*THE HON'BLE SRI JUSTICE P.S.NARAYANA +W.P.No.13824 of 2009 % 28-8-2009 # G.Masi Reddy and others .. Petitioners Vs. $ The State of A.P. represented by its Principal Secretary, Panchayat Raj and Rural Development (RD-II) Department, Secretariat, Hyderabad and others .. Respondents <GIST: >HEAD NOTE: ! Counsel for petitioners : Sri K.Nirmal Kumar Prasad ^ Counsel for 1st respondent : A.G.P. for Panchayat Raj Counsel for 3rd respondent : A.G.P. for Labour ? CASES REFERRED : AIR 1984 S.C. 802 THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.13824 of 2009 Date : 28-8-2009 G.Masi Reddy and others .. Petitioners Vs. The State of A.P. represented by its Principal Secretary, Panchayat Raj and Rural Development (RD-II) Department, Secretariat, Hyderabad and others .. Respondents ORDER;- Rule Nisi. Counter affidavits of R.1 & R.2 and also R.3 filed. 2. This writ petition is filed for a Writ of Mandamus declaring the action of the 1st respondent in issuing G.O.Ms.No.173, dt.1-6-2009, Panchayat Raj Rural Development (RDII) Department, as illegal, arbitrary, unjust and violative of the provisions of the Constitution of India and also Right to move freely and Right to choose Employment of choice, apart from the principles of natural justice and consequently set aside the same and pass such other suitable orders. 3. Sri K. Nirmal Kumar Prasad, the learned Counsel representing the writ petitioners had taken this Court through the averments made in the affidavit filed in support of the writ petition and also the respective stands taken in the counter affidavits of R.1 & R.2 and also R.3 and would maintain that the very issuance of the G.O., is violative of Article 21 of the Constitution of India since several restrictions had been imposed on Gumpu Mestris. The learned Counsel also would maintain that Mahaboobnagar District is a backward District without any sources of employment of labour and because of lack of irrigation facilities and industries, the labour would be moving to different places in search of work and in search of livelihood and what all is being done by Gumpu Mestris is only to detect the work and inform the same and after going to the work spot, these Gumpu Mestris also would work on par with the ordinary workers and hence there is no question of any exploitation of labour whatsoever. The learned Counsel also would maintain that the very reasons mentioned in the G.O. impugned in the present Writ Petition are unsustainable and in fact far from truth. The learned Counsel also would maintain that certain of the facts narrated in the respective counter affidavits also are not correct statements. While further elaborating his submissions, the learned Counsel also pointed out that the Revenue and Labour Departments had recognized the system of Gumpu Mestris in Mahaboobnagar District basing on the ground realities of the District and had issued Identity Cards after collecting the prescribed fee of Rs.1,000/-. The learned Counsel also pointed out that the work of Gumpu Mestris being legitimate, the same cannot be found fault inasmuch as, the same is not prohibited by any of the statutes whatsoever. The Counsel also would point out that the system of paying advances of wages to workers has legal sanction under the Interstate Migrants Workers Act, the Contract Labour (R&A) Act, 1970 and also the Payment of Wages Act, 1936 and when that being so, such advances which are being paid are not in any way prohibited by any law whatsoever. The learned Counsel while further elaborating his submissions had pointed out to the relevant definitions under the Bonded Labour System (Abolition) Act, 1976 (hereinafter in short referred to as ‘the Act’ for the purpose of convenience) and in particular pointed out to the definitions of advance, bonded debt, bonded labour, bonded labourer and bonded labour system and would maintain that since the action if any of these Gumpu Mestris would not fall within the meaning of expression advances, it cannot be said that the prohibition if any by this Legislation would be applicable even if this G.O. under challenge to be taken into consideration. The learned Counsel also pointed out that on the pretext that Gumpu Mestris are acting as middle-men and there is some element of exploitation, this G.O. had been thought of and instead of protecting the Constitutional Rights under the guise of this G.O., these Gumpu Mestris are being harassed and hence the G.O. is liable to be set aside. 