before this Court seeking regularisation of the services and this Court, by an order dated 20.4.1999, has directed the Appellants/Petitioners to raise the regularisation of the services before the authority under the Tamil Nadu Industrial Establishments Conferment of Permanent Status Act. The Appellants/Petitioners projected their claims before the Deputy Commissioner of Labour seeking conferment of permanent status and the Deputy Commissioner of Labour has transferred the said proceedings before the Inspector of Labour Unit III Nandanam, Madras for necessary adjudication etc. 7.The Kothawalchavadi Market has been closed during the month of April 1997 and the services of the Petitioners have been transferred to another Division viz., 30 Special Division, which is situated at 34, Devindson Street, Chennai-1. But the 1st Respondent still continued to pay a sum of Rs.100/- per month. In the said Division, sweeping and cleaning has been carried out by 76 workers including the Appellants. The Appellants have been doing the same work as that of other regular workers, but the Respondents are paying Rs.100/- per month. On 3.2.2000 the Appellants went to their office of the Special Division 30 signed and they started work. At about 3 p.m. a Special Messenger has come from the 1st Respondent office and submitted a letter to the 2nd Respondent/Conservancy Inspector. Immediately, the 2nd Respondent has directed the Appellants/ Petitioners to go out of employment. The Appellants have caused a notice through counsel calling upon the Respondents not to prevent them from performing their duties. But it ended in vain. The Appellants have gone to join duty on 4.2.2000. But the 2nd Respondent/ Conservancy Inspector refused to permit the Petitioners to sign the attendance register and to perform their duty. The Appellants have been illegally terminated of the services of the Respondents. 8.The termination of the Appellants/Petitioners by the Respondents is illegal, arbitrary, unjust and against the https://hcservices.ecourts.gov.in/hcservices/ principles of law and justice and that to without providing any opportunity to them. 9.The Respondents have been paying a sum of Rs.100/- which is nothing but forced labour in violation of Article 23 of the Constitution of India. 10.The Respondents are paying even for the casual workers at the rate of 96/- per day. Hence, the Appellants/Petitioners have filed W.P.No.18639 of 1999 seeking payment of wages on par with the casual workers pending disposal of the regularisation before the Appropriate Authority under the Tamil Nadu Industrial Establishment Conferment Act. 11.In the circumstance, the Appellants/Petitioners have filed a Writ of Mandamus seeking for issuance of direction to the 1st Respondent to continue to employ them as Sanitary Workers according to law. 12.In the counter filed by the 1st Respondent, it is mentioned that the Kothawalchavadi Market belongs to Sri Kanniga Parameswari Devasthanam Charities. The 1st Respondent/Corporation of Madras for the purpose of conservancy work in the said market, has taken this work by means of an agreement with the Kanniga Parameswari Devasthanam Charities Officials. The said Charities have been remitted a sum of Rs.2500/- per month to the Corporation and these workers have been paid wages at Rs.100/- per month each from out of the aforesaid amount of Rs.2500/-. The 1st Respondent/Corporation has not appointed the Appellants/Petitioners and the wages have been paid out of Rs.2500/- received from Sri Kanniga Parameswari Devasthanam Charities every month. The Conservancy Inspector of Corporation of Madras has been supervising the works of the workers engaged by the said Charities for Internal Conservancy in the Kothawalchavadi Market. The required materials for cleaning and sweeping have been provided by the Corporation. The necessary attendance register has been maintained by the Conservancy Inspector and the wages have been disbursed by the Conservancy Inspector from and out of Rs.2500/- being remitted every month by the Charities by getting proper acknowledgment from the workers in the relevant register. 13.The Appellants/Petitioners earlier filed a claim in P.W.40 of 1992 before the Deputy Commissioner of Labour-I, Teynampet, Chennai-18 and he has allowed the application on 6.10.1993 and directed the 1st Respondent to pay the same. Against which, the Corporation has filed W.P.No.5934/1994 challenging the award and subsequently, the Writ Petitioners filed a claim for a subsequent period from 1.1.92 to 31.3.96. The Authority viz., the Deputy Commissioner of Labour-I, Madras-6, in his order dated 20.3.1998 in P.W.No.99 of 1996, has, inter alia, held that the Appellants/Workers (Petitioners) are paid only Rs.100/- and hence allowed the application and directed the 1st https://hcservices.ecourts.gov.in/hcservices/ Respondent/Corporation of Madras to pay the balance amount of pay as mentioned in the Annexure within 15 days from the date of receipt of the order. The same has been challenged by the Corporation in W.P.No.4703 of 1999. As per the interim orders of this Court, a sum of Rs.4,16,693/- and a sum of Rs.4,66,206/- have been deposited before the Deputy Commissioner of Labour on 10.11.95 and 29.7.99 respectively. 