1. Petitioner No. 1 is a Trade Union registered under the Trade Unions Act, 1926. The Union has as its members agricultural workers employed in the District of Ahmednagar. Petitioners Nos. 2 and 3 are agricultural labourers in Shrirampur Tahsil of Ahmednagar District and they work on Employment Guarantee Scheme works since last many years. In this petition, the petitioners have mainly challenged the provisions of S. 7(2)(vii) of the Maharashtra Employment Guarantee Act, 1977 and have prayed for a declaration that the provision in S. 7(2)(vii) to the extent it provides for payment of total wages for EGS work equal to the minimum wage for the agricultural labourer in the Lowest Zone fixed by the State Government from time to time is ultra vires of Arts. 14 and 23 of the Constitution of India. That the task rates which are fixed for EGS works for Government Resolution, dated 18th March, 1983 are not fixed as per the provisions in S. 7(2)(vii) of the Act, and therefore, the said rates fixed by the Government Resolution, dated 22nd April, 1981 should be uniformly increased by at least 50% in view of the increase by 50% in the minimum wage for agricultural labourers. The petitioners have then prayed for a declaration that the sum of rupee one fixed as an unemployment allowance under S. 8(4) of the Act is violative of Art. 21 of the Constitution of India and should be re-fixed to enable the bare survival of the workmen who re not provided with work under the EGS. According to the petitioner, this unemployment allowance should be on par with the minimum wage for agricultural worker fixed for the respective zones or that it should at least bear a rational relation with the minimum wage. The petitioners have also prayed for a direction to the Collector, respondent No. 2 to pay to 242 workmen, who were not provided employment under the Employment Guarantee Scheme, an unemployment allowance for the relevant period.
2. It is admitted position that the rates were fixed for the first time for EGS works by Government Resolution dated 14th February, 1975. These task rates were revised by Government Resolution, dated 3rd March, 1976. Obviously, this was under the Scheme known as Maharashtra Employment Guarantee Scheme. Thereafter in the year 1977 the Maharashtra Employment Guarantee Act came to be enacted. Government Notification fixing the minimum wage for the agricultural labour in the different zones was issued on 28th October, 1978. Though the present enactment was enacted in the year 1977, it was published in the Maharashtra Government Gazette on 3rd October, 1978 and came into force with effect from 26th January, 1979. On 22nd April, 1981 the planning department of the Government of Maharashtra fixed the schedule of rates for EGS works. Thereafter on 31st January, 1983 the Government of Maharashtra issued a notification revising the minimum rates of wages for agricultural workers. By this notificationthe minimum rates of wages fixed zonewise, and the minimum wage for unskilled employees in the Lowest Zone, that is Zone Four is fixed at Rs. 6.00 per day. On 18th March, 1983 the Government of Maharashtra revised the task rates, It is then the case of the petitioners that in Shrirampur Tahsil in all 242 workmen submitted their applications to the Tahsildar to provide them with work. However, these workmen were provided work only for 9 days. They again approached the Collector of Ahmednagar to provide them work, but no work was provided to them, nor was unemployment allowance paid. Therefore, according to the petitioners, their unemployment allowance is wrongfully withheld by the respondets.
Smt. Indira Jaising, the learned Counsel appearing for the petitioners, contended before us that so far as S. 7(2)(vii) of the Act, which provides for fixation of uniform schedule of rates for all the zones in the State, with a view to enable the workers only to earn the minimum wage fixed for the lowest zone is concerned, it is wholly discriminatory. This in substance, amount to forced labour within the meaning of Art. 23 of the Constitution of India. According to the learned Counsel, the workers employed on the EGS works in Zones I, II or III are entitled to get the wages at least on par with the minimum wage fixed for the respective zones for agricultural worker. There is no warrant, nor is there any rational reason for providing a celling that such a worker should get the wages equal to the minimum wage for the lowest zone only. Such a provision which provides for the payment of wages lower than the minimum wage fixed for the Zone concerned is violative of Art. 23 of the Constitution of India and is, therefore, ultra vires. According to Smt. Indira Jaising, the provisions of S. 7 clearly show that the legislature wanted to link the payment of wages to the workers employed on EGS with minimum wage for agricultural labour. Once the wage payable to such a worker is linked with the minimum wage, then it should logically follow that the workman is entitled to get the minimum wage for the zone concerned. viz. the zone in which he is working on the EGS work. In support of her contention, she has placed strong reliance upon the decision of the Supreme Court in Sanjit Roy v. State of Rajasthan : (1983)ILLJ220SC and the decision of the Kerala High Court, In the matter of : Prison Reforms Enhancement of Wages of Prisoners etc. A.I.R. 1983 Ker as also an unreported decision of this Court in Writ Petition No. 2279 of 1983, Madan and Others v. State, decided by the Nagpur Bench of this Court on 13th January, 1984. It was then contended by the learned Counsel that the unemployment allowance provided under S. 8(4) of the Act is wholly arbitrary and has no nexus with the object sought to be achieved by the Act. By guaranteeing the right to employment, the State has guaranteed the right to live. Therefore, if no employment is provided, then the quantum of unemployment allowance should be such that the person should be able to make a bare living. Since the minimum wage for agriculture workers is a bare subsistence level wage, the quantum of unemployment allowance should be equal to the agricultural minimum wage of the respective zone, or it should at least bear a rational relation with the same. Keeping unemployment allowance at the level of Rs. 1.00 violates the right to live guaranteed under Art. 21 of the Constitution as well as the object of the Employment Guarantee Act.
