Supreme Court of India Bandhua Mukti Morcha vs Union Of India & Others

Supreme Court of India Bandhua Mukti Morcha vs Union Of India & Others on 16 December, 1983 Equivalent citations: 1984 AIR 802, 1984 SCR (2) 67 Author: P Bhagwati Bench: Bhagwati, P.N. PETITIONER: BANDHUA MUKTI MORCHA Vs. RESPONDENT: UNION OF INDIA & OTHERS DATE OF JUDGMENT16/12/1983 BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. PATHAK, R.S. SEN, AMARENDRA NATH (J)

13. The Inter-state Migrant Workmen (Regulation of Employment and conditions of Service) Act, by sub-section (4) of section (1) applies to every establishment in which five or more inter-State Migrant workmen are employed or were employed on any day of the preceding twelve months and so also it applies to every contractor who employs or employed five or more inter-State migrant workmen on any day of the preceding twelve months. Section (2) sub-section (1) Clause (b) of the Act defines contractor, in relation to an establishment, to mean a person who undertakes (whether as an independent contractor, agent, employee or otherwise) to produce a given result for the establishment, other than a mere supply of goods and articles of manufacture to such establishment, by the employment of workmen or to supply workmen to the establishment, and includes a subcontractor, khatedar, sardar, agent or any other person, by whatever name called, who recruits or employs workman. Clause (e) of sub-section (1) of section (2) defines interstate Migrant Workmen to mean any person who is recruited by or through a contractor in one State under an agreement or other arrangement for employment in an establishment in another State, whether with or with-out the knowledge of the principal employer in relation to such establishment. The expression principal employer is defined by clause (g) of sub-section (1) of section 2 to mean in relation to a mine, the owner or agent of the mine and where a person has been named as the manager of the mine, the person so named. Obviously, therefore, the mine-lessees and owners of stone crushers in the present case would be principal employers within the meaning of that expression as used in the Inter- 76 State Workmen Act. Section 16 lays a duty on every contractor employing inter State migrant workmen in connection with the work of an establishment to provide various other facilities particulars of which are to be found in Rules 36 to 45 of the Inter-State Migrant Workmen Rules. (These facilities include medical facilities protective clothing, drinking water, latrines, urinals and washing facilities, rest rooms, canteens, creche and residential accommodation). The obligation to provide these facilities is in relation to the inter-State migrant workmen employed in an establishment to which the Act applies. But this liability is not confined only to the contractor, because Section 18 provides in so many terms that if any allowance required to be paid under-section 14 or 15 to an inter-State migrant workman is not paid by the contractor or if any facility specified in Section 16 is not provided for the benefit of such workman, such allowance shall be paid or as the case may be, the facility shall be provided by the principal employer within such time as may be prescribed by the Rules and all the allowances paid by the principal employer or all the expenses incurred by him in this connection may be recovered by him from the contractor either by deduction from the amount payable to the contractor or as a debt payable by the contractor. [117 F-H, 119 E-A-120 A] 14. The thekedar or jamadar who is engaged by the mine lessees or the stone crusher owners to recruit workmen or employ them on behalf of the mine lessees or stone crusher owners would clearly be a 'contractor' within the meaning of that term as defined in Section 2 sub-section (1) clause (b) and the workmen recruited by or through him from other States for employment in the stone quarries and stone crushers in the State of Haryana would undoubtedly be inter- State migrant workman . Even when the thekedar or jamadar recruits or employs workmen for the stone quarries and stone crushers by sending word through the old hands, the workmen so recruited or employed would be inter-State migrant workmen, because the old hands would be really acting as agents of the thekedar or jamadar for the purpose of recruiting or employing workmen crushers in the State of Haryana. [121-E] 15. In addition to the rights and benefits conferred upon him under the Inter-State Migrant workmen Act and the inter-State Migrant Workmen Rules, an inter-State migrant workman is also, by reason of Section 21, entitled to the benefit of the provisions contained in the Workmen's Compensation Act 1923, The Payment of Wages Act 1936, The Employees' State Insurance Act 1948, The Employees' Provident Funds and Misc. Provisions Act, 1952, and the Maternity Benefit Act 1961. [122 B-C] The obligation to give effect to the provisions contained in these various laws is not only that of the jamadar or thekedar and the minelessees and stone crushers owners (provided of course there are 5 or more inter-State Migrant Workmen employed in the establishment) but also that of the Central Government because the Central Government being the appropriate Government within the meaning of Section 2(1)(a) is under an obligation to take necessary steps for the purpose of securing compliance with these provisions by the thekedar or jamadar and mine-lessees and owners of stone crushers. The State of Haryana is also bound to ensure that these provisions are observed by the thekedar or jamadar and minelessees and owners of stone crushers. [122 D-F] 16. If the Jamadar or