Kalawati Saran 25.4.22 WP.pdf

IN THE HIGH COURT OF DELHI AT NEW DELHI
(EXTRA ORDINARY WRIT JURISDICTION)
WRIT PETITION (C) No. ______ of 2022
IN THE MATTER OF:
Kalawati Saran Aspataal Contract
Karamchari Union …Petitioner
Versus
Union of India & Ors. …Respondent
INDEX
S.No. PARTICULARS PAGE
NO.
1. Urgent Application
2. Notice of Motion
3. Court Fees
4. Memo of Parties
5. Synopsis & List of Dates
6. Writ Petition with Affidavit
7. Annexure P-1: True copy of the judgment
in Sulabh International Social Service
Organisation vs. Regional Labour
Commissioner (central) (2013) 198 DLT
13.
8. Annexure P-2: True copy of judgment in
Manish Gupta & Anr vs. President, Jan
Bhagidari Samiti & Ors. in Civil Appeal
No. 3084-3088 of 2022.
1
2
3
4-5
6-9
10-56
57-75
76-86

9. Annexure P-3 (colly): The true copy of the
statement of claim filed by Petitioner
union dated 22.7.2019 and failure of
conciliation report dated 9.8.21.
application filed by Petitioner union dated
9.9.19 and the copy of the application dated
1.2.22.
11. Annexure P-5: The true copy of the RLC
order for implementation of minimum
wages and with payment of back arrears.
representation regarding non-payment of
minimum wages and against illegal
termination.
13. Annexure P-7: The true copy of the tender
document dated 23.2.19.
14. Annexure P-8: True copy of the High Court
ordered enquiry into termination of health
workers in All India General Kamgar
Union vs. UOI & Ors. in WP(C) 4834/2020
15. Annexure P-9: True copy of the Jaipur Zila
Sahakari Bhoomi Vikas Bank Ltd. v. Ram
Gopal Sharma and Ors. AIR 2002 SC 643.
16. Annexure P-10: True copy of the High
Court Air India Limited vs Jagesh Dutt
Sharma & Ors. 133 (2006) DLT 93.
87-107
108-114
115-137
138-145
146-174
175-177
178-182
183-190

17. Annexure P-11: True copy of the Bhartiya
Janata Kamgar Mahasangh vs Under
Secretary And Anr. 2007 (6) BomCR 591
18. Annexure P-12: True copy of order dated
25.07.2014 passed by this Hon’ble High
Court in Ram Chander and ors. v. Union of
India, W.P.(C) No. 4642/2014.
19. Annexure P-13: True copy of Hon’ble High
Court of Delhi order in National Federation
of RRB Employees vs Uttarakhand Gramin
Bank &Ors (W.P. 3936 of 2021, order
dated 26.03.3021.
20. Annexure P-14: True copy of order dated
26.07.2021 in W.P. (C) 5986/2021.
21. Application for interim relief under Section
151 of CPC.
22. Vakalatnama and authorisation
23. Advance Service
Date: 25.4.22
Place: Delhi Filed by:
Kawalpreet Kaur
576, Masjid Road
Jangpura, Delhi-110014
Advocates for the Petitioner
+91 8287908688; kawalpreet303@yahoo.in
191-197
198
201-205
206-210
211-215
216-220
221

IN THE MATTER OF:
Versus
Application for urgent listing
Sir,
Kindly treat the enclosed application as urgent as per the High
Court rules. The ground for urgency is that the Petitioners are
sanitation workers employed at Kalawati Saran Children Hospital
since over a decade. They have been orally informed that their
services would be terminated from 1.5.22. However, the aforesaid
termination is illegal as per the catena of judgments of Hon’ble
Supreme Court which states that when an Industrial Dispute under
Section 33(1) of the Industrial Dispute Act, 1947 is pending before
any conciliation body, the employer can’t change the terms which
pertains to nature of dispute. In this case, the conciliation between
respondent hospital and Petitioner union members is pending
pertaining to “regularization”, thus any termination at this stage
would be violation of Court orders. Therefore, in interests of
justice, it is prayed, kindly list the matter at earliest on 25.04.2022
as the termination would be violation of Hon’ble Court order.
Date: 25.04.2022
Place: New Delhi
Filed by:
Kawalpreet Kaur
576, Masjid Road
1

IN THE MATTER OF:
Versus
NOTICE OF MOTION
Sir,
Kindly take notice that the accompanying Writ Petition in the
aforesaid matter as being filed by the Petitioner before Delhi High
Court and the same is likely to be listed on 26.4.22. A copy of the
Writ Petition with all the Annexures is being supplied along with
this letter.
Date: 25.4.22
Kawalpreet Kaur
576, Masjid Road
2

IN THE MATTER OF:
Versus
COURT FEES
URL: DLCT2550D2234L213
Date: 25.4.22
Kawalpreet Kaur
576, Masjid Road
3

IN THE MATTER OF:
Versus
MEMO OF PARTIES
1. Kalawati Saran Aspataal Contract
Karamchaari Union
C-90, DDA Flats
Jahangirpuri, Delhi-110033 …Petitioner
Versus
1. Union of India
Through Secretary
Ministry of Labour & Employment
Shram Shakti Bhawan,
New Delhi-110011 …Respondent No. 1
2. Union of India
Through Secretary
4

Ministry of Health & Family Welfare
Nirman Bhawan,
3. Kalawati Saran Children’s Hospital
Diz area, Connaught Place
New Delhi-110001 ...Respondent No. 3
4. Sulabh International Social Service Organisation
Sulabh House, 74, K-1
Extension, Mohan Garden
5. Lady Hardinge Medical College
And Associated SSK & KSC Hospitals
DIZ Area, Connaught Place,
New Delhi, Delhi – 110001 …Respondent No. 5
Date: 25.3.22
Kawalpreet Kaur
576, Masjid Road
5

SYNOPSIS
1. The Petitioner in the present case is espousing the cause of
thirty seven sanitation workers who have been working in the
respondent no. 3, herein referred as i.e. Kalawati Saran
Children’s Hospital, New Delhi since past 13 years and among
them some from past 10 years through a sham and bogus
contract with respondent no. 4 herein referred to as Sulabh
International Social Service Organisation. Kalawati Saran
Children’s Hospital is an associated hospital OF Respondent
no. 4, ie. Lady Hardinge Medical College.
2. The Petitioner seeks urgent intervention of the Hon’ble Court
for the prevention of injustice and for continuation of the
workers in the respondent hospital as sanitation workers even
after 30.4.22. The hospital has orally informed the Petitioner
workers that they would be discontinued from services from
1.5.22 onwards. The Petitioner is approaching the Hon’ble
Court as there is no efficacious or alternate remedy available to
them.
3. It is the case of the Petitioner union that the entire case revolves
around the illegality employed by the respondent hospital
wherein it has employed the sanitation workers through a sham
and bogus contract with Sulabh International. The deceiving
terminology is used by the respondent hospital to deprive the
workmen in which most of them belong to the scheduled caste
community with the benefits of a regular employee. It is the
case of Petitioner that sanitation is an essential service and
pertains to permanent and perennial nature of work. The
hospital has entered into illegal connivance with the Sulabh
International only to defeat the labour law and exploit the
6

workers as “volunteers” by keeping them with lower wages,
benefits, facilities and to keep them employed for longer hours
of work.
4. Moreover, it has been submitted by the respondent no. 4 itself
that even though Sulabh International deployed sanitation
workers they are being supervised and assigned duties by the
hospital directly. Sulabh International has no control over
them.
7

LIST OF DATES AND EVENTS
Date Event
2009 The list of workers among whom many joined the
hospital as sanitation workers.
17.7.19 Petitioner union filed a claim seeking regularization
and prayed against any illegal retrenchment of the
workers who have been working since past 13 years
and in some case since 10 years in respondent no.3,
i.e. Kalawati Saran Children’s Hospital through a
sham and bogus contract with respondent no. 4,
Sulabh International.
1.4.19
to
30.9.19
Claim filed by Petitioner union members before the
Ld. Regional Labour Commissioner (central) under
the Minimum Wages Act, 1948 against pending
wages as per the prescribed minimum wages for the
period of 1.4.19 to 30.9.19 whose pending claims
compound to Rs. 4, 22,730 each.
9.9.19 The Petitioner union on behalf of Sevak Ram & 44
other (workmen) filed a claim as per the Central
Rule 25(2)(v)(a) of the Contract Labour (Regulation
& Abolition) Central Rules, 1971 holding that the
work being performed by the safari karamchari
being employed through the contractors by
Respondent hospital and the work perfomed by
Group-C workmen of the Kalawati Saran Children’s
Hospital are same and similar in nature.
9.8.21 The Dy. Chief Labour Commissioner issued a
failure of conciliation report in the abovementioned
industrial dispute pertaining to regularization and
8

illegal retrenchment between Petitioner union
members & respondent no. 3 and 4.
9.9.21 The respondent 3 and 4, filed written statement
before the Deputy Chief Labour Commissioner
under The Contract Labour (Regulation &
Abolition) Central Rules, 1971.
13.12.21 Petitioner union members filed rejoinder to the reply
given by respondent hospital and Sulabh
International in the application pending before the
office of Deputy Chief Labour commissioner under
The Contract Labour (Regulation & Abolition)
Central Rules, 1971.
29.12.21 The Regional Labour Commissioner (Central) under
Minimum Wages Act ordered the respondent no.3,
the hospital to ensure payment of Rs. 83, 75,900 in
respect of the claim of the 193 claimants along with
one time of the said amount as compensation within
30 days from the date of the order to the claimants.
23.4.22 Petitioner members were informed orally by the
hospital that they would not be continued after
30.4.22.
25.2.22 Hence, this Writ Petition.
9

