Supreme Court of India
LABOURERS WORKING ON SALAL HYDRO-PROJECTversusSTATE OF JAMMU & KASHMIR AND OTHERS
- Citation
- 1983 INSC 18
- Decided
- 2 March 1983
- Disposal
- Appeal(s) allowed
- Bench
- P N BHAGWATI
Holding
The Court held that the Inter‑State Migrant Workmen Act applies to the workers, contractors and sub‑contractors must be licensed and comply with the Contract Labour Act, wages must be paid directly without unlawful deductions, child labour is prohibited, and the Central Government is obligated to enforce these provisions.
Summary
A news report prompted the People's Union for Democratic Rights to file a writ petition alleging that migrant labourers on the Salal Hydro‑Electric Project were denied statutory benefits. The Supreme Court examined reports of the Labour Commissioner, which revealed that the project, executed by the National Hydro Electric Power Corporation and several contractors, employed inter‑state workers mainly from Orissa, Bihar and Uttar Pradesh through contractors and unlicensed sub‑contractors ("piece‑wagers"). The Court found violations of the Inter‑State Migrant Workmen Act, 1979, the Contract Labour (Regulation and Abolition) Act, 1970 and the Minimum Wages Act, 1948, including lack of licences, failure to provide canteens, rest rooms and washing facilities, unlawful wage deductions, denial of weekly paid off‑days and employment of minors. It held that the workers are covered by the Migrant Workmen Act, that contractors and sub‑contractors must obtain licences and comply with the Contract Labour Act, that wages must be paid directly without deductions and in the presence of an authorised representative, and that child labour is prohibited under Art. 24. The Court allowed the petition and directed the Central Government to enforce the statutes, remedy the violations and report back.
Issues considered
- The applicability of the Inter‑State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 to the workers on the Salal project.
- The requirement for contractors and sub‑contractors to obtain licences under the Contract Labour (Regulation and Abolition) Act, 1970 and to comply with its provisions on welfare facilities.
- The legality of wage deductions, payment through khatedars, and the need for direct payment in the presence of an authorised representative under section 21 of the Contract Labour Act.
- The prohibition of employment of children in construction work under Article 24 of the Constitution.
- The appropriate rate of minimum wages for workers on a centrally administered project versus the state rate.
- The duty of the Central Government to enforce the above statutes and ensure periodic inspections.
Legislation cited
- Bonded Labour System (Abolition) Act, 1976
- Constitution of Indias. Art.24
- Contract Labour (Regulation and Abolition) Act, 1970s. 12(1), s. 13, s. 14, s. 15, s. 16, s. 21(2), s. 21(3), s. 23, s. 24, s. 2(c)
- Inter‑State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979s. 12, s. 13, s. 14, s. 15, s. 16, s. 2(e)
- Minimum Wages Act, 1948
Subjects
labour lawinter‑state migrant workerscontract labourminimum wageschild labourlicensingwage deductionsweekly offenforcementSupreme Courtwrit petition
Judgment
•
473
A
' LABOURERS WORKING ON SALAL HYDRO-PROJECT
v.
STATE OF JAMMU & KASHMIR AND OTHERS B
, March 2, 1983
[P. N. BBAGWATI, R. S. PATHAK AND AMAllENDRA NATH SEN, JJ.)
Labour Laws-Benefits and facilitie1 provided for workmen.under Inter-State
Migrant Workmen (Regulation of Employment and Conditions of Service)Act,1979; c
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.
On the basis of a news item that migrant workmen employed in the
Salal Hydro Electric Project were being denied the benefits of various Jabour D
laws, 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 comp·
liance 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 the E
affidavits in reply filed by the Unioti. of India pursuant to the directions made
in that behalf.
. The National Hydro Electric Power Corporation which had bean entrus-
ted With the e:i1:ecution of the work relating to the project was carrying out
certain portions of the work through workmen directly employed by it and- bad
F
, 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 b;een allotted by them to sub-
contractors. The Cont_ract Labour (Regulation and Abolition) Act; 1970 being
applicable 10 the e!tablishments pertaining to the project work, the Executive Engi-
neers of the National Hydro Electric Power Coroorati~n having supervision and
control over the rtspective establiShments were registered as principal emplo-
yers and the contractors to whom different portions of the work were- entrusted G
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 catled 1'piece-wagers' with a view to circumvent the pro-
visions of the Act.