4. Sri Zakir Ali Danish, the learned A.G.P. for Panchayat Raj representing R.1 and R.2 had taken this Court through the contents of the counter affidavit and also referred to certain of the instances where there had been both harassment and exploitation of these workers and would explain under what circumstances, the G.O. under challenge had been issued. The learned A.G.P. for Panchayat Raj also had taken this Court through the contents of the G.O. under challenge and would maintain that the reasons referred to in the G.O. being self- explanatory, the G.O. as such cannot be found fault. The learned A.G.P. also further explained the object of the G.O. and also referred to certain of the provisions of the Act and further referred to Article 23 of the Constitution of India and would maintain that in the interest of workers and in safe-guarding such interest of these workers, this measure had been taken and in the light of the contents of the G.O. itself, the said contents being self-explanatory, the G.O. cannot be found fault and hence the Writ Petition to be dismissed. The learned A.G.P. for Panchayat Raj also no doubt pointed out to certain of the instances specifically referred to in the counter affidavit. 5. The learned A.G.P. for Labour representing R.3 had taken this Court through the contents of the counter affidavit filed by R.3 and would maintain that in the light of the facts and circumstances well explained, the measure taken in this regard by issuance of the G.O. under challenge cannot be found fault. 6. Heard the Counsel. Perused the averments made in the affidavit filed in support of the writ petition, the averments made in the counter affidavit filed by R.1 and R.2 and also the averments made in the counter affidavit filed by R.3 and the other material placed before this Court. 7. Before taking up further discussion, it may be appropriate to have a glance at the G.O. under challenge, G.O.Ms.No.173, dt.1-6- 2009 and the same reads as hereunder:- GOVERNMENT OF ANDHRA PRADESH ABSTRACT NREGS – A.P. – Bonded Labour on migration – Special strategy to rehabilitate the freed bonded labour – Orders – Issued. PANCHAYAT RAJ AND RURAL DEVELOPMENT (RD.II) DEPARTMENT G.O.Ms.No.173 Dated:1-6-2009 Read the following:- Read: 1. Minimum Wages Act, 1948. 2. The Contract Labour (Regulation and Abolition) Act,1970 3. The Bonded Labour System (Abolition) Act, 1976. 4. NREGS Act, 2005. O R D E R: It has come to the notice of the Government that, in Mahaboobnagar District, large number of labour are being engaged to work on worksites across the country on contract basis. Quite often the labour are lured into the contract by advancing huge amounts to the labour, who have to work to repay the loans. There are instances where such labour are forced to work at wages less than the minimum wages. Understandably, the system is perpetuated by a network of middle men locally called “gumpu mestris”. A number of poverty alleviation programmes are being implemented by the Government which can effectively rescue labourers from the vicious cycle of poverty and indebtedness. But yet large number of labour are still becoming victims of the exploitative practice. National Rural Employment Guarantee Act has immense potential to address this challenge. In order to ensure that poor labour of Mahaboobnagar are not forced into bonded labour by the “gumpu mestris”, Government hereby direct the District Collector, Mahaboobnagar to take up certain urgent measures as detailed below: i) An intensive campaign shall be launched in the District to bring on record all instances of labour inducted into the exploitative distress migration by the “gumpu mestris”, in 2-3 weeks from now. ii) Steps as per the law shall be taken to free the labour from the bondage, immediately. Since group mestries and forced labour is within the definition of bonded labour, District Collector is requested to enforce law and take stringent and deterrent criminal action against the perpetrators and release bounded labour. iii) The freed labour shall be given work in their own villages under NREGS, without limiting to 100 days per family. The labour shall be facilitated, to earn wages from NREGS on continuous basis, so that they are not vulnerable to become bonded labour once again. iv) The women of the freed labour families who are still outside the fold of SHGs shall be organized into SHGs and given access to credit under Pavalavaddi Program. (BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) Sd/- PRINCIPAL SECRETARY TO GOVERNMENT (RD) The contents of G.O. being self-explanatory, the same need not be further elaborated. 8. Be that as it may, the specific stand taken by the writ petitioners is that these petitioners are residents of Mahaboobnagar District and eking out their livelihood through manual labour in projects, roads and buildings and such other construction employments, both within the State and outside the State of Andhra Pradesh. Most of the labourers from the District are from SC and ST communities. As such, as in the case ever where, these workers are illiterates and unorganized and except that one or two Unions are trained to organize these workers. To organize these workers, by and large, it cannot be said that this would fall under the organized labour. 