IN THE MATTER OF:
Versus
Writ Petition of Mandamus is filed on behalf of the
Petitioner under Article 226 directing the Respondent no.
2, 3, 5 to continue to employ the members of the Petitioner
union workers in Kalawati Saran Children’s Hospital and
not to terminate their services during the pendency of the
industrial dispute and to not replace them with a new set of
contract workers.
To,
The Hon’ble Chief Justice of the High Court of Delhi and
Her other Companion Justices of the Hon’ble High Court of Delhi
The Humble Petition of the
Petitioner above-named:
MOST RESPECTFULLY SHOWETH:
1. The Petitioner in the present case is espousing the cause of
thirty seven sanitation workers who have been working in the
respondent no. 3, herein referred as i.e. Kalawati Saran
Children’s Hospital, New Delhi since past 13 years and among
10

them some from past 10 years through a sham and bogus
contract with respondent no. 4 herein referred to as Sulabh
International Social Service Organisation.
2. The Petitioner seeks urgent intervention of the Hon’ble Court
for the prevention of injustice and for continuation of the
sanitation workers in the respondent hospital as sanitation
workers even after 30.4.22. The hospital has orally informed
the Petitioner workers that they would be discontinued from
services from 1.5.22 onwards. The Petitioner is approaching
the Hon’ble Court, as there is no efficacious or alternate
remedy available to them.
3. There is no other similar Petition filed before this Hon'ble
Court or before any other Court for similar reliefs prayed by
the Petitioner herein.
Illegal Connivance between hospital & Sulabh
International: The Volunteering Scam
5. The workers are engaged with the respondent hospital directly
and Sulabh International is only a name-lending agency to
deny the sanitation workers who have been engaged since past
10 years and some since past 13 years the benefits of regular
employees. The respondent no. 4 has been conning the
Petitioner workers and other workers engaged through them by
concocting the sham of terming their employment as so-called
“volunteership”.
6. It is the case of the Petitioner union that the entire case revolves
around the illegality employed by the respondent hospital
wherein it has employed the sanitation workers through a sham
and bogus contract with Sulabh International. The deceiving
11

terminology is used by the respondent hospital to deprive the
workmen in which most of them belong to the scheduled caste
community with the benefits of a regular employee. It is the
case of Petitioner that sanitation is an essential service and
pertains to permanent and perennial nature of work. The
hospital has entered into illegal connivance with the Sulabh
International only to defeat the labour law and exploit the
workers as “volunteers” by keeping them with lower wages,
benefits, facilities and to keep them employed for longer hours
of work.
7. In a groundbreaking judgment delivered in an identical case by
this Hon’ble Court, comprising of bench led by Suresh Kait. J
in Sulabh International Social Service Organisation vs.
Regional Labour Commissioner (central) (2013) 198 DLT
13 pierced through this smoke screen of designating sanitation
workers as volunteers. This Hon’ble Court held that poor
people from the lower strata of the society have been engaged
as sanitation workers are given wages less than the minimum
wages prescribed under the Minimum Wages Act. It was
further held that organisation (Sulabh International) may be
voluntary, but a poor person who has to fill his belly as well as
dependents cannot afford to be a volunteer. The bench went
on to point that a person who has acquired the minimum
requirement in the life may do some voluntary service for a day
or a two or maximum for a week but not on permanent basis.
Such workmen are persons whose survival depends upon
whatever given/paid by the employer or who is taking his
services. If he works voluntary even for a day, his whole
family would be starving. Therefore, such a person cannot
12

work voluntary even for a day. One cannot expect he would be
a volunteer for months and years together. The Court held:
The true and correct copy of the judgment has been marked as
Annexure P-1 at pp.
One set of contract workers cannot be replaced with
another set of contractual employees
8. Further, replacing the sanitation workers who have been
rendering services in the respondent hospital since past 10 to
13 years with a new set of contractual employees would be
illegal and unethical as has been laid down in catena of
judgments by the Courts in State of Haryana &Ors. vs. Piara
Singh (1992) 4 SCC 118, Mohd. Abdul Kadir &Anr. vs.
Director General of Police, Assam &Ors. (2009) 6 SCC 611
and in Abhinav Chaudhary &Ors. vs. DTU & Ors. in WP(C)
3512/2014.
9. The petitioner workmen are being replaced by a new set of
contract workers, who may have been forced to pay ‘illegal
extortion money’ to the respondents no. 3 officials. The
replacement of contract workers through another set of contract
workers is not permissible. The Hon’ble Supreme Court in
catena of judgments has held this. Hon’ble Supreme Court in
State of Haryana &Ors. V Piara Singh &Ors. (1992) 4 SCC
118, held as under:
“45. The normal rule, of course, is regular
recruitment through the prescribed agency but
exigencies of administration may sometimes call
for an ad hoc or temporary appointment to be
made. In such a situation, effort should always be
13
57.

to replace such an ad hoc/temporary employee by
a regularly selected employee as early as possible.
Such a temporary employee may also compete
along with others for such regular
selection/appointment. If he gets selected, well and
good, but if he does not, he must give way to the
regularly selected candidate. The appointment of
the regularly selected candidate cannot be withheld
or kept in abeyance for the sake of such an ad
hoc/temporary employee.
46. Secondly, an ad hoc or temporary employee
should not be replaced by another ad hoc or
temporary employee; he must be replaced only by
a regularly selected employee. This is necessary to
avoid arbitrary action on the part of the appointing
authority.”
10.Similarly, the decision of 3 judges the Hon’ble Supreme Court
in Piara Singh (supra) was later affirmed by the Hon’ble
Supreme Court in Secretary, State of Karnataka v Uma Devi
(2006) 4 SCC 1, where 5 judges of the Hon’ble Supreme Court
affirmed the view in Piara Singh (supra) that one set of ad-hoc
employees cannot be replaced by another set of ad-hoc
employees. In addition, the Hon’ble High Court of Delhi in
Abhinav Chaudhary &Ors. V Delhi Technical University
&Ors. 2015 SCC OnLine Del 6780 held as under:
“5. In view of the above, the case of the petitioners
clearly falls within the ratios of the judgments of
the Supreme Court in the cases of Piara
Singh, Umadevi and Mohd. Abdul Kadir (all
Supra) and since one contractual employee cannot
14

be replaced by other contractual employee, and
which action will show gross arbitrariness on the
part of the respondent no. 1, the present writ
petition is allowed and respondents are restrained
from in any manner terminating the services of the
petitioners from the contractual posts of Assistant
Professors at which they are working with the
respondent no. 1/employer. Of course, this will not
disentitle the respondent no. 1 to appoint any
additional Assistant Professors with the respondent
no. 1 in accordance with its applicable rules or
issue fresh advertisements having contractually
substantially different terms than what the
petitioners are presently working at.”
11. The Hon’ble Supreme Court in the case of Manish Gupta &
Anr vs. President, Jan Bhagidari Samiti & Ors. in Civil
Appeal No. 3084-3088 of 2022 has once again reiterated the
principal. In the case, the Hon’ble Court reiterated that another
ad hoc employee cannot replace an ad hoc employee and only
another candidate who is regularly appointed by following a
regular procedure prescribed can replace him. [Referred to
Rattan Lal and others vs. State of Haryana, (1985) 4 SCC 43;
Hargurpratap Singh vs. State of Punjab and others (2007) 13
SCC 292] (Para 12).
12.Similarly, in Hargurpratap Singh V. State of Punjab (2007) 13
SCC 292, the Hon’ble Court held,
“3. The course adopted by the High Court is to
displace one ad hoc arrangement by another ad hoc
arrangement which is not at all
15

appropriate……. Continuation in service till
regular incumbents are appointed...”
13.In Rattan Lal and Ors V. State of Haryana & ors. (1985)4 SCC
43, the Court held,
“2. Allow all those teachers who are now holding
these posts on ad hoc basis to remain in those posts
till the vacancies are duly filled up..."
The true and correct copy of the order has been marked as
Annexure P-2 at pp.
14.Moreover, the termination of the Petitioner union are not being
done based on their unsatisfactory performance, rather it is
being done to replace them with new contractual employees.
However, as demonstrated above, a contractual employee
cannot be replaced with another. In addition, the termination
falls under Section 25F of the ID Act where the termination is
based on no inquiry, no charge, and not by way of punishment.
The Hon’ble Court in Sachiv, Krishi Upaj Mandi Samiti,
Sanawad vs. Mahendra Kumar 2004 LLR 405 held, the
workmen will be entitled to reinstatement with full back wages.
Similarly, under Section 25N makes it mandatory to state
reasons for any intended retrenchment of the employee.
Nature of Work: Permanent & Perennial in nature
15.The sanitation workers perform job similar to the job
performed by the permanent staff of respondent hospital that is
essential and perennial in nature to the establishment. Just
similar to the permanent workers these workers are required to:
16
76.

• These so-called volunteers are required to make entry at
the hospital before entering the various wards when
entering to clean them.
• Their daily tasks include sweeping, mopping, dusting,
garbage disposal, disposing off biomedical waste such as
blood, syringes, infectious tubes and ducts scattered on
hospital floors by doctors treating emergency patients
and includes radioactive waste.
• Speed of waste production at hospital is much more rapid
especially since the Respondent hospital is a public
hospital and footfall of patients is immense.
• The scheme of section 10 of the Contract Labour
(Regulation & Abolition) Act, 1970 (referred to as
CLRA) dictates that the appropriate government can
prohibit contract labourers at an establishment and
regularise such workmen by evaluating factors that show
that such workmen perform work that is incidental to or
necessary to the establishment. That whether their work
is perennial nature, which is done ordinarily through,
regular workers in that establishment. The state must
also determine whether it is sufficient to employ
considerable number of such whole-time workers.
• While dispensing their duties as sanitation workers at the
respondent hospital the workers are often pricked by
used-infectious needles scattered on tables and floor
of the hospital. The respondent hospital provides these
workers with preventive treatment known as
17

antiretroviral therapy treatment. The treatment also
causes side effect among the workers.
• Beyond sanitation: These sanitation workers apart from
their prescribed duties are forced to work as porters who
aide the respondent hospital by routinely updating the
general store unit in the hospital with medical supplies
such as cotton, intravenous fluids, clean laundry and
even administrative utilities such as stationaries. Their
task goes a step further; they are also responsible for
making sure these supplies are in the wards of respective
doctors, nurses and administrative staff for smooth
functioning of the respondent’s daily working.
• They are also responsible for managing files during
doctor’s daily shift rounds.
• Working hours & Shifts: These workmen work for
more than 8 hours every day, their work in 3 different
shifts: morning 7am to 2pm evening shift 1pm to 9pm
and night shift 9pm to 7am. The workmen are directly
supervised and allotted work by the permanent staff of
the respondent hospital who on daily basis supervises the
work.
• Frontline workers: It is submitted that these workmen
performed essential services during covid-19 pandemic.
Even during the peak of the pandemic, these workers
attended the services and while performing their services
and serving people, they were infected with covid-19.
Replacing the essential workers who has been working
18

since decades and have been on forefront during covid-
19 is not only illegal but inhumane as well.
16. That these workers work is in parity with permanent
employees at the respondent hospital in terms of working
hours, nature of work, and other hazards involved. In the
present case, the respondents 3 and 4 have been conning the
Petitioner workmen by concocting the sham of their contract as
so-called volunteers. The names of the workmen and the
number of years they have been performing their services is
given below in the table:
S.
No.
Name of the workmen Date of Joining
1 Amarjeet Malik 22/02/2009
2 Sevakram 8/01/2016
3 Jai Prakash Madhesiya 10/10/2012
4 Rajesh Kumar 2/4/2009
5 Phool Singh 1/01/2016
6 Kalva Devi 10/12/2016
7 Ajay Kumar 7/08/2016
8 Surendra Kumar 7/08/2018
9 Sarayu Yadav 8/02/2009
10 Ramkirpal Kamati 15/08/2013
11 Prem Chand 20/04/2017
19