H
The workmen employed on the project were mostly drawn from other states.
There ""' no uniform pattern of employment but so far as Oriya workmen -
..
474 SUPl\BMB COUR1' REPORTS [1983] 2 s.c.R.
concerned they were usually ·recruited by khatedars from their villages in Orissa
and given advances before being taken to the project sitf'. Some Bihari work-
men 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
B to them, messing charges, etc., althomgh the muster rolls did not reflect the
deductions. PaymeD.ts of wages made by "piece-wagers" were not beirig 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 v11orkmen were not being implemented.
c 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 the construction industry.
D Allowing tho petition,
HELD: The Inter-State Migran.t Workmen (Regulation of Employ-
ment and Conditions ot Service) Act, 1979 was enacted with a view to elimina-
ting 8buses to whiCh workmen recruited from one State and taken for work to
another State were subjected by the contractors, 1ardars or khatedars recrui_ting
e them. The Act and the rules framed thereunder came into force with eff~ct
'from October 2, 1980 and became applicable to tho establishments pertaining
to the project work. The Central Government ought to have enforced the pro-:
visions contained in ss. 12 to 16 and also those relating to registration of
principal employers] .and licensing of contractors at le.ast from June, 1982
when theva,rious authorities contemplated under the Act were appointed. The
stand taken by the Central Government that the workers had gone to Sala!
F 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 Ori$S3 and brought to the projec.t site for work
are Inter-State migrant workmen within the meaning of s. 2 (e) of the Act.
[480-H; 481-F; 482 A-El
G 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 Jicence under sub-s. (1) of s. 12
thereof before be can undertake or exccut,e any work through contract labour. Sec·
tions 16 to 21 of the Act readwith rs. 41 to 62Jprovide for making,.various facilities
available to workmen employed by contractors for securing their health and
H 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. (I) of s. 12. In fact, if sub-contractors under
LABOURERS SALAL HYDRO PROJECT V. J & K 475
take or execute any work .through contract Jabour without obtaining a licence A
under sub-(!) of s. 12, they would be guilty of a criminal offence punishable
under s. 23 ors. 24. [483:G; 484 B-D]
3. Subs. (2) of s. 21 of the Contract Labour (Regulation and Abolition)
Act, 1970 requires that every principal employer shall nominate a representative
du.ly 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 B
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 coDtractor 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-con-
tractors 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 khat•da" to the workmen. [487 C-F]
Peoples' Uni'on for Democratic Rights & Ors. v. Union of India & Ors.
(Asiad workm' 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 hazar-
dous employment.in the Asiad Workers' case. This constitutional prohibition D
must be enforced. The children of coi;istruction workers Jiving at or near the"·
project site should he given facilities for schooling and this may ~ 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 tc;> this
effect may be made in the contract with the contractor. [485 G·H; 486 D-G]
Asiad Worker's Case, referred to.
E
5. There can be no doubt that the minimum rates of wages fixed by
[the Central Government iaclude· the element of weekly day of rest and ~hat D\)
extra wages are legaliy payable to the workmen for the weekly off da~. The
complaint made is not that extra wages are not being pa!cl for the weekly off
da.ys,but that weekly paid off days are not being given to the workmen, meaning
thereby that the workmea 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 effecti·
'
vely is by earring out periodically detailed inspections. [488 G·H; 489 A·B]
The following.directions were made by the Court:
G
(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 beDefits and advantages provided under the
