P.S. Poti, C.J.
1. Bonded labour in its primitive form might . Have disappeared from most parts of the country, more due to pressure of public opinion and civic consciousness than the awareness or the operation of Article 23 of our Constitution embodying a mandate against forced labour. But, all the same, sophisticated forms of such bonded labour persist and thrive in many pockets. The task of identifying them and locating the exploited groups is none too easy, Exploitation of labour being a phenomena older than the known authentic history of man cannot be banished overnight by any legislative or constitutional flat or even by enlightened public opinion. The Courts in this country are to be the sentinels of human 'freedom and this duty enjoins them to be ever vigilant to extend protection to the exploited class. In recent times. Courts have understood their adjudicatory functions as not merely limited to settlement of inter-partly disputes or issues raised but as envisaging a larger role in securing constitutional rights to parties who might not' have themselves made an approach to the Court despite violent inroad into their rights on account of poverty or ignorance or any other equally relevant social disability, The story unfolded in this case Js an instance which called for our Immediate attention.
2. The content of. Article 21 of the Constitution and the scope of Article 23 have been examined on recent cases by the Supreme Court and the following principles have become well settled:
(1) Article 21 strikes at 'forced labour' in whatever form it may manifest itself because it is violation of human dignity and contrary to basic values
(2) Even if remuneration is paid. labour supplied not willingly but as a result of force or compulsion will be hi by Article 23. In that view, a contract to continue for a term cannot be enforced once the worker is unwilling to work and that would be.despite the contract.
(3) The scope of 'force' envisage in the term 'forced labour' in Article 23 takes in not only physical or legal f6rcabut also force arising from the compulsion of economic circumstances which, leaves no choice of alternatives to a person in want and compels him to provide labour or service for less than the wages due to him under law (vide People's Union for Democratic Rights v. Union of India. AIR 1982 SC 1473 : (1982 Lab IC 1646) and Sanjit Roy v. State of Rajasthan. (AIR 1983 SC 328): (198.1 Lab IC 312).
2A. By Parity of reasoning, when. due to economic compulsion';. workmen are' forced to work under inhuman conditions or sub-human conditions, without the safeguards, facilities and amenities secured to them under law being made available to them, irrespective of the question of wages paid to them and their apparent consent, the labour employed would be 'forced labour' s4s as to invite contravention of Article 93 of the Constitution of India,
3. In the case before us, a request, not in the form of a petition, but in writing, was made to us by two office-bearers fit the IFFCO Karmachari Sangh bringing to the notice of this Court the conditions of contract labour working in the premises of IFFCO factory and seeking the intervention of this Court. We took notice of it because the statements therein indicated that the case was that the workers working under contract labour were coerced to do the work of handling urea manually without adequate safeguards in the premises of the Indian Farmers Fertilizers Co-operative Ltd. (here in after we will refer to as 'IFFCO'). In view of the urgency of . the matter, we took notice of their request, but directed the petitioner to file a petition in the formal manner which they did. The ,mater was so moved before us on 3rd October 19113. In the petition which was subsequently filed in the formal form on 4th October 1.983, detailed averments were made by the petitioner. The case therein was that the third respondent Mr. Dhanesbhai, partner of M/s. Sunshine Enterprise, was employing. labourers in connection with the work of the first respondent IFFCO. That such labourers are not free to leave the premises as they desire: that many of them decided to leave the premises because of the conditions. In which they were living but once they are brought to the premises are not allowed to leave the premises; that even if they are given physical freedom to leave, they would be unable to do so unless their wages are paid to them and they are also paid the fare so that. they may return and that, in absence Of such payment, they had necessarily to continue the work until their contractor allowed them to leave. that their health was in jeopardy. That they are handling material which they should not be allowed to do with out due precautions. That it is a primitive way of dealing with human beings; that proper protection was necessary. That the workmen were 'protecting their arms and legs by use of piece of gunny bags, that proper wages-had not bee ,p paid, that intermediaries in the form of Mukadams were knocking off a part of the wag' paid to the labourers; that there were no humane conditions of living. that the workmen were sleeping on gunny bags;that they are compelled to work took for more than one shift against their will and that, therefore, the Court's Intervention was called for.
4. By our order dated 3rd October 83, we appointed a Commissioner who war, directed to proceed forthwith to the IFFCO factory premises at Kalol to sep the workmen to be pointed out by the petitioner and to take. statements from them so that the Commissioner may be able to ascertain whether they are voluntarily working, whether they are free and further they are paid wages and whether they had any other complaints. Mr. M.C. Bhatt, an Advocate of this Court. was appointed as Commissioner and he was directed to submit the report by 4th October 1983.