S.
No.
12 Sikander 1/03/2020
13 Mamta 15/08/2016
14 Satish Kumar 13/08/2007
15 Komal 12/12/2016
16 Rekha 7/11/2016
17 Sunita 31/03/2014
18 Nitesh 18/3/2020
19 Dilip Yadav 31/01/2012
20 Shani Kumar 8/02/2010
21 Nitin 18/9/2017
22 Mumtaj 2/04/2016
23 Babita 10/07/2017
24 Afsana Begum 10/09/2010
25 Sarfaraj 6/07/2020
26 Shaukat Ali 8/03/2014
27 Sauraj 12/04/2017
28 Gorelal Yadav 5/10/2018
29 Jitendra Kumar 14/2/2007
30 Rekha Devi 16/05/2021
20

S.
No.
31 Rita Rai 12/09/2009
32 Ravinder Kumar 16/11/2015
33 Munendra 5/05/2020
34 Kapil 5/05/2020
35 Rahul 10/01/2018
36 Nisha 3/05/2020
37 Kamlesh 14/07/2014
Petitioner’s claim for regularisation & against illegal
retrenchment before Deputy Chief Labour Commissioner
17.The Petitioner had filed a statement of claim before the Deputy
Chief Labour Commissioner on 22.7.2019 on behalf of the 44
workers who have been working as sanitation workers in the
respondent hospital through a sham contractor named Sulabh
International. The Petitioner work performed is of essential
services, they have been working regularly for more than 8
hours and not being paid equal wages, and other benefits
though they have been performing similar kind of work as of
the permanent employees. It was prayed by the Petitioner union
on behalf of the 44 workers that:
“2. The Hon’ble authority may kindly pass an
order/direction that the workmen listed in the
appendix 1 of this petition be declared permanent
21

employees of the respondent no. 1 and thus all
benefits available to these workmen be allowed
which are directed under labour laws, standing
orders from beginning of their employment.
3. That the Hon’ble authority may kindly pass an
order/direction that Kalawati Saran Children
Hospital administration be ordered to stop all sorts
of victimisation including retrenchment of
workers immediately.”
The true copy of the statement of claim filed by Petitioner
union dated 22.7.2019 and failure of conciliation report
dated 9.8.21 has been marked as Annexure P-3 (colly) at
pp.
18.Thereafter, on 9.8.21, the conciliation officer filed a failure of
conciliation report in the aforesaid case. However, since then
despite reminders to the Respondent no.1, which is Ministry of
Labour & Employment reference in the dispute has not been
made. Thus, due to the delay on the part of the respondent, the
Petitioner would be rendered without any relief.
19.In the present case, the Petitioner’s case for bonus under
Payment of Bonus Act, 1965 was also pending before the
deputy chief labour commissioner. However, on 11.8.2022 the
commissioner filed a failure of conciliation report in that case.
Petitioner claim pending under Contract Labour
(Regulation & Abolition) Central Rules, 1971
20.The Petitioner union workers were part of those workmen who
had filed a statement of claim for investigation into the sham
and bogus contract wherein the Petitioner held that the workers
22
87.

employed through a contractor and those who are permanent
workers in respondent hospital are working in the same and
similar conditions with respect to their job description, nature
of work performed by them and service conditions etc.
21.It is pertinent to mention that the after the application u/s Rule
25(2)(v)(a) of the Contract Labour (Regulation & Abolition)
Central Rules, 1971, it was submitted by Sulabh International
and respondent hospital that Sulabh International is not a
valid contractor and is not holding any valid contractor’s
license and the rules under the Act wouldn’t be valid.
However, this shows the contract through Sulabh International
with hospital was void-ab-initio. The true copy of the
application filed by Petitioner union dated 9.9.19 and the copy
of the application dated 1.2.22 has been marked as Annexure
P-4 (colly) at pp.
22.The Constitutional bench in SAIL v. National Union
Waterfront Workers, (2001) 7 SCC 1 elaborately dealt with
section 10 of the CLRA Act and held that if it is found that if
the contract is found to be not genuine but a mere camouflage,
the so-called contract labour will have to be treated as
employees of the principal employer who shall be directed to
regularise the services of the contract labour in the
establishment concerned. The relevant portion of the
judgement is extracted below:
“125. The upshot of the above discussion is
outlined thus:
“.... (5) On issuance of prohibition notification
under Section 10(1) of the CLRA Act prohibiting
23
108.

employment of contract labour or otherwise, in an
industrial dispute brought before it by any contract
labour in regard to conditions of service, the
industrial adjudicator will have to consider the
question whether the contractor has been
interposed either on the ground of having
undertaken to produce any given result for the
establishment or for supply of contract labour for
work of the establishment under a genuine contract
or is a mere ruse/camouflage to evade compliance
with various beneficial legislations so as to deprive
the workers of the benefit thereunder. If the
contract is found to be not genuine but a mere
camouflage, the so- called contract labour will
have to be treated as employees of the principal
employer who shall be directed to regularise the
services of the contract labour in the establishment
concerned subject to the conditions as may be
specified by it for that purpose in the light of para
6 hereunder. (6) If the contract is found to be
genuine and prohibition notification under Section
10(1) of the CLRA Act in respect of the
establishment concerned has been issued by the
appropriate Government prohibiting employment
of contract labour in any process, operation or other
work of any establishment and where in such
process, operation or other work of the
establishment the principal employer intends to
employ regular workmen, he shall give preference
to the erstwhile contract labour, if otherwise found
24

suitable and, if necessary, by relaxing the condition
as to maximum age appropriately, taking into
consideration the age of the workers at the time of
their initial employment by the contractor and also
relaxing the condition as to academic qualifications
other than technical qualifications.”
23.Petitioner union members hold they are directly working with
the respondent hospital. There exist an “employer-employee”
relationship between them. Nevertheless, the aspect would
require adjudication by the tribunal and since no reference has
yet been made in this case, today if the workers are terminated
their case for regularisation and against illegal retrenchment
would become purposeless, and would cause them grave
injustice and would be harsh.
Victimization & Termination of workers due to the
Regional Labour Commissioner order for implementation
of Minimum Wages Act, 1948 at respondent hospital
24.It is submitted that Petitioner had filed claim before the Ld.
Deputy Chief Labour Commissioner (Central) against pending
wages as per the prescribed minimum wages for the period
1.10.15 to 31.12.19. The Petitioner union workers through
dispensing duties of permanent workmen were paid even below
the minimum wages despite performing the work similar to that
of the permanent staff of respondent hospital. That much like
the permanent sanitation workers, these so-called volunteers
are required by the hospital to make entry at the hospital before
entering the various wards when entering to clean them. That
respondent no. 3 and 4 engaged in unfair labour practice with
the malafide intention of denying the legal rights and benefits
25

to the petitioner workman by under paying these workman for
a decade.
25.On 29.12.2021, the Regional Labour Commissioner passed a
decision in Sh. Sewak Ram and 106 others who had filed
claim applications against the respondent hospital and M/s
Sulabh International under the Minimum wages Act 1948
passed an order directing the respondent hospital to ensure the
payment of Rs. 83,75,00/- in respect of the claim of 193
claimants along with one time of the said amount as
compensation to made within 30 days from the date of the
order.
26.However, despite that, the order has not been implemented and
the workers who are being threatened with termination are all
part of the order of regional Labour Commissioner which
entitled them for the pending arears of over Rs. 83,75,00.
27.It was only because of the efforts of the Petitioner union
workers that the order for implementation of minimum wages
in the respondent hospital was implemented. Moreover,
Petitioner union during pendency of the claim filed before the
RLC, had approached the Hon’ble High Court for
implementation of the minimum wages in the respondent
hospital. The true copy of the RLC order for implementation of
minimum wages and with payment of back arrears has been
marked as Annexure P-5 at pp.
Violation of labour laws & withholding of
Minimum wages in the hospital
28.Warning letters dated 3.7.18 issued by labour enforcement
officer (central) addressed to respondent hospital has
26
115.

highlighted gross violation of labour laws by their contractor,
respondent 4, Sulabh International in terms of payment of
wages less than minimum rates if wages and non-payment of
wages and other issues. Similar, warning letter dated 4.1.19
was issued which noted that there were complaints regarding
respondent hospital being in violation of payment of wages less
than minimum rates of wages and for non-payment of wages &
other issues. The true copy of the representation regarding non-
payment of minimum wages and against illegal termination
have been marked as Annexure P-6 (colly) at pp.
Availability of sufficient sanctioned
Sanitation attendants posts in the hospital
29. It is pertinent to note that it is not the case of respondent no. 2
and 3 that there are no vacant posts or sufficient number of
posts for the role of sanitation workers. Rather it is astounding
to see that the sanction posts for the sanitation attendants is 626
as per the tender document issued by the Directorate General
of Health Facility, Ministry of Health and Family Welfare
dated 23th February 2019 for Lady Hardinge Medical College
& Smt. Sucheta Kriplani Hospital.
Sanitary Attendants 01 S.A. for 2
Hospital beds
626
The true copy of the tender document dated 23.2.19 has been
marked as Annexure P-7 at pp.
Section 33 of the ID Act would prevail in the case
30.According to Section 33 of the ID Act, 1947,
27
138.
146.