14.The Appellants/Petitioners are not the Corporation Employees and their services cannot be regularised on par with other Corporation Sanitary Workers. 15.The Appellants/Petitioners filed a Writ Petition in W.P.No.18732 of 1996 for their regularisations and the same has been dismissed on 20.04.1999. Based on the dismissal of the Writ Petition, the Appellants/Petitioners have been stopped from duty with effect from 4.2.2000. If the Appellants/Petitioners have any grievance over their employment, they have to approach the Sri Kanniga Parameswari Devasthanam Charities to consider their claims. The termination of the Appellants/Petitioners is legal and valid and therefore, the Writ Petition filed by the Appellants/Petitioners, directing the 1st Respondent/ Corporation to continue their employment as Sanitary Workers is not maintainable. 16.The Learned Counsel for the 1st Respondent/Corporation of Madras cites the decision of Balaram Abaji Patil V. Ragojiwalla [1969 II L.L.J. 491 at page 493] wherein it is held among other things that 'the legislature never intended that workers who are covered by the Payment of Wages Act and to whom the Minimum Wages Act is also extended shall be deprived of their remedy under the Payment of Wages Act for recovering the wages due to them under the provisions of the Minimum Wages Act. The right to minimum wages is intended by the legislature to create an obligation on the part of the employer, the infringement of which is not confined to the remedy mentioned in the Act. The remedy by way of an application to the Authority under the Payment of Wages Act is as expeditious and inexpensive as the remedy by way of an application to the Authority under the Minimum Wages Act, and there is no reason why, in the case of workers covered by both the Acts, the legislature should be assumed to have intended to bar one remedy in preference to the other.' 17.It is to be noted that the workman cannot be denied the wages when he reports himself on duty. In this connection, this Court pertinently points out the decision in J.D.A. Jaipur V. Labour Court and others [1990 Vol.60 FLR 81 at page 85 (Raj.)] wherein it is inter alia held as follows: "It appears that the management got annoyed with the workmen as they instituted a suit challenging the transfer order Annexure-1. This annoyance or displeasure continued more https://hcservices.ecourts.gov.in/hcservices/ vigorously when the operation of Annexure 1 was stayed by the Civil Court. After all what the workman can do is to report himself on duty. It is with the employer to take work from him or not. The workman cannot snatch the work from the employer. In rests on the sweet will of the employer to take or not take work from the workmen. But the workmen cannot be denied the wages when he reports himself on duty but the work is not taken from him by the employer. 18.This Court aptly points out the decision in Modi Industrial Limited V. State of U.P. and others [(1992) 64 All. F.L.R. 471] wherein it is held that 'if the workmen have not worked although the work was offered to them, then, they are not entitled to claim wages.' 19.Apart from the above, this Court cites the following decisions: (a) In Kothari (Madras) Limited V. Second Additional District Judge-cum-Appellate Authority and others [1990 Vol.76 F.J.R. 209] it is held that 'if the absence from duty is due to coercion and the workman is not consenting party, then, the Management has no right to deduct wages.' (b) In The President, Athni Municipality V. Shetteppa Laxaman Pattan and others [1965 (1) The Mysore Law Journal 749 at page 750] it is observed as follows: "(1)Under S. 20 of the Act, the authority had jurisdiction to decide disputes relating to the payment of remuneration for days of rest, even before its amendment. (2)Though the State Government had not prescribed the rests of wages, since S. 13(1) (c) prescribed the minimum wage payable for such work, the authority was entitled to calculate wages for the work turned out by the employees on a day of rest at that rate. (3)Under S.20, claims by persons who had ceased to be in employment on the date of application were cognizable by the authority." (c)In Karnataka Film Chamber of Commerce V. State of Karnataka [1987 I L.L.J. 182] it is held as follows: "Section 4 of the Act also is a definite https://hcservices.ecourts.gov.in/hcservices/ indication that basic wage is an integral part of the minimum wage. Section 4.1 postulates that the minimum wage fixed or revised by the appropriate Government under Section 3 may consist of a basic rate of wages and a special