MUKESH ADVANIversusSTATE OF MADHYA PRADESH

    126


A
                                MUKESH ADVANJ

                                           v.

                       STATE OF MADHYA PRADESH
                                                                                        -
B                                    May 2, 1985

                    (D.A. DESAI AND A. VARADARAJAN, JJ.)

           Social Action Litigation-Exploitation of the workmen /ronz Tamil Nadu
    by the Mines contractors deprecated-Need for the State protection of the poor
c   and needy labourers who are unable to negotiate on terms of equality, reiterated-
    Constitution of India, 1950. Articles 38, 41, 42, 43, Bonded Labour System
    (Abolition) Act, 1974-Minimum Wages Act, 1948, Payment of Bonus Act, 1965.

           Pursuant to an investigative report in the "Indian Express" dated
    September 14, 1982, one of the advocates practising in the Supreme Court
    addressed a letter to one of the Judges of the Supreme Court depicting the
D   horrid plight of bonded labour from Tamil Nadu working in the stone quarries
    at Raisen in Madhya Pradesh. It was alleged : (a) Everyone recruited were
    paid a reimbursible advance of Rs. 1,000/- but the method of accounting is so
    manipulated that the debt instead of getting wiped out, increased in geometrical
    proportion and no workmen can have the en1ployment until the entire debt
    repaid which is boyond the reach of the workmen; (b) The working conditions
    were bad. There was no weekly holiday. Sanitary conditions were in deplo-
E   rable state. The workmen were not paid any wages during rainy seasons,
    since the mines were shut off; (c) Not a single legislation enacted for the
    welfare of Jabour is implemented or respected and (d) Due to the inaction of
    the Labour Department of the Centre and the Stale like absence of a notifica-
    tion specifying minimum wages for the labour force employed in the mines,
    resulting in paultry and meagre payment there is naked and unabashed
    exploitation of workmen. The report called for by the Supreme Court from
F   the District Judge Bhopal confirmed the said allegations and further revealed
    that (a) on a complaint preferred 48 labourers were released by the Labour
    Department of Madh)a Pradesh; (b) a complaint has been lodged with the
    police under the Bonded Labour System (Abolition) Act, 1976; (c) two or
    three cases against the Contractors were instituted in fact and the said cases
    were pending; (dJ the piece-rate method of paying wages for digging a standard
G   'Khanti' has resulted sometime to no payment at all for both the male and
    female labour employed; (e) a team of police force arrived from Tamil Nadu
    and liberated the workmen and repatriated them to Tamil Nadu and (f) the
    newspaper publicity had a very salutary and desired effect in as much as
    various contractors have given up efforts to recover the advances which was a
    good achievement.
H
          The State of Madhya Pradesh admitted the findings of the District
    Judge, Bhopal and pointed out that in respect of flagstone mines, the
    appropriate Government is the Ct"ntr~ Government under the pa~mcnt of
                            M. ADVANI V. M.P. STATE                          127

 Bonus Act, 1965 and the Minimum Wages Act, 1948. The Tamil Nadu
  Government have clarified as to how tre labourers were duped and taken to          A
. Madhya Pradesh and confirmed the release of the labourers by their State
  Police.

       The Court in the circumstances directed the Union of India as appro-
priate Government to issue a preliminary notification under section S of the
Minimum Wages Act, 1948 setting out its proposal for information of persons
likely to be affected thereby and specifying a date not Jess than two months
                                                                                     B
from th-e date of the Notification on which proposals will be taken into
consideration. The Union of India accordingly issued necessary notification
dated March 24, 1982 and October 31, 1983 setting out the minimum piece rate
 of wage-s for various occupations in flagstone mines.

