Petitioner has preferred this writ petition for a Writ of Mandamus or direction upon the respondents to pay him minimum wages and admissible allowances from the date of his initial appointment.

The basic facts relevant to the issue in question may be stated as follows;

The petitioner was appointed as a waterman by the Superintendent of Police, Rampur. A copy of the appointment letter has been placed by the petitioner on record as annexure-1 to the writ petition. It is mentioned in the appointment letter that his appointment has been made against the post which fell vacant on account of resignation of a waterman, Chhotey Lal. The salary of the petitioner is mentioned as Rs. 90/- per month on consolidated basis. The petitioner accepted the said appointment. His duty was for serving water to the persons who were put in the lock up of the collectorate at Rampur. It was also his duty to open and close the said lock up every day.

Dissatisfied with the pitiable condition of service, he made a application to the District Magistrate on 8th September, 1993 in Janata Kutchery for a direction upon the concerned authority to pay him at least minimum wages prescribed by the State Government. When his representation did not find favour from the District Magistrate, he made a representation before the Assistant Laour Commissioner, Rampur for the same relief. In response thereto, the Assistant Labour Commissioner issued a communication dated 27th October, 1993 asking the petitioner to produce the appointment letter and other documents before him. There was recital in the said communication that if his appointment was found to be made under the Rules of the Government, then no action would be possible at his end. The said communication has been placed by the petitioner on record as annexure-3 to the writ petition.

The petitioner, in reply thereto, produced all papers by way of a representation dated 28.10.1993, however, it is stated that the Assistant Labour Commissioner did not pass any order thereon. Having no option left, the petitioner preferred this writ petition under Article 226 of the Constitution. While entertaining this writ petition, no interim protection was granted to the petitioner and he is waiting patiently for the last seventeen years.

A counter affidavit has been filed by the respondents. The stand taken therein is that the appointment of the petitioner was on casual basis. In the counter affidavit, it has not been denied that the petitioner was appointed against the post of Chotey Lal. It has also not been denied that he is working regularly as a waterman and discharging his duties as such. No reason has been mentioned in the counter affidavit as to why the petitioner has not been paid minimum wages fixed by the State Government.

I have heard learned counsel for the parties.

It is stated that the petitioner was engaged as a waterman at the rate of Rs. 90/- per month. From the appointment letter issued by the Superintendent of Police, Rampur, it is evident that his appointment has been made against the vacancy caused on account of resignation of Chotey Lal. The Superintendent of Police, Rampur clearly used the word as Rikti which occurred for the aforesaid reason. The payment of Rs. 90/- per month comes at the rate of Rs. 3/- per day. It is shocking that the State Government, which should be a model employer, is engaging a person at the rate of Rs. 3 per day. An unemployed person, who has no other source of livelihood accepts such pitiable condition of service under the hope that he, after some period, will be regularized or absorbed in government service. A poor person has no bargaining power against the power of the State Government. He is not in a position to take it or to leave it the position. In fact, such employment is a sort of Begar (exploitation).

I find it helpful to extract Article 23 of the Constitution of India which enjoins rights against the exploitation which reads as under;

"23. Prohibition of traffic in human beings and forced labour- (1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

(2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them."

The Article 23 of the Constitution came to be considered by the Supreme Court in a series of the decisions. The word Begar has been considered by the Supreme Court in the case of Peoples Union for Democratic Rights v. Union of India: (1982) 3 SCC 235 [LQ/SC/1982/137] . Paragraph no. 13 of the judgment is very relevant which reads as under;

"13. ..... The question is what is the scope and ambit of the expression begar and other similar forms of forced labour " In this expression wide enough to include every conceivable form of forced labour and what is the true scope and meaning of the words forced labour " The word begar in this Article is not a word of common use in English language. It is a word of Indian origin which like many other words has found its way in the English vocabulary. It is very difficult to formulate a precise definition of the word begar but there can be no doubt that it is a form of forced labour under which a person is compelled to work without receiving any remuneration. Molesworth describes begar as "labour or service exacted by a government or person in power without giving remuneration for it." Wilsons glossary of Judicial and Revenue Terms gives the following meaning of the word begar: "a forced labourer, one pressed to carry burthens for individuals or the public. Under the old system, when pressed for public service, no pay was given. The Begari, though still liable to be pressed for public objects, now receives pay"

The Supreme Court rejected the submission that a person who has accepted with open eyes the terms of contract of the employment can be compelled to the said term. The Supreme Court has observed in the following terms;

"Moreover, in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, a contract of service may appear on its face voluntary but it may, in reality, be involuntary, because while entering into the contract, the employee, by reason of his economically helpless condition, may have been faced with Hobsons choice, either to starve or to submit to the exploitative terms dictated by the powerful employer. It would be a travesty of justice to hold the employee in such a case to the terms of the contract and to compel him to serve the employer even though he may not wish to do so. That would aggravate the inequality and injustice from which the employee even otherwise suffers on account of his economically disadvantaged position and lend the authority of law to the exploitation of the poor helpless employee by the economically powerful employer. Article 23 therefore says that no one shall be forced to provide labour or service against his will, even though it be under a contract of service."

The Minimum Wages Act, 1948 has been enacted with the object to provide for fixing minimum rates of wages in certain employment. Section 2 (h) of the Act defines the Wages. It provides that all remuneration capable of being expressed in terms of money and it does not include the value of any house accommodation, supply of light, water, medical attendance etc. Section 2 (h) of the Act reads as under;

"2 (h)- Wages means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment [ and includes house rent allowance], but does not include-

(i) the value of

(a) any house accommodation, supply of light, water, medical attendance, or

(b) any other amenity or any service excluded by general or special order of the appropriate Government;

(ii) any contribution paid by the employer to any pension fund or Provident Fund or under any scheme of social insurance;

(iii) any traveling allowance or the value of any traveling concession;

(iv) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or

(v) any gratuity payable on discharge;

Section 2 (i) deals with "employee". It provides that any person who is employed for hire or reward to do any work, skilled or unskilled, manual or clerical, in a scheduled employment in respect of which minimum rates of wages have been fixed. The scheduled employment means an employment specified in the schedule, or any process or branch of work forming part of such employment.