9. It is also stated that the tribals earlier used to live in the forest and were dependent on forest produce and now being relocated from the forest, due to naxalite problem, they are forced to place outside the forest area, thereby losing their traditional income from forest produce. Therefore, they are in search of employment elsewhere. Since the work is not available within the District and the NREGS also could not adequately provide work, the workers have no other alternative except to look for work elsewhere in the State and at times outside the State. Due to illiteracy, they are unable to locate the work available. Some of the workers who have some knowledge and education, explore the availability of work and inform the local labour and organize them to go for the work in small groups. They provide information on the place of work the particulars of wage and work and such other particulars and are of help to the unorganized labourers. In local language they are called as “Gumpu Mestris”. 10. Further it is averred that these Mestris are only guides and informants of work and are not employers or contractors or they are not paymasters. They cannot be termed as employers or paymasters within the meaning of any Labour Legislation, whatsoever. They only provide friendly guidance to workers to explore the work availability. Once the workers reach the place of work, these “Gumpu Mestris” become workers and work along with other labourers. Occasionally, they become liaison between employers/contractors and the illiterate workmen for better coordination of work in the work place. They help the workers to note the number of working days and also to avail the protection available under Law and guide the workers against possible exploitation if any. 11. It is also stated that while the matter stands thus, in the name of abolition of Bonded Labour system, these petitioners’ “Gumpu Mestris” are unfairly termed as perpetrators of “Bonded Labour System” and are being harassed most unfairly by the Revenue and Police officials in Mahaboobnagar District. It is further stated that “Bonded Labour System” comes into existence only when there is element of “Bonded Debt” and the same being specifically mentioned in the Act. In all cases of migrant labour, migrating within the State and outside the State, there is no “Bonded Debt” being incurred by any of the labourers. Neither there is “Hereditary Debt” from parents to children. The workers out of their dire necessity for work willingly move out of Mahaboobnagar District in search of work and these mestris only facilitate their search for work. In such a case and inspite of pleading by the helpless workers, the revenue officials for the reasons best known to them have started harassing them in the name of “Bonded Labour System”. The Revenue and Police officials are taking shelter under G.O.Ms.No.173, dt.1-6-2009, Panchayat Raj & Rural Development (RDII) Department wherein most unjustly the “Gumpu Mestris” are described the perpetrators of the “Bonded Labour System”. 12. It is also further averred that the petitioners are “Gumpu Mestris” organizing workers to find out a livelihood and they also work as coolies (more or less as head coolies) along with other workers. The Government has recognized their status as “Gumpu Mestris” and also issued “Identity Cards” to each one of them. The Assistant Commissioner of Labour, Mahaboobnagar District, the 3rd respondent herein, under the instructions of the 2nd respondent had issued Identity Cards to all of them vide Circular C3/6365/2006, dt.2-4-2008. 13. It is further stated that an amount of Rs.1,000/- is also collected by means of Demand Drafts as the prescribed fees for the issuance of “Identity Cards” through the Tahasildars of the respective mandals and the same having been transmitted to the 3rd respondent for the issuance of “Identity Cards”. It is also stated that the purpose of issuing the guidelines through the above mentioned circular, is to secure protection for workers from possible exploitation both within and outside the State. The system of issuing “Identity Cards” was also intended to regulate the “Migrant Labour System”. The cards are issued to the mestries so that they can help the administration for taking necessary action in case exploitation of labour is noticed in any form. Thus, the petitioners as “Gumpu Mestris” are friends of the workers and are helpers to the administration to help, identify places of exploitation if any. The “Identity Cards” are issued through the Tahasildars of concerned mandals. These facts could be seen from the letter of the 3rd respondent bearing No.C/713/09, dt.26-6- 2009. 