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PETITIONER: LABOURERS WORK[NG ON SALAL HYDRO-PROJECT

       Vs.

RESPONDENT: STATE OF JAMMU & KASHMIR AND OTHERS

DATE OF JUDGMENT02/03/1983

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. PATHAK, R.S. SEN, AMARENDRA NATH (J)

CITATION:  1984 AIR  177            1983 SCR  (2) 473  1983 SCC  (2) 181        1983 SCALE  (1)216

ACT:      Lobour  Laws-Benefits   and  facilities   provided  for workmen under  Inter-State Migrant  Workmen  (Regulation  of Employment and  Conditions of  Service)Act,1979;    Contract Labour (Regulation  and Abolition)  Act, 1970; Minimum Wages Act, 1948-Prohibition  of child  labour in construction work under Art. 24 of Constitution-Implementation of.

HEADNOTE:      On the  basis of  a  news  item  that  migrant  workmen employed in  tho Salal  Hydro Electric  Project  were  being denied the  benefits of  various labour  Iaws, the  Peoples’ Union for Democratic Rights addressed a letter to an Hon’ble Judge of  the Court requesting that the same be treated as a writ Petition  and justice  be  done  to  the  workmen.  The request was  acceded to  and in  compliance with a direction made, the  Labour Commissioner,  Jammu, visited  the site of the project,  ascertained the  position  and  submitted  two reports which  disclosed inter  alia that  the  project  was being carried  out by  the Government of India. The petition was  heard  on  the  basis  of  the  reports  made  and  tho affidavits in  reply filed by the Union of India pursuant to the directions made in that behalf.      The National Hydro Electric Power Corporation which had been entrusted  with the  execution of  the work relating to the project  was carrying  out certain  portions of the work through workmen  directly employed  by it  and had entrusted the  remaining   portions  to   several   contractors.   The contractors, in  their turn,  were doing  a part of the work given to  them through  workmen directly  employed  by  them while the  remaining part  had  been  allotted  by  them  to subcontractors.  The   Contract   Labour   (Regulation   and Abolition) Act,  1970 being applicable to the establishments pertaining to  the project  work, the Executive Engineers of the  National   Hydro  Electric   Power  Corporation  having supervision and  control over  the respective establishments were registered  as principal  employers and the contractors to whom  different portions  of the  work were entrusted for execution were  licensed by the licensing officers appointed by the  Central Government  but the  sub-contractors did not hold any  licence. The  sub-con-tractors were  being  called

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’piece-wagers’ with  a view  to circumvent the provisions of the Act.      The workmen  employed on  the project were mostly drawn frorm  other   states.  There  was  no  uniform  pattern  of employment but so far as Oriya workman were 474 concerned they  were usually  recruited  by  khatedars  from their villages  in Orissa  and given  advances before  being taken to  the project  site. Some  Bihari workmen  were also found to  have received  such advances.  The contractors and ’piece-wagers’ had  not provided  rest rooms,  canteens  and washing facilities  to the  workmen employed  by  them.  The ’piece-wagers’ were  making payments  to workmen  like Oriya labourers who were employed in groups, through khatedars and there were  complaints of  deductions on account of advances made to  them, messing  charges, etc.,  although the  muster rolls did not reflect the deductions. Payments of wages made by  ’piece-wagers’   were  not   being  supervised   by  any authorised representative  of the  principal employers or of the Central  Government and  almost fifty  per cent of over- time wages  earned  by  workmen  was  being  taken  away  by khatedars. The provisions of the Inter-State Migrant Workmen (Regulation of  Employment and  Conditions of  Service) Act, 1979 conferring  benefits and advantages on workmen were not being implemented.  No weekly  off day  was being allowed in respect of  workmen employed  by ’piece-wagers.  Some minors were also  found employed  on the  project site. The minimum wage fixed  for workmen employed on the project was found to be a  rupee less than that fixed by the State Government for workmen employed in tho construction industry.      Allowing the petition, ^      HELD: The  Inter-State Migrant  Workmen (Regulation  of Employment and  Conditions of Service) Act, 1979 was enacted with a view to eliminating abuses to which workmen recruited from one  State and  taken for  work to  another State  were subjected  by   the  contractors,   sardars   or   khatedars recruiting them.  The Act  and the  rules framed  thereunder came into  force with effect from October 2, 1980 and became applicable to  the establishments  pertaining to the project work. The  Central Government  ought to  have  enforced  the provisions contained in ss. 12 to 16 and also those relating to registration  of principal  employers  and  licensing  of contractors at  least. from  June,  1982  when  the  various authorities contemplated  under the  Act were appointed. The stand taken  by the  Central Government that the workers had gone to  Salal Project  for work on their own and therefore, strictly speaking,  they were not migrant workmen, cannot be accepted as valid. Oriya workmen recruited by khatedars from their villages in Orissa and brought to the project site for work are  lnter-State migrant  workmen within the meaning of s. 2 (e) of the Act.                                      [480-H; 481-F; 482 A-E]      2. Not  only a contractor but also a sub contractor who comes within  the definition of the term ’contractor in s. 2 (c) of  the Contract  Labour Regulation  and Abolition) Act, 1970 is  bound to obtain a licence under sub-s. (I) of s. 12 thereof before  he can undertake or execute any work through contract labour.  Sections 16 to 21 of the Act read with rs. 41 to  62 provide for making various facilities available to workmen employed  by contractors  for securing  their health and welfare  and ’piece-wagers’  or sub-contractors  who are ’contractors’ within  the meaning  of s  2 (c) cannot escape their obligations under these provisions by not applying for a licence  under sub-s.  (1) of  s. 12.  In  fact,  if  sub-