The purpose of Minimum Wages has already been explained by the Supreme Court in the above noted cases. In any view of the matter, a person who is doing in manual work in the department is also entitled for the minimum wages. The concept of the minimum wages has been considered by the Supreme Court in Express Newspaper (P) Limited Vs. Union of India 1959 SCR 12. [LQ/SC/1958/26] The following paragraphs are illustrative.

"51- This is the concept of the "minimum wage" adopted by the Committee on Fair Wages. There are, however, variations of that concept and a distinction has been drawn for instance in Australian industrial terminology between the basic wage and the, minimum wage:

"The basic wage there approximates to a bare minimum subsistence wage and no normal adult male covered by an award is permitted to work a full standard hours week at less than the assessed basic wage rate. The basic wage is expressed as the minimum at which normal adult male unskilled workers may legally be employed, differing from the amounts fixed as legal minima for skilled and semi-skilled workers, piece workers and casual workers respectively.... The minimum wage is the lowest rate at which members of a specified grade of workers may legally be employed."

53. It will be noticed that the "fair wage" is, thus, a mean between the living wage and the minimum wage and even the minimum wages contemplated above is something more than the bare minimum or subsistence wage which would be sufficient to cover the bare physical needs of the worker and his family, a wage which would provide also for the preservation of the efficiency of the worker and for some measure of education, medical requirements and amenities,

54. This concept of minimum wage is in harmony with the advance of thought in all civilized countries and approximates to the statutory minimum wage which the State should strive to achieve having regard to the Directive Principle of State policy mentioned above.

55. The enactment of the Minimum Wages Act, 1948 (11 of 1948) affords an illustration of an attempt to provide a statutory minimum wage. It was an Act to provide for fixing minimum rates of wages in certain employments and the appropriate Government was thereby empowered to fix different minimum rates of wages for(i) different scheduled employments; (ii) different classes of work in the same scheduled employment; (iii) adults, adolescents, children and apprentices; and (iv) different localities; and (j) such minimum rates of wages could be fixed by the hour, by the day or by any larger period as may be prescribed.

56. It will also be noticed that the content of the expressions " minimum wage" "fair wage" and "living wage" is not fixed and static. It varies and is bound to vary from time to time. With the growth and development of national economy, living standards would improve and so would our notions about the respective categories of wages expand and be more progressive."

Submission of learned Standing Counsel that the police department does not have sufficient fund to pay the minimum wages to a contractual employees hardly merit acceptance.

The similar submission was made in the case of Mahatma Phule Agricultural University VS. Nasik Zilla Sheth Kamgar Union, (2001) 7 SCC 346 [LQ/SC/2001/1478] . The Supreme Court observed as under;

"19. It was submitted by Mr. Bobde that the Universities has no funds to make payments. He submitted that it is the State Government who would have to make payment. The State government is also present before this Court. There can be no justification in the State Government not making available the required funds."

The State should be model employer. It is not expected from the State that it will take advantage from less fortunate and vulnerable section of society, who are living in pitiable condition. If such shocking facts are brought to the notice of the Court, it would not shirk from its constitutional duty to strike at arbitrary and unjustifiable action of State functionaries.

I am tempted to quote a relevant observation of the Supreme Court in the case of Delhi Jal Board Vs. National Campaign for Dignity & Rights of Sewerage & Allied Workers, (2011) 8 SCC 568 [LQ/SC/2011/889] albeit in different context which is as follows;

The rule of law does not mean that the protection of the law must be available only to a fortunate few or that the law should be allowed to be prostituted by the vested interests for protecting and upholding the status quo under the guise of enforcement of their civil and political rights. The poor too have civil and political rights and the rule of law is meant for them also, though today it exists only on paper and not in reality. If the sugar barons and the alcohol kings have the fundamental right to carry on their business and to fatten their purses by exploiting the consuming public, have the chamars belonging to the lowest strata of society no fundamental right to earn an honest living through their sweat and toil The former can approach the courts with a formidable army of distinguished lawyers paid in four or five figures per day and if their right to exploit is upheld against the Government under the label of fundamental right, the courts are praised for their boldness and courage and their independence and fearlessness are applauded and acclaimed. But, if the fundamental rights of the poor and helpless victims of injustice is sought to be enforced by public interest litigation, the so-called champions of human rights frown upon it as waste of time of the highest court in the land, which, according to them, should not engage itself in such small and trifling matters.........

..............Large numbers of men, women and children who constitute the bulk of our population are today living a subhuman existence in conditions of abject poverty; utter grinding poverty has broken their back and sapped their moral fibre. They have no faith in the existing social and economic system.

Bearing in mind the law laid down in the aforesaid cases of the Supreme Court, the action of the State paying Rs. 3/- per day as wages to the petitioner is deplorable and shock the conscience of the Court. The petitioner is entitled for minimum wages fixed by the State Government. Therefore, respondents are directed to make payment of differences of the wages to the petitioner from the date of his initial appointment upto the period he has worked within four months from the date of communication of this order.

Needless to say that this Court has adjudicated the issue only with respect to the Minimum Wages and has not considered the claim of the petitioner in any way for absorption or regularization. He may pursue the said relief independently and in accordance with law.

The writ petition is disposed of finally.

No order as to costs.