“Conditions of service, etc., to remain unchanged
under certain circumstances during pendency of
proceedings.-
(1) during the pendency of any conciliation
proceeding before a conciliation officer or a Board
or of any proceeding before an arbitrator or] a
Labour Court or Tribunal or National Tribunal in
respect of an industrial dispute, no employer shall-
(a) in regard to any matter connected with the
dispute, alter, to the prejudice of the workmen
concerned in such dispute, the conditions of service
applicable to them immediately before the
commencement of such proceeding; or
(b) for any misconduct connected with the dispute,
discharge or punish, whether by dismissal or
otherwise, any workmen concerned in such
dispute, save with the express permission in
writing of the authority before which the
proceeding is pending.”
31.It is submitted that the termination of the Petitioner union
members would be illegal as such during the pendency of the
dispute, the condition of service can’t be altered and the actions
of refusal of employment by the Respondent hospital without
compliance of mandatory conditions laid down in Section 33
of the ID Act is bad in law and is not permissible.
32.In addition, since the dispute between the Petitioner union and
Respondent hospital concerning regularization is pending, their
28

services cannot be terminated without the permission of the
Labour Court/Tribunal.
33.The respondent hospital can prefer a compliant, in terms of
Section 10 Read with Section 33A of the 1947 ID Act; they
have no option but to approach the Hon’ble Labour Court.
Moreover, the duties performed by the Petitioner is perennial
in nature and is similar to what the permanent employees are
performing, she has been performing this work since over a
decade and thus, termination of her services (now) would be
violation of Section 33 of the ID Act.
34.The Hon’ble Supreme Court has clearly laid down the
provisions of Section 33 of the Industrial Disputes Act, 1947 in
Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram
Gopal Sharma and Ors. AIR 2002 SC 643 and that they are
mandatory.
35.In Bhavnagar Municipality vs. Alibha Karimbhai and Ors.
(1977) 2 SCC 350, the Hon’ble Court explained the Section 33
of the ID Act and held,
“9. There is a clear prohibition in Section 33(1)(a)
against altering conditions of service by the
employer under the circumstances specified except
with the written permission of the Tribunal or other
authority therein described.
10. In order to attract Section 33(1)(a), the
following features must be present:
(1) There is a proceeding in respect of an industrial
dispute pending before the Tribunal.
29

(2) Conditions of service of the workmen
applicable immediately before the commencement
of the Tribunal proceeding are altered.
(3) The alteration of the conditions of service is in
regard to a matter connected with the pending
industrial dispute.
(4) The workmen whose conditions of service are
altered are concerned in the pending industrial
dispute.
(5) The alteration of the conditions of service is to
the prejudice of the workmen.”
Respondent hospital seeking ‘cut’
for continuation of sanitation workers
36. The Respondent hospital asked for incentives and extorted
‘money’ from the members of the union to continue to employ
them on their rolls. This illegal ‘extortion’ was highlighted in
the past by the Petitioner union wherein the Hon’ble High
Court itself had ordered an inquiry into the unfair practice and
passed slew of directions. The Hon’ble High Court stopped the
illegal termination of contractual workers in one of the
associated hospital of Respondent no. 3 and members of
Petitioner union were allowed to continue to perform their
services in the hospital. That when any medical institution
should rely upon its experienced workforce for dealing with the
possibility of a dangerous pandemic situation, the officials of
Respondent no. 3 engaged in all sorts of ‘illegal hiring’, thereby
not only snatching away the jobs of the ‘corona warriors’ and
the sanitation workers.
30

High Court ordered enquiry into termination of health
workers in All India General Kamgar Union vs. UOI &
Ors. in WP(C) 4834/2020
37.It is pertinent to mention that the Petitioner union had filed a
similar WP(C) 4834/2020 in All India General Kamgar Union
vs. Union of India & Ors. against the respondent hospital, Lady
Hardinge Medical College. The grievance of the Workmen was
that they have been working since 2015 in the Hospital as
Multi-Tasking Staffs. However, they were told that their
services are going to be terminated, as a new contractor has
been engaged. The Hon’ble Court in its order dated 31.07.2020
directed that the insofar as the 35 employees who are working
as MTS are concerned, the new Contractor i.e. M/s Competent
Services (Regd.) shall engage the services of the Petitioners on
the same terms and conditions and shall not charge any
commission or premium from them. The court further asked a
senior official of Ministry of Health to look into the matter
concerning the Lady Hardinge Medical College and submit a
report. The Hon’ble Court orders are annexed herewith as
Annexure P-8 at 175. Any termination of the Petitioner
union members today would also against the Hon’ble Court
order in the aforesaid case and amounts to contempt of the
Court.
GROUNDS
38.BECAUSE, the Respondents have been abusing the Contract
Labour system and exploiting the Petitioner in complete
disregard of laws.
31
.

39.BECAUSE the termination of services of the Petitioner
UNION during the pendency of the dispute will be illegal,
malicious and an act of victimization.
40.BECAUSE the Petitioner, has raised an industrial dispute for
regularization of the services and even if an Award is passed in
favor of the Petitioner, the said Award would be rendered
nugatory or a paper decree which is incapable of execution if
the services of the Petitioner union members are terminated at
this stage.
41.BECAUSE the termination of services of the Petitioner union
members would result in depriving the right to livelihood
which is covered under right to life guaranteed under Article
21 of the Constitution of India without following due procedure
of law.
42.BECAUSE Section 33 of the Industrial Disputes Act provides
that during the pendency of any conciliation proceeding before
Conciliation Officer, Labour Court or Industrial Tribunal, no
employer shall alter the conditions of service applicable to
workman with regard to any matter connected with the dispute
to the prejudice of the workman concerned in such dispute.
Thus, the Respondents can change service condition only with
the express prior permission in writing of the authority, before
which the proceeding is pending.
A. The Hon’ble Supreme Court has clearly laid down the
provisions of Section 33 of the Industrial Disputes Act,
1947 in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v.
Ram Gopal Sharma and Ors. AIR 2002 SC 643 and that
they are mandatory. The relevant para is:
32

“13. The proviso to Section 33(2)(b), as can be
seen from its very unambiguous and clear
language, is mandatory. This apart, from the
object of Section 33 and in the context of the
proviso to Section 33(2)(b), it is obvious that the
conditions contained in the said proviso are to be
essentially complied with. Further any employer
who contravenes the provisions of Section 33
invites a punishment under Section 31(1) with
imprisonment for a term which may extend to six
months or with fine which may extend to Rs.
1000/- or with both. This penal provision is again
a pointer of the mandatory nature of the proviso
to comply with the conditions stated therein. To
put it in other way, the said conditions being
mandatory, are to be satisfied if an order of
discharge or dismissal passed under Section
33(2)(b) is to be operative. If an employer desires
to take benefit of the said provision for passing
an order of discharge or dismissal of an
employee, he has also to take the burden of
discharging the statutory obligation placed on
him in the said proviso. Taking a contrary view
that an order of discharge or dismissal passed by
an employer in contravention of the mandatory
conditions contained in the proviso does not
render such an order inoperative or void, defeats
the very purpose of the proviso and it becomes
meaningless. It is well-settled rule of
interpretation that no part of statute shall be
33

construed as unnecessary or superfluous. The
proviso cannot be diluted or disobeyed by an
employer. He cannot disobey the mandatory
provision and then say that the order of discharge
or dismissal made in contravention of Section
33(2)(b) is not void or inoperative. He cannot be
permitted to take advantage of his own wrong.
The interpretation of statute must be such that it
should advance the legislative intent and serve
the purpose for which it is made rather than to
frustrate it. The proviso to Section 33(2)(b)
affords protection to a workman to safeguard his
interest and it is a shield against victimization and
unfair labour practice by the employer during the
pendency of industrial dispute when the
relationship between them are already strained.
An employer cannot be permitted to use the
provision of Section 33(2)(b) to ease out a
workman without complying with the conditions
contained in the said proviso for any alleged
misconduct said to be unconnected with the
already pending industrial dispute. The
protection afforded to a workman under the said
provision cannot be taken away. If it is to be held
that an order of discharge or dismissal passed by
the employer without complying with the
requirements of the said proviso is not void or
inoperative, the employer may with impunity
discharge or dismiss a workman”
34

The true copy of the judgment is
annexed herewith as Annexure P-9 at pp. 178.
B. In Bhavnagar Municipality vs. AlibhaKarimbhai and
Ors. (1977) 2 SCC 350, the Hon’ble Court explained the
Section 33 of the ID Act and held,
“9. There is a clear prohibition in Section
33(1)(a) against altering conditions of service by
the employer under the circumstances specified
except with the written permission of the
Tribunal or other authority therein described.
10. In order to attract Section 33(1)(a), the
following features must be present:
(1) There is a proceeding in respect of an
industrial dispute pending before the Tribunal.
(2) Conditions of service of the workmen
applicable immediately before the
commencement of the Tribunal proceeding are
altered.
(3) The alteration of the conditions of service is
in regard to a matter connected with the pending
industrial dispute.
(4) The workmen whose conditions of service are
altered are concerned in the pending industrial
dispute.
(5) The alteration of the conditions of service is
to the prejudice of the workmen.”
35