thekadar in a stone quarry or stone crusher is a contractor' within the meaning of the definition of the term in the Inter-State Migrant 77 Workmen Act, he would a fortiorari be 'contractor' also for the purpose of Contract Labour Act and any workmen hired in or in connection with the work of stone quarry or stone crusher by or through the jamadar or thekedar would be workmen entitled to the benefit of the provisions of the Contract Labour Act. Where therefore the thekedar for Jamadar is a Contractor, and the workmen are employed as 'contract labour' within the meaning of these expressions as used in the Contract Labour Act the Contractor as well as the principal employer would be liable to comply with the provisions of the Contract Labour Act and the Contract Labour Rules and to provide to the contract labour rights and benefits conferred by these provisions. The Central Government being the appropriate government within the meaning of section 2 sub-section (1) clause (a) would be responsible for ensuring compliance with the provisions of the Contract Labour Act and the Contract Labour Rules by the mine-lessees and stone crushers owners and the thekedar or jamadar. So also, for reasons discussed while dealing with the applicability of the Mines Act 1952 and the Inter State Migrant Workmen Act, the State of Haryana. would be under an obligation to enforce the provisions of the Contract Labour Act and the Contract Labour Rules for the benefit of the workmen. [123 E-F, H, 124 A-C] 17. There can be no doubt and indeed this was not disputed on behalf of the respondents, that the Minimum Wages Act 1948 is applicable to workmen employed in the stone quarries and stone crushers. Therefore whatever be the mode of payment followed by the mine lessees and stone crusher owners, the workmen must get nothing less than the minimum wage for the job which is being carried out by them and if they are required to carry out additionally any of the functions pertaining to another job or occupation for which a separate minimum wage is prescribed, they must be paid a proportionate part of such minimum wage in addition to the minimum wage payable to them for the work primarily carried out by them. The system of payment which is being followed in the stone quarries and stone crushers, under which the expenses of the explosives and of drilling holes are to be borne by the workmen out of their own wages, should be changed and the explosives required for carrying out blasting should be supplied by the mine lessees or the jamadar or thekedar without any deduction being made out of the wages of the workmen and the work of drilling holes and shot firing should be entrusted only to those who have received the requisite training under the Mines Vocational Training Rules 1966. So far as the complaint of the petitioner that the workmen employed in the stone quarries and stone crushers are not being paid the minimum wage due and payable for the work carried out by them is concerned, it is a matter which would have to be investigated and determined. [124C, 125 A-E] The Bonded Labour system is intended to strike against the system of bonded labour which has been a shameful scar on the Indian Social Scene for decades and which has continued to disfigure the life of the nation even after independence. The Act was brought into force through out the length and breadth of the country with effect from 25th October 1975, which means that the Act has been in force now for almost 8 years and if properly implemented, it should have by this time brought about complete identification, freeing and rehabilitation of bonded labour. But as official, semi-official and non-official reports show, we have yet to go a long way in wiping out this outrage against humanity. [126 A-C] 18. It is clear bonded labour is a form of forced labour and Section 12 of the Bonded Labour System (Abolition) Act 1976 recognises this self-evident proposition by laying a duty on every District Magistrate and every officer specified 78 by him to inquire whether any bonded labour system or any other form of forced labour is being enforced by or on behalf of any person and, if so, to take such action as may be necessary to eradicate the enforcement of such forced labour. The thrust of the Act is against the continuance of any form of forced labour. It is of course true that, strictly speaking, a bonded labourer means a labourer who incurs or has or is presumed to have incurred a bonded debt and a bonded debt means an advance obtained or presumed to have been obtained by a bonded labourer under or in pursuance of the bonded labour system and it would therefore appear that before a labourer can be regarded as a bonded labourer, he must not only be forced to provide labour to the employer but he must have also received an advance or other economic consideration from the employer unless he is made to provide forced labour in pursuance of any custom or social obligation or by reason of his birth in any particular caste or community. [130 A-D] 19. The contention of the State of Haryana that the burden of proof under the bonded labour System (Abolition) Act, 1976 is upon the bonded labourers is misconceived. To insist that the bonded labourers must first prove that they are providing forced labour in consideration of an advance or other economic consideration received by them and then only they would be eligible for the benefits provided under the Act, is nothing but asking them to do a task which is extremely difficult, if not impossible. The labourers would have no evidence at all to prove so and since employment of bonded labour is a penal offence under the Act, the employer would immediately