On the other hand, it is contended by Shri Saldhana, the learned A.G.P. appearing for the respondents, that the provisions of S. 7(2)(vii) of the Act are not ultra vires of the provisions of Art. 14 or Art. 23 of the Constitution. It is also not correct to say that the legislature has accepted the principle of linking the wage of the BGS workers with the minimum rate of wages fixed under the Minimum Wages Act for agricultural workers. By enacting S. 7(2)(vii) of the Maharashtra Employment Guarantee Act, the legislature has only provided for a method or basis for fixing the schedule of the rates for workers under the Employment Guarantee Scheme. The employment provided under the Act stands on a different footing and is in a class by itself. The form of employment provided by the Act is akin to the employment under the Minimum Wages Act. In this context he has placed reliance upon the submissions made by the respondents in paras 3, 3a, 3b and 4 of the affidavit filed by the Deputy Secretary, Planning Department, which read as under :
3. With reference to paragraph 8 of the petition, I deny that the scale of payment as provided for is discriminatory or that the last zone provisions in S. 7(2)(vii) of the Act is ultra vires the provisions of the Art. 14 as well as Art. 23 of the Constitution of India. I say that the petitioner has incorrectly contended that the legislature has accepted the principle of linking wage on EGS works to minimum rate of wages fixed under the Minimum Wages Act for agricultural workers. By enacting S. 7(2)(vii) of the M.E.G. Act, 1977, the Legislature has only provided a method for fixing the schedule of rates for works under E.G.S. I submit that the petitionersare wrong in contending that the provisions or principles of the M.W. Act could be invoked while dealing with the payments that are made by the Government under the M.E.G. Act. I say that the employment provided under the Scheme is not formal employment, inasmuch as employment is provided not because the Government is in need to employ labour but with a view to secure them the right to employment provided under the Constitution. I say that there is neither any formal contract nor any agreement under the scheme. The workers desirous of rendering unskilled manual work seek employment under the E.G.S. and they are provided employment. No responsibility is cast on them to work every day for any minimum time ad report regularly for work even for a minimum number of days. I further say that in such scheme there is a need to ensure that the employment provided does not compete with the employment available elsewhere and normally the labourers come for employment under E.G.S. as a last choice. Therefore I say that this scheme is a welfare measure for rural unemployed and no source of perennial remunerative employment for them. The employment under the E.G.S. is thus a class by itself and cannot be compared with employment in usual sense. In these circumstances, it is inevitable for the Government to provide that the wage rates under such a programme are uniform all over the State. Therefore, unified wage structure has been prescribed under the scheme. Had this wage structure varied from region to region it would have resulted in migration of labour. I also say that the employment provided under the Scheme cannot be considered as employment in agriculture. The non-formal activities are taken up under the scheme for providing employment. Therefore, I say that the petitioners are wrong in contending that the principles underlying the Minimum Wages Act, should be invoked while dealing with the payments that are made under the scheme.
3a. I also submit that it is necessary to distinguish as far as possible employment concerning two classes of individuals. First class will consist of persons who are able to secure employment in the economy, for example, in agricultural operation, other plan, non-plan works etc. Here the employer has need of the labourer who offers employment and the labourer accepts the same. No doubt, in this class of persons the operation of minimum wage appropriate of that activity is relevant. The E.G.S. is not designed for this class of persons at all. It is designed to the other class of persons who for some reason or another are unable to get the formal employment elsewhere and hence, the State has made a standing offer of providing employment to them through this scheme. It is important to bear in mind that in such cases the State has no need of the labourer. If the labourer designed to abstain from duty, he is free to do so and in fact the State as the non-formal employer in this case would have absolutely no objection for the same. It would, therefore, be clear that the wages earned by labourers in these two classes can be different since the distinction is reasonable and hence S. 7(2)(vii) of E.G.S. Act, 1977, does not violate Art. 14 of the Constitution. This does not also violate Art. 23 of the Constitution because in case of a private employer the benefit under payment of wages accrues to him directly and in case of E.G.S. the benefits do not accrue to the State but accrue to the Society as a whole.
3b. It may be argued that though the wages earned by the labourers are decided by the work output, it is possible that in a given situation they may earn less than the minimum wage if only for the reason that their output has been less than the average. In such a case it would otherwise be open to the employer to remove the labourer from his employment. Under the E.G.S. this is not possible because the labourer is governed by the statutory guarantee of employment, It is therefore inherent in the scheme itself that recognition is accorded to the existence of the above two classes of labourers which is able to get employment ad also to give output with whatever norms the employer may have explicitly or implicitly in mind and the other class which is not to secure such employment elsewhere. Here again it is submitted that the distribution is relevant.
4. I further say that the petitioner have totally overlooked the other facilities given to the workers on the work site. This includes provisions for drinking water, shed, provision of cretches, first aid facilities etc, which enable the workers to enhance their capacities to earn on the scheme while are linked to outturn of work. Besides, excreta payment is also give in case of injury or death of the person. Then excreta payment is also given to the women labourers owards maternity and also the male ad women labourers towards sterilisation. The expenditure incurred on extending these facilities to the workers also will have to be taken into account while considering fairness or otherwise of wages paid on E.G.S. work. Therefore I submit that a challenge of the petitioners on the ground that the provisions of the S. 7(2)(vii) of the M.E.G. Act, 1977 are ultra vires to the Constitution is unsustainable.'