       Disposing of the petition, the Court                                          c
         HELD: 1. Undoubtedly, mines have to work in larger public and
 national interest. Therefore, in the very nature of things, there will be contra-
 ctors and the workmen. Contractor as is his wont, to augment his profit
 which motivates him to take contract and who is not shown to be altruistic,
 is bound to exploit the workmen. The notorious method of exploitation is,           D
 pay as much less as possible despite all pretentions of Minimum Wages and
  Payment of Wages Act, take work for longer hours, prohibited by beneficicnt
 statutes like the Mines Act, the Factories Act and like !ltatutcs. Both these
 when jointly practised enlarges the profit. The law is that no employer can pay
 less than the minimum wages. But this remains a paper promise unless an
 effective implementation machinery not overawed by these wealthy and
  generally unscrupulous contractors who can spread their tentacles over             E
  officials is set up. [133 H; 134 A-B; D]

        (The court expressed the hope that such a machinery would be set up
 jointly by the Union of India and the Government of the State of Madhya
 Pradesh.) [134 E]
                                                                                     F
       2. The State in discharge of its obligation under Articles 38, 41, 42 and
 43 must extend the umbrella of protection to these poor and needy and un-
 protected workmen who are unable to negotiate on terms of equality and who
 may accept any terms to stave of hutlger and destitution. It is the State which
 must interpose between these two unequals to eschew exploitation. (134 B-C]
                                                                                     G
       ORIGINAL JURISDICTION: Writ Petition No. 1232 of 1982.

       Under Article 32 of the Constitution of India.

        Mukesh Advani Petitioner. (Not present)                                      H
        A.V. Rangam, Ravindra, Bana, A.K. Sanghi, Ms. H. Khatun
 11nd R.N. Paddar for the Respondent,
    128                 SUPREME COURT REPORTS        (1985) SUPPL. s.c.R.

          The Judgment of the Court was delivered by
A
         DESAI, J. One Mukesh Advani, Advocate practising in this
    Court addressed a letter to one of the Judges of this Court on
    September, 23, 1982 annexing thereto a cutting from the 'Indian
    Express' dated Septemb<r 14, 1982 depicting the horrid plight of the
8   bonded labour working in stone quarries at Raisen in Madhya
    Pradesh.

          Broadly stated the allegations were that the contractors who
    operate the mines recruit Jabour force from Tamilnadu. Everyone re·
    cruited to work was paid roughly an advance of Rs. 1,000 and then
c   brought to work at the mines. This amount of Rs. 1,000 reimbursi·
    ble by deductions spread over from month to month from the wages
    payable to the bonded labourers, but the method of accounting is so
    manipulated that the debt of Rs 1,000 is never wiped out, and on the
    contrary it increases by geometrical proportion. The workman goes
    deeper into the mire of indebtedness with the result that the octopus
D   hold of the contractor becomes all enveloping and the workmen
    becomes a bonded labour. The working conditions, to say the least,
    were of the 18th century vintage. There is no weekly holiday.
    Sanitary conditions are in deplorable state. During the rainy season
    the operation of the mines is shut off and consequently the workmen
E   are not paid wages. Not a single legislation enacted for the welfare
    of labour is implemented or respected. No workman can leave the
    employment until the entire debt is repaid which is beyond the
    reach of the workmen. The only way to escape the clutches of the
    contractor is for the workman to change the master who by a paper
    advance pays off the former contractor and the cycle is repeated.
F   It was alleged that the functionaries of the Labour Department of
    the Centre and the State by sheer inaction if not active collaboration
     on their part help in exploitation of the labour. It was specifically
    alleged that in the absence of a notification specifying minimum
    wages for the labour force employed in the mines the payment is
G   paultry and meagre and there is naked and unabashed exploitation of
     workmen.

          As part of social action litigation this letter was treated as a
    writ petition under Art. 32 of the Constitution and by the Order
H   dated October 7, 1982 notice was ordered to be issued to the Deputy
    Commissioner/Collector, Bhopal. The District Judge Bhopal was
    directed to proceed to the site of stone quarries at Raisen and
                   M. ADVANI v. M.P. STATE (Desai, J.)             129

ascertain the existence of bonded labour and to submit a detailed
report of the working conditions in the mines. A further direction          A
was given that the District Judge may' take assistance of Mr.
N.K. Singh who had exposed and portrayed the plight of the bonded
 labour in the 'Indian Express'. The Committee for Implementing
Legal Aid Schemes was directed to deposit Rs. l,000 with the
 Registrar of the Supreme Court to meet the expenses of the District        n
 Judge in carrying out his assignments.


