PHOOL KUMARIversusOFFICE OF THE SUPERINTENDENT CENTRAL JAIL, TIHAR, NEW DELHI AND ANR.

                     [2012] 7 S.C.R. 951


                       PHOOL KUMARI                                 A
                               V.
  OFFICE OF THE SUPERINTENDENT CENTRAL JAIL,
            TIHAR, NEW DELHI AND ANR.
          (Criminal Appeal No.1186 ·of 2012)
                                                                    B
                      AUGUST 09, 2012

      [P. SATHASIVAM AND RANJAN GOGOi, JJ.]

     Prisoners: Employment of - Payment of wages -
Conviction of appellant u/ss.323, 342, 307 read with s.34, /PC      C
and rigorous imprisonment (RI) for 10 years - Sentence
reduced by High Court to 5 years - Appellant remaining in jail
from 24.03.2007 to 23.12.2010 i.e., for a period of 3 years and
10 months after grant of remission - During this period, she
was allotted work in Medical Inspection (Ml) room as 'Sewadar'      D
(Assistant) for assisting the Doctors in OPD of Jail and also
taking care of the cleanliness of the said room till her release
- In 2009, claim made by appellant through her husband for
payment of wages for the work done during her custody in
prison - Claim rejected - Complaint before the visiting Judge,      E
Additional Sessions Judge (ASJ) for release of wages also
rejected - Petition u/s.482, Cr.P.C. before High Court for
quashing the order passed by the visiting Judge (ASJ) and
also for the release of her wages - High Court disposing of
the petition taking note of the fact that the appellant was         F
already released from jail and relying upon the affidavit filed
on behalf of the DIG (Prisons) stating therein that the appellant
performed soft Jabour work during her period in jail and
whenever the appellant was given hard labour work, she had
drawn wages for that period - On appeal, held: It was definite      G
case of jail authorities that for the work done, the appellant-
convict was paid wages as per the circulars/orders applicable
to her and in this regard ledger containing her signatures was
produced - Contra stand of appellant-convict that she did not
                              951                                   H
    952      SUPREME COURT REPORTS                 [2012] 7 S.C.R.


A   put her signatures as shown in the ledger - In view of the
    conflicting stand by both the sides and assertion of the
    appellant about her signature and certain entries in the
    Ledger, in order to do substantial justice, the appellant is
    permitted to make a fresh representation to the visiting Judge
B   giving all the details about the work done during the period
    of custody within a period of 4 weeks - On receipt of
    representation, the visiting Judge would inspect and peruse
    the Ledgers/documents with the assistance of the jail
    authorities in the presence of the appellant duly assisted by
c   Supreme Court Legal Services Committee and pass an order
    within a period of 3 months thereafter - The said decision would
    l5?r-cemmunicated to the appellant and the respondent-Jail
    Authorities - In the ultimate inquiry, if it is found that the
    appellant is entitled to any amount in addition to the amount
    already settled as wages, the same shall be paid within tJ
0
    period of 4 weeks thereafter.

          Sentence/sentencing: Types of Imprisonment - Held:
    s. 53 of the /PC defines 5 kinds of punishment which includes
    punishment for life and two other kinds of imprisonment i.e.,
E   rigorous and simple imprisonment - Rigorous imprisonment
    is one which is required by law to be completed with hard
    labour - A person sentenced to simple imprisonment cannot
    be required to work unless he volunteers himself to do the work
    - But the Jail officer who requires a prisoner sentenced to
F   rigorous imprisonment to do hard labour would be doing so
    as enjoined by law and mandated by the court - The
    undertrials are not required to work in Jail - Delhi Prisons Act,
    2000 - s.36 - Penal Code, 1860 - s.53.

G       State of Gujarat & Anr. vs. Hon'ble High Court of Gujarat
    (1998) 7  sec 392 - retied on.