5. So far as the quantum of unemployment allowance is concerned, it is contended by Shri Saldanha that the allowance fixed under S. 8(4) is the minimum. This fixation should be viewed in the proper context. viz. that Government is doing its utmost to provide for some form of employment to the persons residing in the rural areas when such employment is not ordinarily available to them. They are being paid unemployment allowance as and when Government is unable to provide employment. Unemployment allowance is payable only for short period and only in those cases in spite of best efforts, Government is still not able to provide employment. While evaluating the merits of welfare scheme, the criteria of a adequate compensation or remuneration cannot be applied. Therefore, it cannot be said that the unemployment allowance fixed under S. 8(4) of the Act is any way arbitrary or unreasonable.
6. So far as payment of unemployment allowance to 242 workers is concerned, it is contended by Shri Saldanha that from the affidavit filed by the Tahsildar as well as the Nayab Tahsildar, it is quite obvious that these workers had not filled the forms properly. For some time they could not be provided with work, as the work had stopped due to the agitation of the farmers. In other cases work could not be provided because of paucity of raw materials and, therefore, it is not correct to say that these 242 workers were wrongfully deprived of their right to employment under the Act or their unemployment allowance was wrongfully withheld by the respondents.
7. For properly understanding the controversy raised in this petition, it will be worthwhile if a reference is made to the relevant provisions of the Act. The preamble of the Act reads thus :
'WHEREAS it is expedient to make effective provision for securing the right work laid down in Art. 41 of the Constitution of India by guaranteeing employment to all adult persons who volunteer to do unskilled manual work in rural areas in the State of Maharashtra;
AND WHEREAS it is necessary to engage such adult persons on works which would bring into being durable assets for the benefits of the community and the economy;
AND WHEREAS it is further necessary to provide for continuing employment of surplus rural manpower in cottage, village and small industries and in agro-industries;
AND WHEREAS it is also necessary to make certain supplemental, incidental and consequential provisions, it is hereby enacted . . .'
Then by S. 2 the various terms phrases used in the enactment are defined. The term 'productive works' is defined to mean -
'any works which, in the opinion of the State Government, will directly or indirectly contribute to the increase of production, or the absence of which will inhibit the increase of production.'
By S. 2(i) the import of 'rural areas' is defined. Then comes S. 3 which guarantees employment to adult persons in the rural areas. The said section reads as under :
'3. Every adult person in the rural areas in Maharashtra shall have a right to work, that is, a right to get guaranteed employment for doing unskilled manual work and receive wages therefor weekly or in any case not later than a fortnight, in accordance with the provisions of this Act and the Scheme made thereunder.
Explanation : A work shall be regarded as unskilled, if any adult person, without any special training, can normally be expected to do it and which is so classified in the Scheme.'
Then comes the crucial section viz. S. 7, which reads thus :
'7(1) For the purpose of giving effect to the employment guarantee mentioned in S. 3, the State Government shall prepare a Scheme for providing employment to all adult persons residing in the rural areas, who volunteer to do unskilled manual work, subject to the conditions laid down by or under this Act or in the Scheme.
(2) The Scheme shall have the following essential features :
(i) Only productive works shall be taken up under the Scheme :
Provided that if, in the opinion of the State Government, it is necessary to provide employment in any or any works to meet the conditions created by natural calamities like heavy rains, floods, earthquakes, droughts, scarcity or cyclones, the State Government may permit such works being taken up under the Scheme for such temporary period as the State Government may, from time to time, decide.
(ii) The works taken up under the scheme shall be in the rural areas; it shall, however, be lawful for the State Government to direct that certain categories of works may be taken up in areas other than rural areas.
(iii) Every Collector shall be asked to prepare blue prints of the works to be taken up under the Scheme in the District. Such blue prints shall be prepared by him as a part of the District plan, but be based on the Panchayat Samiti area development plans prepared with a view to give employment guarantee to all adult persons for unskilled manual and to make use of natural resources, actual or potential, which are readily available in the respective Panchayat Samiti areas. The Collector shall place the blue prints for approval before the District Level Committee, which shall give its approval after taking into consideration the view of the Panchayat Samiti Level Committees.
(iv) In order to anticipate the demand for manual work, a manpower budget for the District shall be prepared, so that it may be possible to plan the works to be taken up under the Scheme, taking into account the spatial distribution of unemployment over the District.
(v) The Scheme may also provide, as far as possible, for the training and upgradation of the skills of the unskilled labour.
(vi) The wages shall be directly linked with the quality and quantity of work.
(vii) The wages shall be paid according to the schedule of rates, which shall be fixed by the State Government for different types of work, from time to time. The schedule of rates shall be so fixed that a person working diligently for 7 hours a day would normally get total wage equal to the minimum wage for agricultural labourer for the lowest zone fixed by the State Government, from time to time. In areas, which are affected by the natural calamities like heavy rains, floods, earthquakes, droughts, scarcity or cyclones, wages may be paid on such works, at such daily rates and for such temporary period, as the State Government may direct.
(viii) It shall open for the Samiti Officer to direct any person who volunteers for employment under the Scheme to do work of any type permissible under Scheme.
(ix) All works taken up under the Scheme shall be executed departmentally and not through any contractor.
Provide that, skilled items of works such as gorge filling where it is absolutely necessary, and waste-weir component of work of percolation ad minor irrigation tanks, may be executed on the basis of a piece rate system, but the wages payable to unskilled labour shall be in accordance with the tasks prescribed under the Scheme.
(x) When works are taken up under the Scheme on private lands, which will directly benefit the holders of the lands, then notwithstanding the fact that under the provisions of any other law, or any executive orders, for the time being in force such holders are entitled to a subsidy in respect of such works, a subsidy under the Scheme, at such rates as may be prescribed, shall be financed from the Employment Guarantee Fund.