allowance at a rate to be adjusted, at such intervals and in such manner as the appropriate Government may direct, to accord as nearly as practicable with the variation in the cost of living index number applicable to such workers; or a basic rate of wages with or without the cost of living allowance and the cash value of the concessions in respect of supplies of essential commodities at concession rates, where so authorised; or all-inclusive rate allowing for the basic rate, the cost of living allowance and the cash value of the concessions, if any. Therefore when the question of neutralisation of the cost of living arises by payment of D.A. it necessarily follows that the Court should keep in view whether there had been an increase or decrease in the basic wage in a particular industry over a given period of time for the purpose of determining whether the neutralisation factor adopted by the State Government exceeds 100% or 200% or 300% in a given situation. On the plain terms of Section 4(1) of the Act, it is clear that the payment of Dearness Allowance would arise only if the basic wages fixed for a particular category of workmen fell short of the minimum wage which the State Government has to fix taking into consideration the needs of the workers' family consisting of three consumption units. Language of Sec. (4) does not lend itself to the interpretation that a minimum wage under Sec.4(1) of the Act necessarily should consist of basic wages and Dearness allowance. The minimum wages Act is a beneficial piece of social legislation which protects the day to day living condition of the workers employed at the lowest level of wages in sweated labour. Though the minimum wages are fixed statutorily, it does not measure up either to the fair wage or to the living wage. This Court should also take into consideration the C.P.I. index which has gone up from 470 in the year 1982 to 620 in the https://hcservices.ecourts.gov.in/hcservices/ year 1986. The workers had a long run of litigation since 1982 in obtaining this minimum wage under the impugned notification since as noticed earlier, the two notifications made in the year 1982 and 1984 were successfully challenged by the petitioners. Therefore, any interference on grounds which are not really substantial would be repugnant to the entire object of the purpose of the Act and opposed to well settled principles of exercising the extraordinary jurisdiction under Article 226 of the Constitution." (d)In The Bharatpur Central Co-operative Bank Limited V. Ratan Singh and others [1995 L.L.J. Vol. 3 (Supp.) 813] it is held as follows: "It is of course open to the Authority under the Act to see whether the order of suspension was passed by an office competent to pass such an order. If the order of suspension has been passed by an officer or Authority not competent to pass it, it is then open to the Authority under the Act to ignore or disregard such an order of suspension. The Authority under the Act has a very limited jurisdiction. It does not He within his jurisdiction or competency to examine the order of suspension on merits and to see whether it is justified in law or not. If the order of suspension has been passed by an officer competent to pass it, the Authority under the Act cannot examine its validity to see as to whether it was justified in law or not. Here in the instant case, the Authority, under the Act acted improperly and exercised jurisdiction not vested in it when it entered into the question whether the order suspending the employed person was or was not justified in law." (e)In Bidi, Bidi Leaves and Tobacco Merchants' Association, Gondia and others V. The State of Bombay (Now Maharashtra) and others [AIR 1962 Supreme Court 486 at page 487] the Hon'ble Supreme Court has held in paragraph 21 as follows: "The definition of the term "wages" postulates the binding character of the other terms of the contract and brings within the purview of the Act only one term and that https://hcservices.ecourts.gov.in/hcservices/ relates to wages and no other. That being so, it is difficult to hold that by implication the very basic concept of the term "wages" can be ignored and the other terms of the contract can be dealt with by the notification issued under the relevant provisions of the Act." (f)In People's Union for Democratic Rights and others V. Union of India and others [1982 Labour Industrial Cases 1646 at page 1649] it is held as follows: "Where a person provides labour or services to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words "forced labour" under Article 23. Such a person would be entitled to come to the court for enforcement of his fundamental right under Article 23 by asking the court to direct payment of the minimum wage to him so that the labour or service provided by him ceases to be 'forced labour' and the breach of Article 23 is remedied. What Article 23 prohibits is 'forced labour' that