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contractors under 475 take or  execute any  work through  contract labour  without obtaining a  licence under  sub-(l) of  s. 12, they would be guilty of  a criminal  offence punishable  under 8. 23 or s. 24. [483 G; 484 B-D]      3.  Sub.s.   (2)  of  s.  21  of  the  Contract  Labour (Regulation and  Abolition) Act,  1970 requires  that  every principal employer  shall  nominate  a  representative  duly authorised by  him to be present at the time of disbursement of wages  by the contractor and it shall be the duly of such representative to  certify the  amount paid as wages in such manner as may be prescribed and under sub-s. (3) of s. 21 it is the duty of the contractor to ensure that disbursement of wages  is   made  in   the  presence   of   the   authorised representative of  the  principal  employer.  Wages  due  to workmen employed  by the  ’piece-wagers’ or  sub-contractors must  be   paid  directly   to  the   workmen  without   the intervention of  khatedars, and  no deductions  can be  made from the  wages on  account of  any advances alleged to have been made by the khatedars to the workmen. [487 C-F]      Peoples’ Union for Democratic Rights & ors. v. Union of India &  ors.(Asiad workers’  Case)  [1983]  I  S.C.R.  456, referred to.      4. Under Art. 24 of the Constitution no child below the age of 14 years can be employed in ’construction work’ which has been  declared to be a hazardous employment in the Asiad Workers’  case.  This  constitutional  prohibition  must  be enforced. The  children of construction workers living at or near  the  project  site  should  be  given  facilities  for schooling and  this  may  be  done  either  by  the  Central Government itself  or if the Central Government entrusts the project work  or any part thereof to a contractor, necessary provisions to  this effect  may be made in the contract with the contractor. [485 G-H; 486 D-G]      Asiad Worker’s Case, referred to.      5. There  can be  no doubt  that the  minimum rates  of wages fixed by the Central Government include the element of weekly day  of rest  and that  no extra  wages  are  legally payable  to  the  workmen  for  the  weekly  off  days.  The complaint made  is not  that extra  wages are not being paid for the  weekly off  days but  that weekly paid off days are not being  given to  the workmen,  meaning thereby  that the workmen are  required to  work even on their weekly paid off days These  complaints have  to be  remedied by  the Central Government by  taking appropriate action and the only way in which this  can  be  done  effectively  is  by  carring  out periodically detailed inspections. [488 G-H; 489 A-B]      The following directions were made by the Court:      (i) The  Central Government  will at  once  proceed  to identify inter-state migrant workmen employed in the project work and  adopt necessary measures for  ensuring to them the benefits  and  advantages  provided  under  the  Inter-State Migrant Workmen  (Regulation of Employment and Conditions of Service) Act, 1979. [482- F]      (ii) The  Central Government  will take immediate steps for ensuring  that ’piece-wagers  or the  sub-contractors do not execute any portion of tho project 476 work without  obtaining a  licence under sub-s. (I) of s. 12 of the  Contract Labour (Regulation and Abolition) Act, 1970 and that they carry out their obligations under that Act and Rules framed  thereunder. It  will also take immediate steps for ensuring that canteen, rest rooms and washing facilities are provided  by the  contractors and  piece-wagers’ or sub-

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contractors to  the workmen  employed by  them in accordance with the  requirements of ss. 16, 17 and 18(c) read with rs. 41 to 50 and 57. [484 G, 485 D-E]      (iii)  The  Central  Government  will  tighten  up  its enforcement machinery  and ensure  that thorough and careful inspections are  carried out  by fairly  senior officers  at short intervals  with a  view to  investigating whether  the labour laws  are being  properly observed,  particularly  in relation to  the workmen employed either directly or through khatedars by  the contractors  as well as the ’piece wagers’ or  sub-contractors.   The  Central   Government  must  also strictly enforce   the  requirement that  payment  of  wages particularly to  workmen employed either directly or through khatedars by  the ’piece-wagers’  or sub-contractors is made in the presence of an authorised representative appointed by the National Hydro E1ectric Power Corporation or the Central Government and  wages  are  paid  directly  to  the  workmen without the  intervention of  khatedars and  free  from  any deductions whatsoever,  except those authorised by law. When payment of  overtime wages  is  made  to  the  workmen,  the Central Government must ask its authorised representative to check-up with  reference to  the over-time  work done by the workmen, whether they are receiving the full amount of over- time wages due to them or any part of it is being taken away by tho khatedar"s, [489 D-H, 490 A-C]      (iv) The  Central Government  will  take  note  of  the anomalous situation in which a workman employed in the Salal Project is  getting a  minimum wage  of only Rs. 91- per day because it  is a  work which  is being  carried out  by  the Central   Government   whereas   a   workman   employed   in construction industry  in the  State of  Jammu  and  Kashmir would be entitled to Rs. 10/- per day. [490 F-H, 491 A]      (v) The  Central  Government  will  file  an  affidavit setting out  the steps  taken by it in respect of directions (i) to  (iii) above  within one  month from  the date of the judgment. [485E, 490 C-D]