Inter-State Migrant Workmen (Regulation of Employment and Conditions of
Service) Act, 1979. [482-FJ .H
(ii) The'Central;Government will take immediate steps for ensuring tliat
'piece-wa,crs' or the sub-contractors do not execute an? portion of the projec\
476 SUPREME COURT REPORT$ (I 983] 2 S.C.R.
A work without obtaining a licence under suh-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 canteens, rest rooms and washing facilities are provided by the
contractors anli 'piece-wagers' or sub-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 D-G; 485 D-E]
8
(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-
c wsgers' or sub-contractors. The Central Government muSt also strictly enforce
the requirement that paymt:nt of wages particularly to workmen employed either
directly or through khatedars by the 'piece-wagers' or subucontractors is made in
the presence of an authorised representative appointed by the National Hydro
Electric Power Corporation or- the Central Government and \"/ages are paid direc·
tiy to the workmen without the interverition of khatedars and free from any
deductions whatsoever, except those authorised by law. When payment of over-
time wages is made to the workmen, the C~entral Government must ask its autho-
D rised representative to check-up with reference to the over-time work done by the
workmen, whether they are receiving the full amount of over-ti'me wages due to
them or any part of it is being taken away by tho khatedars. [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
l!I oniy Rs. 9/- per day be.::ause it is a work which is being carried out by the Central
Government whereas a workman emplo)ed 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. [485 E; 490 C-D]
ORIGINAL JURISDICTION : Writ Petition (Cr!.) No. 1179 of
.
1982.
(Under Article 32 of the Constitution of India)
G
Govind Mukhoty for the Petitioner.
Alta[ Ahmed, Girish Chandra and Miss A. Subhashini for
the Respondents.
'fhe Jud~ment of the Court was delivered by
'.
LABOURERS SALAL HYDRO PROJECT v. J. & It. (Bhagwati, J.) 477
BHAGWATI, J. The issue of Indian Express dated 26th Au~ust 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 Sala! 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 B
for Democratic Rights thereupon addressed a letter to Mr. Justice
D.A. Desai enclosing a copy of the news report and requ~iting him
to treat the letter as a writ petition so that justice may be don~ to the
poor labourers work)ng in the Sala! 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
c
directed that the Union of India, the -State of Orissa, the Labour
Commissioner, Orissa at New Delhi, the 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, D
Orissa at New Delhi to show cause against the writ petition. This
Court a1so directed the Labour Commissioner, Jammu to visit the
site of the Sala!. Hydro Electric Project and ascertain (i) whether
there a re 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 E
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 Sala! Hydro Electric Project and made
an interim report on I Ith October, 1982 and this was followed by
a final report dated 15th October, 1982. The writ petition there-
after came up for hearing on 3rd November 1982 and on that date,
the Court pojnted 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 beeµ impleaded as
respondent Nos. I to 5 but since the reports made by the Labour G
Commissioner, Jammu disclosed that the Sala! Hydro Electric Poject
was being carried out by the Government of India, the Court
directed that the Union of lQdia in the Labour Ministry as also the
~bief _Labour Com!Ilissioner (Central) may also be added as respoq·
478 SUPREME COURT REPORTS [1983] 2 S.C.R.
A 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 re-
ports. The Court also directed that the Union of India and the Chief
Labour Commissioner (Central) should file their affidavit or affi-
davits within two weeks from the date of the order dealing with the
various averments made in the two reports of the Labour Commis-
B sioner, Jammu and particularly the final report made by him, since
the final report disclosed prima facie that there were certain
violations of Jabour 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
c Rights v. The Union of India(') 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
D 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 Aboli-
tion) Act 1956 because if any such sub-contractors have been licenced,
they would fall within the definition of contractor and would there-
fore be liable for payment of minimum wage directly to the workers
E withou! 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 Govern-
ment is the appropriate authority to enforce the provisions of those
F 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 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
G filed in court on behalf of the Union of India. It was on the basis
of the two reports made by the Labour Commissioner, Jam mu 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.
H
(!) [1983) 1 S.C.R. 4S6.
LABOURERS SALAL HYDRO PROJECT v.. J & K (Bhagwati, J.} ' 479
The Sala! Hydro Electric Project is a power project under- A •
taken 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 Sala!
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
B
with the Project which are being executed by the Nati.onal Hydro
Electric Power Corporation itself through workmen directly employ·
ed 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
c
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
)
Corporation, 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 E
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 pertain·
ing to the project work, the Executive Engineers of the National
Hydro Electric Power Corporation having supervision and control
over the respective establishments are registered a' principal employers F
and the contractors to whom different portions of the w0rk are entrust-
ed 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 pro-
ject work and the contr!lctors are licensed by the Licensing Officers G
appointed by the Central Government The sub.contractors to
whom different portions of the work are entrusted by the contrac.
tors, however, do not hold any licence, through they fall within the
definition of the word 'contractor· fo clause (c) of section 2 of the q
Contract Labo\lr (Regulation a,n<! Aboli\\q~) Act 1970 11nd it is pw
, t..