5. At. this stage, we may record our thanks to the Commissioner, lest we forget to do so later In this judgment, for the excellent services which he rendered pursuant to our order of the 3rd October IN3 and also the subsequent orders, He was assisted by a Court Officer in that work.
6. On the 4th October, 1983. the matter came up before the Court for the second time. By that time, the Commissioner after visiting the premises of the IFFCO had submitted a report. The General Manager of the IFFCO as also the contractor appeared through their counsel. We gave them time till the next day. the 5th October 1983. to file counter affidavits. In the meanwhile, we directed that the 13 persons whose statements hid been taken down by the Commissioner be caused to be present in Court the next day. So also one Raghubhai who represented 112 workmen who had come in a batch from Rajasthan and who spoke before the Commissioner on behalf of those workmen was to be caused to be produced. The matter was discussed in Court when the case was taken up at 2.45 P. M. on 4th October 1983. We directed the Commissioner to proceed forthwith to the IFFCO factory premises so that the said 14 workers may be brought over here by him with the assistance (if the officer of the Court. It not that the 14 workers exhausted those who wanted to have their say in the matter or whose grievances had to, be ascertained but it was not practicable to take statement from them all and ' therefore, the Commissioner chose to take statements from, same persons belonging to the various groups. The. order that we passed during the production of the 14 persons was so passed in open Court after discussion with counsel concerned. It also came out during the course of the discussion in Court that day that the workmen were pot getting out of the IFFCO premises only because arrangements had not been made to issue gate passes to them. Some, thing happened in between the order on the 4th and the production in Court of the persons directed to be produced on the 5th. When the Commissioner went to the premises and searched for the 14 persons to be brought over and kept at Ahmedabad only six of them were available. The other eight were not available in the premises. The six were brought over to be produced here at 2.45 P. - M., on the 5th October. We may mention, at this stage that the purpose of our directing these 14 persons to be produced was not to examine them or take their statements but only to ascertain whether -the statements taken by the Commissioner from them were given by them voluntarily and of their own accord. This we made very clear even on the 4th. When the case was taken up on 5th at 2.45 P.M ' we were rather annoyed that out of* the. 14 persons directed to be, produced, only six were available, as only they were In the premises, though, until then, the workmen could not have freely gone to and gone out., It was submitted here by counsel for the contractor at the hearing on the 5th that the eight other workmen had voluntarily left after receiving their wages. It had further come to our notice that. 105 workmen out of the group of 112 Rajasthani workmen had also left on the morning of 5th, after receiving their wages, after Ragubhai, their 'reppresentative had' been brought over by the Commissioner to Ahmedabad. There is controversy before us between the petitioner on the one hand and the respondents Nos. I and 3 on the other as to whether they voluntarily left. According to the petitioner; they were driven out. It in a matter which we do not propose to investigate nor to comment on We leave that matter there.
7. But. the fact remains. as admitted before us by all. that none of the workmen had been allowed to get out of the premises Unless they were issued gate passes and mi gate passes were issued at least to most of the workmen. This persuaded us to pass an order in rather strong terms directing the respondent No. 3 and the Mukadams working tinder him to produce eight missing workmen by 2.45 P. M. on the 6th. When those was taken up on the 6th, five out of the eight were produced. The sixth that was produced happened to be not one of those 14. ' We did not think it necessary to compel the production of the other two. All these persons so produced stood by the statement given by them to the Commissioner and said that they had given these statements voluntarily. There is no reason to assume otherwise
8. It may be necessary to refer to certain other directions made in the order of the 5th. Our anxiety at that stage was to see that those workmen who wanted to leave and who could not leave because they had not been provided with gate passes. were assisted to leave. In respect of the Rajasthani , group of about 112 workmen, their representative here, brought over to Ahmedabad from Kalol on' the 4th by the Commissioner, did not, know at this time that the group for which he spoke had disappeared from the premises of the IFFCO on the morning of the 5th and he spoke still for that group. It is evident from his statement that the Rajasthani group wanted to re-turn because they were not happy with working In the IFFCO under the conditions provided. They wanted to be permitted to leave on their wages being paid. We thought it necessary that the Commissioner should proceed to the IFFCO, contact the workmen under the third respondent and enable such as those who wanted to leave, to leave. For that. the Commissioner, assisted by the. Court Officer, was to have facilities to contact each workman, ascertain his wish, and assist him to leave the premises after receiving his due wage. That has been done.