without any hesitation disown having given any advance or economic consideration to the bonded labourers. The insistence of proof from two labourers by the State Government which is constitutionally mandated to bring about change in the life conditions of the poor and downtrodden and to ensure social justice to them is reprehensible. [130 F-H, 131 A] It would be cruel to insist that a bonded labour in order to derive the benefits of this social welfare legislation, should have to go through a formal process of trial with the normal procedure for recording of evidence. That would be a totally futile process because it is obvious that a bonded labourers can never stand up to the regidity and formalism of the legal process due to his poverty, illiteracy and social and economic backwardness and if such a procedure were required to be followed, the State Government might as well obliterate this Act from the statute book. It is now statistically established that most of bonded labourers are members of Scheduled Castes and Scheduled Tribes or other backward classes and ordinary course of human affairs would show, indeed judicial notice can be taken of it, that there would be no occasion for a labourer to be placed in a situation where he is required to supply forced labour for no wage or for nominal wage, unless he has received some advance of other economic consideration from the employer and under the consideration from the employer and under the pretext of not having returned such advance or other economic consideration, he is required to render service to the employer or is deprived of his freedom of employment or of the right to move freely wherever he wants. Therefore, whenever it is shown that a labourers is made to provide forced labour, the Court would raise a presumption that he is required to do so in consideration of an advance or other economic consideration received by him and he is therefore a bonded labourer. This presumption may be rebutted by the employer and also by the State Government if it so chooses but unless and until satisfactory material is produced for reubutting this presumption, the Court must proceed on the basis that the labourer is a bonded labourer entitled to the benefit of the provisions of the Act. The State Government cannot 79 be permitted to repudiate its obligation to identify, release and rehabilitate the bonded labourers on the plea that though the concerned labourers may be providing forced labour, the State Government does not owe any obligation to them unless and until they show in an appropriate legal proceeding conducted according to the rules of adversary system of justice, that they are bonded labourers. [131 C-H, 132 A] 20. Though section 13 provides for constitution of a Vigilance Committee in each District and each sub-division of a District, the Government of Haryana, for some reason or the other, did not constitute any Vigilance Committee until its attention was drawn to this requirement of the law by this Court. It may be that according to the Government of Haryana there were not at any time any bonded labourers within its territories, but even so Vigilance Committees are required by Section 13 to be constituted because the function of the Vigilance Committee is to identify bonded labourers, if there are any, and to free and rehabilitate them and it would not be right for the State Government not to constitute vigilance Committees on the assumption that there are no bonded labourers at all. In constituting Vigilance Committee in each District and sub-division, the Haryana Government would do well to include representatives of non-political social action groups operating at the grass root level, for it is only through such social action groups and voluntary agencies that the problems of identification of bonded labour can be effectively solved. [128 E-H, 129 A- B] The magistrates and judicial officers take a very lenient view of violations of labour laws enacted for the benefits of the workmen and let off the defaulting employers with small fines. There have also been occasions where the magistrate and judicial officers have scotched prosecutions and acquitted or discharged the defaulting employers on hyper technicalities. This happens largely because the magistrates and judicial officers are not sufficiently sensitised to the importance of the observance of labour laws with the result that the labour laws are allowed to be ignored and breached with utter callousness and indifference and the workmen begin to feel that the defaulting employers can, by paying a fine which hardly touches their pocket, escape from the arm of law and the labour laws supposdely enacted for their benefit are not meant to be observed but are merely decorative appendages intended to assuage the conscience of the workmen. The Magistrates and Judicial Officers should take a strict view of violation of labour laws and to impose adequate punishment on the erring employers so that they may realise that it does not pay to commit a breach of such laws and to deny the benefit of such laws to the workmen. [145 A-D] 21. The Court issued several directions to the Central Government and the State Government and the various authorities for implementing the provisions enacted in various social welfare laws for the benefit of the workmen employed in the stone quarries and stone crushers in the state of Haryana. So that the poor workmen who lead a miserable existence may one day be able to realise that freedom is not only the monopoly of a few but belongs to them all and that they are also equally entitled along with others to participate in the fruits of freedom and development. [132 D, 145 D-F]