        Pursuant to the afore-mentioned order, the District Judge
submitted a detailed report in which it was pointed out that the
labour force recuited from Tamil Nadu had made a complaint on
May 24, 1980 to the Secretary, Labour Department, Government of
                                                                            c
Madhya Pradesh that the quarry contractor (Abdul Rehman) was
giving inhuman treatment to Tamil labourers working in Surai
mines. This complaint was forwarded to the Superintendent of
Police, Raisen to enquire into the matter. He submitted a report
that 48 workmen from Tamilnadu have been released and they have             D
returned to Tamilnadu. On September 8, 1980 a written report was
 lodged at Police Station by seven workmen six of whom were from
 Tamilnandu, in which it was alleged that the quarry contractor
 (Hamid Khan) was harassing them by making a claim that each one
 had to repay Rs; 15,000 to Rs. 16,000 towards the advances taken           E
 by them. It was not possible to ascertain how this huge amount
 was worked out. One additional complaint was that the· workmen
 were paid less than what was agreed at the time of recruitment and
 that whenever a voice of protest was raised the workmen were
 physically belaboured. It was alleged that their movements were
 circumscribed and that they were not free to leave the employment          F
  or to move away from the habitat. Jn short they lived a captive life.
  The District Judge pointed out that on this complaint an offence was
  registered at the Police Station under Bonded Labour System
  (Abolition) Act, 1976. At the time of the report, the case was
  pending. The dilemma which the District Judge faced in the course
                                                                            G
  of enquiry was vividly described when he pointed out that when the
  workman is taken into confidence and is assured of protection he
  gives out a story of harassment and torture by the quarry con·
  tractor but when"oflicially questioned he is afraid of making necessary
   disclosures. But apart from this dichotomy, the District Judge           H
   noticed that Labour Enforcement Officer instituted two cases against
   the quarry contractor for recovery of Rs. 11,000 and odd for short
   payment tind at the lime of the report t!ie cases were vendin~.
    130                   SUPREMll COURT REPORTS       (1985) SUPPL. s.c.R.

           The District Judge further pointed out that there is a piece rate
A   method of paying wages. The piece rate ranges from Rs. 10 to
                             0
    Rs. 20 for a standard 'Khanti' which is of the size IO'x!O'xl'
    (depth). A pair consisting of a male and a female is assigned to a
    'Khanti' and after a hard·day's toil the average earning ranges between
    Rs. 5 to Rs. 10 per day out of which unanthorised and impermissible
B   deduction> are made leaving the workman very little to survive. The
    chances of not earning any tbingeven after a hard day's work were very
    high in as much as after the 'Khanti' is dug, the flagstone appears
    and that stone is to be cut nicely into slabs of specified sizes. If the
    slabs are not properly severed from the stone, the workman is not
    paid anything. The total earning also depends npon the number of
c   slabs cnt by the workman. The rate is usually around Rs. 2 per cubic
    foot. Though the Labour Department was of the view that unoffi·
    cially a workman could earn Rs. 650 per fortnight, in practice this,
    was shown to be a paper figure.

          On the enquiry by the District Judge, the contractor admitted
D   that advance payment is made to every workman and it is recovered
    by deduction from the wages earned by each workman at the time of
    payment.

          It also transpired that workmen from Tamilnadu were so har-
E   assed that on a complaint received by the- Tamilnadu Government,
    a team of the police force arrived from Tamilnadu, liberated the
    workmen and repatriated them to·Tamilnadu.

          The District Judge also found that restraints "ere put on the
    workmen leaving the job but once a quarry contractor on being
F   subjected to detailed enquiry, gave up any claim to recover the
    advances made by him, the restraints disappeared with the result that
    according to the District Judge, at the relevant time of the enquiry,
    there was no bonded labour.