9. The Commissioner in his first report filed on 4th October 1983, gave his conclusions summarized in paragraph 17 of the report, which we extract here:
'(a) For the reasons best known to contractors and IFPCO management, the workmen are not allowed to go out of the main factory premises.
(b) Safety measures like hand-gloves or socJ4 are not provided to any of the said workmen.
(c) Workmen themselves have evolved some raw methods to protect themselves froth the mat-effects of handling chemical fertilizers. They tie pieces of gunny bags on their legs and hands.
(d) I also saw that many workmen had sort of burn injuries on legs and hands,The number of injuries and the size of the injuries did vary from workman to workman and some workmen might not have received the injuries.
(e) Except the register produced at Annexure 'A', it appears that the record of the said workmen by way of register or otherwise is not maintained by the IFFCO management.
(f) The concerned workmen are not given identity cards, passes or presence cards.
(g) The workmen are intimated. threatened and at times physically beaten (not severely) by' the staff members of the security if they commit any breach of the norms laid down by the security department either to sleep at the place which are not allotted to them or if they tried to be near the main gate.
(h) The general feelings of the workmen was to be free from this sort of employment and work and most of them did not want to continue to work in the present conditions.
(i) The promise given for wages Is general, Rs. 25/- per day; but, so far as I have observed just meagre amounts are paid to the workmen.
(j) Most of the workers also face difficulties as they have no money to pay for their return journey to their native places and this is one of the checks put on the workmen either by the contractor or indirectly by the IFFCO management so that they may not financially afford to leave their place of work,
(k) Some workmen come from distant places and some people came from various parts of Guiarat but all of them face difficulties for making provision for 'the fare and other incidental expenses for their return journey.
(1) The living conditions are below human standard. All the workmen sleep on gunny bags. they are not provided with pillows and they practically sleep in open or under their temporary constructed pandola. Even in the open, nothing is provided to them to cover ' their bodies and they only utilize empty gunny bags of IFFCO for that purpose also. It appears that if any workman is sick, some medical assistance is provided but there is a complaint about the standard of medical treatment by the management. But I cannot give my opinion regarding 4he, standard of medical treatment provided to the workmen because I have no sufficient data and technical medical knowledge As far as burn injuries are concerned, there is not a -single case treated medically.
(in) The 'general consensus among the workmen is to leave the 'place as early as possible 'provided they are paid their wakes and-return fare.
(n) As far as 'food is concerned, some people brought dry Chapatis and prima facie Chapatis appeared to be of inferior quality. I say actually food being cooked in the kitchen and as indicated by me hereinabove- Puris were being fried and Dal being boiled.All the workmen are provided two meals in a day and about half a cup of lea twice a day.
(o) I also noticed that in the entire premises of IFFCO as safety measure. smoking is prohibited but in the. , same premises there were two big country stoves (Chulas) where the food is being 'cooked. This kitchen is situated on the eastern side of Silo,'
10. In the second report filed by him on 5th October 1983, he reported on why he was able to take only six persons tout of the fourteen to Ahmedabad for being made available to Court on the 5th. In the third and final report filed by the Commissioner (in October 1983, he has appended the statements of the workmen who wanted to leave and those workmen who were willing to continue. It is a fairly voluminous report. It is not necessary to refer to the contents of the report in detail in view of the course which we are adopting in this case. We make it plain that our purpose here is not to indict any party, for that would be beyond the scope of this petition. We use the material before us to highlight the situation in the labour field so that those concerned may be benefited by our deliberations in this case.
11. The final report of the Commissioner discloses certain facts. We make it clear that we are not taking any further action on the basis of this final report because we are not called upon to do so, and more so because respondents Nos. 2 and 3 before us were not called upon to file objections, if any, to such report. The conclusions in the report alone need be mentioned here and we extract the same:
'We have already Indicated our certain conclusions in the previous two reports submitted on two earlier occasions, The further conclusions are as under:
(a) In view of the present proceeding and in view of the inquiry having been made by the Court Commissioner. And the Court Officer and in view of other incidental aspects of this matter the conditions at the IFFCO premises started improving. The workmen indicated in general that quality of food was improve who some extent and enough quantity of food was started being served to the workers.
(b) The workmen had made grievance, that since the date of the resumption of I the work, none of the concerned workers was allowed to cross the main gate and practically none was allowed even to approach the' main road leading to the main gate and therefore, they were under great mental strain and tension and most of the workmen used the language that their condition was that of a prisoner. The issuance of passes to the concerned. workmen had a great effect on the work men and the workmen who opted to continue to. stay did so practically because all of them knew that gate passes wire being issued and they were to be issued to all the concerned workmen.
