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Judgment
K. Chandru, J.—Heard both sides.
The Petitioner is the Tiruchirappalli North Sarvodhaya Sangam represented by its Secretary. They have come forward to challenge the order of
the State Government viz., the first and second Respondents, dated 17.12.2008, in refusing to consider the exemption application made by the
Petitioner Sangam dated 11.05.2007 from the application of the Minimum Wages Act, 1948.
The Petitioner sought for exemption u/s 26 of the Minimum Wages Act. u/s 26 of the Minimum Wages Act, the Government can grant
exemption from the application of the Minimum Wages Act subject to certain conditions. It is a claim of the Petitioner that they are not profit
making organization registered under the Societies Registration Act and it is only carrying out the charitable activities. The said Sangam is founded
on the basis of the Gandhian ideology and therefore, they should have been granted exemption from the provisions of the Act. It is further
contended that they are not indulging in any manufacturing activity and their activities are connected with villagers and the poor people and the
same will come under the definition of cottage industries and therefore, the Act will not apply.
It is unnecessary to go into the question whether the provisions of the Minimum Wages Act are applicable to the Petitioner institution or not. The
fact that the Petitioner had applied to seek exemption from the provisions of the particular Act by itself proves that the provisions of the Act will
apply to the Petitioner Sangam. The Petitioner cannot contend both ways, on the one hand the Act will not apply, on the other hand they should
seek exemption from the provisions of the Act. They cannot blow hot and cold in the matter of application of an enactment. The Supreme Court
vide in the judgment in State of T.N. represented by Secretary, Housing Deptt., Madras Vs. K. Sabanayagam and Another, , has held that the fact
that an exemption is sought for from a particular labour enactment by itself proves that the provisions of the Act will apply to such an institution. In
the very same judgment, the Supreme Court has also held that while the employer seeks for exemption from the labour enactment, they should
necessarily make the workmen also party to such an exemption application, because ultimately it is they, who will be affected by the grant of such
an exemption.
The first question regarding the non-application of the Act must fail. The second question, since they are doing charitable work based on the
Gandhian ideology, whether the provisions of the Act are to be exempted also cannot be countenanced by this Court. A payment of minimum
wage is only rock bottom of the wage scale and no employer can be allowed to pay less than the minimum wage, because the right to carry on
business or trade is subject to reasonable restrictions and if the employer did not pay the minimum wage, as contemplated under Law, he has no
right to exist.
The Supreme Court vide the judgment in Chandra Bhavan Boarding and Lodging, Bangalore Vs. The State of Mysore and Another, has held
that an employer, who do not pay the minimum wage, has no right to exist. On the question that whether the particular institution is involved in
charitable activity or they indulge in social service by itself can be a ground for grant of exemption, also came to be considered by the Supreme
Court vide the judgment in Sanjit Roy Vs. State of Rajasthan, . In paragraph No. 4 of the said judgment, dealing with the exemption obtained by
the Rajasthan Government in relation to the employment in famine relief work, the Supreme Court negatived the contention made by the Rajasthan
Government. It was also held that the fact that certain relief works carried out cannot be a ground to get exemption and the non-payment of
minimum wage would amount to forced the Labour which would be violative of Article 23 of the Constitution of India. In the light of the same, the
Rajasthan Act was struck down. Therefore, it is necessary to extract paragraph No. 4 of the said judgment reported in Sanjit Roy Vs. State of
Rajasthan, which reads as follows:
If this be the correct position in law, it is difficult to see how the constitutional validity of the Exemption Act insofar as it excludes the applicability
of the Minimum Wages Act, 1948 to the workmen employed in famine relief works can be sustained. Article 23, as pointed out above, mandates
that no person shall be required or permitted to provide labour or service to another on payment of anything less than the minimum wage and if the
Exemption Act, by excluding the applicability of the Minimum Wages Act, 1948, provides that minimum wage may not be paid to a workman
employed in any famine relief work, it would be clearly violative of Article 23. The Respondent however contended that when the State undertakes
famine relief work with a view to providing help to the persons affected by drought and scarcity conditions, it would be difficult for the State to
comply with the labour laws, because if the State were required to observe the labour laws, the potential of the State to provide employment to the
affected persons would be crippled and the State would not be able to render help to the maximum number of affected persons and it was for this
reason that the applicability of the Minimum Wages Act, 1948 was excluded in relation to workmen employed in famine relief work. This
contention, plausible though it may seem is, in my opinion, unsustainable and cannot be accepted. When the State undertakes famine relief work it
is no doubt true that it does so in order to provide relief to persons affected by drought and scarcity conditions but, nonetheless, it is work which
enures for the benefit of the State representing the society and if labour or service is provided by the affected persons for carrying out such work,
there is no reason why the State should pay anything less than the minimum wage to the affected persons. It is not as if a dole or bounty is given by
the State to the affected persons in order to provide relief to them against drought and scarcity conditions nor is the work to be carried out by the
affected persons worthless or useless to the society so that under the guise of providing work what the State in effect and substance seeks to do is
to give a dole or bounty to the affected persons. The court cannot proceed on the basis that the State would undertake by way of famine relief
work which is worthless and without utility for the society and indeed no democratic State which is administered by a sane and sensible
government would do so because it would be sheer waste of human labour and resource which can usefully be diverted into fruitful and productive
channels leading to the welfare of the community and creation of national asset or wealth. It is difficult to appreciate why the State should require
the affected persons to provide labour or service on work which is of no use to the society, instead of simply distributing dole or bounty amongst
the affected persons. There is no reason why the State should resort to such a camouflage. The presumption therefore must be that the work
undertaken by the State by way of famine relief is useful to the society and productive in terms of creation of some asset or wealth and when the
State exacts labour or service from the affected persons for carrying out such work, for example, a bridge or a road, which has utility for the
society and which is going to augment the wealth of the State, there can be no justification for the State not to pay the minimum wage to the
affected persons. The State cannot be permitted to take advantage of the helpless condition of the affected persons and extract labour or service
from them on payment of less than the minimum wage. No work of utility and value can be allowed to be constructed on the blood and sweat of
persons who are reduced to a state of helplessness on account of drought and scarcity conditions. The State cannot under the guise of helping
these affected persons extract work of utility and value from them without paying them the minimum wage. Whenever any labour or service is
taken by the State from any person, whether he be affected by drought and scarcity conditions or not, the State must pay, at the least, minimum
wage to such person on pain of violation of Article 23 and the Exemption Act insofar as it excludes the applicability of the Minimum Wages Act,
1948 to workmen employed on famine relief work and permits payment of less than the minimum wage to such workmen, must be held to be
invalid as offending the provisions of Article 23. The Exemption Act cannot in the circumstances be relied upon by the Respondent as exempting it
from the liability to pay minimum wage to the workmen engaged in the construction work of Madanganj-Harmara Road.
In the light of the above, there is no case made out to entertain the present writ petition. Hence, the writ petition stands dismissed. Consequently,
connected miscellaneous petition stands closed. There is no order as to cost.