        Delhi Prisons (Transfer of Prisoners, Labour and Jail
    Industry, Food, Clothings and Sanitation) Rules, 1988:

H         r.43 - Classification of Labour - Held: r. 43 classifies
PHOOL KUMARI v. OFFICE OF THE SUPERINTENDENT 953
        CENTRAL JAIL, TIHAR, NEW DELHI

labour into three classes, namely, Hard Labour, Medium             A
Labour and Light Labour - Hard Labour is further divided into
three categories; skilled, semi-skilled and unskilled - The
Inspector General may, with the sanction of the Delhi
Administration from time to time, prescribe the description of
works to be carried out and the tasks to be fixed tor labour in    B
respect of each class - Since the Delhi Jail Manual does not
give detailed description as to what kind of work/task will fall
under which category of labour, the Jail Authorities rely upon
the Punjab Jail Manual framed under the Prisons Act, 1894
for determining the same - Prisons Act, 1894.                      c
     r. 45 - Convicts - Work given to male and female convicts
- Distinction between - Held: Under r. 45, female convicts shall
not, in any case, exceed two third of the maximum task for
hard labour and medium labour, respectively, prescribed in
respect of adult male convicts.                                    D

     Delhi Prisons Act, 2000:

     Chapter VII - Employment of Prisoners - Held: s.35 of the
Act deals with employment of criminal prisoners - Sub-section      E
(1) states that a criminal prisoner desiring to be employed on
labour, may be employed with the permission of the
Superintendent, subject to such restrictions as may be
prescribed in the rules made under this Act - Sub-section (2)
states that no criminal prisoner sentenced to labour or
                                                                   F
employed on labour at his own desire shall, except on an
emergency, with the sanction in writing of the Superintendent
be kept to labour for more than 8 hours in a day - Sub-
sections (3) and (4) deal with medical examination and check-
up and the placement of criminal prisoners on work based on
their health - The Office of the Director General (Prisons},       G
Prison Headquarters, Tihar, New Delhi, released Standing
Order 38 bearing No.F.10(7832)/CJ/Legal/201212626 dated
24.05.2012 laying down rules relating to the employment of
convicts for the guidance of the prison staff in accordance with
the provisions mentioned in the Delhi Jail Manual - Delhi          H
    954      SUPREME COURT REPORTS                  [2012] 7 S.C.R.


A Prisons (Definition) Rules, 1988 - r.2(k).

        Wages paid to prisoners - Determination of - Tihar Jail,
  Delhi - Held: The rate of wages provided to convicts in Tihar
  Jail is prepared by a Wage Fixation Committee constituted
  by Government of NCT of Delhi - The Committee decides
8
  wages keeping in view the present economic scenario,
  minimum wages notified by the Govt. of Delhi for workers, the
  expenses on the upkeep of a prisoner and deduction towards
  the Welfare Fund - The scale of wages paid to prisoners in
  various States is also taken into consideration - The
C Committee also considers the criteria for wages as prescribed
  in Model Prison Manual for the superintendence and
  management of prisons in India formulated by the Bureau of
  Police Research and Development (BPR&D), Ministry of
  Home Affairs, Government of India.
D
                          Case Law Reference:
          (1998) 1   sec 392          relied on           Para 9

      CRIMINAL APPElLATE JURISDICTION : Criminal Appeal
E No. 1186 of 2012.

        From the Judgment and Order dated 19.05.2011 of the
    High Court of Delhi at New Delhi in Criminal Misc. Case No.
    2243 of 2010.
F         Prachi Bajpai for the Appellant.

       Sidharth Luthra, ASG, T.A. Khan, Sidharth Dave, Amit
    Kumar, B.V. Bairam Das, Anil Katiyar for the Respondents.

          The Order of the Court was delivered by
G
          P. SATHASIVAM, J. 1. Leave granted.

        2. This appeal is directed against the final order dated
    19.05.2011 passed by the High Court of Delhi at New Delhi in
H
PHOOL KUMAR! v. OFFICE OF THE SUPERINTENDENT 955
CENTRAL JAIL, TIHAR. NEW DELHI [P. SATHASIVAM, J.]

Criminal Misc. Case No. 2243 of 2010 whereby the High Court        A
disposed of the petition filed by the appellant herein.

    3. Brief facts:

     (i) The appellant was convicted by the trial Court in case
FIR No. 487 of 1995 under Sections 323, 342, 307 read with B
Section 34 of the Indian Penal Code, 1860 (in short 'IPC') and
sentenced to rigorous imprisonment (RI) for 10 years and,
thereafter, the High Court, in an appeal filed by the appellant,
reduced the period of sentence to 5 years. The appellant
remained in Tihar Central Jail, New Delhi from 24.03.2007 to C
23.12.2010 i.e., for a period of 3 years and 10 months after
grant of remission. During this period, she was allotted work
in Medical Inspection (Ml) room as 'Sewadar' (Assistant) for
assisting the Doctors in OPD of Jail No. 6. Apart from that, she
was also taking care of the cleanliness of the said room till her D
release.