(c) The workmen did come to know that the general working conditions would be improved. The workmen opted to continue to work only on the basis of improvement of working condition including the issuance of the gate passes.
(d) It is not out of place mention certain expressions. Of the workmen during the inquiry. On October 6. 1983, in the evening when we entered the main gate, groups of concerned workmen were coming out of the premises of the IFFCO for the first time after their entry in 'the premises and we also saw the cheerful groups of the workers who had gone out on the. basis of gate passes and who were entering the main gate. The workers also did face the problems of purchasing articles of absolute necessity like soap, biris and other essentials. Many of them also purchased such small articles as they went outside the premises on the basis of the gate passes. The general feeling amongst the workmen were that they had become for as they received the gate passes. Many of them expressed their gratitude and others thanked the Court Commissioner and the Court Officer that on account of Intervention of the Hon'ble Court's machinery that they could become free from the conditions which amount to prison - according to them.
(e) The contractor had personally promised to provide the names and addresses of 105 persons of Barmer Group who' did leave before we reached the premises and the said list was not provided throughout the continuation of the Commission work. Therefore, the contractor is communicated through his counsel to give the names and addresses of the said workmen and if it will be provided to the Court Commissioner, the same would. form part of this report. It appears that neither the contractor nor the IFFCO had any direct or indirect record about the names and addresses of the concerned workers.
(f) Neither the contractor nor the IFFCO management had any record of any part payment of 'Kharchi' having been paid to the workers,
(g) The general trend of the statement of the workmen was to the effect that whenever some small amounts were being paid as 'Kharchi'. it was always made through Mukadams and that direct payment Was not made to them.
It also appears that 149 workmen who opted to work were not paid wages in regular course but some of them were paid some amounts by way of 'kharchi' through their Mukadams. We also came to know that most of the workmen did work for more period than fixed hours.
(h) IFFCO management was not at any point of time directly supervising the payment being made to the workers.
(I) In our view. it will be difficult to live all 24 hours near Silo from the. Hygienic point of view. Of course, our knowledge of medical science and effect of pollution on respiration is very limited. We cannot express our opinion scientifically but at least practically it would cause great inconvenience if one has to stay 24 hours near Silo and it is a mater of fact that all these workmen were kept nearby Silo for all the 24 hours.
(j) It is pertinent to note that out of the persons who were interviewed by the Commissioner, about 50 workmen were employed a day or two prior to the date of recording of the statements.
(k) It is very difficult to tally all flip figures in the absence of the record maintained by all concerned but on the first day of the, Commissioner work we had counted 296 persons sleeping near the Silo and considering all the further figures of workmen ' who opted to become free and who opted to work and the number of new workmen who were brought to work, the figures do not tally.
(1) That the contractor Shri Dhaneshbhai did remain personally present during the entire work of Commission on 5th and 6th October 1983 (up to 1.00 P. M. on 6-10-1983) and he actively participated and co-operated in the work of Commission.'
Evidently the report indicates that out of about 300 workmen, 105 workmen of the Barmer Group from Rajasthan left the premises on 5th as mentioned earlier and under circumstances indicated and 65 workers who had pressed their cam to leave the premises before the Commissioner were allowed to leave after receiving wages. Thus, in all, 170 workmen were free. Six more desired to leave but their dues were to be paid only later and so they were to leave the next day.
12. We now refer to facts which more or less are agreed on both sides. The nature of the work of the workmen employed by the contractor was that of handling urea. They had to fill the urea from the silos in empty bags, 'stitch them and stack then. The case of the petitioner is that this involved very serious health hazards. The circumstances under which contract labour came to be employed have been detailed by the IFFCO. Following demands by this union of the workers of the. IFFCO there was the threat of a strike and according to the management. the workers adopted go-slow tactics. This resulted in accumulation of urea in the Silos which completely immobilized the factory. Consequent on this, the factory could not depend upon its regular workers alone and had necessarily to requisition the services of outside labour. That was how a contract for temporary period is said to have, come into being. To be operative, till the working in the factory became normal, am arrangement was envisaged by this. The third respondent had entered into the contract with IFFCO on 12th September 1983 and pursuant to that contract, the workers were inducted into the factory from 14th September 1983 Some of the workers so engaged by the third respondent were from outside the State, such as the batch of about 112 workmen from Rajasthan. The case of the petitioner Union was that these workmen, excepting perhaps those who were residing near about the factory premises, were not. Allowed to go out of the factory premises; that ever since they came in, they were in the factory premises and that they had no proper facilities for living. The Commissioner's report shows, and it is not disputed, that a cutcha pandola was put up to house these people and they were sleeping there. They were not provided with any mats or other facilities for sleeping and most (of them were using the gunny 'bags of IFFCO as their bed and for covering their bodies. The further case is that wages were not being paid to them regularly: that Mukadams who brought them would be knocking off substantial portion of their wages and that there was no guarantee as to what would be paid to them. There. is also a complaint that these workmen were asked to work there for more than one shift. The case of the petitioner was that though IFYCO was employing a contractor. no licence was obtained by the contractor.