JUDGMENT:      ORlGINAL JURISDICTION: Writ Petition (Crl.) No. 1179 of 1982.      (Under Article 32 of the Constitution of India)      Govind Mukhoty for the Petitioner.      Altaf Ahmed,  Girish Chahdra and Miss A. Subhashini for the Respondents.      The Judgment of the Court was delivered by 477      BHAGWATI, J.  The issue  of Indian  Express dated  26th August A  1982 carried  a news  item that  a large number of migrant workmen from different States including the State of Orissa were  working on  the Salal Hydro Electric Project in difficult conditions  and they  were denied  the benefits of various labour  laws and  were subjected  to exploitation by the contractors  to whom different portions of the work were entrusted by  the Central Government. The People’s Union for Democratic  Rights  thereupon  addressed  a  letter  to  Mr. Justice D.A.  Desai enclosing  a copy of the news report and requesting him  to treat  the letter  as a  writ petition so that justice  may be  done to  the poor labourers working in the Salal  Hydro Electric  Project. The  letter  was  placed before a  Bench of  this Court  and it was treated as a writ petition and  by an  order dated  10th September,  1982 this Court directed  that the  Union of  India,  the.  State-  of Orissa, the  Labour Commissioner,  orissa at  New Delhi. the

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State of  Jammu and Kashmir and the Labour Commissioner (J & K) should  be shown  as respondents to the writ petition and issued notice to the Union of India, the State of Orissa and the Assistant  Labour Commissioner of Orissa at New Delhi to show cause  against  the  writ  petition.  This  Court  also directed the Labour Commissioner, Jammu to visit the site of the Salal  Hydro Electric  Project and ascertain (i) whether there are  any bonded labourers employed on this project and if so,  to furnish  their names;  (ii) whether there are any migrant workers  who have come from other States; (iii) what are the conditions in which the workers are living; and (iv) whether the  labour laws enacted for their benefit are being observed and  implemented Pursuant to this order made by the Court, the Labour Commissioner Jammu visited the site of the Salal Hydro  Electric Project  and made an interim report on 11th October,  1982 and  this was followed by a final report dated 15th  October, 1982.  The writ petition there- P after came up  for hearing on 3rd November 1982. and on that date, the Court  pointed out  that the  Secretary, Union of India, Ministry of  Home Affairs,  the State  of Orissa, the Labour Commissioner orissa  at New  Delhi, the  State of  Jammu and Kashmir and the Labour Commissioner (J & K) had already been impleaded as  respondent Nos.  I to  S but since the reports made by  the Labour  Commissioner, Jammu  disclosed that the Salal Hydro  Electric Project was being carried out by the . Government of  India, the  Court directed  that the Union of India in  the Labour  Ministry  as  also  the  Chief  Labour Commissioner (Central) may also be added as respon- 478 dents Nos.  6 and  7 to the writ petition and that notice of the writ  petition shall  go immediately  to them  alongwith copies of  the two reports. The Court also directed that the Union of  India and  the Chief Labour Commissioner (Central) should file  their affidavit  or affidavits within two weeks from  the  date  of  the  order  dealing  with  the  various averments  made   in  the   two  reports   of   the   Labour Commissioner, Jammu  and particularly  the final report made by him,  since the  final report  disclosed prima facie that there were  certain violations  of labour  laws committed by the Central  Government and  the contractors. The Court also directed following its decision given on 18th September 1982 in People’s  Union for  Democratic Rights  v. The  Union  of India(l) that  "the Union  of India  and  the  Chief  Labour Commissioner (Central)  shall ensure  that hereafter minimum wage is  paid directly  by the  Central  Government  or  the contractors as  the case  may be, to the workmen employed by them without  the intervention  of  any  sub-contractors  or jamadars or  khatedars and  without any deduction whatsoever except such  as may be authorised statutorily. The reference to sub-contractors  in this  order will  be confined only to those sub  contractors who  have not been licenced under the Contract Labour (Regulation and Abolition? Act 1 956 because if any  such sub-contractors  have been licenced, they would fall within the definition of contractor and would therefore be liable  for payment  of  minimum  wage  directly  to  the workers without  any deduction.  The Union  of India and the Chief  Labour  Commissioner  (Central)  will  also,  in  the meanwhile, ensure  that sections  16 to  19 of  the Contract Labour (Regulation  and Abolition)  Act, 1956  read with the relevant rules made under that Act are complied with, as the same  are  mandatory  and  the  Central  Government  is  the appropriate authority  to enforce  the provisions  of those’ sections." It  appears that the Union of India and the Chief Labour Commissioner  (Central) were  not able  to file their affidavit or affidavits within the time granted to them with

