IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.4.2007 CORAM: THE HONOURABLE MR.JUSTICE DHARMARAO ELIPE AND THE HONOURABLE MR.JUSTICE S.PALANIVELU W.A.Nos.2234 of 2000, 2665 to 2667 of 2002, W.P.Nos.12544 of 1999 and 47160 of 2006 W.A.M.P.Nos.4498 to 4500 of 2002 and M.P.1/2006 and C.M.P.No.19410 of 2000 W.P.No.12544 of 1999: United Labour Federation, represented by its General Secretary Sri K.Nithyanandam (Reg.No.2657/CNI) C.J.Complex IV Floor, No.149 Thambu Chetty Street, Madras-600001. ... Petitioner Vs. 1.The Corporation of Chennai, represented by its Commissioner, E.V.R.Periyar Salai, Ripon Buildings, Madras-600 003. 2.M/s.Sulab International, represented by its Chairman P.Jha, E.135 VI Annexe, Besant Nagar, Madras-600090. ... Respondents * * * Writ Appeal No.2234 of 2000 has been filed under clause 15 of the Letters Patent as against the order dated 5.12.2000 made in W.P.No.20436 of 2000 by a learned single Judge of this Court. Writ Appeals 2665 to 2667 of 2002 have been filed under Clause 15 of the Letters Patent as against the orders dated 26.4.2002 respectively made in W.P.M.P.Nos.9595, 9597 and 9598 of 2002 in W.P.No.12544 of 1999. W.P.No.12544 of 1999 has been filed under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus, directing the 1st respondent Corporation to absorb the Members of the petitioner Union listed in the typed set of papers as its employees and regularise their services and in particular afford them just and reasonable conditions of service such as fixed working hours, D.A., weekly, national and festival holidays, payment of bonus etc., and protection for the body of the workers by giving them uniforms, gloves etc. and protective gear, and also ensure payment of same wages for the women workers as is given to men workers in accordance wit the provisions of Equal Remuneration Act. W.P.No.47160 of 2006 has been filed as a Public Interest Litigation under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus, directing the 2nd respondent Corporation to take action in recovering the public conveniences, which are in the hands of anti- social elements in the North Madras, as furnished in the annexure to the writ petition, with the assistance of the 1st respondent and also direct the 1st respondent to take appropriate action against the said persons, under criminal law, including by way of arrest for occupying the said Public Conveniences illegally and also give protection to all the public conveniences from being taken over illegally and recover the moneys appropriated by such anti-social elements. * * * For petitioners in : Mr.V.Prakash, Senior Counsel both the W.Ps.,who: for M/s.G.Ramapriya in are R.1 in W.As. : WP.12544/1999 and for Mr.S.S.Vasudevan in W.P.47160/2006 and for appellants in W.A.2234 : For R.2 in : Mr.Jeyes Dolia for W.P.12544/1999, M/s.Aiyar and Dolia who are appellants in W.A.Nos.2665 to 2667/2002 : For R.1 in W.P.12544/1999, R.2 in W.As. 2665 to 2667/2002 and : Mr.R.Viduthalai respondents in Advocate-General for W.P.47160/2006 Mr.L.N.Prakasam and for respondents in W.A.2234/2000 Mr.G.Jeremiah, Advocate Commissioner * * * COMMON ORDER DHARMARAO ELIPE, J. While Writ Appeal No.2234 of 2000 has been filed against the order dated 5.12.2000 made in Writ Petition No.20436 of 2000 by a learned single Judge of this Court, Writ Appeal Nos.2665 to 2667 of 2002 have been filed as against the orders passed by the learned single Judge, dated 26.4.2002 respectively made in W.P.M.P.Nos.9595, 9597 and 9598 of 2002 in W.P.No.12544 of 1999. 2. When Writ Appeals 2665 to 2667 of 2002 were taken up for hearing, which have been filed against the interim orders, the learned counsel for the respective parties have consented to dispose of the main Writ Petitions themselves, to settle the issue involved in this matter ultimately. Therefore, the main writ petitions are taken up for disposal. 3. Likewise, since from the affidavit filed by the Commissioner, Chennai Corporation dated 12.2.2007 it came to be known that a connected Writ Appeal in W.A.No.2234 of 2000 is pending, directing the said Writ Appeal also to be filed along with these matters, we heard all the matters together to dispose them by this common order. 