      (ii) In the year 2009, the appellant, through her husband,
filed an application before the Superintendent of Jail for the
payment of wages for the work done during her custody in           E
prison but the same was rejected. Aggrieved by the same, he
filed a complaint before the visiting Judge, Additional Sessions
Judge (ASJ) for the release of wages for the work done by his
wife. After perusing the documents on record, by order dated
08.04.2010, the visiting Judge (ASJ) rejected the said             F
complaint.

      (iii) Aggrieved by the said order, the appellant filed a
petition under Section 482 of the Code of Criminal Procedure,
1973 (in short 'the Code') before the High Court of Delhi for
quashing the order dated 08.04.2010, passed by the visiting G
Judge (ASJ) and also prayed for the release of her wages. The
High Court, by impugned order dated 19.05.2011, disposed
of the petition taking note of the fact that the appellant has
already been released from jail and relying upon the affidavit
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    956      SUPREME COURT REPORTS                   [2012] 7 S.C.R.


A   filed on behalf of the DIG (Prisons) stating therein that the
    prisoners who perform hard labour are given the wages and
    the appellant performed soft labour work during her period in
    jail and whenever the appellant was given hard labour work, she
    had drawn wages for that period.
B
        (iv) Challenging the said order, the appellant has filed this
    appeal by way of special leave before this Court.

        4. Heard Ms. Prachi Bajpai, learned counsel for the
    appellant and Mr. Sidharth Luthra, learned Additional Solicitor
C   General for the respondents.

         5. Ms. Prachi Bajpai, learned counsel for the appellant,
    after taking us through the entire materials including the
    impugned order of the High Court, submitted that inasmuch as
D   the convicts working in M.I. Room of another Jail were getting
    payments for the same work, the appellant was denied and
    paid wages only for few months which aspect has not been
    considered by the High Court. According to the learned
    counsel, the Jail Authorities and the High Court failed to
E   appreciate that the appellant was throughout engaged in M.I.
    room for assisting doctors in OPD and was taking care of the
    cleanliness till her release, hence, she is entitled for wages in
    terms of various Government Orders for the said period.

          6. On the other hand, Mr. Sidharth Luthra, learned ASG
F   after placing relevant circulars/instructions/orders applicable to
    various types of prisoners, their eligibility, entitlement of wages
    for their work and details about the work done and wages paid
    to the appellant submitted that she was paid as per the rules
    and she is not entitled to any further amount.
G
          7. We have considered the rival submissions and perused
    all the relevant materials. In order to understand the case better,
    it is useful to refer certain relevant provisions applicable to the
    prisoners in Delhi.

H
PHOOL KUMARI v. OFFICE OF THE SUPERINTENDENT 957
CENTRAL JAIL, TIHAR, NEW DELHI [P. SATHASIVAM, J.]

Types of Imprisonment                                                  A

       Section 53 of the IPC defines 5 kinds of punishment which
includes punishment for life and two other kinds of imprisonment
i.e., rigorous and simple imprisonment. Rigorous imprisonment
is one which is required by law to be completed with hard
                                                                       8
labour. Section 36 of the Delhi Prisons Act, 2000 prescribes
that the convicts sentenced to simple imprisonment shall be
employed only so long as they desire but cannot be punished
for neglect of work.

     A person sentenced to simple imprisonment cannot be               C
required to work unless he volunteers himself to do the work.
But the Jail officer who requires a prisoner sentenced to
rigorous imprisonment to do hard labour would be doing so as
enjoined by law and mandated by the court. [Vide State of
Gujarat & Anr. vs. Hon'ble High Court of Gujarat, (1998) 7             D
sec 392].
     Thus, while a person sentenced to simple imprisonment
has the option of choosing to work, a person sentenced to
rigorous imprisonment is required by law to undergo hard
                                                                       E
labour. The undertrials are not required to work in Jail.