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the result  that the  time had  to  be  extended  twice  and ultimately an  affidavit dated  14th December, 1982 was made by one  H.S. Raju,  Deputy Secretary  to the  Government  of India in  the Ministry  of Labour  and Rehabilitation and it was filed  in court  on behalf of the Union of India. It was on  the  basis  of  the  two  reports  made  by  the  Labour Commissioner, Jammu  and the affidavit in reply filed by H.S Raju on behalf of the Union of India alongwith certain other documents produced at the hearing that the writ petition was argued before us, 479      The Salal  Hydro Electric  Project is  a power  project undertaken by  the  Government  of  India  with  a  view  to increasing the  generation of  electric power in the country by utilising  the waters  of river  Chenab. It is a gigantic project  located   near  village  Salal  in  Jammu  and  the Government of  India has  entrusted it to the National Hydro Electric Power  Corporation for execution on ’agency basis’. There are  certain portions  of the  work in connection with the Project  which are  being executed by the National Hydro Electric Power  Corporation itself  through workmen directly employed by it, while certain other portions of the work are entrusted to  contractors of  whom the  principal  four  are Hindustan  Construction   Company  Limited,   Gammon   India Limited,  T.R.   Gupta  Private  Ltd.  and  Asia  foundation Construction Company.  These contractors  in their  turn are doing a  part of  the work entrusted to them through workmen directly employed  by them while a part of the work has been allotted by  them to  sub-contractors  described  as  ’piece wagers’. The workmen employed by the National Hydro Electric Power Composition,  the contractors  and the sub-contractors are mostly from other States such as U.P., Bihar and Orissa. There is no uniform pattern of employment in regard to these workmen but  so far as Oriya workmen are concerned, they are usually recruited by khatedars from their villages in Orissa and given advances before being taken for work. So also some Bihari workmen were found by the Labour Commissioner (J & K) to have  received such advances before coming to the project site. Now the Contract Labour (Regulation and Abolition) Act 1970 (hereinafter  referred to as Contract Labour Act) being applicable to  the establishments  pertaining to the project work, the Executive Engineers of the National Hydro Electric Power Corporation  having supervision  and control  over the .respective  establishments   are  registered  as  principal employers and  the contractors to whom different portions of the work  are entrusted for execution are licensed under the provisions of  that Act.  Since the  project work  is  being carried  on  by  or  under  the  authority  of  the  Central Government.  the   Central  Government  is  the  appropriate Government in  relation to  the establishments pertaining to the project  work and  the contractors  are licensed  by the Licensing officers  appointed by the Central Government. The sub-contractors to  whom different  portions of the work are entrusted by  the contractors,  however,  do  not  hold  any licence, through they fall within the definition of the word ’contractor’ in  clause (c)  of section  2 of  the  Contract labour (Regulation and Abolition) Act 1970 and it is pre- 480 cisely in order to circumvent the provisions of the Contract Labour(Regulation and  Abolition) Act,  that they are called "piece wagers’  instead of sub-contractors. The project work is thus  carried out  by workmen  employed by  the  National Hydro Electric  Power Corporation or by contractors licensed under the  provisions of the Contract Labour (Regulation and Abolition) Act or by sub-contractors who are euphemistically

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described as ’piece wagers’.      The question  raised in  this writ  petition is whether the workmen  employed in  the project  work are  ensured the rights and  benefits provided  to them  under various labour laws such as Contract Labour (Regulation and Abolition) Act, 1956, the  Minimum Wages  Act,  1948  and  the  Inter  State Migrant Workmen  (Regulation of Employment and Conditions of Service) Act.  1979. So  far  as  the  Inter  State  Migrant Workmen (Regulation  of Employment and Conditions of Service Act, 1979  (hereinafter  referred  to  as  the  Inter  State Migrant Workmen  Act) is  concerned, the final report of the Labour  Commissioner   (J  &   K)  clearly  shows  that  its provisions have not beeen implemented at all and the workmen are denied  many of  the benefits  and  advantages  provided under it.  This statement  in the final report of the Labour Commissioner (J&K)  is not  denied on behalf of the Union of India in  the affidavit  in reply  made by H.S. Raju, Deputy Secretary to the Government of India, Ministry of Labour and Rehabilitation and  the only explanation offered is that the lnter State  Migrant Workmen  Act though  passed in 1979 did not come  into force until 2nd October 1980 and the relevant notifications appointing  various authorities under that Act were issued  only in  June, 1982 and that was the reason why "no action  could be  taken by the officers of CRM earlier". It is  also averred  in the affidavit in reply that "most of the workers from other States have gone to Salal Project for work OD  their own  and are  therefore strictly speaking not migrant workmen"  within the  meaning of  the definition  of that term  contained in the Inter State Migrant Workmen Act. We do  not  think  that  this  justification  given  in  the affidavit  in  reply  for  not  ensuring  the  benefits  and facilities provided  under the  Inter State  Migrant Workmen Act to  atleast some  of the workrnen and particularly Oriya workmen can  be accepted  as valid.  lt is  clear- from  the Statement of  objects  and  Reasons  that  the  Inter  State Migrant Workmen  Act was  enacted with a view to eliminating abuses to  which workmen  recruited from one State and taken for work to another State were subjected by the contractors, sardars or khatedars recruiting them. The mal- 481 practices  indulged   in  by  the  contractors,  sardars  or khatedars in  A regard to workmen recruited by them for work outside their  State may  be  found  briefly  summarised  as follows in the Statement of objects and Reasons:           "Though the Sardars promise at the time of recruit      ment that wages calculated on piece rate basis would be      settled every  month, the  promise is  not usually kept      once the  worker comes  under the  clutches of the con-      tractor, he  takes him to a far-off place on payment of      railway fare only. No working hours are fixed for these      workers and they have to work on all the days in a week      under extremely  bad working conditions. The provisions      of the  various labour  laws are  not being observed in      their  case   and  they   are  subjected   to   various      malpractices."      It was  felt that since Inter State migrant workmen are generally illiterate  and unorganised  and are  by reason of their extreme  poverty, easy  victims of  these  abuses  and malpractices, it  was  necessary  to  have  a  comprehensive legislation with  a view to securing effective protection to Inter State  migrant workmen  against their exploitation and hence the  Inter State Migrant Workmen Act was enacted. This Act received  the assent of the President on 11th June, 1979 but it  was brought into force only on 2nd October 1980 by a notification issued  under section  J sub-section  (3).  The