12. Before we proceed further, we should direct
our attention to the subject matter of the
industrial dispute pending before the Tribunal. It
is sufficient to take note of the principal item of
the dispute, namely, the demand of the
respondents for conversion of the temporary
status of their employment into permanent. To
recapitulate briefly the appellant employed daily
rated workers to do the work of boring and hand
pumps in its Water Works Section. These
workers have been in employment for over a
year. They claimed permanency in their
employment on their putting in more than 90
days' service. They also demanded two pairs of
uniform every year, cycle allowance at the rate of
Rs. 10/- per month, Provident Fund benefit and
National Holidays and other holidays allowed to
the other works.
While this particular dispute was pending before
the Tribunal, the appellant decided to entrust the
work, which had till then been performed by
these workers in the Water Works Section, to a
contractor. On the employment of the contractor
by the Municipality for the self-same work, the
services of the respondents became unnecessary
and the appellant passes the orders of
retrenchment. It is, therefore, clear that by
retrenchment of the respondents even the
temporary employment of the workers ceased
while their dispute before the Tribunal was
36

pending in order to improve that temporary and
insecure status.”
13. Retrenchment may not, ordinarily, under all
circumstances, amount to alteration of the
conditions of service. For instance, when a wage
dispute is pending before a Tribunal and on
account of the abolition of a particular
department the workers therein have to be
retrenched by the employer, such a retrenchment
cannot amount to alteration of the conditions of
service. In this particular case, however, the
subject matter being directly connected with the
conversion of the temporary employment into
permanent, tampering with the status quo ante of
these workers is a clear alteration of the
conditions of their service. They were entitled
during the pendency of the proceeding before the
Tribunal to continue as temporary employees
hoping for a better dispensation in the pending
adjudication. And if the appellant wanted to
effect a change of their system in getting the work
done through a contractor instead of by these
temporary workers, it was incumbent upon the
appellant to obtain prior permission of the
Tribunal to change the conditions of their
employment leading to retrenchment of their
services. The alteration of the method of work
culminating in termination of the services by way
of retrenchment in this case has a direct impact
on the adjudication proceeding. The alteration
37

effected in the temporary employment of the
respondent which was their condition of service
immediately before the commencement of the
proceeding before the Tribunal, is in regard to a
matter connected with the pending industrial
dispute.”
14. The character of the temporary employment
of the respondent being a direct issue before the
Tribunal, that condition of employment, however
insecure, must subsist during the pendency of the
dispute before the Tribunal and cannot be altered
to their prejudice by putting an end to that
temporary condition. This could have been done
only with the express permission of the Tribunal.
It goes without saying that the respondents were
directly concerned in the pending industrial
dispute. No one can also deny that snapping of
the temporary employment of the respondents is
not to their prejudice. All the five features
adverted to above are present in the instant case.
To permit rupture in employment, in this case,
without the prior sanction of the Tribunal will be
to set at naught the avowed object of Section 33
which is principally directed to preserve the
status quo under specified circumstances in the
interest of industrial peace during the
adjudication. We are, therefore, clearly of
opinion that the appellant has contravened the
provisions of Section 33(1)(a) of the Act and the
complaint under Section 33A, at the instance of
38

the respondents, is maintainable. The submission
of Mr. Parekh to the contrary cannot be
accepted.”
C. BECAUSE in the case of T.N State Transport
Corporation vs. Neethivilangan Kumbakonam(2001) 9
SCC 99, it held,
“10. Section 33 of the Act makes provision for
insuring that the conditions of service remain
unchanged during pendency of certain
proceedings. In sub-section(1) is incorporated the
bar that no employer shall during pendency of
any conciliation proceeding before a conciliation
officer or a Board or any proceeding before an
arbitrator or labour court or Tribunal in respect of
an industrial dispute, in regard to any matter
connected with the dispute, alter to the prejudice
of the workman concerned with such dispute,
conditions of service applicable to them
immediately before commencement of the
proceedings; or for any misconduct connected
with the dispute, discharge or punish, whether by
dismissal or otherwise any workman concerned
with such dispute, save with the express
permission in writing of the authority before
which the proceeding is pending.”
11. The purpose of the prohibitions contained in
Section 33 is two-fold. On the one hand, they are
designed to protect the workmen concerned
during the course of industrial conciliation,
39

arbitration and adjudication, against employer's
harassment and victimisation, on account of their
having raised the industrial dispute or their
continuing the "pending proceedings", on the
other they seek to maintain status quo by
prescribing management conduct which may
give rise to "fresh disputes which further
exacerbate the already strained relations between
the employer and the workmen". However the
section recognises the right of the employer to
take necessary action like the discharge or
dismissal on justified grounds. To achieve this
object, a ban has been imposed upon the
employer exercising his common law, statutory
or contractual right to terminate the services of
his employees according to the contract or the
provisions of law governing such service. The
ordinary right of the employer to alter the terms
of his employee's services to their prejudice or to
terminate their services under the general law
governing the contract of employment has been
banned subject to certain conditions.”
12. Sub-section (2) deals with alteration in the
conditions of service or the discharge or
punishment by dismissal or otherwise of the
workman concerned in the pending dispute but in
regard to any matter not connected with such
pending dispute. Though this provision also
places a ban in regard to matters not connected
with the pending dispute, it leaves the employer
40

free to discharge or dismiss a workman by paying
wages for one month and making an application
to the authority dealing with the pending
proceedings for its 'approval' of the action taken.
There is a distinction between matters connected
with the industrial dispute and those unconnected
with it. Thus, a balance between the interests of
the workmen and the employer is sought to be
maintained in the provisions of Section 33. The
action taken under Section 33(2) will become
effective only if 'approval' is granted. If the
'approval' is refused, the order of dismissal will
be invalid and inoperative in law. In other words,
the order of dismissal has to be treated as non est
and the workman will be taken never to have
been dismissed.”
43. BECAUSE it is pertinent to note that in the catena of the
judgments the Hon’ble Court has held that denying reference
of an industrial dispute under Section 10 of ID Act is an
exception and not a rule.
A. In the case of Air India Limited vs Jagesh Dutt Sharma
& Ors. 133 (2006) DLT 93, it was held by the Hon’ble
Court that
“In the light of the above set of pleadings, it
requires to be seen whether the government was
justified in declining to make the reference. The
scope of the power of the government
under Section 10 of the ID Act is fairly well settled.
First, in Telco Convoy Drivers Mazdoor Sangh v.
41

State of Bihar the Hon'ble Supreme Court
explained the position thus (AIR, @ p.1567, para
13):
...It is now well settled that, while exercising power
under Section 10(1) of the Act, the function of the
appropriate Government is an administrative
function and not a judicial or quasi judicial
function, and that in performing this administrative
function the Government cannot delve into the
merits of the dispute and take upon itself the
determination of the lis, which would certainly be
in excess of the power conferred on it by Section
10 of the Act. See Ram Avtar Sharma v. State of
Haryana ; M.P. Irrigation Karamchari Sangh v.
State of M.P. ; Shambu Nath Goyal v. Bank of
Baroda, Jullundur . Page 3065 Later a three-Judge
Bench of the Hon'ble Supreme Court in Rajasthan
State Road Transport Corporation v. Krishna
Kant adverted to this aspect in the following words
(AIR, @ pages 1725-26):
It is not correct to say that the remedies provided
by the Industrial Disputes Act are not equally
effective for the reason that access to the forum
depends upon a reference being made by the
appropriate government. The power to make a
reference conferred upon the government is to be
exercised to effectuate the object of the enactment
and hence not unguided. The rule is to make a
reference unless, of course, the dispute raised is a
42

totally frivolous one ex facie. The power conferred
is the power to refer and not the power to decide,
though it may be that the government is entitled to
examine whether the dispute is ex facie frivolous,
not meriting an adjudication.”
annexed herewith as Annexure P-10 at pp.
183.
B. Similarly, in the case of Bhartiya Janata Kamgar
Mahasangh vs Under Secretary And Anr. 2007 (6)
BomCR 591, (2008) ILLJ 298 Bom, 2007 (5) MhLj 632,
the Hon’ble Court noted:
“Attractive though the contention is, we regret, we
are unable to accept the same. It is now well settled
that, while exercising power under Section
10(1) of the Act, the function of the Appropriate
Government is an administrative function and
not a judicial or quasi judicial function, and that
in performing this administrative function the
Government cannot delve into the merits of the
dispute and take upon itself the determination
of the lis, which would certainly be in excess of
the power conferred on it by Section 10 of the
Act. See (Ram Avtar Sharma v. State of Haryana .
(M.P. Irrigation Karamchari Sangh v. State of
M.P.) ; (Shambhu Nath Goyal v. Bank of Baroda,
Jullundur) .
Applying the principle laid down by this Court in
the above decisions, there can be no doubt that the
Government was not justified in deciding the
43

dispute. Where, as in the instant case, the dispute is
whether the persons raising the dispute are
workmen or not, the same cannot be decided by the
Government in exercise of its administrative
function under Section 10(1) of the Act. As has
been held in M.P. Irrigation Karamchari Sangh
case, there may be exceptional cases in which the
State Government may, on a proper examination of
the demand, come to a conclusion that the demands
are either perverse or frivolous and do not merit a
reference. Further, the Government should be very
slow to attempt an examination of the demand with
a view to declining reference and courts will
always be vigilant whenever the Government
attempts to usurp the powers of the Tribunal for
adjudication of valid disputes, and that to allow the
Government to do so would be to render Section
10 and Section 12(5) of the Act nugatory.
In Steel Authority's case (supra), the Apex Court in
paragraphs 125(5) and 126 of the judgment
observed thus;
125(5). On issuance of prohibition notification
under Section 10(1) of the CLRA Act prohibiting
employment of contract labour or otherwise, in an
industrial dispute brought before it by any contract
labour in regard to conditions of service, the
industrial adjudicator will have to consider the
question whether the contractor has been
interposed either on the ground of having
44

undertaken to produce any given result for the
establishment or for supply of contract labour for
work of the establishment under a genuine contract
or is a mere ruse/camouflage to evade compliance
with various beneficial legislations so as to deprive
the workers of the benefit thereunder. If the
contract is found to be not genuine but a mere
camouflage, the so-called contract labour will have
to be treated as employees of the principal
employer who shall be directed to regularise the
services of the contract labour in the establishment
concerned subject to the conditions as may be
specified by it for that purpose in the light of para
6 hereunder.
126. We have used the expression industrial
adjudication. By design as determination of the
questions aforementioned requires enquiry into
disputed questions of facts which cannot
conveniently be made by High Courts in exercise
of jurisdiction under Article 226 of the
Constitution. Therefore, in such cases the
appropriate authority to go into those issues will be
the Industrial Tribunal/Court whose determination
will be amenable to judicial review.
From a bare reading of the above paragraphs in
Steel Authority of India's case it is clear that it is
for the Industrial Tribunal/ Court to determine
whether the contract entered into between the
principal employer and the contractor is a mere
45

ruse/camouflage to evade compliance with various
beneficial legislations so as to deprive the workers
of the benefit thereunder. If the contract is found to
be not genuine but a mere camouflage, the so-
called contract labour will have to be treated as
employees of the principal employer who shall be
directed to regularise the services of the contract
labour in the establishment concerned subject to
the conditions as may be prescribed. It is, therefore,
clear that the issue as to whether the contract is
sham or bogus and whether the employees will
have to be treated as employees of the principal
employer can be only adjudicated by the Industrial
Tribunal/ Court.
In the present case, The Central Government while
refusing to make reference has decided that there is
no relationship of employer employee between the
workmen and respondent No. 2. We, therefore, find
that the impugned communication dated 6.2.2005
by the respondent No. 1 informing the decision of
the Central Government as well as the decision of
the Central Government refusing to make reference
on the ground that the workmen were not appointed
by the management of the respondent No. 2 cannot
be sustained and deserves to be quashed and set
aside.”
annexed herewith as Annexure P-11 at pp.
191.
46