Classification of Labour

      Rule 43 of the Delhi Prisons (Transfer of Prisoners, Labour
and Jail Industry, Food, Clothings and Sanitation) Rules, 1988         F
(in short 'the Delhi Prisons Rules') classifies labour into three
classes, namely, Hard Labour, Medium Labour and Light
Labour. Hard Labour is further divided into three categories;
skilled, semi-skilled and unskilled. The Inspector General may,
with the sanction of the Delhi Administration from time to time,       G
prescribe the description of works to be carried out and the
tasks to be fixed for labour in respect of each class. It is brought
to our notice that since the Delhi Jail Manual does not give
detailed description as to what kind of work/task will fall under
which category of labour, the Jail Authorities rely upon the           H
    958     SUPREME COURT REPORTS                [2012] 7 S.C.R.


A   Punjab Jail Manual framed under the Prisons Act, 1894 for
    determining the same.

    Distinction between work given to male and female
    convicts:
8
         Under Rule 45 of the Delhi Prisons Rules, female convicts
    shall not, in any case, exceed two third of the maximum task
    for hard labour and medium labour, respectively, prescribed in
    respect of adult male convicts.

C Employment of Prisoners

       Chapter VII of the Delhi Prisons Act, 2000, deals with the
  "Employment of Prisoners". Under Rule 2(k} of the Delhi
  Prisons (Definition) Rules, 1988, a convict is described as a
D Criminal prisoner.

       Section 35 of the Delhi Prisons Act, 2000 deals with
  employment of criminal prisoners. Sub-section (1) states that
  a criminal prisoner desiring to be employed on labour, may be
  employed with the permission of the Superintendent, subject
E to such restrictions as may be prescribed in the rules made
  under this Act.

       Sub-section (2) states that no criminal prisoner sentenced
  to labour or employed on labour at his own desire shall, except
F on an emergency, with the sanction in writing of the
  Superintendent be kept to labour for more than 8 hours in a
  day.

      Sub-sections (3) and (4) deal with medical examination
  and check-up and the placement of criminal prisoners on work
G based on their health.

       The Office of the Director General (Prisons), Prison
  Headquarters, Tihar, New Delhi, released Standing Order 38
  bearing No.F.10(7832)/CJ/Legal/2012/2626 dated 24.05.2012
H laying down rules relating to the employment of convicts for the
PHOOL KUMARI v. OFFICE OF THE SUPERINTENDENT 959
CENTRAL JPJL, TIHAR, NEW DELHI [P. SATHASIVAM, J.]

guidance of the prison staff in accordance with the provisions       A
mentioned in the Delhi Jail Manual.

Determination of wages:
     The rate of wages provided to convicts in Tihar Jail is
prepared by a Wage Fixation Committee constituted by the             B
Principal Secretary (Home), Government of NCT of Delhi. The
said Committee comprises of: (i) DIG (Prisons) as
Chairperson, (ii) Dy. Secretary (Finance expenditure) and (iii)
Deputy Commissioner of Labour as Members.
     The Committee decides wages keeping in view the                 C
present economic scenario, minimum wages notified by the
Govt. of Delhi for workers, the expenses on the upkeep of a
prisoner and deduction towards the Welfare Fund. The scale
of wages paid to prisoners in various States was also taken
into consideration.                                                  D
      The Committee also considers the criteria for wages as
prescribed in Model Prison Manual for the superintendence and
management of prisons in India formulated by the Bureau of
Police Research and Development (BPR&D), Ministry of Home
Affairs, Government of India. It also takes into consideration the   E
rate of minimum wages notified by the Delhi Govt. in the
notification dated 18.03.2011 which is as under:-

 Category         Rates          Revised rates from 01.02.2011
                  w.e.f.         Per month           (Per day)       F
                  01.02.2010
                  (Rupees)

  Unskilled        5278.00            6084.00          234.00
                                                                     G
 Semi-skilled      5850.00            6734.00          259.00

 Skilled           6448.00            7410.00          285.00

     The office of the Director General (Prisons), Prison            H
    960     SUPREME COURT REPORTS                [2012] 7 S.C.R.


A   Headquarters. Tihar, New Delhi, released Standing Order- 10
    bearing No. PS/DG(P)/2011/902-911 dated 27.07.2011
    regarding the revision of wages to the convicts. The following
    is the latest wage structure for the prisoners.