13. As regards the main part of the case, no adjudication is called for now because those workmen who were not said to be free to leave and who did not want to continue under conditions provided for them in the factory, have now been freed and their wages had been paid in the presence of the Commissioner at Rs. 25/- per day. Though it is unfortunate that 105 of these workmen left the premises under circumstances which may legitimately give room for the charge that they were sent out when the matter of their freedom and wages was being hotly debated in this Court, since they are not in the factory premises now, we need not got further into that question. So., the Habeas Corpus part of the case comes to an end consequent on the development after the filing v)f the petition. 'By reason of the various steps we took in this case, that does not call for any further adjudication. That is not the end of the case. Certain facts which have been highlighted in this case call for our notice.
14. We have already indicated that economic compulsions may persuade workmen to work under conditions entirely different from these envisaged in the labour laws and the mere fact that they are working not under any apparent physical restraint does not render the work voluntary. The complaint in this case was that of restraint on the freedom of movement of the workmen who came to the premises. May be that they were not allowed to go out because passes were not issued to them; if that would result in the workmen being confined within the factory premises for days together against their will, that would be highly objectionable.
15. During the course of their work there, the workmen had to- come into contact with chemical fertilizer material which, it is said, may cause burns, though not the same kind of burns as caused by fire. To quote the words of the third respondent contractor in paragraph 8 of his affidavit:
'I say that the nature of fertilizer being manufactured by the first respondent is not such whereby one gets burns which may be caused due to fire.'
Again he says in the same paragraph:
'However, it is true that with a newcomer while getting in touch with the fertilizer being manufactured by the first respondent, it creates little bit burning sensation in the hands and/or feet but that too would be for the first few days and there after one gets used to it ........ Under the circumstances, the said mark men do, not require any . sophisticated equipment like hand-gloves.'
We have to *remember here that the workmen who wanted to protect themselves had to adopt the primitive method of using torn pieces of gunny bags to protect their hands and legs. In the same paragraph. the contractor says:
'I further say that there is no obligation on the part of the firm under any law to provide to the workmen any pillow or bedding for covering their body as slated by the Commissioner.'
The contractor seems to have forgotten that the Contract Labour (Regulation and Abolition) (Gujarat) Rules, 1972, lay down very detailed specifications as to the type of facilities to be provided including rest rooms and as to how 'comfortable these should be. Perhaps uninformed of these provisions, the contractor assumes that even the provision. Of a cutcha pandola was a very gracious act on his part and he observes:
'On the contrary, it should have been appreciated by the Commissioner that cutcha pandola has been erected by the said firm at its own expenses only with an intention to see that workmen who were desirous. and who are desirous of staving, in the premises of 1he first respondent Itself can get proper shelter at the time of taking rest.'
16. With regard to wages, the case of the petitioner was that only small amounts were paid to the workmen. It appears that wages were paid actually on 4th October 1983 (after the proceedings were started) as paragraph 11 of the contractor's affidavit indicates. To the Commissioner, some of the workmen stated that they were paid wages at Rs. 11.5o p. per day. Evidently that appears to be the wages said to have been paid to the workers of the nearby villages. Two representatives of those who said that Rupees 11.50 P. per day were being paid were among those called to this Court and they affirmed the statement to the Commissioner. At the hearing, it was stated by respondent No. 3 categorically that the wages were being paid at Rupees 25/- per day and the workmen who were paid in the presence of the Commissioner were also paid a minimum of Rs. 25/- per day. We find in paragraph 5 of the counter affidavit of the third respondent a different case. The case. t herein Is that the workmen were not paid daily wages but on a piece-rated basis - a case which was never stated before us at any time. The counter without slating what the piece-rate was ambiguously makes a statement, which it would be profitable to extract here:
'May it be noted at this stage that wages payable to the said workmen are on piece-rated basis which come to the tune of Rs. 20/- per day in case of each of the workman and the said wages are double the minimum rates of wages fixed for unskilled contractors' employees...'
We do not want to take the matter further. Suffice to notice this.