4. In W.P.No.12544 of 1999 the petitioner/United Labour Federation has submitted that the Chennai Corporation has a number of Public Conveniences (in short P.Cs) in North Madras Corporation Division Nos.1 to 63 and the 2nd t respondent/Sulabh International, claiming to be a non-profit organisation, approached the 1st respondent/Corporation and obtained four P.Cs. in North Madras and two P.Cs. in South Madras for constructing the same and also maintaining them. The 1st respondent/Corporation pays 80% of the project cost as advance to the 2nd respondent and 20% on completion. A further 20% of the cost is paid as implementation charges and apart from this, money was also collected from the public, who are using the P.Cs., by the 2nd respondent. From 1986 to 1992, another 20 P.Cs. were added at a cost of Rs.1 crore out of which 80% was paid as advance and Rs.20 lakhs on completion of the project and apart from this 20% was paid as implementation charges. In 1992, apart from the P.Cs. aforesaid, the 2nd respondent Corporation entrusted the maintenance of 48 P.Cs. built by the Corporation itself to the 2nd respondent and for maintenance of the 48 P.Cs., the Corporation was paying a sum of Rs.5,000/= per each P.C. i.e. amount to Rs.2,40,000/= per month, working out to Rs.28,80,000/ per annm and apart from this payment, the 2nd respondent was allowed to collect money from the public. 5. The petitioner further submitted that in the years 1995 and 1996, another 42 P.Cs. were constructed by the Corporation and was entrusted to the 2nd respondent on a 'pay and use' basis and between 1996 and 1999, further P.Cs. were added and as of today, there are 314 P.Cs. implemented by the 2nd respondent, collecting money from the public. Out of 314 P.Cs. in the city of Madras, in North Madras, there are 225 P.Cs. employing 400 persons and apart from those 400 workers, there is one Secretary and seven supervisors and three technicians. 6. The petitioner further furnishing the list showing the emoluments of Secretary, Supervisors and men and women workers, would submit that all the workers hail from the scheduled caste community of Adi-Andhra and Adi-Dravida and they were not provided with protection items such as gloves or nose-guards or footwear or aprons and no benefits such as earned leave, bonus or medical treatment, educational allowance, HRA, D.A. And weekly or festival holidays, even though the 2nd respondent is minting money to the tune of Rs.2 crores per annum only as collections from the public, apart from other moneys received from the first respondent; that the 1st respondent, without calling for any tenders, has entrusted the work to the 2nd respondent, who was claiming to be a non- profit welfare organisation and the same organization runs P.Cs. in the name of 'Bangi Mukthi' in Madurai and 'Akila Bharathia' in Tiruchirapalli. 7. The petitioners further state that the work done by the workers involved in the writ petition is integral to the statutory duties imposed on the 1st respondent Corporation by the Madras City Municipal Corporation Act and the 1st respondent can also employ this labour directly on fair terms and still see the profits which could go to the coffers of the 1st respondent Corporation for carrying out its public duty. 8. When the above said W.P.No.12544 of 1999 was taken up for admission, a learned single Judge of this Court, while admitting the writ petition on 23.7.1999, has observed as follows: "The Writ Petition is admitted against the second respondent alone and the first respondent is only impleaded as a formal party. In that view, the writ petition is admitted. Though Mr.Prakash is not inclined to make such representation, this Court records that this Court is not inclined to grant relief against the first respondent Corporation. However, the first respondent will continue as a formal party as ultimately the orders that may be passed against the second respondent could also be implemented through the first respondent. Only for that limited purpose, the first respondent remains as formal party. Admit. Issue Rule NISI. Call for records by twelve (12) weeks." 9. However, the 1st respondent filed a counter affidavit wherein it has been stated that since from 1985, the second respondent are entrusted for construction and maintenance of public conveniences from time to time and at present, there are 316 Nos. of P.Cs. and 12 Nos. of Urinals conveniences have been entrusted to the second respondent for maintenance for 30 years; that out of this, 202 P.Cs. were 'non-pay and use' P.Cs. and balance 140 are 'pay and use' P.Cs.; that out of the above 'pay and use' P.Cs., 71 Nos. of P.Cs. were constructed by the 2nd respondent and other P.Cs. were already constructed by the Corporation of Chennai and entrusted to the second respondent for maintenance; that during 1992, the Special Officer Council by Resolution No.1588/92 allowed the Corporation of Chennai to entrust 77 'non-pay and use' P.Cs. to the second respondent for maintenance and for maintaining these P.Cs., during the first year, the Corporation has paid Rs.4,500/= per month to the second respondent and for the second year Rs.2,250/= per month and for the third year Rs.1,125/= per month. Further, as per the Special Officer Resolution No.3851/94, dated 24.10.1994, the Corporation entrusted 125 'non-pay and use' P.Cs. to the second respondent and for maintaining these 125 P.Cs., the Corporation had paid Rs.5,000/= per month and for the second year Rs.3,500/= per month and for the