(xi) The works taken under the Scheme shall be so organised by the Collector that the normal agricultural operations in the District are not adversely affected and that a balance is maintained between the principle of guaranteedwork with minimum wage on one side and the requirements of labour for agricultural operations, as well as the requirements of labour for the implementation of the regular plan and non-plan works of the State Government on the other side.
(xii) The State Government shall provide in the scheme for a periodical inspection of the works taken up under the scheme to ensure proper quality of the work as well as to ensure that the total wages paid for the completion of any work are commensurate with the quality and quantity of the work done.
(xiii) The State Government shall provide in the Scheme for the appointment of an Audit Squad to conduct a periodical audit of the expenditure incurred under the Scheme.
(xiv) If any personal injury is caused to any person employed under the Scheme by accident arising out of and in the course of his employment, he shall be entitled, free of charge, to such medical treatment as is admissible under the Scheme, and where hospitalisation is necessary, the State Government shall arrange for such hospitalisation including accommodation, treatment and diet. During the period he is undergoing treatment in the hospital, he shall be entitled to daily wages at the rate of half of the minimum wages referred to in cl. (vii). In case of death of such person, an excreta payment of rupees five thousand shall be made to his legal heirs in the manner laid down in the Scheme. In case of disablement, such person shall be entitled to such excretapayment as may be determined in accordance with the Scheme, but the amount of such payment shall not exceed five thousand rupees.
(xv) Subject to the rules made in this behalf, the State Government shall ordinarily provide all kinds of tools and implements and gun powder required for any work and where tools and implements are not so provided and are brought by the person concerned he shall be paid such hire charges as may be prescribed.
(xvi) The State Government shall, as far as possible, undertake comprehensive land development programmes on water-shed basis. Such works shall as far as possible, be provided within a radius of five kilometres from the village of the workers engaged on such works.
(3) The Scheme shall provide for the registration of the names and addresses of persons who volunteer to work under the Scheme. Such registration shall be done to the headquarters of the gram Sevak or the Talathi, as the State Government may specify, within whose jurisdiction the village where the person resides is situated.
(4) The Scheme so prepared shall be published in the Official Gazette, and a summary thereof shall also be published in such local newspapers, having wide circulation in each District, as the State Government may determine.
(5) Until the Scheme is prepared ad published under this section, the Employment Guarantee Scheme of the State Government in operation immediately before the date of commencement of this Act shall be deemed to be the Scheme made and published under this Act.'
Section 7A makes provision for permission to remain absent and for excreta payment in cases of maternity and sterilisation operation and of accidents to accompanying children etc. Then comes S. 8 which lays down the conditions applicable for guaranteed employment to adult persons in rural areas.
8. If the said S. 7 is read as a whole, it is quite clear that it provides for the preparation and publication of the Scheme. Under the scheme of this section, the Collector has to prepare a blue print of the works to be taken up under the Scheme in the District. By sub-s. (vii) a provision is made for payment of wages according to the schedule of rates which is to be fixed by the State Government for different types of works, from time to time. This schedule of rates shall be so fixed that a person working diligently for 7 hours a day would normally get a total wage equal to the minimum wage for agricultural labourer for the lowest zone fixed by the State Government from time to time. The main challenge in this Writ Petition is to the last portion of this section which lays down that a person working diligently for 7 hours a day would get the total wage equal to the minimum wage for the agricultural labourer for the lowest zone only. According to Smt. Indira Jaising, even if person is working in the works carried out in the higher zone, still he is being paid the minimum wage for the lowest zone, and not to the rate of the minimum wage fixed for the zone concerned. This, in substance, means that though a person is working in the higher zone, still he will be paid the wages less than the minimum wage fixed for the zone concerned and this practically amounts to forced labour within the meaning of Art. 23 of the Constitution and also violative of Art. 14 of the Constitution. In support of this contention, she has placed strong reliance upon the decision of the Supreme Court in Sanjit Ray v. State of Rajasthan (supra). In opinion, there is much substance in this contention.
9. The contention raised by the respondents that the wages fixed under the Maharashtra Employment Guarantee Act has no linkage with the minimum wage, is wholly unfounded. In this context, reference could usefully be made to the report of the Study Committee on Employment Conditions of Agricultural Labour in Maharashtra State (With reference to Minimum Wage-July 1973). After accepting the well-known principle that the statutory minimum wage is primarily an instrument of social protection for workers, in Chapter VIII, para 8.07, this is what the Committee has observed :
'8.07. Link with guaranteed employment scheme wage : There should be some vital link between the minimum wage of agriculture labourer and wages under Employment Guarantee Scheme. Three different view were expressed before the Committee namely (1) Minimum wage for agricultural labour should be more than Employment Guarantee Scheme Wage, (2) Minimum wage should be on par with Employment Guarantee Scheme Wage and (3) Minimum wage should be lower than Employment Guarantee Scheme Wage. The Committee is of the opinion that it should be on par with the wage for agricultural labour in the third Zone and should be uniform throughout Maharashtra State in rural areas i.e. Rs. 2.50. The duration of agricultural season in third Zone is very small and the work under the Employment Guarantee Scheme is not likely to be provided in the villages. If the labourers get the same wage village itself, they will be reluctant to go out. In other Zones such difficulty will not arise.
The agricultural operations are seasonal in nature. The labourer should get guaranteed wage throughout the year on account of employment in agriculture during season and employment under guaranteed scheme any time in the year. Where the nature of work is such that it is not measurable quantitatively the worker must get the minimum wages, in both the cases. There should be no ceiling limit in the case of piece-rated measurable jobs. Even under employment guarantee scheme as such ceiling would mean indirectly ceiling on work itself. Provision of S. 15 of Minimum Wages Act my also be made applicable to minimum wage under the guaranteed scheme with suitable modifications.