     Remuneration Wages Wages credited to the Net Payable
B
                         Welfare Fund

     Unskilled - 70.00              18.00               52.00

     Semi-skilled - 81.00           20.00               61.00
c
     Skilled - 99.00                25.00                74.00

    Details of the appellant relating to her custody
       The appellant was convicted by the trial Court in case FIR
D No. 487 of 1995 under Sections 323, 342, 307 read with
  Section 34 IPC and sentenced to RI for 10 years. Thereafter,
  the High Court of Delhi reduced the sentence of the appellant
  to RI for 5 years. The appellant was admitted in jail on
  24.03.2007 and subsequently released on 23.12.2010. The
E total period undergone by the appellant in custody is 3 years
  10 months after grant of remission. During this period, the
  appellant was assigned work in Ml room as Sewadar which
  includes assisting Doctors in OPD and 'Mulhiza' and for
  additional labour allotted to her, she was paid wages at Rs. 44
F for 8 hours.
       8. By placing relevant certificates/orders/statement of
  accounts, learned ASG has brought to our notice that the
  appellant was allotted hard labour for the period w.e.f.
  September, 2009 to March, 2010 and the wages were duly paid
G to her in accordance with the rates prevalent for the
  aforementioned period. In support of the above claim, he also
  produced a copy of the Jail Account Ledger Statement relating
  to the wages prevalent at that time. In addition to the above
  information, learned ASG has also placed the relevant accounts
H relating to payment of wages duly acknowledged by the
PHOOL KUMARI v. OFFICE OF THE SUPERINTENDENT 961
CENTRAL JAIL, TIHAR, NEW DELHI [P. SATHASIVAM, J ]

appellant. On the other hand, Ms. Prachi Bajpai, learned counsel     A
for the appellant, while accepting various circulars/orders
issued by the Government/Jail Authorities, strongly denied the
claim that the appellant had been paid wages for the whole
period she worked. In other words, according to the counsel,
except for the period October-December, 2009 and January,            B
2010 for her work in M.I. room, she was not paid for any other
period. It is also the stand of the counsel for the appellant that
even for the said period, the appellant was paid only due to the
interim orders passed by the High Court. Learned counsel for
the appellant also refuted the claim of signatures in the Ledger     c
produ,ced by learned ASG during the course of hearing. She
also pointed out that the appellant-convict did not put her
signature as shown in the Ledger which was produced before
this Court. She also pointed out that except for the above
mentioned period, she was not paid any amount, though
                                                                     0
according to her, she attended all kinds of work in M.I. room.
She also pointed out that the stand taken by the Jail Authorities
before the visiting Judge (ASJ), High Court and before this
Court is contradictory in nature and cannot be accepted. Finally,
learned counsel for the appellant asserted that the stand of the
                                                                     E
Jail Authorities that the appellant had been paid all her wages
is blatantly wrong and not acceptable.

     9. In the earlier part of our order, we have highlighted
various provisions applicable to convicts in prison, particularly,
in Tihar Jail. It is the simple case of the appellant that during    F
her actual custody, viz., 3 years 10 months, she was assigned
work in M.I. room as Sewadar (Assistant) which includes
assisting Doctors in OPD and 'Mulhiza' and additional labour
was also allotted to her and except for the above mentioned
period, she was not paid any wages. On the other hand, it is         G
the definite case of the jail authorities that for the work done,
the convict had been paid wages as per the circulars/orders
 applicable to her.

     10. In view of the conflicting stand taken by both the sides    H
    962      SUPREME COURT REPORTS                    [2012] 7 S.C.R.


A and assertion of the appellant about her signature and certain
  entries in the Ledger, in order to do substantial justice, we
  permit the appellant to make a fresh representation to the
  visiting Judge giving all the details about the work done during
  the period of custody within a period of 4 weeks from today.
B On receipt of the representation, we direct the visiting Judge
  to inspect and peruse the Ledgers/documents with the
  assistance of the jail authorities in the presence of the appellant
  duly assisted by Supreme Court Legal Services Committee,
  preferably, Ms. Prachi Bajpai, and pass an order within a
c period of 3 months thereafter. The said decision has to be
  communicated to the appellant and the respondent-Jail
  Authorities. In the ultimate inquiry, if it is found that the appellant
  is entitled to any amount in addition to the amount already
  settled as wages, the same shall be paid within a period of 4
  weeks thereafter. It is further made clear that except highlighting
0
  the grievance of the appellant and various circulars/orders of
  the Jail Authorities, we have not expressed anything on the
  merits of the claim of either party.

          11. The appeal is disposed of with the above direction.
E
    B.B.B.                                       Appeal disposed of.