14. Therefore, the system of “Gumpu Mestris” had been legitimately accepted both by the Revenue and Labour Departments and that there are number of cases where petitioner-mestris had brought the cases of non-payment and less payment of wages by the contractors and principal employers to the notice of the officers of the Labour Department and got paid the due wages. Thus, the petitioners only facilitate and help the workers in their work place and are not employers/paymasters and much less creditors within the meaning of the Act. Further it is stated that when the matter is thus, that the Revenue and Labour Departments accepted the existence of the petitioners’ and issued “Identity Cards” after collecting prescribed fees, it is most unjust and unfair to term and call them perpetrators of the “Bonded Labour System”. 15. Further it is stated that the Government issued the impugned G.O.Ms.No.173, dt.1-6-2009, Panchayat Raj and Rural Development (RDII) Department, wherein the petitioners are termed as perpetrators of “Bonded Labour System”. This act of the 1st respondent is humiliating and degrading the petitioners’ basic human dignity to pursue a “Legitimate Mode” of their “Livelihood”. The impugned G.O. violates petitioners’ basic freedom to move within the country freely. 16. It is also averred that the petitioners have no dispute with the intention of the Government in alleviation programs through NREG Scheme and they are also happy that the 1st respondent issued instructions not to limit the NREGS programme to 100 days in Mahaboobnagar District. Further it is stated that the ground realities and facts cannot be ignored at the same time. Except one mandal, out of 64 mandals in the District, nowhere the promised work of 100 days were provided to workers. In 55 mandals, the work provided was less than 20 days. In 12 Mandals, not on a single day, work was provided. These figures are from the official records under NREGS. 17. While the facts are such, poor workers do not have any option except to look for work elsewhere and the petitioners as Gumpu Mestris facilitate them to find the places where there is availability of work and guide them to those places. When the Government cannot provide the work, even under the much publicized NREGS scheme, the Government has no right to stop the workers to look to work elsewhere. It is also averred that the impugned G.O.Ms.No.173, dt.1-6- 2009, Panchayat Raj and Rural Development (RDII) Department is violative of petitioners’ right to move freely throughout the territory of India and also is violative of basic principles laid down under the Constitution of India and therefore is liable to be struck down. 18. The impugned G.O. refers to certain Labour Enactments: 1) The Minimum Wages Act, 1948; 2) The Contract Labour (Regulation & Abolition) Act, 1970; 3) The Bonded Labour System (Abolition) Act, 1976; and 4) NREGS Act, 2005 19. What is paid to them at the time of starting from Mahaboobnagar District is only an advance of future wages, so as to provide for the other members of the family who are left out at home and also to meet the travel expenses which are usually associated with travel. The Interstate Migrant Workers Act also provides for such payment of advances. As such there is no irregularity or “bonded debt” involved in this process. 20. Further it is also stated that the “wages” at the place of work are paid by the employer, if directly employed or paid by the contractor (Licence under CL Act) or by the Licence under the Interstate Migrants Workers Act. The “Gumpu Mestris” have no say or role in the payment of wages. The responsibility is totally on the contractors/employers and if any violation of any law is noticed regarding payment of “wages” or other provisions of law, the persons to be dealt with are the employers/contractors. In all such cases, where violations are noticed the workers themselves bring it to the notice of the concerned Officers with the help of the mestris or trade unions. 21. It is also averred that the role of the mestris ends at the arrival of workers at the work place, they cannot be termed as employers of “Bonded Labour” by any stretch of imagination. But to everybody’s surprise, these mestris are termed as perpetrators of Bonded Labour and are being arrested by the Revenue Officials and the Police officials in the name of “Abolition of Bonded Labour System”. 22. Further it is averred that when the essential ingredients of “Bonded Labour”, the “bonded debt” and “the forced work” and preventing them to leave the work are absent, how in the impugned G.O., they are called as perpetrators of “Bonded Labour”. The workers are free to move from place to place, from employer to employer in the same place at their own free will and have liberty to approach the Labour Department Officers whenever grievance may arise. This fact can be ascertained from the Officers of the Labour department who are conversant with the system of redressal of grievances. 