The Committee has taken into consideration these factors and is of opinion that finding work around the year will go in some way at least to ease out the situation of agricultural wages besides resisting the pressure of surplus persons on agriculture. For this the State will have to invest more funds in the rural areas.'
10. Apart from this Committee Report, there is internal evidence available in S. 7 itself which shows that the legislature intended to link the wages fixed under the Maharashtra Employment Guarantee Act with wages fixed under the Minimum Wages Act. Though person might be working on different works or projects, where the minimum wage for the workers working of such works or projects may be at a higher level, the Guarantee Act has chosen to link up the wages under the Employment Guarantee Act with the minimum wages fixed for the agricultural labourers. The reason seems to be obvious. From the preamble of the Act, it is quite clear that this piece of legislation is enacted to make effective provision for securing the right to work by guaranteeing employment to all adult persons who volunteer to do unskilled manual work in the areas. Therefore, employment to the adult persons who volunteer work in the rural areas is the basis as foundation of this Act. Such work, as far as possible, is to be provided within a radius of five kilometers from the village of the worker. The guarantee under the Act is restricted to providing unskilled manual work. Therefore, the wage structure under the Act is linked with the minimum wage payable to an agricultural worker. Once it is accepted or held that the wages fixed under the Employment Guarantee Act are linked with the minimum wage for agricultural labourers, then the only question that will require consideration in this Writ Petition is to find out as to whether it is fair to pay the total wage equal to the minimum wage for agricultural labourers for the lowest zone, though the person is provided employment in the areas covered by the higher zone.
11. In our view, the controversy raised before us is wholly covered by the decision of the Supreme Court in Sanjit Ray's case (supra). In that case, after making a reference to the earlier decision in People's Union for Democratic Rights v. Union of India : (1982)IILLJ454SC Bhagwati, J. observed as follows 1983 II L.L.J. 220.
'I must, therefore, hold consistently with this decision that where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the meaning of the words 'forced labour' and attracts the condemnation of Art. 2. Every person who provides labour or service to another is entitled at the least to the minimum wage and if anything less than the minimum wage is paid to him he can complainof violation of his fundamental right under Art. 23 and ask the Court to direct payment of the minimum wage to him so that the breach of Act. 23 may be abated.
4. If this be, the correct position in law, it is difficult to see how the constitutional validity of the Exemption Act in so far as it excludes the applicability of the Minimum Wages Act, 1948 to the workmen employed in famine relief works can be sustained. Art. 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 the minimum wage may not be paid to a workman employed in any famine relief work, it would be clearly violative of Art. 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 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 to drought and scarcity conditions, but nonetheless, it is work which ensures 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 person. 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 persons to provide labour or service on work 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 work 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 exact 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 Art. 23 and the Exemption Act in so far 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 Art. 23. The Exemption Act cannot in the circumstances be relied upon by the respondent exempting it from the liability to pay minimum wage to the workmen engaged in the construction work of Madanganj Harmara Road.'
Pathak J. preferred to rest his decision on the ground that there is a breach of Art. 14 of the Constitution. This is what the learned Judge observed in para 10 of the judgment 1983 I L.L.J. 227.
'10. The circumstance that employment has been given to persons affected by drought and scarcity conditions provides only the reason for extending such employment. In other words, the granting of relief to persons in distress by giving them employment constitutes merely the motive for giving them work. It cannot affect their right to what is due to every worker in the course of such employment. The rights of all the workers be the same, whether they are drawn from an area affected by drought and scarcity conditions or come from elsewhere. The mere circumstances that a worker belongs to an area affected by drought and scarcity conditions can in no way influence the scope and some of those rights. In comparison with a worker belonging to some other more fortunate area and doing the same kind of work, is he less entitled than the other to the totality of those rights Because he belongs to a distressed area, is he liable, in the computation of his wages, to be distinguished from the other by badge of his misfortune The prescription of equally in Art. 14 of the Constitution gives one answer only, and that is a categorical negative. It is urged for respondents that employment is provided to all able-bodied inhabitants of the area as measure of relief in their distress and it has been considered desirable to provide employment to all, even though at a wage below the prescribed minimum wage, then to provide employment to some only at the prescribed minimum wage. The argument evidently on the assumption that the wages are drawn from a fund too limited to provide for payment of a minimum wage to all. I see no justification for proceeding on that assumption. When the State employs workers for doing work needed on its development projects, it must find funds for such projects. And the fund must be sufficient to ensure the prescribed minimum wage to each worker, and this is particularly so having regard to the concept of a 'minimum wage.' It seems to me that by prescribing the criterion which it has, the Public Works Department has effected an invidious discrimination bearing no reasonable nexus to the object the employment.'
Following this decision of the Supreme Court, the Division Bench of this Court in Madan and Others v. State of Maharashtra W.P. No. 2279/1983 decided on 13th January, 1984 has held under the Guarantee Act, the State Government has no choice but to fix the rates as per the Minimum Wages Act. Thus there can be no point of time when the payment can be less than that.
12. Therefore, if the payment of wages less than the minimum wage attracts the condemnation of Art. 23 of the Constitution, then the minimum wage must be of the zone in which the worker is employed and has earned his wage. Payment of minimum wage fixed for the lowest zone to a person who has earned higher wages, as he was employed on works carried out in the higher zone, will also attract condemnation of Art. 23 of the Constitution. It is well-known that the statutory minimum wage is primarily as instrument of social protection for workers. As observed by the Supreme Court in The Kamani Metals and Alloys Ltd. v. The Workmen : (1967)IILLJ55SC .