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Inter state  Migrant Workmen  (Regulation of  employment and Conditions of  Service) Rules   980 (hereinafter referred to as the  Central p  Inter State  Migrant Workmen  Rules) were also made  by the  Central Government and brought into force with effect  from  2nd  October  1980.  But,  unfortunately, through the  Inter State Migrant Workmen Act and the Central Inter State  Migrant Workmen  Rules came into force from 2nd October, 1980,  the bureaucratic  appratus for  implementing the provisions  contained in  the Act and theP Rules wls not set up  by the  Central Government for a period of more than 20 months  and it  was only in the month June. 1982 that the Central Gnvernment  appointed various  authorities  such  as Registered ol1icers,  Licensing officers and [nspeclors.Lven so we fail to see why the obligations of contractors set out in section  l2  and  wages,  welfare  and  other  facilities provided in  jsections 13  to l(i of the Inter State Migrant Workmen Act could 482 not  be  made  available  to  Inter  State  migrant  workmen employed in  the project  work and the Central Government as the appropriate  Government could not enforce the saLne from and after  2nd october 1980. When the Act aod the Rules came into  force   with  effect   from  2nd  october,  1980,  the provisions contained  in s.  12 and  ss.  13  to  16  became clearly applicable  to the establishments pertaining to the, project work  and there was no justification for the Central Government to  delay any  longer the implementation of these provisions in,  so far  as Inter  State migrant workmen were concerned. The Central Government in any event ought to have enforced  the   provisions  relating   to  registration   of principal employers and licensing of contractors as also the provisions set out in s. 12 and ss. 13 to 16 from June, 1982 when the various authorities contemplated under the Act were appointed by  the Central  Government. We  do not  think the Central Government  can escape its obligation to enforce the provisions of  the Inter  State Migrant  Workmen Act  on the plea that  there are no later State migrant workmen employed in  the   project  work  The  final  report  of  the  Labour Commissioner (J  & KJ  clearly  shows  that  Orriya  workmen employed on  the project  site were  recruited by  khatedars from their  villages in  Orissa and  brought to  the project site for  work and they would clearly be Inter State migrant workmen within  the definition  of that  term  clause (e) of section (2) of the Inter State Migrant Workmen Act. We would therefore direct  the Central  Government to  take immediate steps for  enforcement of  the provisions of the Inter State Migrant Workmen Act in regard to Inter State migrant workmen employed is the project work. The Central Government will at once proceed  to identify ’Inter State migrant workmen’ from amongst the  workmen employed  in the project work and adopt necessary measures  for ensuring  to them  the benefits  and advantages provided  under the  inter State  Migrant Workmen Act. We  would  like  the  Central  Government  to  file  as affidavit within one month from today setting out what steps have  been   taken  for   securing  implementation   of  the provisions of  the enter  State Migrant  Workmen Act  at the project site  whether the executive engineers of the Central Government or  the National Hydro Electric Power Corporation have been  registered as principal employers under section 4 and the  contractors, sub  contractors  or  ’piece  wagers’, khatedars and  sardars have  been licensed  under section 8, whether the  contractors and sub-contractors or piece wagers are carrying  out the  obligations imposed  upon them  under section 12  and whether  wages and  allowances stipulated in sections 13.  14 and  15 and  other facilities  provided  in

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section 16 are being 483 made available  to the  inter State migrant workmen employed in the  project work.      That takes us to the question whether the provisions of the Minimum  Wages Act and the Contract Labour Act are being followed in  relation to the workmen employed on the project site. But before we consider this question, we may point out that, in  regard to the suggestion made in the writ petition that there  are amongst  the Oriya  workmen bonded labourers who are  forced to  provide labour by the khatedars who have recruited them,  the final report of the Labour Commissioner (J &  K) points out that. "by and large there is no evidence of any  worker having  been detained  and not  allowed to go home against  his wish"  and "there is no bonded labourer in the project  whether the employment is direct or through the contractors or  sub-contractors". We  must therefore proceed on the basis that there is no violation of the provisions of the Bonded  Labour System  (Abolition) Act, 1976. But so far as the  Minimum Wages  Act and  the Contract  Labour Act are concerned, the  report of  the Labour Commissioner (J and K) does reveal  that there  are violations of the provisions of these two  statutes. Section  2 clause  (c) of  the Contract Labour  Act   defines  "contractor"   in  relation   to   an establishment, to mean "a person who undertakes to produce a given result for the establishment, other than a mere supply of goods  or articles  of manufacture to such establishment, through contract  labour or who supplies contract labour for any  work   of  the   establishment  and  included  a  "sub- contractor." (emphasis supplied). Section 12 sub-section (1) then proceeds  to enact  that with  effect from such date as the appropriate  Government  may,  by  notification  in  the official Gazette,  appoint, no  contractor to  whom this Act applies,  shall   undertake  or  execute  any  work  through contract labour  except under  and  in  accordance  with  a’ licence issued  in that  behalf by the licensing officer. It is therefore  clear that  not only  a contractor  but also a sub-contractor who  comes within  the definition of the term ’contractor’ in  section 2  clause (e)  is bound to obtain a licence under  section  12  subsection  (1)  before  he  can undertake or  execute any  work through contract labour. Now according to  the final report of the Labour Commissioner (J & K),  the contractors  at the project site have undoubtedly obtained the  requisite licence under section 12 sub-section (1) but  the ’piece  wagers’ who are really nothing but sub- contractors, have-not  cared to  obtain such licence and yet they have  undertaken and  are  executing  portions  of  the project work  entrusted to  them by the contractors, through work 484 men employed  by them  either directly or through khatedars. This is  clearly in  violation of the prohibition enacted in section 12  subsection (1). It is obvious that the object of the ’piece  wagers’ or  the sub-contractors  in not applying for a  licence under  section 12 sub-section (I) is to evade their obligations under sections 16 to 21 read with Rules 41 to 62  of the  Contract Labour  (Regulation  and  Abolition) Central Rules. 1971 hereinafter. referred to as the Contract Labour  Central   Rules)  and  to  render  these  provisions difficult of  application in  relation to the Sections 16 to 21 read  with Rules  41 to  62 provide  for  making  various facilities available  to workmen employed by contractors for securing their  health and  welfare and  ’piece  wagers’  or subcontractor who  are ’contractors’  within the  meaning of that term  in section  2  clause  (c)  cannot  escape  their