480 SUPREME COURT REPORTS [1983] 2 s.c.R.
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 Corpora-
tion or by contractors licensed under the provisions of the Contract
Labour (Regulation and Abolition) Act or by sub-contractors who
are euphemistically 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
c Labour (Regulation and Abolition) Act, 1956, the Minimum Wages
Act, 1948 and the Inter Stat(: Migrant Workmen (Regulation of
Employment and Conditions of Service) Act, 1979. So far as the
Inter State Migrant Workmen (Regulation of Employment and Con-
ditions of Service Act, 1979 (hereinafter referred to as the Inter
I
State Migrant Workmen Act) is concerned, the final report of the
D Labour Commissioner (J & K) clearly shows that its provisions '
lhave not beeen implemented at all al)d the workmen are denied
many of the benefits and ad~·antages 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 explana-
tion offered is that the Inter State Migrant Workmen Act though
passed in 1979 did not come into force until 2nd October 19~0
and the relevant notifications appointing various authorities under
that Act were issued only in June, 1982 and that was the reason
wb,y "no action could be taken by the officers of CIRM earlier".
F It is also averred in the affidavit in reply that "most of the workers
from other States have gone to Sala! Project for work on 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 faci-
G lities provided under the Inter State Migrant Workmen Act to
atleast some of the workme.n and particularly Oriya workmen can
be accepted as valid. It 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
H one State and taken for work to another State were subjected by
the ~ontractors 1 sardius or khatedars rem1iting them.. The m~!-
LABOUltl!RS SALAL HYDRO PROJECT v. J & IC (8higwati, '" 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 briefiy summarised as follows in the Statement of
Objects and Reasons :
"Though the Sardars promise at the time of recruit-
8
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 fo~ these
workers and they have to work on all the days in a
c
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."
r 'D
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 Stat: migrant workmen against their exploita- E
tion and hence the Inter State Migrant Workmen Act was enacted.
This Act received the assent of the President on I Ith June, 1979
but it was brought into force only on 2nd October 1980 by a noti-
fication issued under 'section I sub-section (3). The Inter State
Migrant Workmen (Regulation of employment and Conditions of
Service) Rules 1980 (hereinafter referred to as the Central F
Inter State Migrant Workmen Rules) were also made by
the Central Government and brought into force with effect
<
from 2nd October 1980. But, unfortunately, though the Inter
State Migrant Workmen Act and the Central Inter State Mig·
rant Workmen Rules came into force from 2nd October, 1980, the
bureaucratic apparatus for implementing the provision• contained G
in the Act and the Rules was 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 Government appointed various autho-
rities such as Registered Officers, Licensing Officers and Inspectors.
Even so we fail to see why the obligations of contractors set out in H
section 12 and wages, wdfare and other facilities provided in
sections 13 to 16 of tl!~ ~nt~~ State Mi~r<1,nt Wor!(men Act 9oul!l
482 llUPllEMI! COURT IU!POllTS (I 983] 2 s.c.R.
A not be made available to Intel' State migrant workmen employed
in the project work and the Central Government as the appropriate
Government could not enforce the same from and after 2nd October
1980. When the Act and the Rules came into force with effect from
2nd October, 1980, the provisi?ns contained' in s. 12 and ss. 13 to
16 became clearly applicable to the establishments pertaining to the
B project work and there was no justification for the Central Govern-
ment to delay any longer the impJementation 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 principa.l employers and licensing of con·
tractors as also the provisions set out in s. 12 and ss. 13 to 16 from
c June, 1982 when the various authorities contemplated under the Act
were appointed by the Central Goverment. We do not think the Cen·
tral Government can escape its obligation to enforce the provisions
of the Inter State Migrant Workmen Act on the plea that there are
no Inter State migrant workmen employed in the project work.