44.BECAUSE considering the scheme of Section 33 this Court, in
the case of Strawboard Manufacturing Co. Vs.
Gobind(1962 (Suppl.) 3 SCR 618), observed :
"Thus sub-s.(1) lays down that if an employer
proposes to discharge a workman in relation to a
matter connected with the dispute which might be
pending before a tribunal the employer must put
such proposal before the tribunal and obtain its
express permission in writing before carrying out
the proposal whether it be for alteration of any
conditions of service or for punishment or
discharge of a workman by dismissal or
otherwise. Sub-section(2)(a) on the other hand
gives power to the employer to alter any
conditions of service not connected with the
dispute and this the employer can do without
approaching at all the tribunal where the dispute
may be pending. It further permits the employer
to discharge or punish, whether by dismissal or
otherwise, any workman where this may be on
account of any matters unconnected with the
dispute pending before the tribunal; but such
discharge or dismissal is subject to the proviso,
which imposes certain conditions on it. The
intention behind enacting sub-s.(2) obviously
was to free the employer from the fetter which
was put on him under s. 33 as it was before the
amendment in 1956 with respect to action for
matters not connected with a dispute pending
before a tribunal. So far as conditions of service
47

were concerned, if they we’re unconnected with
matters in dispute the employer was given
complete freedom to change them, but so far as
discharge or dismissal of workmen was
concerned, though the employer was given
freedom, it was not complete and he could only
exercise the power of discharge or dismissal
subject to the conditions laid down in the
proviso.Even so, these conditions in the proviso
cannot be so interpreted, unless of course the
words are absolutely clear, as to require that the
employer must first obtain approval of the
tribunal where a dispute may be pending before
passing the order of discharge or dismissal of a
workman, for on this interpretation there will be
no difference between s. 33(1)(b) and s. 33(2)(b)
and the purpose of the amendment of 1956 may
be lost".
(emphasis supplied)
45.In Punjab Beverages Pvt. Ltd. Chandigarh vs. Suresh
Chand and Anr. MANU/SC/0273/1978: held, inter alia,
“the object of the legislature in enacting section
33 clearly appears to be to protect the workman
concerned in the dispute which forms the subject
matter of pending conciliation or adjudication
proceedings against victimisation by the
employer. But at the same time it recognises that
occasions may arise when the employer may be
justified in discharging or punishing by dismissal
48

his employee and so it allows the employer to
take such action, subject to the condition that in
the one case before doing so, he must obtain the
express permission in writing of the Tribunal
before which the proceeding is pending and in the
other, he must immediately apply to the Tribunal
for approval of the action taken by him.
Thereunder this Court further held that the only
scope of the inquiry before the Tribunal
exercising jurisdiction under section 33 is to
decide whether the ban imposed on the employer
by this section should be lifted or maintained by
granting or refusing the permission or approval
asked for by the employer. If the permission or
approval is refused by the Tribunal, the employer
would be precluded from discharging or
punishing the workman by way of dismissal and
the action of discharge or dismissal already taken
would be void. (emphasis supplied)”
46.BECAUSE the Hon’ble High Court order in WP(C) 4114/2008
titled Central Warehousing Corporation vs. Government of
India &Ors held CWC responsible for disrupting the status
quo under Section 33 of the ID Act.
47.BECAUSE the Petitioner union members have been
discharging services continuously from over a decade to the
full satisfaction of the Respondents with no complaint.
Therefore, there is no ground for disengaging the services of
the Petitioner union members.
48.BECAUSE the Respondents are terminating the services of the
Petitioner by way of victimization and not in good faith by
49

colourable exercise of employer’s right. That the actions of the
Respondents amount to “Unfair Labour Practice” in terms of
item number 5 and 10 of the Fifth Schedule read with Section
2 (ra) of the Industrial Disputes Act, 1947 and thus requires
adjudication by the Industrial Adjudicator.
49.BECAUSE if the Respondents are not directed to maintain
status quo in service conditions then the services of the
Petitioner would be terminated and third party rights would be
created.
50.BECAUSE the Petitioner members have been working for a
decade and some since 15 years with the Respondents and have
family and children to cater to. Thus, termination of the
services of the Petitioner would cause grave suffering to the
family as well.
51.BECAUSE the Hon’ble High Court of Delhi vide its order
dated 06.03.2019 in writ petition W.P. (C) 2203/2019 titled
Vishant Kumar Kholiya & Ors. vs. South Delhi Municipal
Corporation & Anr, directed the management that services of
the workmen shall not be disturbed during the pendency of the
dispute without compliance with section 33 of the Industrial
Disputes Act.
52.BECAUSE this Hon’ble Court in the matter of Ram Chander
and ors. V. Union of India, W.P.(C) No. 4642/2014 vide order
dated 25.07.2014 had directed the respondents therein to
maintain status quo the service of the petitioners. In the said
case, the respondent had invited tenders from different agencies
for replacing the Petitioners who were working as Data Entry
Operators and their services were to be discontinued. Copy of
order dated 25.07.2014 passed by this Hon’ble High Court in
50

Ram Chander and ors. v. Union of India, W.P.(C) No.
4642/2014 is annexed herewith as Annexure P-12 at 198.
53.BECAUSE in a similar matter of change in contractors during
the pendency of industrial dispute and apprehended termination
of workmen because of such change, the Hon’ble High Court
of Delhi in National Federation of RRB Employees vs
Uttarakhand Gramin Bank & Ors (W.P. 3936 of 2021, order
dated 26.03.3021) issued direction for maintaining status quo
in service conditions of the workmen. A copy of the order dated
26.03.2021 in W.P. (C) 3936/2021 is annexed herewith as
Annexure P-13 at pp. 201.
54.BECAUSE in identical matters of Delhi Prashasan Vikas
Vibhag Industrial Employees Union v. Chief Electoral Officers
&Ors. (W.P.(C) 5986/2021), Delhi Prashasan Vikas Vibhag
Industrial Employees Union v. Chief Electoral Officers &Ors.
(W.P.(C) 6055/2021) Delhi Prashasan Vikas Vibhag Industrial
Employees Union v. Government of NCT of Delhi &Ors.
(W.P.(C) 6019/2021) the Hon’ble High Court of Delhi, vide a
common order dated 26.07.2021 has directed that the service
conditions of workmen who have raised industrial dispute shall
not be changed without compliance of Section 33 of the
Industrial Disputes Act. True copy of the order dated
26.07.2021 in W.P. (C) 5986/2021 is annexed herewith as
Annexure P-14 at pp. 206.
55.BECAUSE hiring workers against sanctioned post on
outsource basis is an unfair labour practice and doing the same
is illegal, and violates the human dignity. It violates the
Hon’ble Supreme Court order in State of Haryana &Ors vs
Piara Singh &Ors 1992 (4) SCC 118 wherein it has held that
one set of contract workers cannot be replaced with another set
51

of contract workers. By the same analogy, the workman herein
who has been working since decade cannot be replaced with
another set of outsource workers.
56.BECAUSE the contract between the Petitioner for and
Respondent is bogus. The Hon’ble Supreme Court in Steel
Authority of India Ltd. Vs National Union Waterfront
Workers MANU/SC/0515/2001 has held that the appropriate
authority for deciding issue of sham and camouflage contract
is Industrial Tribunal/Court.
57.BECAUSE if the Respondents are not directed to maintain
status quo in service condition then the Petitioner members will
not only suffer irreparable loss but also grave prejudice would
be caused to the rights of the Petitioner members.
58.It is submitted with great respect that the Petitioner members
are suffering this injustice since the last many years.
59.That the prima facie case is in the favour of the Petitioner
members and the balance of convenience lies in favour of the
Petitioner.
60.That the Petitioner has no other efficacious remedy available
except to prefer the present Writ Petition.
52

PRAYER
61.The Petitioners, therefore, prays that in the facts and
circumstances of the present case, this Hon’ble Court may be
pleased to issue the Writ of mandamus or any other appropriate
writ or direction in the nature to the Respondent:
a. Issue an appropriate writ, order or direction, thereby
directing the Respondent no. 2, 3 and 5 to continue
to employ sanitation workers belonging to Petitioner
union & to not terminate their services in respondent
hospital and/or;
b. To maintain direct respondent no. 2 and 3 to maintain
status quo in the service condition of the Petitioner
workers and to not terminate their services from
respondent no. 3 hospital without following
procedure envisaged under Section 33 of the
Industrial Disputes Act, 1947; and
c. Issue an appropriate writ, order or direction, thereby
directing the Respondent no. 3 and 4 to pay the
Petitioner members all pending salary and other
statutory benefits that she is entitled to;
d. Issue an appropriate writ, order or direction, thereby
directing the Respondent no. 2 and 3 to not replace
the petitioner with set of another contract workers in
violation of Hon’ble Court orders;
e. Issue an appropriate writ, order or direction, thereby
directing the Respondent no. 1 to issue an order of
reference in the aforesaid industrial dispute between
Petitioner & respondent no. 3 and 4 in terms of the
failure of conciliation report;
53

f. Pass such further order(s) and/or direction(s) as this
Hon’ble Court may deem fit and proper in the interest
of justice in favour of the Petitioner.
AND FOR THIS ACT OF KINDNESS, THE PETITIONER
AS IN DUTY BOUND SHALL EVER BE GRATEFUL
Date: 25.4.22
Kawalpreet Kaur
576, Masjid Road
Jangpura, Bhogal, Delhi-110014
54