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obligations under  these provisions  by not  applying for  a licence under  section 12  sub-section (1). In fact, if sub- contractors undertake  or execute  any work through contract labour without  obtaining a  licence under  section 12  sub- section (1),  they would  be guilty  of a  criminal  offence punishable  under   section  23  or  section  24.  We  would therefore direct  the Central  Government as  the  enforcing authority to  take immediate  steps for  ensuring  that  the ’piece wagers’ or sub-contractors do not execute any portion of the  project work  without obtaining a licence under sec. 12 sub-section (I) and that they carry out their obligations under sections 16 to 21 read with Rules 41 to 62. Of course, if the  contractors who have employed ’piece wagers’ or sub- contractors have provided the facilities set out in sections 16 to  21 read  with Rules  41 to 62 not only to the workmen employed directly  by them  but also to the workmen employed by the  ’piece wagers’  or sub-contractors, nothing more may remain to be done by the ’piece wagers’ or sub-con-tractors. But there  can be  no doubt  that the  ’piece  wagers’  sub- contractors are  equally responsible  for  implementing  the provisions  contained   in  these   sections.  The   Central Government will  in the  report to  be submitted by it on or before state  whether the  ’piece wagers’ or sub-contractors have obtained  the requisite  licence under  section 12 sub- section (1) or they are executing the portion of the project work entrusted  to them  without obtaining  such licence and whether the  provisions set  out in  sections 16  to 21 read with Rules 41 to 62 are being implemented in relation to the workmen employed  by the  ’piece wagers’  or subcontractors. The final  report of  Labour  the  Commissioner  (I&K)  also points out  that whereas  the National  Hydro Electric Power Corporation 485 has provided  canteens and  rest rooms  to  its  workmen  as required A  by sections 16 and 17 of the Contract Labour Act and Rules 41 to 50 of the Contract Labour Central Rules, the contractors and  ’piece wagers’  or sub-contractors have not provided such  canteens and  rest rooms  in breach  of their obligations under  these provisions. It is also mentioned in the final  report of  the Labour  Commissioner (J  & K) that adequate washing  facilities are not provided at work sites, though there is clearly as obligation on the contractors and ’piece wagers’  or sub-contractors to do so under clause (c) section 18 read with Rule 57. The Central Government has, in the affidavit  in reply  made on  its behalf  by H.  S. Raju stated rather  half heartedly  that facilities  for canteens are reasonably  made but conceded that "as canteens provided by the  contractors are not of the prescribed specifications action has  been taken  by the  Regional Labour Commissioner for prosecution  of the  contractors for  their  failure  to provide canteens  with specified  specifications". We  would therefore direct  the Central  Government to  take immediate steps for  ensuring that  canteens, rest  rooms aud  washing facilities  are  provided  by  the  contractors  and  ’piece wagers’ or  sub-contractors to  the workmen employed by them in accordance  with the  requirements of sections 16, 17 and 18, clause  (c) read  with Rules  41 to  50 and  57 and  the Central Government  will make  a report  to this Court on or before 30th  April, 1983  setting out  what steps  have been taken for  securing implementations; of these provisions and whether these  provisions have  been complied  with  by  the contractors and ’piece-wagers’ or sub-contractors.      So far as medical facilities are concerned, we are glad to know  that according  to the  final report  of the Labour Commissioner (J  & K),  adequate medical care is provided to