The final report of the Labour Commissioner (J & K) clearly
shows that' Oriya workmen employed on the project site were
D recruited by khatedars from their villages in Orissa and brought
to the projeet site for work and they would clearly be Inter State
migrant workmen within the definition of that term in clause (e) of
section (2) of the Inter State Migrant Workmen A_gt. We would
therefore direct the Central Government to take immediate steps for
E enforcement of the provisions of the Inter State Migrant Workmen
Act in regard to Inter State migrant workmen employed in the pro-
ject 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 an affidavit within one month from today setting out what
steps have been taken for securing implementation of the provisions
of the Inter State Migrant Workmen Act at the project site, whether
the executive engineers of the Central Government or the National
G Hydro Electric Power Corporation have been registered as prin-
cipal 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
.H section 12 and whether wages and allowances stipulated in sections
)3, 14 and JS a11d Ql\!er facilitie~ provided in section Hi are ~eillg
LABOURERS SALAL HYDRO PROJECT V, J & It (Bhagwati, !.)
. 483
made available to the inter state migrant workmen employed in the A
project work.
That takes us to the question whether the provisions of the
Minimum Wages Act and the Contract Labour Act are being follow-
ed in relation to the workmen employed on the project site. But B
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 rletained and c
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 contrators or sub-contractors". We must therefore proceed on
) the basis that there is no violation of the· provisions of the Bonded
·r • Labour System (Abolition) Act, 1976. But so far as the Minimum
Wages Act and the Contract Labour Act are concerned, the report of D
the Labour Commissioner (J and K) does reveal that there are viola-
tions of the provisions of these two statutes. Section 2 clause (c) of
the Contract Labour Act defines "contractor" in relation to-.an esta-
blishment, 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 establish-
ment and includes 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
F
under and in accordance with a licence issued in that behalf by
' the licensing officer. It is therefore clear th.at 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 sub-section (1) before he can undertake or execute G
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 (I) but the 'piece wagers' who are really
nothing but sub-contractors, have not cared to obtain such 'licence H
and yet they have undertaken and are executing portions of the
pro)ect work entrusted to them by the contractors, through work
4$4 SU~RBMB COURT 11.BPORTS {198~! ~ s.c.a.
A men employed by them either directly or through khateders. This is
clearly in violation of the prohibition enacted in section 12 sub·
section (I). 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 seections J 6 to
21 read with Rules 41 to 62 of the Contract Labour (Regulation
B 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 them. 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 sub·contractors who are 'contractors'
c within the meaning of that term in section 2 clause (c) cannot
escape their;,obligations under these provisions by not applying
for a licence under section 12 sub-section (I). In fact, if sub-con-
tractors 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
0
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
E 21 read with Rules 41 to 62. Of course, if the contractqrs 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, noth- .·-{
ing 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-con-
tractors are equally responsible for implementing the provisions con-
tained 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 (I) or they are executing the portion of the
G 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 sub-contractors.
H
The final report of Labour the Commissioner (J&K) also points
c;>ut that whereas the National Hydro Electric Power Corporation
•
LABOURERS SALAL HYDRO PROJECT v. 1 & K (Bhawgati, i.) 4SS
.,,, . has provided canteens and res.t rooms to its workm~n 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 Com-
missioner (J & K) that adequate washing facilities are not pro- B
vided at work sites, though there is clearly an 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 facilties for
canteens are reasonably made but conceded that "as canteens pro-
c
vided 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 can-
teens with specified specifications". We would therefore direct the
Central Gove~nment to take immediate steps for ensuring that can- D
teens, rest rooms and washing facilities areprovided by the contrac-
tors 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 Govern-
ment will make a report to this Court on or before 30th April, 1983
setting out what steps have been taken lfor securing implementation E
of these provisions and whether these provisions have been· com-
plied 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 & F
K), adequate medical care is provided to 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 male members of their families on their
own and insist on getting employed". This Court has pointed out in G
its judgment in the Asiad Workers case(') that construction work is a
hazardous employment and therefore under Article 24 of the Consti-
tution, no child below the age of 14 years can be employed in cons-
truction work. We are aware that the problem of child labour is a
H
(1) [1983] 1 S.C.R. 456.