third year Rs.2,200/= per month was paid to the second respondent and for both the 77 number of public conveniences and 120 number of public conveniences, the second respondent has to maintain them with their own expenses in good condition for the next 27 years; that at present, all the 316 P.Cs. entrusted to the second respondent have been converted into 'Pay and Use' P.Cs. and apart from the above, as per the Special Officer Council Resolution No.2418/96 dated 1.10.1996, for the 202 P.Cs. in the 'non-pay and use' P.Cs. category, Rs.15,000/= per year have to be paid to the second respondent for the next 27 years; that the electricity charges will be paid by the Corporation for all the P.Cs. and urinals entrusted to the second respondent. The 1st respondent would submit that since the workers were employed by the 2nd respondent, the respondent Corporation is nothing to do with their wages and other benefits as mentioned in the affidavit and prayed to dismiss the writ petition. 10. The 2nd respondent filed a counter stating that all the persons working for the second respondent Organisation are Associate Members/Social Workers and all of them are required to enroll as Associate Members with the State Head Office of the second respondent organiation and without this membership, a person cannot join in the organisation as a worker; that a Division Bench of the Patna High Court, in a case filed by the workers of the Union against the 2nd respondent Organisation, has held that the 'Sulabh International' (now known as Sulabh International Social Service Organisation) is not an 'industry' in its judgment in CWJS No.3408 of 1989, dated 9.2.1990 which was upheld by the Apex Court in Civil Appea No.2527 of 1991 dated 20.3.1996. 11. The 2nd respondent further stated that Mr.Vijayaprakasam, who has sworn in the affidavit in W.P.12544 of 1999, had joined the 2nd respondent Organisation as an Associate Member/Social Worker and he was given responsibility of collection of money from various toilet blocks, which are all having 'pay and use 'systems and since he started swindling the funds of the organisation and instigating the other Associate Members to indulge in violent acts, and was interfering with the administration of the second respondent organisation, he was removed from the Associate Membership by the second respondent organisation on 23.6.1999. Aggrieved by the said removal, the said Vijayaprakasam along with his henchmen on 25.6.1999 at about 12 noon, threatened the officials of the 2nd respondent for which a complaint was registered as Petition No.122 CSR/J5/99 dated 26.6.1999 and subsequently also, since the said Vijayaprakasam indulged in criminal activities, another complaint was lodged on 23.7.1999 before the Deputy Commissioner of Police, Washermenpet, Madras; that the said Vijayaprakasam had collected lakhs of rupees from various toilet centres and converted all the money into his own use, by making the second respondent organisation face huge loss and a list showing the number of police complaints filed by the 2nd respondent organisation is also furnished; that in order to prevent the said Mr.Vijayaprakasam, the second respondent organisation had moved a suit before the XIV City Civil Court, Madras in O.S.No.5078 of 1999 and obtained interim injunction on 11.8.1999. 12. It is further submitted that the 2nd respondent Organisation used to make payment of wages promptly and since the Vijayaprakasam and other nine Associate Members jointly failed to remit the collection money to the head office of the second respondent organisation, the second respondent could not pay the wages for the month of June, 1999; that the 2nd respondent is maintaining the list of Associate Members, who are receiving wages from them every month and that list is not tallying with the names of the persons found in the list enclosed in the Writ Petition and that apart, there are 102 persons, who are not the Associate Members and no way connected with the organisation and their names are not available in the pay roll; that if the petitioners will not interfere with the collection and remittance of the amounts, there will not be any problem in paying the wages to the Members; that the accounts and particulars given by the writ petitioner are totally wrong and the second respondent organisation is incurring huge expenses, in making payment of wages for nearly 300 persons working for them and for carrying out repairs, maintenance, alterations, constructions in and around the toilet centres and blocks, which include the buying of cleaning materials and other maintenance works; that the 2nd respondent is duty bound to make the payment for the month of June 1999 and prayed to direct the petitioners not to interfere with the receipt of the collection money by the second respondent organisation; that Mr.Vijayaprakasam and