'It sets the lowest limit below which wages cannot be allowed to sink in all himanity.'
Therefore, payment of minimum wage lower than the rate fixed for the zone concerned will be inhuman and will, therefore, be hit by Art. 23 of the Constitution. Therefore, we have no hesitation in holding that the last part of S. 7, viz. sub-cl. 2(vii) which provides for payment of total wage equal to the minimum wage for agricultural labourer for the lowest zone to a worker employed and working in a higher zone will be ultra as it is violation of Art. 23 of the Constitution of India. Therefore, reading the section properly and in its proper perspective, it will mean that the schedule of rates shall be so fixed that a person working diligently for 7 hours a day would normally get a total wage, equal to the minimum wage for agricultural labourer fixed by the State Government for the zone concerned.
13. We are inclined to take this view for one more reason. From the various issued by the Government from time to time and incorporated in the 'Employment Guarantee Scheme - A Compendium of Order'. It is quite clear that the works which are being carried our under the Scheme, such as depending of the community wells, road construction, construction of roads in hilly and inaccessible areas, Nala bunding, afforrestation, approach roads, community water projects are productive works. From the Preamble and other provisions of the Act, it is clear that the works which are undertaken under the Scheme would be such, which will bring into being durable assets for the benefit of the community and the economy. As a matter of fact, the minimum wage for the workers who normally engaged to carry out these works is much higher than the wage fixed for agricultural labourer. To that extent, the workers doing the same work under the Employment Guarantee Scheme are already placed at a disadvantageous position. Therefore, paying the worker less than the minimum wage fixed for the agricultural labourer for the zone concerned, will obviously to double disadvantage. Therefore, taking any view of the matter, the worker working on the Employment Guarantee Scheme is entitled to get at least the minimum wage fixed for agricultural labourer for the Zone concerned.
14. In this view of the matter, the various contentions raised by the respondents about the nature of the employment and the motive behind it, becomes wholly irrelevant. As held by the Supreme Court in Sanjit Roy's case (supra) the motive for giving work cannot affect the workers' right to what is due to them in course of such employment. It is also not correct to say that no responsibility is cast on these workers to work every day for any minimum time and report regularly for work even for a minimum number of days. Rule 6 of the rules prescribes the procedure for making application for employment. Such an application is to be made in form 4, which in terms requires that the applicant should give an undertaking that he will work for a continuous period of at least 30 days on the work assigned. It is needles to say that he will bound by the discipline and the rules of the employment. The fear of migration is also unfounded. The minimum wages are fixed zone-wise because the cost of living and other conditions vary from zone to zone. Therefore by migration the person will not be benefited as the cost of living will be at higher level. S. 8 lays down the conditions for the guaranteed employment. These conditions will also work as check on migration and manipulations. Other facilities provided to the workmen under S. 7A or other welfare Schemes are part of the duly imposed upon the Welfare State by Directive Principles of State Policy and, therefore, on that count the worker cannot be deprived of his right to Minimum Wage.
15. Once this principle is accepted, then it goes without saying that under the Act, the revision of wages must be in tune with the revision in the minimum wages. As observed by the father of the Nation, Mahatma Gandhi, in whose name we answer :
'In reality, the toiler is the owner of what he produces. Kisan or the peasant, whether as a landless labourer or labouring proprietor, comes first. He is the salt of the earth which rightly belongs or should belong to him. Where there are landless labourers, their wages should be brought to a level that would ensure a decent living, which should mean balanced food, dwelling houses and clothing which should satisfy health requirements.'
This very principle is accepted as guideline for fixing the wage structure or minimum wage (see U. Unichoyi and others v. State of Kerala) : (1961)ILLJ631SC . Therefore, the wages to be fixed under the Employment Guarantee Act must also be revised in tune with the revision in the minimum wage, obviously from time to time as and when the occasion arises.
16. Having dealt with S. 7(2)(vii) of the Act, we will now take up for consideration the second challenge in the petition which relates to the unemployment allowance paid under S. 8 of the Act. S. 8 generally provides for the conditions applicable for guaranteed employment to adult persons in rural areas. Sub-s. (4) with which we are concerned, reads, as under :
'(4) If within 15 days of the receipt of the letter for employment under the Scheme by the Samiti Officer or by the Gram Savak or the Talathis, as the case may be, the State Government is unable to provide employment to such person under the Scheme, in the manner mentioned in sub-s. (3), the person shall be entitled to receive from the Employment Guarantee fund an unemployment allowance at such rate as may be fixed by the State Government from time to time, but not less than Re. 1 per day.'
We are informed that in spite of the mandate of this sub-section, the State Government has not fixed any unemployment, allowance and, therefore, allowance is being paid at the minimum rate i.e. rupee one per day. Thus, the minimum has become the maximum. Unemployment allowance is being paid subject to the conditions laid down in S. 8, as a last resort. In substance, it is a subsistence or survival allowance. Therefore, it cannot fall down the bare starvation level. The study Committee on the Employment of Agricultural Labour in Maharashtra State, while fixing the minimum wage for agricultural labourers, has observed in its Report, in para 8.9 of Chapter VIII as under :
'8.9 Formula ... ... ... (i) An average working man requires at least 2000 to 2200 calories for which 625 grams of staple food is a necessity. We are assuming a family of 3 1/2 units i.e. husband, wife and three children. Their requirements would be 2187 and a half grams. This would be in the staple food requirement of the average family. We considered whether it would be possible to work out average total budget of such a family taking these staple food requirement at the base. Normally, we are advised that staple food requirements are 40% to 50% of the total budget. Working on this basis of 40% which is in favour of workers the total budget would come to 5,468 grams of jowar. Making some allowance for one weekly holiday, we can safely assume that a poor worker's family budget would be 6000 to 6400 grams. This concession is also in consideration of the fact that we cannot assume always that there are two earning workers in a family. But normally the 6 kg. should be earned by two persons. We were advised that 3 kg. can be assumed as the daily wages in kind for an adult. Wages for men and women should be taken as equal. Taking all facts into consideration some experts and social workers advised us to fix the wage at 4 kg. not without justification.