           The Distriet Judge concluded that the newspaper publicity had
    a -very salutory and desired effect in as much as various contractors
    have given up efforts to recover the advances and according to the
    District Judge it was a good achievement. A note of caution is
    sounded that if the appropriate follow-up action is not taken. by the
H   District Vigilance Committee and District Magistrate to ensure
    that quarry contractors who were then making an oral announce-
    ment of giving up of advances debts of the workmen without execut-
    ing documents evidencing valid discharge, a sinister attempt ma:y
                     M. ADVANI v. M.P. STATE (Desai, J.)             131

    be made to go back upon discharge of debts and one may return to
    square one.                                                              A
          The District Judge also pointed out that there is total absence
    of implementation of the labour laws applicable to these quarries.
    It was pointed out that as the Central Government is the appropriate
    Government it has appointed only one inspector for 11 districts with
    the result that provisions of several laws beneficial to workmen are     B
    flouted with impunity. A glaring case pointed out was that provi-
    sions of the Payment of Bonus Act, 1965 would apply to some
    of the quarries proprio vigor but there is no whisper of its im-
    plementation.

          The District Judge concluded that the follow-up action as
                                                                             c
    indicated by him will relieve harassment of workmen and ameliorate
    the working conditions.

          The State of Madhya Pradesh in its counter-affidavit broadly
    admitted the findings of the learned District Judge and it is pointed    D
    out that in respect of flagstone mines, the appropriate Government
    is the Central Government. It was also pointed out that the
    Central Government has taken no steps to prescribe minimum wages
    under the Minimum wages Act.

          As the report of the District Judge showed that the workmen
    who were complaining of harassment and torture were already
    released and discharged and at the relevant time there was no
    bonded labour the Court concentrated on giving direction for taking

-   suitable steps for implementation of the labour'Jaws. lri this connec-
    tion the Court gave high priority to the statutory prescription of
    minimum wages that the quarry contractor would be bound to pay
                                                                             F

    and which would also simultaneously provides shield against unau-
    thorised deductions or exploitation by paying less than the minimum.
    With this end in view the Court directed by its order dated
    November 23, 1982 to serve notices of the petition on the State of       G
    Tamil Nadu and the Union of India.

           One Thirumati J. Anjani Dayanand, Commissioner and
    Secretary, Social Welfare Department, Government of Tamilnadu
    filed an affidavit in response to the notice issued by this Court. The   ff
    recitals therein are blood-curdling. It was pointed out that instances
    of kidnapping families of gullible illterate rural poor from various
    parts in Tami!uandu to Madhya l'radesh under the guise of providing
    132                   SUPREME COURT REPORTS        [1985) SUPPL. s.c.a.

    them· lucrative employment on attractive remuneration and then
A   unlawfully confining them as bonded labour in Raisen and other
    districts in Madhya Pradesh came to the notice of Tamilnadu Police.
    A police team thereupon from Pudu kottai visited Raisen and rescued
     II persons including 5 females during July. 1982. The police found
    that the workmen were held in bondage and that there was no
    adequate provision for food and shelter and that they were forcibly
B   detained and effectively prevented from communicating with their
    relations by tampering with their mails. The police staff which
    went to enquire in the matter received hostile treatment from the
    quarry contractors. Another police team visited Raisen on August
    20, 1982 and rescued 20 persons including 8 females belonging to
c   6 families from the quarries in Raisen district. It transpired that
    one A.L. Subramaniam and Chokkalingam of Tamilnandu, assisted
    by bis relations and in collusion with quarry contractors systemati-
    cally carried on this trade of enticing gullible poor people drawing
    rosy picture of employment and then torturing them by exploiting
    them. Ultimately a team of two police Inspectors, 3 sub-inspectors,
D   2 head-constables and 2 police constables from the Crime Branch,
    C.l.D. assisted by Armed Escort Party from Madurai were deputed
    with a demi·official letter from the Deputy Inspector General of
    Police, C.l.D. Crime Branch Madras to his counterpart in Madhya
    Pradesh seeking assistance to break this cell of slavery. We need
E   not further describe the gory details but ultimately it was pointed O\Jt
    that after these workmen were released it transpired that the in-
    human quarry contractors had bled them white. Being victims of
    total exploitation, the Chief Minister of Tamilnadu sanctioned a sum
    of Rs. 1,000 per family for the rehabilitation and till the date of tht
    affidavit, Rs. 63,000 were ipent in this behalf.
F
           By our order dated February 18, 1983 the Union oflndia was
    directed to come out with proposals setting out concrete steps to
    prescribe minimum wages on piece rate basis for various occupations
    in flagstone mines and also suggest effective steps for improving the
G   life-style of workmen working in these mines, as also the machinery
    for effective implementation.