nine other Associate Members/Social Workers had already been removed from the membership of the organisation and even after their removal, they are indulging in unlawful activities and also carrying on collecting money from various toilet centres amounting to Rs.20,000/= per day in North Madras Zone and all the above said nine associate members should also hand over the collections to Mr.Vijayaprakasm; that the said Vijayaprakasam had collected Rs.10,80,000/= from 22nd June to 25th June and from 7th July to 26th August of 1999 and so far, he did not take any step to remit the said amounts to the 2nd respondent organisation; that even after obtaining the injunction from City Civil Court, Madras, Mr.Vijayaprakasam and his nine men fail to obey the order of the injunction and are preventing the organisation officials from receiving the collection amount and the 2nd respondent has lodged complaints against the acts of Mr.Vijayaprakasam and his men in six police stations in connection with the unlawful activities and the cases are pending investigation. 13. The 2nd respondent further stated that they are ready to make the payment of honorarium to all the associate members/social workers in North Chennai as per their payment list for the month of April and May 1999 and that many of the names are not available in the payment list or found place in the members list annexed with the writ petition and the same is having 324 members which is not tallying with the list of members who are getting payment prior to June 1999 from their organisation and therefore, prayed to dismiss the writ petition. 14. An Additional counter-affidavit has also been filed by the 2nd respondent reiterating the judgment of the Division Bench of the Patna High Court in CWJC 3408 of 1989, dated 9.2.1990 and further stating that the second respondent has no employees and all the members of the second respondent are working as honorary members and no one is forced to continue as a member of the organisation and there is no master and servant relationship between the members; that since no relief is prayed against the 2nd respondent, the writ petition is liable to be dismissed as not maintainable; that the expenses incurred for the operation of the public conveniences for initial three years are reimbursed by the Corporation of Chennai and thereafter, the P.Cs. are operated by the 'pay and use' scheme and even if the collections in the P.Cs. are not adequate to meet the actual expenses, efforts and endeavours are made to maintain the P.Cs. in healthy and hygienic conditions and that any member is free to discontinue at his wish. 15. In the said writ petition, W.M.P.No.17926 of 1999 was filed by the petitioner praying for an ad- interim direction to the respondents to forthwith pay the wages of the members of the Petitioner Union and when an order has been passed on 8.9.1999, directing the 2nd respondent to pay arrears of wages to those workmen whom the second respondent admits, the 2nd respondent filed a petition in W.M.P.No.22527 of 1999 seeking to clarify the said order on the ground that a specific quantum is payable by the parties in the light of admitted roll of members and the place of disbursement of wages. The learned single Judge, by the common order dated 1.11.1999 made in W.M.P.Nos.17926 and 22527 of 1999 has appointed four members of Bar viz. (1) Mr.G.Jermiah, (2) Mr.Thennavan, (3) Mr.C.S.Vasan and (4) Ms.T.Ramadevil as Advocate-Commissioners in respect of Zones 1 to 4 respectively to take charge of the entire 225 blocks of P.Cs. which were entrusted to M/s.Sulabh International and various interim directions were also issued at the instance of the Advocate- Commissioners, who have filed their reports also. 16. Pursuant to the appointment of Advocate-Commissioners, the petitioners have filed W.P.M.P.No.9595 of 2002, praying to issue an order of ad-interim direction to the Advocate- Commissioners to disburse one month's wages as Bonus to each of the workers for each year for the years 1999, 2000, 2001 and 2002 from out of the amounts deposited in the Bank in the High Court Extension Counter of Indian Bank, wherein a learned single Judge of this Court, by the order dated 26.4.2002, has directed that an amount equivalent to two months to be paid by way of interim bonus to the petitioners. In W.P.M.P.No.9597 of 2002 filed by the petitioners praying to issue an ad-interim direction to the Advocate-commissioners to verify the report and further appoint a person for maintenance and to do repairs, the learned single Judge, by the order dated 26.4.2002, has directed that the Corporation should take expeditious steps to repair the public conveniences as per the recommendation made by the Advocate-Commissioner and thereafter to hand over the same to the Advocate-Commissioner. In W.P.M.P.No.9598 of 2002 filed by the petitioners, praying to direct the Commissioner of Police to give necessary police protection to the Advocate-Commissioners to take over the facilities at 32 locations which were retained by the Police Commissioner and also remit the amounts collected from those facilities to the Advocate-Commissioner, the learned single Judge, by the order dated 26.4.2002, has ordered police protection to the Advocate-Commissioner. Aggrieved by the said orders passed by the learned single Judge, Writ Appeal Nos.2665 to 2667 of 2002 were preferred by the 2nd respondent. 