23. It is also averred that in the last few days, certain arrests had been made in Mahaboobnagar District and workers are subjected to untold misery and trouble. It is reliably learnt that the impugned G.O., is the cause and provocation for such arrest in the Districts. Some of the arrested workers had also approached this Court for quashing of the said FIR’s filed against them. The petitioners are prevented in entering into employment of their own choice. Preventing the petitioners under the guise of the impugned G.O., is denying their right to employment. 24. Further it is stated that even for a moment assuming that there is exploitation by middle men, the employment starts at the place of work. The principal employer or the contractors at the place of work should be held responsible and dealt with as per law but the poor “Gumpu Mestris” who are only facilitators for the workers cannot be held liable. Migrating to other States for work is not prohibited per se. The Act regulates the conditions of work of migrating Labour. Any action necessary could be initiated under the said Act and the provisions of “bonded labour” cannot be invoked in the case of “Gumpu Mestris”. 25. It is also stated that the petitioners are against any possible action to be taken against erring employers/contractors if any work is harassed or put to trouble. The machinery provided under the Labour Department could be strengthened to deal with all such cases firmly. But to take action against “Gumpu Mestris” who are friends and facilitators of workers, is illegal, and unconstitutional and beyond the scope of any existing Labour Law. It puts fretters on the choice of employment and movement of workers both within and outside the State of Andhra Pradesh for employment. The above mentioned G.O. is unconstitutional and needs to be revoked forthwith. 26. It is also stated that A.P.Contract Labour (R&A) Rules, 1971 provides for payment of advances and also for repayment of such advances by the worker. Section 29 of the Contract Labour (Regulation 7 Abolition) Act, 1970 provides for maintenance of certain registers including the Register of Advances. A.P.Rules prescribe form XDXII under Rule 78 (1)(a)(ii), which is extracted as under:- 1. Sl.No. : 2. Name : 3. Father’s/Husband’s name : 4. Nature of employment/Designation: 5. Wage Period & Wages payable : 6. Date and Amount of Advance given: 7. Purpose (s) for which Advance made: 8. Number of installments by which advance to be repaid : 9. Date and amount of each instalment paid : 10. Date on which last instalment was repaid : 11. Remarks : Thus, it could be seen from the above proforma that payment of advances (6th column) is within the frame work of Contract Labour Act and the Rules made there-under. Such “advances” are permissible under Law. Several grounds had been raised in the affidavit filed in support of the writ petition wherein the G.O. aforesaid had been challenged. 27. In the counter affidavit filed by respondents 1 and 2 several of the averments had been specifically denied. Specific stand had been taken that the Government of India had enacted National Rural Employment Guarantee Act, 2005 (NREGA) with an object to provide for enhancement of livelihood security of the households in the rural areas of the country by providing at least one hundred days (100days) of guaranteed wage employment in every financial year to every household whose adult members volunteer to do unskilled manual work and for matters connected there with are incidental there to and that is being implemented under the control and supervision of the District Collectors through the Project Director, DWM (District Water Management Agency). It is further averred in para 3 that the local Mestris called “Gumpu Mestris” are in the habit of giving few thousands as advance amounts to the poor and needy families and lured them to work at different places for a good amount. The poor, innocent and illiterate people believing the “Gumpu mestries” goes out of their village along with the “Gumpu Mestries” for eking their livelihood, but after reaching to the work site, the “Gumpu Mestries” forced them to work for less wages, without basic amenities and under highly unhygienic conditions. 28. It is also averred in para 4 that one such incident of believing the “Gumpu Mestris”, few families work at Mancherial in Adilabad Districts and 12 labours died on 24.05.2009 during the excavation of canal. Thereupon, the Govt. felt it is necessary to take some welfare measures for the labourers who are forced to work at wages less than the minimum wages. As such, a G.O.Ms.No. 173, PR & RD (RD-II) Dept, dated 01.06.09 was issued wherein it has been specifically directed that