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the workmen  employed on the project site. It is pointed out in the  final report of the Labour Commissioner (J & K) that some minors  were found to have been employed on the project site but  the  explanation  given  was  that  "these  minors accompany make  members of  their families  on their own and insist on  getting employed".  This Court has pointed out in its judgment  in the Asiad Workers case(l) that construction work is  a hazardous  employment and therefore under Article 24 of  the Constitution,  no child below the age of 14 years can be  employed in construction work. We are aware that the problem of child labour is a H 486 difficult problem  and it  is purely  on account of economic reasons  that  parents  often  want  their  children  to  be employed in  order to  be able  to make  two ends  meet. The possibility of  augmenting  their  meagre  earnings  through employment of  children is very often the reason why parents do not  send their  children to  schools and there are large drop outs  from the schools. This is an economic problem and it cannot  be solved merely by legislation. So long as there is poverty  and destitution  in this  country,  it  will  be difficult to  eradicate child labour. But even so an attempt has to  be made to reduce, if not eliminate the incidence of child labour,  because it  is absolutely  essential  that  a child should be able to receive proper education with a view to equipping itself to become a useful member of the society and  to  play  a  constructive  role  in  the  socioeconomic development of  the country.  We must  concede  that  having regard to the prevailing socioeconomic conditions, it is not possible to  prohibit child  labour altogether  and in fact, any such move may not be socially or economically acceptable to large masses of people. That is why Article 24 limits the prohibition against  employment  of  child  labour  only  to factories, mines  or other  hazardous  employments  Clearly, construction work  is a  hazardous employment  and no  child below the  age of  14 years  can therefore  be allowed to be employed in  construction work  by reason of the prohibition enacted in  Article 24  and this  constitutional prohibition must be  enforced by  the Central  Government.  The  Central Government would  do well  to persuade  the workmen  to send their children  to a  nearby school and arrange not only for the school fees to be paid but also provide, free of charge, books and  other facilities such as transportation. We would suggest that  whenever the  Central Government  undertakes a construction project  which is likely to last for some time, the Central  Government  should  provide  that  children  of construction workers  who are  living at or near the project site should  be given  facilities for schooling and this may be done  either by  the Central  Government itself or if the Central Government  entrusts the  project work  or any  part thereof to a contractor, necessary provisions to this effect may be made in the contract with the contractor.      That takes  us to  the question whether wages are being paid to the workmen in accordance with the provisions of the relevant  statutes.   The  final   report  of   the   Labour Commissioner (J  &  K)  agrees  that  there  is  hardly  any irregularity in so far as payment of wages to the 487 workmen  employed  by  the  National  Hydro  Electric  Power Corporation and  the contractors is concerned but points out that in  case of  workmen employed  by the ’piece wagers’ or sub-contractors, payment  of wages  is made directly only to those workmen  "who are  employed individually" and to other workmen, like  Oriya labourers  who are  employed in groups, wages are  paid through  khatedars and  in this latter case,

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there are  complaints of  deductions by khatedars on account of advances  made to  the workmen  in their  native  places, messing charges  etc., though "the muster rolls prepared and maintained do  not reflect  the deductions."  Now this Court has held  in Asiad  Workers case  (supra) that  the  minimum wages must  be paid  to the  workmen  directly  without  any deductions  save  and  except  those    authorised  by  the statute. Wages  due to  the workmen  employed by  the ’piece wagers’ or  sub contractors  must therefore be paid directly to the  workmen without the interventation of khatedars, and no deductions  can be  made from the wages on account of any advances alleged  to have  been made by the khatedars to the workmen. If  there are any advances repayable by the workmen to the khatedars or any messing charges are to be paid, they may be  paid by  the workmen  to the  khatedars  after  they receive the full amount of wages due to them from the ’piece wagers’ or  sub-contractors.  But  on  no  account  can  any deductions be  made from such wages and they must be paid to the  workmen   directly  without  the  intervention  of  any middleman. Moreover,  section  21  sub-section  (2)  of  the Contract Labour Act - requires that every principal employer shall nominate a representative duly authorised by him to be present  at  the  time  of  disbursement  of  wages  by  the contractor and  it shall  be the duty of such representative to certify the amount paid as wages in such manner as may be prescribed and  under sub-section  (3) of  section 21, it is the duty  of the  contractor to  ensure that disbursement of wages  is   made  in   the  presence   of   the   authorised representative of  the principal  employer. It  is stated in the final  report of the Labour Commissioner (J&K) that this statutory obligation  under sub  sections  (2)  and  (3)  of section 21 is also not carried out and so far as the workmen employed  by  the  ’piece  wagers’  or  sub-contractors  are concerned, payment  of G  wages to them is Dot supervised by any authorised  representative of  the  contractors  or  the National Hydro  Electric Power  Corporation or  the  Central Government nor  is the payment of wages made in the presence of such  authorised representative  and the workmen are left to the  mercy of  the ’piece  wagers’ or sub-contractors and their staff.  This statement  is, of course, disputed in the affidavit is reply filed on behalf of the Central Government but we have our own doubts 488 whether this  denial is  well founded  of the requirement of sub-sections (2)  and (3)  of section 21 is strictly carried out and  payment of  wages to  the workmen  employed by  the ’piece wagers’ or sub-contractors is made in the presence of an authorised  representative of the National Hydro Electric Power Corporation  of the  Central Government,  there is  no reason  why  the  workmen  should  complain  to  the  Labour Commissioner (J  & K)  in regard to payment of wages because in that  event they  would he  receiving  their  full  wages directly from  the ’piece wagers’ or sub-contractors without the intervention  of khatedars  and free from any deductions whatsoever Moreover  it is  also pointed  out by  the Labour Commissioner (J  & K)  in his  final report  that  over-time wages earned  by workmen  are not  received by them in their entirety and  almost 50  per cent is taken away by khatedars but the  muster sheets  do not  reflect the correct position and "are  treated as mere formality". The Central Government has not  dealt  specifically  with  this  complaint  in  its affidavit in  reply beyond  merely  denying  that  over-time wages are  not paid. It may be noted that this complaint has been made  by the Labour Commissioner (J & K) after making a full and  detailed enquiry  from the workmen employed by the