17. While the above writ petition and writ appeals are pending, the petitioner Union has again filed W.P.No.47160 of 2006 as a public interest litigation contending that many anti-social elements are occupying the P.Cs., and are collecting the daily amounts from the public and taking it away with them and denying the concerned workers their due wages. 18. We have heard the learned counsel appearing for all the parties concerned and perused the entire materials available on record. 19. Part IV of the Constitution deals with 'Directive principles of State Policy'. Article 41 provides for right to work, to education and to public assistance, Article 42 mandates the State to make provision for securing just and humane conditions of work and for maternity relief. Likewise, Article 43 mandates the State to endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. The right to minimum wages is traceable under Article 21 of the Constitution, which could be sought to be implemented as a fundamental right, since the right to livelihood is an integral facet of the right to life as has been held by the Apex Court in NARENDRA KUMAR vs. STATE OF HARYANA (JT (1994) 2 SC 94). 20. A constitutional obligation is created on the State regarding the public health and sanitation, which is a matter of public safety and falls within the ambit of Article 21 of the Constitution and citizens have a right to healthy environment, as has been held by the Apex Court in M.C.MEHTA vs. UNION OF INDIA (AIR 1987 SC 1086) and BANDHUA MUKTI MORCHA vs. UNION OF INDIA (AIR 1984 SC 802). Section 184 of the Chennai City Municipal Corporation Act, 1919 mandates that 'The corporation shall provide and maintain in proper and convenient places a sufficient number of public latrines and shall cause the same to be kept clean and in proper order'. Section 185 reads: "185. Licensing of public latrines: (1) The Commissioner may license for any period not exceeding one year the provision and maintenance of latrines for public use. (2) No person shall keep a public latrine without a licence under sub-section (1). (3) Every licensee of a public latrine shall maintain it clean and in proper order." (emphasis supplied) Section 3(13) of the said Act defines the term 'latrine' as a place set apart for defecating or urinating or both and includes a closet of the dry or water-carriage type and urinal. 21. Therefore, according to Section 185 of the Act, a licence regarding the maintenance for public use shall not be granted for more than a year. But, in the case on hand, it is stated that Sulabh International was granted licence for 30 years by the Corporation. Being an authority under law, the Corporation ought to have followed transparent procedures in granting licence. But, the Government of Tamil Nadu, realising the fact that there are no Rules in Corporation Act for carrying out works on nomination basis without calling for tenders and the allocation of Public Conveniences to Sulabh International is in violation of the Chennai Corporation Act, has passed G.O.Ms.No.108 MA&WS Department dated 5.5.1999, cancelling the earlier G.O.Ms.No.102, MA&WS Department dated 18.2.1985 and G.O.Ms.No.105, MA&WS Department dated 15.4.1996 and ordered the Corporation of Chennai to follow the tender procedures for the construction of public conveniences and their maintenance as per the Chennai Corporation Act and no work shall be carried out on nomination. The said G.O.Ms.No.108, dated 5.5.1999 was not assailed by Sulabh International. 22. But, surprisingly, the Government has once again issued G.O.Ms.No.130, dated 14.12.1999 allotting 30 P.Cs. on trial basis to one 'Nagara Thuyimai Padukavalar Munnetra Sangam 2000', the appellant in W.A.No.2234 of 2000, for one year without conducting any auction. When the Corporation has called for tenders for maintenance of public conveniences, the said 'Nagara Thuyimai Padukavalar Munnetra Sangam 2000' has filed Writ Petition No.20436 of 2000 praying to quash the said auction notice published in the newspaper on 20.11.2000. The said writ petition was dismissed by a learned single Judge of this Court by order dated 5.12.2000. Aggrieved, Writ Appeal No.2234 of 2000 was preferred by the said 'Nagara Thuyimai Padukavalar Munnetra Sangam 2000'. Along with the said Writ Appeal, C.M.P.No.19410 of 2000