is labour or service which a person is forced to provide and 'Force' which would make such labour or service 'forced labour' may arise in several ways. It may be physical force which may compel a person to provide labour or service to another or it may be force exerted through a legal provision such as a provision for imprisonment or fine in case the employee fails to provide labour or service or it may even be compulsion arising from hunger and poverty, want and destitution. Any factor which deprives a person of a choice of alternative and compels him to adopt one particular course of action may properly be regarded as 'force' and if labour or service is compelled as a result of such 'force', it would be 'forced labour'. Where a person is suffering from hunger or starvation, when he has no resources at all to fight disease or to feed his wife and children or even to hide their nakedness, where utter grinding poverty has broken his back and reduced him to a state of helplessness and despair and where no other employment is available to alleviate the rigour of his poverty, he would have no https://hcservices.ecourts.gov.in/hcservices/ choice but to accept any work that comes his way, even if the remuneration offered to him is less than the minimum wage. In the instant case, Re.1/- per worker per day was deducted by the jamadars from the wages payable to the workers employed by contractors for Asiad Projects with the result that the workers did not get the minimum wage of Rs.9-25 per day. Held that the same amounted to infringement of Art.23." (g)In M/s.Woolcombers of India Limited V. Woolcombers Workers' Union and another [AIR 1973 Supreme Court 2758 at page 2759] it is observed as follows: "For fixing basic wages and dearness allowance industrial adjudication sometimes leans on the industry part of the industry- cum-region formula and at other times on the region part of that formula. The industry part of the formula becomes relevant when the business carried on by the employer before industrial adjudication is also carried on by several other concerns in the region in which the employer is working. AIR 1964 SC 689, Ref." (h) In Murudhar Kshetriya Gramin Bank V. Bhagwan Ram and another [1995-II-L.L.J.-1076] it is held hereunder: "A reading of the section clearly shows that limitation of 30 days is given for filing of appeal, besides the time spent in obtaining certified copy of the order appealed against. It further shows that no appeal shall lie unless the memorandum of appeal is accompanied by certificate of deposit which clearly means that the appeal and deposit and information of deposit to Court have to be within limitation. It is wrong to say that even if appeal filed is within limitation, but prior to deposit and deposit is not made within limitation and information by producing certificate of deposit is filed within limitation. Such an appeal will be deemed to be not competent and would be dismissed as such." https://hcservices.ecourts.gov.in/hcservices/ 20.Section 2(h)(vi) of the Payment of Wages Act reads as follows: " "wages" means all remuneration (whether by way of salary, allowances or otherwise) expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, and includes - (a)any remuneration payable under any award or settlement between the parties or order of a court; (b)any remuneration to which the person employed is entitled in respect of overtime work or holidays or any leave period; (c)any additional remuneration payable under the terms of employment (whether called a bonus or by any other name); (d)any sum which by reason of the termination of employment of the person employed is payable under any law, contract or instrument which provides for the payment of such sum, whether with or without deductions but does not provide for the time within which the payment is to be made; (e)any sum to which the person employed is entitled under any scheme framed under any law for the time being in force; but does not include - (1)any bonus (whether under a scheme of profit sharing or otherwise) which does not form part of the remuneration payable under the terms of employment or which is not payable under any award or settlement between the parties or order of a court; (2)the value of any house accommodation, or of the supply of light, water, medical attendance or other amenity or of any service excluded from the computation of wages by a general or special order of Subs. By Act 41 of 2005, s.3, for the words "the State Government" (w.e.f. 9th November. 2005)[the appropriate Government]; (3)any contribution paid by the employer to any pension or provident fund, and the interest which may have accrued thereon; (4)any travelling allowance or the value https://hcservices.ecourts.gov.in/hcservices/ of any travelling concession; (5)any sum paid to the employed person to defray special expenses entailed on him by the nature of his employment; or (6)any gratuity