          As the progress was analogous to slow·motion new1, Mr.
    K. 0. Bhagat, Additional Solicitor General of India appeared and
H
    assured us that Union of India would extend all co-operation to
    help the workmen and take up necessary follow-up steps.
                 i.i. ADVANi v. M.P. STATI (Des•i, J.)              133

      As the thing moved very slowly, the Court directed Union
ef India as appropriate Government to issue a preliminary                   A
notification under Sec. 5 of the Minimum Wa1;es Act, 1948
setting out its proposal for information of persons likely to be affec-
ted thereby and specifying a date not less than two months from
the date of the notification on which proposals will be taken into
consideration.                                                              B
       After taking a number of adjournments, one Bishamber Nath,
Under Secretary to the Government of India in the Department of
Labour filed his affidavit in reply on behalf of the Union af India
specifically stating therein that the question of issuing of notification
under Sec. 5 is under active consideration by the Ministry of Labour        c·
and Rehabilitation, Department of Labour. It was further pointed
out that as minimum wages are likely to be piece rate wages, it may
become necessary to appoint a Committee or pre·publication of the
proposals. It was stated that some data has to be collected and for
this purpose on a priority basis a team of officers is being sent to        D
Raisen to collect the required information. When the matter came
up before this court on Semptember 26, 1983, Mr. Gujral,, learned
counsel who appeared on behalf of the Union of India made a
statement that a preliminary notification would be issued by the
end of the first week of November, 1983. The Union of India did
take the promised action and a preliminary notification dated               E
October 31, 1983 was placed on record. The schedule to the noti-
fication sets out minimum piece rate of wages for various occupations
in flagstone mines. On April 16, 1980, a copy of the notification
 dated March 24, 1982 issued by the Government of India, Ministry
of Labour and Rehabilitation specifying the minimum wages for               F
various occupations in flagstone mines was submitted to the Court.
 There ends the first step to be taken as part of a vigorous campaign
 to eschew exploitation by persons who on account of money power
 exploit the poor and the needy. This is not the end of the journey.
It is just a beginning.
                                                                            G
      This petition must now stand disposed of because the report
of the District Judge referred to in the earlier part of this judgment
clearly shows that there is no bonded labour working in flagstone
mines at Raisen.
                                                                            H
       Undoubtedly, mines have to work in larger public and national
 interest. Therefore, in the very nature of things, there will be con-
 tractors and the workmen. Contractor as is his wont, to augment
     i34                  SUPREME COURT REPORTS       [1985] SUPPL. s.c.a.

     his profit which motivates him to take contract and who is not shown
A    to be altruistic, is bound to exploit the workmen. The notorious
     method of exploitation is, pay as much less as possible despite all
    pretentious of Minimum Wages and Payment of Wages Act, take
     work for longer hours, prohibited by beneficient statutes like the
    Mines Act, the Factories Act and like statutes. Both these when
B   jointly practised enlarges the profit. The State in discharge of its
    obligation under Arts. 38, 41, 42 and 43 must extend the umbrella
    of protection to these poor and needy and unprotected workmen
    who are unable to negotiate on terms of equality and who may
    accept any terms to stave off hunger and destitution. It is the
    State which must interpose between these two unequals to eschew
c   exploitation.

          As a first step, the notification prescribing minimum wages has
    been issued. The law which need not be restated is that no em•
    ployer can pay less than the minimnm wages. But this remains
    a paper promise unless an affective implementation machinery not
D
    overawed by these wealthy and generally unscrupulous contractors
    who can spread their tentacles over officials, is set up. We con-
    clude with a hope that such a machinery would be set up jointly by
    the Union of India and the Government of the State of
    Madhya Pradesh. With these observations, the petition stands
E   disposed of.

    S.R.