W.P. (C) 5944/2012
Sulabh International Social Service Organization v. Regional Labour Commissioner (Central)
2012 SCC OnLine Del 5489 : (2013) 198 DLT 13
(BEFORE SURESH KAIT, J.)
W.P. (C) 5944/2012 & CM. No. 12240-41/2012, CAV 961/2012
Sulabh International Social Service Organization .…. Petitioner
Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advocates
v.
Regional Labour Commissioner (Central) & Ors. .…. Respondents
Ms. Sweety Manchanda, CGSC for Respondent No. 1.
Mr. Vidya Nand Sharma, R2.
Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs. for R3.
And
W.P. (C) 6059/2012 & CM. No. 16373-74/2012
All India Institute of Medical Sciences .…. Petitioner
Mr. Rajat Katyal and Mr. Sanjeev Joshi, Advs.
v.
Vidya Nand Sharma and Anr. .…. Respondents
Respondent No. 1 in person.
Mr. Anurag Dubey, Mr. D.P. Pandey and Mr. Meenesh Dubey, Advs. for R2.
And
W.P. (C) 6060/2012 & CM. No. 16375-76/2012, CAV. 972/2012
v.
Mahesh and Anr. .…. Respondents
And
W.P. (C) 6061/2012 & CM. No. 16377-78/2012, CAV. 973/2012
v.
Govind and Anr. .…. Respondents
And
W.P. (C) 6062/2012 & CM. No. 16379-80/2012, CAV. 974/2012
v.
Ashok and Anr. .…. Respondents
And
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SCC Online Web Edition: http://www.scconline.com
Printed For: Socio Legal Information Centre .
Page 1 Monday, April 25, 2022
SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.
Annexure P-1
57

W.P. (C) 6063/2012 & CM. No. 16381-82/2012
v.
Mukesh Yadav and Anr. .…. Respondents
And
W.P. (C) 6064/2012 & CM. No. 16383-84/2012
v.
Dharamvir and Anr. .…. Respondents
And
W.P. (C) 6065/2012 & CM. No. 16385-86/2012
v.
Mukesh and Anr. .…. Respondents
And
W.P. (C) 6066/2012 & CM. No. 16387-88/2012, CAV. 977/2012
v.
Mamta and Anr. .…. Respondents
And
W.P. (C) 6067/2012 & CM. No. 16389-90/2012, CAV. 975/2012
v.
Balamurgan & Anr. .…. Respondents
And
W.P. (C) 6068/2012 & CM. No. 16391-92/2012, CAV. 976/2012
v.
Vijay and Anr. .…. Respondents
W.P. (C) 5944/2012; C.M. No. 12240-41/2012; and CAV 961/2012; W.P. (C)
5944/2012; CM. No. 12240-41/2012; CAV 961/2012; W.P. (C) 6059/2012; CM.
No. 16373-74/2012; W.P. (C) 6060/2012; CM. No. 16375-76/2012; CAV.
972/2012; W.P. (C) 6061/2012; CM. No. 16377-78/2012; CAV. 973/2012; W.P.
(C) 6062/2012; CM. No. 16379-80/2012; CAV. 974/2012; W.P. (C) 6062/2012;
-----------------------------------------------------------------------------------------------------------------------------------------------------------
58

CM. No. 16379-80/2012; CAV. 974/2012; W.P. (C) 6063/2012; CM. No. 16381-
82/2012; W.P. (C) 6064/2012; CM. No. 16383-84/2012; W.P. (C) 6065/2012;
CM. No. 16385-86/2012; W.P. (C) 6066/2012; CAV. 977/2012; W.P. (C)
6067/2012; CM. No. 16389-90/2012; CAV. 975/2012;W.P. (C) 6068/2012; CM.
No. 16391-92/2012; and CAV. 976/2012
Decided on October 18, 2012
A. Labour Law — Employer-Employee Relationship — Minimum Wages Act — Applicability
of — Held that ‘scheduled employments’ as defined under S. 2(g), carried on by an
‘employer’, as defined under S. 2(e), are covered by the Act, irrespective of who carries on
such employment, whether by an ‘industry’, establishment' or ‘enterprise’ or not; and that
such employers are liable to pay minimum wages fixed under the Act
(Paras 35 and 37)
B. Labour Law — Employees of voluntary organisation — Entitlement to minimum wages
— Held that, irrespective of an employer, covered by the Act, being a voluntary
organisation, the employees of such employer, are entitled to minimum wages
(Para 41 and 46)
C. Constitution of India — Art. 23 — ‘Forced labour’ — Scope of — Held that when a
person provides labour or service to another for remuneration, which is less than the
minimum wages, such labour/service would fall within the scope of ‘forced labour under Art.
23
(Para 50)
D. Labour Law — Contract reducing minimum wages — Validity of — S. 25, Minimum
Wages Act — Held that any contract/agreement whereby an employee either relinquishes
or reduces his right to minimum wages, or any privilege/concession accruing under the Act,
shall be null and void, to the extent that it reduced the minimum wages fixed under the Act
(Para 51)
Writ Petitions challenging the order holding the petitioner liable to pay minimum wages fixed under
the Act, on the grounds that: the petitioner is not an ‘industry’, ‘establishment’ or ‘enterprise’, and is
not covered by the Act; there is no employer-employee relationship between the petitioner and its
volunteers.
Dismissed, holding that since the respondents were employed in ‘scheduled employments’ by the
petitioner and the 3rd respondent, both were jointly and severally liable to pay minimum wages
under the Act, and that denial of minimum wages amounts to ‘forced labour’.
ORDER
SURESH KAIT, J. (Oral)
CAV. No. 961/2012
Since the learned counsel has put appearance on behalf of the caveator, the caveat
stands discharged.
CM. No. 12241/2012 (for exemption)
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
W.P. (C) Nos. 5944/2012 & 6059-6068/2012
1. The Sulabh International Social Service Organization, and the All India Institute
of Medical Sciences, New Delhi, by way of the present petitions, are challenging the
sustainability of the order dated 25.06.2012 passed by the Regional Labor
Commissioner. Since all the petitions have arisen from the common order, therefore,
this Court has decided to dispose of all the petitions by this common judgment. The
facts of the Writ Petition (Civil) No. 5944/2012 would be discussed inter alia being the
lead matter.
2. The petitioner Sulabh International Social Service Organization, and respondent
No. 3, Director All India Institutes of Medical Sciences, New Delhi, by way of different
writ petitions, are challenging the sustainability of the order dated 25.06.2012 passed
-----------------------------------------------------------------------------------------------------------------------------------------------------------
59

by the Regional Labor Commissioner. The Regional Labor Commissioner, being the
Authority under the Minimum Wages Act, allowed the claim petition that has been
filed by the respondent No. 2 under Section 20(2) of the Act. The Authority also held
that the petitioner and the respondent No. 3 both are severally and jointly responsible
for the payment of the claim.
3. Facts of this case are that the petitioner and respondent No. 3 entered into an
agreement for deployment of the respondent No. 2 for employment of cleaning and
sweeping at the premises of All India Institute of Medical Science, as such respondent
No. 2 worked during the period from 25.01.2008 to 31.03.2010. Thereafter, the
respondent No. 2 filed a writ petition before this Court for the payment of minimum
wages. The same was disposed of by the order dated 17.02.2010, whereby the
respondent No. 2 was directed to approach the appropriate Forum. Accordingly, the
respondent No. 2 preferred a claim application before the Authority under the
Minimum Wages Act; same has been allowed by the impugned order.
4. The moot question for the consideration in these writ petitions is that whether
the alleged volunteers, deployed through the petitioner, namely Sulabh International
Organization, are entitled to get the minimum wages under the Minimum Wages Act.
5. The petitioner Sulabh International has relied upon the judgment delivered in
Writ Petition No. 3408/1989 by the High Court of Patna, wherein the said Court
observed as under:
“The Petitioner establishment has set up lavatories and bathrooms, the construction
being of very simple in nature for the use of the public which need not be cleaned by
the scavenger nor does it require carrying of any night soil on’ anyone's head. Further,
the jobless scavengers or other persons rendered without employment are now being
imparted vocational training in centers which may help them to find jobs. For this
purpose it has a large number of volunteers who are paid small sums of money as
pocket money for their pocket expenses. It is true that in every case of industry, the
element of profit and loss need not be there yet as I read the aforesaid decision of the
Supreme Court, the definition cannot be extended to a purely voluntary organization
like the Petitioner establishment which is working for public good and in the interest of
the weaker Section of the society.”
6. Adopting the observation made in the above judgment, Mr. K.T.S. Tulsi, learned
Senior Advocate appearing on behalf of the petitioner contends that the impugned
order is illegal, since there is no relationship of employer and employee which is a
prerequisite for the application of the Minimum Wages Act. He pointed out that the
object of the establishment is to liberate the scavengers from the sub human
occupation; and is a voluntary philanthropic organization carrying out its activities on
“no profit and no loss basis”. Secondly, the petitioner has relied upon a circular dated
03.04.2001 issued by Jt. Labor Commissioner, New Delhi wherein the application of
Labor Laws has been excluded qua petitioner establishment. The said circular is
reproduced as under:
“GOVT. OF NATIONAL CAPITAL TERRITORY OF DELHI LABOUR DEPARTMENT
15-RAJPUR ROAD: DELHI-110054
No. 1:1291 Dated: 03.04.2001
CIRCULAR
Hony. Chairman, M/S Sulabh International Social Service Organisation, RZ-83,
Mahavir Enclave Palam, Dabri Marg, New Delhi-110045, has applied that the provisions
of labour laws are not applicable on their organization on the basis of the following
grounds:-
a) That it is a Society registered under the Societies Registration Act, 1860.
b) That it is voluntary philanthropic organization.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
60