17. It is pertinent in this context to make a brief reference to the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred to as 'the Act') and the provisions of the Contract Labour (Regulaticn and Abolition) (Gujarat) Rules, 1972 (hereinafter referred to as 'the Rules'). Under the provisions ; f the Act, every 'principal employer of an establishment to which the Act applies is obliged to seek registration of this establish. Section 7 casts this obligation. It is open to the appropriate Government, after consultation with the Central Board, to prohibit employment of contract labour in any process, operation or other work in any establishment and the relevant reasons for such a prohibition are envisaged in Section 10(2) of the Act.
18. Any and every person cannot supply contract labour. In order to engage oneself in the business of providing contract labour, one has to seek licence under the provisions of the Act. This is understandable because the system of contract labour establishes an intermediary between the principal employer and the workmen and the introduction of the intermediary should not result in the annihilation of the rights of the workmen. To meet this, very stringent provisions are contemplated in the Act which, if properly administered, will adequately secure to the workmen their rights. Otherwise the workmen will be without in remedy, regard being had It., the temporary nature of work that the contract labourers may be engaged in.1 Section 12 of the Act deals with licensing of contractors and Section 13 deals with grant of licences subject to the procedure prescribed. Chapter V deals with 'Welfare and Health of Contract Labour' and envisages making necessary provisions in the Rules relating to the establishment of canteens, rest rooms, fir3t-aid facilities arid other facilities and also envisages the liability of a principal employer where the contractor fails in his obligation. the State rules framed under the Act which, it is agreed, are applicable to the establishment before us, lay down detailed provisions relating to -registration and licensing. One of the salient provisions which should receive our notice is that in Rule 24 which requires the contractor to furnish an amount. calculated at the rate of Rs. 30/- for each of the workman to be. Employed as contract labour in respect of which the application for licence has been made. Evidently this is the security for due performance of the conditions of the licence and compliance with the provisions of the Act and the rules made there under. Chapter V of the rules deals with 'Welfare and Health of Contract Labour', and, if we may say so, is one of the important Chapters in the Rules as it lays down very elaborate rules in regard to the facilities to be afforded to workmen so as to provide for their welfare and her Ii. While rest rooms are to be provided, what should be the nature of the ,, ms, their size and other details are very elaborately dealt with in the rules, Very detailed provisions with regard to canteens have been made. At least one latrine for 25 males is envisaged in Rule 51 and that latrins itself should be under cover and privacy as, envisaged in Rule 52. We are only referring to this to show as to how detailed rules are made in regard to facilities to the workmen. The provisions for washing facilities and water are all in the rules and, in fact, even what the first Ad boxes should provide for has been dealt with in detail in R. 59. Rule 6.1 of the Rules obliges the contractor to flx wage period and Rule 68, which is of importance, obliges payment of wages directly to the worker. That rule we may quote here:
'68. Wages to be paid directly to the worker.- Wages due to every worker shall be paid to him direct (or to other person authorised by him in this behalf,'
Rule 72 is intended as a safety me3sure +-i see that the payment of wages to the labourer is not avoided under any pretext. That obliges the principal employer to ensure the presence of his authorised representative at the place and time of disbursement of wages by the contractor to the workmen. More than that it says 'It shall be the duty of the contractor to ensure the disbursement of wages in the presence of such authorieed representative.' It lays down a further safeguard that the authorised representative of the principal employer shall record under his signature a certificate at the end of the entries in the Register of Wages or the Wages-cum-Muster Roll in a specified Form, Rule 78 of the Rules obliges the contractor to maintain (a) Muster Roll; (b) Register of Wages: (c) Register of Deduction; (d) Register of Overtime. (e) Register of Fines: and (f) Register of Advances.