486 SUPREME COURY REPORTS (1983) 2 S.C.R.
A difficuit 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 employmeni of children is very often the reason
why parents do not send their children to schools and there are large •,
8 drop outs from the schools. This is an economic problem and it can-
not 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 eli-
minate the incidence of child labour, because it is absolutely essential
that a child should be able to receive proper education with a view
c to equipping itself to become a useful member of the society and to
play a constructive role in the socio-economic development of the
country. We must concede that having regard to the prevailing socio-
economic conditions, it is not possible to prohibit child labour alto-
gether and in fact, any such move may not be socially or econo- \.
mically acceptable to large masses of people. That is why Article 24
D limits the prohibition against emplyoment of child labour only to
factories, mines or other hazardous employments. Clearly, construc·
tion 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 Govern-
ment. The Central Government would do well to persuade the work-
men 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 Governmenf should
p 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 Cen·
tral 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.
G
That takes us to th,e question whether wages are being paid to
the workmen in accordance with the provisions of the relevent statu-
.H tes. 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
LABOURERS SALAL HYDRO PR01EC1' v. 1 & K (Bhagwati, J.) 487
workmen employed by the National Hydro Efectric Power Corpo-
ration 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 labonrers who are
employed in groups, wages are paid through. khatedars and in this ·B
latter case, 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 main-
tained 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 c
, authorised by the statute. Wages due to the workmen employed hy
the 'piece wagers' or sub-contractors mus't 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 D
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 'P,iece wagers' or sub-contractors. But on no account can
any dednctions be made from snch 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
lil
duly authorised by him to be present at the time of disbursement or
wages by the contractor and it shall he the duty of such representa-
tive 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
F
presence of the authorised representative of the principal employer.
, It is stated in the final report of the Labonr 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 not 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. B
This statement is, of course, disputed in the affidavit in reply filed
on behalf of the Central Government but we have our own doubts
488 SUPREME COURT REPORTs (1983) 2 s.c.il.
A whether this denial is well founded. If the requirement of sub-sec· •
tions (2) and (3) of section 21 is strictly carried out and payment of
wages to the workmen employed by the 'piece wagers' or sub-contrac-
tors is made in the presence of an authorised representative of the
' National Hydro Electric Power Corporation of the Central Govern-
ment, there is no reason why the workmen should complain to the
B Labour Commissioner (J&K) in regard to payment of wages because
in that event they would be 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
c 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 khate-
dars 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 . ,.
D merely denying that over-time wages are not paid. It may be noted
that t.bis complaint has been made by the Labour Commissioner
(J&K) after making a full and detail•d enquiry from the workmen
employed by the '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
E was not borne out by the enquiry made out by him. T])e Labour
Commissioner (J&K) also states that according to the information
gathered by him from the workmen, be 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
F 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 Mininum Wages Act. Now
there can be no doubt -that the minimum rates of wages fixed by '
G 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 e~tra wages are not
B
LAllOURBR.s SALAL HYDRO PROJECT v. J & K (Bhagwati, J.) 4$9
being paid to the workmen for the weekly off days but that weekly A
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 he 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 in- B ,
' sisting that every payment of wages must be made by the 'piece-
. wagers' or sub-contractors in the presence of the authorised represen-
tative 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
c
the Central Government would show that during a period of 12
months, only four 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 diffi·
cult to accept that these inspections carried out by the officers of D
the Central Government were adequate. It is necessary to carry ouf
more freque_nt 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 E
inspections are carried out by fairly senior officers at short intervals
wilh a view to investigating whether the labour laws are being pro.
perly observed, particularly in relation to workmen employed, either
directly or thro)lgh 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 G
law. It is 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 SUPIUlMB COURT IUlPORTS (1983) 2 S.C.R.
A full wages and would not reflect 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 Elec-
tric Power Corporation or the Central Government. When payment of
H 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 elimi-
nated if payment of over-time wages js made directly to the workmen
c instead of routing it through the khatedars. The Central Govern-
ment 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 direc-
tions and how far they have been implemented. It is only if the officers
of the National Hydro Electric Power Corporation and the Central
D 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.
I
There is also one other matter to which our attention bas
been drawn by the Labour Commissioner (J & K). He bas
pointed out in his final report that the National Hydro Electric
F 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 notifica-
tion issued by the State of Jammu & Kashmir is Rs. 10 ,per day.
G 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
Sala! 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
H which is being carried out by the Central Government. This is a
LABOURERS SALAL HYDRO PROJECT V. J & K (Bhagwati, J.) 491
rather anomolous 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 acordance with the directions given
in this judgment. B
H.L.C Petition allowed.
•
•
' '
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