c) That it is carrying out its activities on “No Profit and No Loss” basis.
d) That it was considered as not an ‘Industry” as defined in Section 2(j) of the
Industrial Disputes Act, 1947 by the Hon'ble High Court of Patna and the same was
accepted by the Hon'ble Supreme Court of India.
e) That the Government of Orissa, Karnataka and Andhra Pradesh considering that
it was neither an “Industry” nor a “Commercial Establishment” issued instructions to
their officers not to enforce the labour laws and keep the above said judgments in
view, while dealing with the said organization.
f) That that Government of Bihar also accorded exemption to it, from applicability of
the provisions of the “Shop & Establishment Act”, as applicable in their State.
After the examination of above application, it appears that the above said
organization is a non-profit voluntary social organization and is carrying out its
activities on “No Profit and No loss” basis for the welfare of the humanity and as such
is neither an industry nor an Establishment. Hence, all the subordinate offices in
different States have been instructed to keep the above in view, while dealing with the
above said organization for the purpose of enforcement of labour laws.
Hon'ble High Court of Patna in the matter of Sulabh International v. State of Bihar
held vide their judgment dated 09.02.1990 that the Petitioner
management/organization, i.e., M/s Sulabh International Social Service Organization is
not an industry within the meaning of Section 2(j) of the Industrial Disputes Act,
1947. Hon'ble Suprme Court of India vide order dated 17.02.1994 and 20.03.1996
dismissed Civil Appeal and Review Petition in the matter of “Bhartiya Sulabh
Sauchalaya Karamchari Sang v. Sulabh International”, thereby upholding the same
view as decided by the Hon'ble High Court of Patna.
The Govt. of Orissa, Karnataka, Andhra Pradesh & Govt. of Bihar issued
circulars/instructions to their subordinate officers to enforce the labour laws in view of
above said judgments. Copies of the above said judgments and relevant circulars as
issued by different State Governments are enclosed for ready reference.
The Metropolitan Magistrate, Delhi has also decided on 22.03.1997 that the
provisions of Minimum Wages Act are not applicable to the said Organization. Copy of
the said judgment is also enclosed. Hence, in such circumstances all the Branch
Officers of the Department while dealing with the above said Organization are hereby
instructed to keep the above facts and judgments in view for the purpose of
enforcement of labour laws and for compliance of the above said judgments in letter
and spirit.
(V. KUMAR)
/Jt. Labour Commissioner”
7. The respondent No. 3 Director, All India Institute of Medical Sciences is the
petitioner in the Writ Petitions No. 6059/2012, 6060/2012, 6061/2012, 6062/2012,
6063/2012, 6064/2012, 6065/2012, 6066/2012, 6067/2012 & 6068/2012 challenging
the same on the preposition that the relationship between the petitioner herein and
the respondent No. 2 is not established as “employer” and “employee” as is defined in
the Minimum Wages Act. Therefore, the respondent No. 3 contends that the
application of the provisions of the Minimum Wages Act would not arise; and is not
liable under the Act to pay the minimum wages to the respondent No. 2. The
respondent No. 3 also bought to the notice that the non existence of relationship as
“employee and employer” between the petitioner and the respondent No. 2 would
render that the impugned order is void ab initio.
8. The Authority under the Act has taken note of the pleadings and framed the
following issues, namely,
(i) Whether the Minimum Wages Act, 1948 is applicable only to ‘industry’,
-----------------------------------------------------------------------------------------------------------------------------------------------------------
61

‘establishment’ and ‘enterprise’, and not to voluntary social service organization of
charitable and philanthropic nature.
(ii) Whether AIIMS or Sulabh International should be deemed to be the employer
under the Act having responsibility to pay minimum wages.
(iii) Whether the persons associated with Sulabh International are ‘employees’
within the meaning under the Act.
(iv) Whether exemption of employer from liability in certain cases under Section 23
applies to claim cases.
(v) Whether the Hon'ble Patna High Court's order in CWJC No. 3408 of 1989 has a
bearing on this case.
On the issues mentioned above, the learned Authority held that the petitioner and
the respondent No. 3 are covered under the definition of “employer” as defined in
Section 2(e) of the Act since the respondent No. 2 was deployed or employed by the
respondent No. 3 through the petitioner. Therefore, the Authority has reached to the
conclusion that the petitioner and the respondent No. 3 are employers for the purpose
of determining the liability under the Minimum Wages Act. Moreover, it also
considered the fact that the duty which was performed by the respondent No. 2 was
the scheduled employment which is defined in Section 2(g) of the Minimum Wages
Act and the Central Government has fixed minimum rate of wages vide notification No.
S.O. 1994 (E) dated 7.08.2008.
9. As regards the contentions based on the judgment of Patna High Court in Writ
Petition No. 3408/1989, the Authority under the Minimum Wages Act has pointed out
that the said judgment was not applicable in the issue of payment of Minimum Wages
Act. It was also differentiated on the aspect of the issues, as in the above said
judgment the issue was the construction of ‘latrines and urinals’ by the Petitioner for
the use of the public which was held to be not “industry” whereas, the issue involved
in the claim application was sweeping and cleaning in the establishment of the
respondent No. 3 by the petitioner in the capacity as a contractor or an outsourced
agency. Accordingly, the Authority under the Act allowed the claim application that
has been filed by the respondent No. 2.
10. It is important to note that the Authority has come to a specific conclusion that
the Patna High Court judgment is not applicable in the present case, wherein the
above said circular of labor department is also based on the above said judgment.
Importantly, the petitioner also strongly relies upon the dictum of W.P. No. 3408/1989
of Patna High Court. In this context, it may be relevant to reproduce the relevant
paragraphs of the said judgment as under:
“6. Concluding, therefore, I have no hesitation in holding, firstly, that the so-called
union is entirely spurious. It has no sanctity of law nor does it represent anyone who
can be treated to be a workman of the Petitioner establishment. In fact, it is a self-
styled union of certain persons whose motive is not only laudable but entirely mala
fide. I have also no hesitation in holding that this was a case, primarily, in which no
reference should have been made merely on the basis of a solitary material that is the
notification recognizing the Union. In the light of the subsequent notification as
contained in Annexure 4, the authorities should have been well advised to examine,
before making a reference, whether the Union making the demand was a union
sanctified by law and really represented the workmen of the petitioner-establishment
which situation was subsequently brought in to light resulting in the issuance of
Annexure 4. Even if, I were to assess me that the State government was right in
making the reference of registration alone, once it has come to light that the Union
whose President has made the demand, is not a Union created in accordance with law
and it does not consist of the persons who are the workmen of the Petitioner
establishment, then also the reference and the consequential proceeding cannot be
-----------------------------------------------------------------------------------------------------------------------------------------------------------
62

allowed to stand. I have, therefore, no hesitation in quashing the entire reference thus
rendering the consequential award a nullity.
7. Having held as above, the second point whether the petitioner-establishment is
an industry or not become entirely academic because even if it was held to be an
industry, the initiation of the proceeding itself being bad and it being not established
that the demand has been made by or on behalf of an for a workman of the petitioner-
establishment, no award could be made against the petitioner-establishment and the
demand made in annexure 3 could not be entertained. I, however, would like to
express my opinion succinctly in regard to this point also. Undoubtedly, the law has
completely been crystallized by the decision of the Supreme Court reported in AIR
1978 SC 548 (Bangalore Water Supply and Sewerage Board v. A. Rajappa) relating to
types of establishments that come within the definition set out in Section 2(J) of the
Act. The definition in Section 2(j) of the Act of the word “Industry” has been given a
wide meaning embracing within its ambit a large number of organizations which would
come within the nature of the Institution set out but is essential in every case where
the question is raised whether an establishment is an industry within the meaning of
Section 2(j) of the Act that certain relevant factual data have to be found. If an
establishment is undoubtedly an industry established for the purpose of business,
trade, undertaking manufacture or calling of employers and it includes the calling,
services, employment, handicraft, or industrial occupation or avocation of workmen,
that being an establishment of undoubted has in regard to its character of being an
industry then much ado is not required for applying the provisions of the Industrial
Disputes Act in all its aspect. The problem arises only when an establishment by the
very nature of its creation, extent and its purpose for which it was established cannot
ex facie be described as an Industry then it can only be brought in to the ambit of the
definition of Section 2(J) of the Act on the basis of ascertainable facts brought about
by detailed inquiry in an award proceeding or at the level of the State Government
making the reference. The onus would lie on the so called workmen to bring on the
record, cogent and relevant materials to show that not only they are the members of
such establishment but also that the organization is in fact functioning in the manner
which brings it within the definition of ‘industry’. In the instant case, apart from the
bye laws and the audit report of the management and four witnesses examined by the
workmen, nothing has been brought on the record to show the manner in which really
the Petitioner establishment is functioning. In fact, the Petitioner establishment claim
to be a voluntary organization of social workers who have gathered together to work on
a project by which apart from others the harizans could be relieved from performing
the inhuman duties of carrying night soil on their heads. The other purposes for the
establishment of the Petitioner-organization have been set out in the aims and objects
and appear primarily to render certain specific benefits for the member of the public in
various spheres of everyday life. For these purposes, the Petitioner establishment has
been set up which is technically described as “Sulabh Sauchalaya”. The Petitioner
establishment has set up lavatories and bathrooms, the construction being of very
simple in nature for the use of the public which need not be cleaned by the scavenger
nor does it require carrying of any night soil on’ anyone's head. Further, the jobless
scavengers or other persons rendered without employment are now being imparted
vocational training in centers which may help them to find jobs. For this purpose it has
a large number of volunteers who are paid small sums of money as pocket money for
their pocket expenses. It is true that in every case of industry, the element of profit
and loss need not be there yet as I read the aforesaid decision of the Supreme Court,
the definition cannot be extended to a purely voluntary organization like the Petitioner
establishment which is working for public good and in the interest of the weaker
Section of the society unless relevant facts are proved. In my view, it is incorrect to
say on the basis of the aims and objects of the organization that these cannot be
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63

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