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’piece wagers’ or sub-contractors and there is no reason why these workmen  should have  given false  information to  the Labour Commissioner  (J & K) or the Labour Commissioner (J & K) should  have made  a statement  in his final report which was not borne out by the enquiry made out by him. The Labour Commissioner  (J&K)   also  states  that  according  to  the information gathered  by him from the workmen, he found that no weekly  off day is allowed to the workmen "except in case of labour  directly employed  by the National Hydro Electric Power  Corporation   or  other   contractors".  The  Central Government in  its affidavit  in reply  has denied  that the workmen are  not being granted weekly off day with wages and pointed out  that the  minimum rates  of wages  fixed by the Central Government  are inclusive  of the  element of weekly day of  rest and  no extra  wages are legally payable to the workmen under  the Minimum  Wages Act.  Now there  can be no doubt that  the minimum  rates of wages fixed by the Central Government include  the element  of weekly  day of  rest and that no  extra wages  are legally payable to the workmen for the weekly  off days.  But the  complaint made  in the final report of the Labour Commissioner (J &; K) is not that extra wages are not 489 being paid  to the  workmen for the weekly off days but that weekly paid  off days  are not given to the workmen, meaning thereby that  the workmen are required to work even on their weekly paid  off days.  These complaints have to be remedied by the  Central Government  by taking appropriate action and the only  way in  which this  can be  done effectively is by carrying out periodically detailed inspections and insisting that every  payment of  wages must  be made  by  the  ’piece wagers’ or sub-contractors in the presence of the authorised representative  of   the  National   Hydro  electric   power Corporation  or  of  the  Central  Government.  The  Central Government has  averred in  its affidavit  in reply that its officers are  regularly carrying  out inspections and it has given various  dates on  which such inspections were carried out during  the year  1982. The  particulars of  inspections given by  the Central  Governments would  show that during a period of  12 months,  only for inspections were carried out in case of three contractors, two inspections in case of one contractor and  one inspection  each in  case of three other contractors. We  find it  difficult  to  accept  that  these inspections carried  out by  the  officers  of  the  Central Government were  adequate. It is necessary to carry out more frequent  inspections   and  such  inspections  have  to  be detailed and  thorough, for then only it will be possible to ensure scrupulous  observance of the labour laws enacted for the benefit  of  workmen.  We  would  therefore  direct  the Central Government  to tighten  up its enforcement machinery and to  ensure that  thorough and  careful  inspections  are carried out  by fairly  senior officers  at short  intervals with a  view to  investigating whether  the labour  laws are being properly observed, particularly in relation to workmen employed, either  directly  or  through  khatedars,  by  the contractors  as   well  as   the  ’piece   wagers’  or  sub- contractors’. The  Central  Government  must  also  strictly enforce the  requirement that  payment of wages particularly to workmen  employed either directly or through khatedars by the  ’piece  wagers’  or  sub-contractors  is  made  in  the presence of  an authorised  representative appointed  by the National Hydro  Electric Power  Corporation or  the  Central Government and  wages  are  paid  directly  to  the  workmen without the  intervention of  khatedars and  free  from  any deductions whatsoever, except those authorised by law. It is

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not enough  merely to go periodically and examine the muster rolls or  muster sheets  showing payment  of wages,  because even where  wages are  paid through khatedars and deductions are made, the muster rolls or muster sheets would invariably show payment of 490 full wages  and would  not reject  the correct position. The Central Government must ensure, and that is the direction we give, that  every payment  of wages,  whether it  be  normal wages or  over-time wages,  shall be  made directly  to  the workmen, without  any  deductions  in  the  presence  of  an authorised representative  of the  National  Hydro  Electric Power Corporation or the Central Government. When payment of overtime  wages   is  made   to  the  workmen,  the  Central Government must  ask its  authorised representative to check up with  reference to the overtime work done by the workmen, whether they  are receiving  the full  amount  of  over-time wages due  to them  or any part of it is being taken away by the khatedars. This evil can to a large extent be eliminated if payment  of over-time  wages  is  made  directly  to  the workmen instead  of routing  it through  the khatedars.  The Central Government  will promptly carry out these directions which are  being given  by us and will make a report to this Court on  or before 30th April, 1983, setting out what steps it has  taken for  carrying out these directions and how far they have  been implemented.  It is  only if the officers of the  National  Hydro  Electric  Power  Corporation  and  the Central Government are sensitive to the misery and suffering of workmen  arising from  their deprivation  and exploiation that they  will be  able to  secure observance of the labour laws and  to improve  the life  conditions  of  the  workmen employed in such construction projects.      There is  also one  other matter to which our attention has been  drawn by the Labour Commissioner (J & K). He has p pointed out  in his  final report  that the  National  Hydro Electric Power  Corporation  as  also  the  contractors  and ’piece wagers’  or sub-contractors are paying to the workmen employed by them wages at the rate of Rs. 9 per day, whereas the minimum  wage payable  to workmen  in  the  construction industry as  per the  notification issued  by the  State  of Jammu &  Kashmir is  Rs. 10  per day.  The  result  is  that whereas a  workman employed  in construction industry in the State of Jammu & Kashmir would be entitled to a minimum wage of Rs.  10 per  day a  workman employed in the Salal Project which is  being carried  out in the State of Jammu & Kashmir would be  getting only  Rs. 9  per day  because it is a work which is  being carried  out by the Central Government. This is a 491 rather  anomalous   situation  to  which  we  may  draw  the attention of A the Central Government.      We accordingly  adjourn this  writ petition to 6-5-1983 We shall  take it  up for  further  hearing  after  we  have received  the   report  from   the  Central   Government  in accordance with the directions given in this judgment. H.L.C.                                     Petition allowed. 492