Paying capacity cannot altogether be ruled out as a factor in this case. We have, therefore, assessed minimum wage in kind as follows :
Three kgs. for third Zone : three and half kgs. for second Zone and four kgs. for first Zone.
We have recommended a little higher wage than the exact calculation according to formula suggested for third Zone; still higher for second Zone and still higher for first Zone i.e. Rs. 2.50, 3.00 and 3.50 respectively. According to evidence of trade union leaders, economists and judicial experts these rates are on lower side. They have proposed Rs. 4 or 5 looking to the practical side of the question. The committee hopes that the level of rates will go up when ruling prices of food grains also move up. The wages must be revised as soon as there is a rise in the procurement and issue price of Jowar. We do not consider necessary to link this minimum wage with consumer price index because so far the State has not evolved any such pattern for rural areas.'
There, according to the Committee, the staple food requirement of an average family is 40 to 50% of the budget. The Committee accepted 40% as the working basis. Taking any view of the matter, it can safely be said that a person will require for bare survival one-third of the minimum wage fixed. As observed by Mahatma Gandhi :
'The present pressing problem is how to find work and wages for the millions of villagers who are becoming increasingly pauperised. They are becoming poorer economically, mentally and morally. They are fast losing and will to work, to think and even to live. It is living death that they are living. We have to make a choice between India of the villages, that are as ancient as herself and India of the Cities which are a creation of foreign domination. Today cities dominate and drain the villages so that they are crumbling to ruin.. ... Exploitation of villages is itself organised violence. If we want 'Swaraj' to be built on non-violence, we shall have to give to villages their proper place... ... In India we have got many millions of people who have to be satisfied with one meal a day and that meal consisting of Chapati, containing no fat in it and a pinch of salt. You and I have no right to anything that we really have until these many millions are clothed and fed.'
Mahatma Gandhi believed in the message of Khadi and village Industries which according to him, was the real insurance against famine and unemployment. However, in tune with modern trend, the State of Maharashtra has enacted the present enactment for achieving the same object. Unemployment allowance payable under sub-s. (4) of S. 8 is in the nature of an insurance or a minimum guarantee. Under S. 3 every adult person in the rural area in Maharashtra has a right to work, that is a right to get guaranteed employment for doing unskilled manual work and to receive wages therefor. If the State Government is unable to provide employment to such a person, then alone he is entitled to receive an unemployment allowance. In substance, it is an insurance against starvation and unemployment. Therefore, fixation of unemployment allowance must have some relevance to the survival level. Rupee one is fixed as the lowest minimum and unfortunately it is being treated as the maximum. It is less than a beggar's income. In this context, Smt. Indira Jaising has drawn our attention to the Report on the Sixth Five Year Plan 1980-1985, at page 51, Poverty and Employment, para 3-62 which reads as under :
'3-62. The Sixth plan places a very high priority on the alleviation of poverty. For an assessment of the problem and for setting targets a quantitative index for poverty was formulated in the report of the 'Task force on Projections of Minimum Needs and Effective Consumption Demand' set up by the planning Commission in 1977, where poverty line is defined as the mid-point of the monthly per capita expenditure class having a daily calorie intake of 2400 per person in rural area and 2100 in urban area. In 1979-80 prices, the mid-points are Rs. 76 in rural area and Rs. 88 in urban areas.'
17. In our opinion, the fixation of unemployment allowance at the proper level is also necessary to assure the right to live with human dignity and freedom from exploitation. In Bendhua Mukti Morcha v. Union of India and Ors. : 2SCR67 . Supreme Court has observed :
'It is the fundamental right of every one in this country, assured under the interpretation given to Art. 21 by the Court in Frances Mullin's case : 1980CriLJ548 to live with human dignity free from exploitation. This right to live with human dignity enshrined in Art. 21 derives its life breath from the Directive Principles of State Policy and particularly Cls. (e) and (f) of Art. 39 and Arts. 41 and 42 .. .. .. .. .. ..'
Therefore, the unemployment allowance should be so fixed so as to ensure living, at least at a starvation level. It is no doubt true such an unemployment allowance will have to be uniform. Since the wage to be fixed under the Art is linked with the minimum wage for agricultural labourer, in our opinion, the fixation of the unemployment allowance should also have relevance to this minimum wage. We can only suggest certain guidelines. It could be 33 per cent. to 40 per cent. of average minimum wage of all the zones, or at least one-third of the minimum wage of the lowest zone. Though it was intended by Smt. Indira Jaising that we should ourselves fix this unemployment allowance, in our opinion, this task cannot be undertaken by the Court and must be left to the Government. An uniform payment of unemployment allowance throughout the State would obviously be desirable, lest there will be a charge of discrimination. This is not a wage paid for the work done. It is being paid as an allowance. Under S. 8(4) the State Government is empowered to fix the rate of unemployment allowance from time to time. This power is coupled with duly. The legislature has only prescribed the lowest limit. But that does not mean that the State Government without any application of mind can sit tight over the matter. It is really regrettable that all these years the State Government has not done anything and is only paying rupee one per day which is the lowest limit. Therefore, we direct the State Government to exercise its power under S. 8(4) of the Act and fix the unemployment allowance according to law.