19. With a view to finding out how the contractor and management before us have complied with the provisions of the Act and the Rules and just it) appreciate how these things generally work, we issued a questionnaire calling for answers. The answers should be indicative whether there has been compliance with the provisions of the Act and the Rules. Though, on a reading of the answers to the questionnaire, it may appear that everything goes on in a grand manner and there is compliance with the provisions of the Act and the Rules (as the contractor and IFFCO have stated), on further query, we are satisfied that this compliance is only after the matter is being discussed in this Court-the contractor having made his application for licence on the 6th October 1983 after the matter came to this Court and paid the security on 10th October - two days ago. He had obtained the, contract (in 12th September, 1983, and the period within which lie should seek licence had expired earlier. Therefore, from what is said in the answers to the questionnaire, we can safely say that. until the matter was highlighted in this Court, there was no compliance by the third respondent with the provisions of the Act and the Rules. Again, we say this not in indict the third respondent, but to understand the pattern., not only here, but elsewhere too where contract labour is employed. This matter has been highlighted in this case during t he course of our inquiry now. There is one more provision in thie. rules which calls for notice. Rule 77 of the Rules envisages the issuance of a Service Certificate, which reads 'on termination of employment for any reason whatsoever 'the contractor shall issue to the workman whose services have been terminated a Service Certificate in Form XV.' Such issue of certificate is not a mere formality. It is not a matter (if form. It is of consequence to the workman who is entitled to the valuable rights contemplated under the Industrial Disputes Act. That will be available to him if he is in a position to prove his previous service and the proof (of previous service cannot be except by a certificate and that is the beneficial purpose of Rule 77. If no registers are kept and if persons who are working are not traceable for want of addresses, it would mean the negation of the right of the workmen. It is conceded in the reply to the questionnaire by the third respondent that 'because of the high mobility of the workmen, it is really very difficult for respondent No. 3 to issue Service Certificates in Form XV to the concerned workmen who leave their services from time to time.' Howsoever high the mobility, one fails to understand, , much less appreciate. why so far the certificates have not been issued to the concerned workmen for the days they have worked. We fail to see how mobility is relevant 'in the matter of issuing certificates which is a peremptory requirement of the rules.
20. It is not that we in this country do not have legislations to protect labour and assure to them reasonable living conditions. There is a plethora of such laws, particularly delegated legislation; but, the enforcement agencies tire either uninformed of these or deal with them in a spirit of unconcern. Labour and social welfare measures cannot be implemented in a bureaucratic spirit. Periodical returns, notices, routine inspection reports and similar paper work may not by themselves promote the genuine implementation of our labour laws. It is not any and every one that can occupy responsible office in the labour wing; but only those who have a sense of dedication and commitment, those whit genuinely feel that in the larger interest of this country, they, placed in it privileged position, where they could do got to their fellowmen. have a duty to implement the laws, with a welfare oriented approach.
21. Before leaving this case, we should make reference to the case which arose before a Division Bench of this Court in the case of Hind Mazdoor Sabha V. District Collector, Rajkot, rep-ni-ted in (1983) (1) 24 Guj LR 788. This Courtwas dealing in that case with the violation of Inter-State Migrant Workinen (Regula'ion of Employment and Conditions of Set-vice) Act,. 1979. We are tempted to repeat what Chief Justice Thakkar (as he then was) said in that judgment,viz..hope that the authorities concerned will show greater awareness of responsibility resting on.their shoulders and will ensure that what has happened in the present instance does not happen in Gujarat hereafter.' We do not know how far the directions of the learned Judges in the case remain a pious wish. By the directions issued in that cage, directions which are specific enough. the Labour Coinmissioner was directed to ensure that migrant labourers employed directly or indirectly by any 'employer are:
(a) not subjected to restrictions in their freedom of movement and are not kept in captivity;
N paid at least minimum wages:
(c) given facilities to communicate with their family members at the home-town;
(d) not exploited by taking back by adopting the device of providing housing, meals, etc. and collecting exorbitant or out of proportion charges for such facilities.
The learned Judge. further directed that it must be ensured that the housing accommodation was reasonably good, that meal provided were wholesome and hygienic and attention must be given to many other matters. We must remember that good part of the workmen in this case are migrant work men. A fairly big lot was from Rajas than and there were batches from Where States too. The conditions under which they are seen to have worked were not the conditions 1he learned Judges evidently envisaged would follow as are suit of 1ht- directions giving in the judgment in the earlier case.
22. We do not think that we should merely sermonize and close our judgment. That would not achieve the purpdse intended here and that is the reason why in the exercise of our extraordinary jurisdiction we feel we should do something more concrete than merely making certain observations.
23. Before we do that, we think it is necessary to notice how important that, penal provisions of the Contract Labour(Regulation and Abififon) Act. 197o are. Section 22 deals with obstruction an Inspector in the discharge of his duties, under the Act It provides for punishment with in prison men for it which may extend to three months, or with fine which may extend, to live hundred rupees, or with both. Similar punishment is prescribed for refusing to product- the register or other document kept in pursuance of the? Act. Section 21, provides that:
'Whoever any provision of this Act, or of any rules made there under prohibiting. restricting,, or regulating 11tv employment of contract labourr, or contravenes any contravences any conditions of a liciense oranted under this Act. shall punishbile with imprisonment for a term ,which may extended to three months or with fine, which may extend to line thousand rupees, . or with both, and in the case of a continuing contravention with an additional fine which may extend to one hundred rupees for everyday during which such contravences, continues after conviction for the first such contravention.' The cognizance of the offence can be only on a clomplaint made by, or with the provious sanction in writing of, the Inspector, and that again is-.subject to a very serious limitation, viz. that ','No, Court shall take cognizance of ,an offence punishable under this Act unless the complaint thereof . is made 'within three months from the date on which [he alleged commission of the offence came to the knowledge of an Inspector.' Launching of prosecution depends entirely upon the will, the promptness and the diligence of the Inspect6rs. Even if launched, the Courts, quite often, view offences relating to contravention of the provisions regarding employment of contract labour with consideration as in the case of all white collar crimes, though they are the crimes which ought to be considered grave. If the provisions of the Act and the Rules are to be complied with strictly by the contractors' and principal employers, deterrence -is called for and deterrence can 'only be by making the penal provisions much more stringent than they are now.
24. Section 28 of the Act provides for appointment of an Inspecting Staff and details the duties of the inspecting Staff. Section 29 details the registers and other 'record, to be maintained by the principal employer and the contractor. This provision is incorporated in Chapter VII evidently to indicate the relation between maintenance of the registers and the duties of the Inspecting Staff. Section 32 gives protection to the officers for action taken under this Act. This should inspire the Inspecting Staff to be zealous in their functioning and not be casual or indifferent, in performing the several duties under the Act.
25. We, therefore, give the following directions:
(1)' The 'Labour Commissioner, who is ex-officio Member of the State Board constituted kinder the provisions of the .Contract Labour (Regulation and Abolition) Act, 1970, And the Rules there under, is the authority in charge - of the Inspecting Staff contemplated -under Section 28 of the Act. It is his primary duty to see to the administration . and implementation of -the Act and the Rules. In the light of the facts, disclosed in-this case, it is his first duty now to be on the look-out to locate and to identify. theun,litenc6d contractors engaged in the work .of, contract labour, Once they are located, that, must be followed up by seeing that there is strict - enforcement ,Of and compliance with tbe provisions of. the Act and the Rules in regard to them so that such a phenomenon does not work to the prejudice of the workmen employed by them.
(2) The list of. such un licenced contractors may be prepared quarterly and such lists be scrutinized properly f rorn tirne -to time by the Labour Commissioner. For the information of this Court and to assure compliance, copy of such. lists be furnished to this Court for four quarters.
(3) The, Labour Commissioner is directed to see that there is periodical inspection in respect of all licenced contractors. Periodical, Returns must be sent by the Inspecting Staff to the Labour Commissioner relating to cases where there has been serious non-compliance with the provisions of the Act. The Commissioner shall also see to follow up action based on such reports.
(4) In order to gear up the inspection machinery, it is necessary that there should be surprise check inspections by the Labour Commissioner or by some high officer of 'he Labour Department authorised by him and the result of such inspection should be assessed, particularly with a view to see whether the Inspecting Staff has been efficient in its functioning.
1 (5) We must in this context alert the Labour Commissioner to the elaborate provisions in the Act and the Rules w1i;ch have been dealt with herein to bring to his notice that if compliance with these Rules are made by all licenced contractors, !here would be no scope for objection on the part of contract labour and, therefore, he should act to instruct subordinates so as, to effect strict enforcement of these rules against the licenced as well as unlicenced contractors.
(6) We issue a direction to the IFFCO to see that hereafter the 3rd respondent working under the IFFCO observes all rules and regulations the non-observance of which will make IFFCO also liable.
(7) In regard to the third respondent's payment to its workmen during the period of his contract with IFFCO, we direct- that hereafter when such payments are made, that should be in presence of an officer deputed by the Labour Commissioner for the purpose of witnessing such payment. The date of paymert will be intimated to the Labour Commissioner sufficiently in advance.
(8) We direct that a copy of this judgment shall be issued to the State Board under the Act for information and necessary action.
(9) We direct the issue of a copy of the judgment to the Government Pleader so that the Government may see to the appropriate enforcement of the provisions of the Contract Labour (Regulation and Abolition) Act, 1970, by the authorities functioning in the labour wing of the Government.
26. We thank all concerned in this case for the cooperation extended to the Court. The petitioners have brought a very important issue to the notice of this Court consequent upon which the Court has been able to go into the matter in some depth. The management of the IFFCO and the contractor have been cooperative at the final stage of the case. We also thank the Government Pleader Mr. Vin for actively assisting us in this case.
27. Apart from exercising our power to release some of the workmen who were virtually bonded labourer. our object in making the observations herein is to arouse the labour authorities from their apparent inertia.
28. We had issued notice in the case. Notice will stand discharged with these observations and directions.
29. Order accordingly.