18. However, we can appreciate that the Government is bound to take some time for fixing the unemployment allowance. Until then it will be unjust to continue the present situation i.e. payment of rupee one per day which is less than the dole. There must, therefore, be an ad hoc arrangement. Considering the material placed before us and the minimum wages notification fixing minimum wage for the agricultural labourers for the lowest zone, we think that as an ad hoc measure we can safely fix Rs. 2 per day as a reasonable unemployment allowance, subject, of course, to alteration later, when as a result of further study and research Government is able to decide the question. This ad hoc fixation by us will apply prospectively, since it involves financial implications and we are inclined to fix 2nd October, 1984, the Gandhi Jayanti Day, as the date from which this enhanced ad hoc unemployment allowance will come into force.
19. The last contention raised before us by Smt. Indira Jaising was about the non-payment of unemployment allowance to 242 workers referred to in para 13 of the petition. It appears that during the period from 30th September, 1983 to 3rd January, 1984, but for giving them employment for 9 days, these 242 workers were not provided work in spite of their applications and, therefore, were entitled to get unemployment allowance at the rate of rupee one per day. In reply to the averments made in the petition, Shri Chaudhari, Tahsildar of Shrirampur, District Ahmednagar, has stated that since these employees had not compiled with the necessary technicalities, their claims could not be considered. Similar is the statement made by Shri Mane, Naib Tahsildar. Thus, there seems to be some dispute about the entitlement itself. We are surprised as to why the applications filed by the workmen or the villages were not considered expenditiously. The delay in scrutinising the applications and paying the unemployment allowance will defeat the very purpose of the Act. If the unemployment allowance is not paid expeditiously, then the persons who claim the benefit of it will not be able to survive. It involves a question of their life and death. Therefore, we direct the respondents to make the necessary payment to the persons eligible, out of the persons whose list is placed before us, within one month from today, obviously in accordance with law. We are really surprised that in the affidavit filed in reply, microscopic technical objections are being raised for defeating the claims of these villagers for payment of the unemployment allowance. To defeat the claims of eligible persons on technicalities will again defeat the very purpose of the Act. In this context, it is pertinent to note that under the rules a provision is made for registration of the names of employment seekers and a procedure is also provided Under Rule 5 which deals with registration, an application could also be oral. Simplicity of procedure is the essence of the Scheme. Employment is normally provided within the radius of five kilometres from the village of the workers engaged on such works. Therefore, obviously the forms in the language of the residents should also be available within the radius of five kilometres. It is needless to say that they should as simple as possible and should be in the language of the region. Arrangement for payment of the unemployment allowance should also be made in the village itself or at a place which is at a reasonable distance.
20. A grievance is made that the implementation of the whole Scheme is so faulty that beneficiaries never get benefit of it. In support of this contention, the learned Counsel for the petitioners has produced before us a Report of a High Power Committee appointed by the Government under the chairmanship of Shri R. S. Gavai, to enquire into the instances of irregularities, malpractices and corruption in the execution of the Scheme in Dhulia District. According to the learned Counsel, the position all over the State the same. This seems to be the reason that by insertion of S. 6A, the Commissioner of the Division or other officer not below the rank of Assistant Commissioner is empowered to supervise and review implementation of the Scheme in each Division. The Act also provides for the constitution of State Councils and District Level Committee etc. However, in our view, this will not serve the purpose. In this context we cannot do better than to draw the attention of the Government towards the observations of the Supreme Court in Neeraja Chaudhary v. State of M.P. : AIR1984SC1099 and particularly para 4 thereof. As observed by the Supreme Court, the services of dedicated social action groups can be utilised for this purpose. The real question for the effective and honest implementation of the Scheme is as to 'Who will watch the watchmen' who will do this None else but a fearless voluntary social worker. Therefore, some machinery in the shape of vigilance Committees, which should include representatives of social action groups will have to be evolved. This piece of legislation is enacted to give effect to the Directive Principles of State Policy as enshrined in Art. 41 of the Constitution. Therefore, such a scheme cannot be permitted to be polluted or chocked by internal or individual strife nor it can be permitted to be polluted by party or group policies. Therefore constant and eternal vigil is the only solution. Trade Unions in the field can also play an important and vital role. They are not only demand shops but are instruments of social change. We hope that the Trade Unions, like the petitioner No. 1 will also act as participants and help the authorities implementing this welfare organisation.
21. We are told that all the 242 workers were eligible to get the unemployment allowance, but the said allowance is not being paid to them only on the ground that they has not filled in Form No. 8 In our opinion, this is a hyper-technical approach. Therefore, if they are otherwise eligible to get the unemployment allowance, on this count, the respondents shall not withhold payment of unemployment allowance to them.
22. We are really happy to note at least so far as this Scheme is concerned, a Compendium of Orders upto 3rd July, 1981 is complied and published by the Departments concerned. It is an example which the other Departments should follow. It is not enough that the law is enacted, rules are framed and orders are issued, but they should also be available to the persons concerned. In the Gazette, the various notifications, orders and rules are published and the law presumesthat the villagers living in the farthest village know them the next moment. That however, is not the reality. Therefore, we expert that the other Department will follow this example and will prepare a Compendium of Orders qua other enactments also.
23. In the result, therefore, the Rule is made absolute with no order as to costs.
24. Rule made absolute.