JUDGMENT
S.B. Sinha, J.
1. This writ petition involves an interesting question as to whether the State of Bihar having been carrying on an industry has any constitutional or statutory liability to pay the minimum wages to the employees engaged by the contractor inter alia in terms of the provisions contained in Article 23 of the Constitution of India.
2. The basic facts of this case are not at all in dispute.
3. In discharge of its sovereign duty and in obedience to the directive principles of the Constitution as enshrined under Article 48 of the Constitution the State of Bihar undertook construction of an irrigational canal in North Bihar commonly known as Western Kosi Canal.
Admittedly, a part of the said activity, namely, cross drainage syphoon falls within the territorial limits of Kingdom of Nepal. In order to facilitate carrying out of the aforementioned activities on the part of the State of Bihar, the Union of India and the Government of Nepal admittedly entered into an agreement.
4. The job relating to the construction of the aforementioned cross drainage syphoon at 32.89 k.m. (Panchi Dhar) of Western Kosi Main Canal, the State of Bihar issued notice inviting tenders pursuant whereof the respondent No. 7 submitted tenders and was eventually awarded the said job. A copy of the said agreement entered into by and between the State of Bihar and the respondent No. 7 is contained in Annexure-D to the supplementary counter-affidavit filed on behalf of the respondent-State. In terms of the provisions contained in the said agreement, the respondent No. 7 undertook to pay the wages to its employees in accordance with such rates as may be notified from time to time under the provision of the Minimum Wages Act.
5. The petitioner which is a union of the workmen has stated in the writ petition that with effect from 1-11-1981 the workmen had been getting their wages at the rate of Rs. 8 per day. It is further stated that with effect from 1-1-1982 the minimum wages of the unskilled workers were enhanced from Rs. 8.86 to Rs. 10.14 but inspite thereof the workmen were not being paid the wages at the aforementioned rate by the respondent No. 7. It is also stated that the respondent No. 7 assured the petitioner-union has further alleged that the minimum wages of the unskilled work the aforementioned rate and for the said purpose the respondent No. 7 allegedly had taken up the matter with the State of Bihar. The petitioner-union has further alleged that the minimum wages of the unskilled workers were again enhanced by the State of Bihar with effect from 1st July, 1982 from Rs. 10.14 to Rs. 10.30 and again from Rs. 10.30 to Rs. 11.45 with effect from 1st January, 1983 but the members of the union had been getting the wages only at the rate of Rs. 9 per day.
6. The respondent No. 7 in the counter-affidavit has not denied the fact that its employees were entitled to get the wages at the fixed in terms of the notifications issued by the State of Bihar under the provision of Minimum Wages Act from time to time, but has put forward a contention that in view of the escalation in the cost of labour, the burden of payment of the enhanced minimum wages was on the State of Bihar in respect wherefor it was bound to enhance the rate so as to enable it to discharge its contractual liability to its workmen.
7. The primal contention of the State, on the other hand, is that in terms of the agreement as contained in Annexure-D to the Supplementary Counter-Affidavit it was/is not bound to pay the minimum wages to the workmen employed by the respondent No. 7 at the enhanced rate nor was it liable to increase its contract rate for the said purposes. In support of the said contention our attention was drawn to the following class of the said agreement:
4.13.7-In respect of all labour directly or indirectly employed on the work, the contractor shall comply with all legislation and rules of the State and/or Central Government or H.M.G. of Nepal or other local authority framed from time to time governing the protection of health, sanitary arrangements, wages, welfare and safety for labour employed on construction works. The rules and other statutory obligations with regard to fair wages, welfare and safety measures, maintenance of register etc. shall be deemed to be a part of the contract and any breach thereof shall be contractor’s responsibility and the same shall be deemed to be breach of the contract.
4.13.8-The contractor shall comply with Minimum Wages Act, 1948 and the rules made thereafter inrespect of employees/workmen employed by the contractor on the site.
4.13.9-The contractor shall make regular and prompt payment of wages to the labourers engaged on the work and in no case the payment shall be delayed more than seven days following the period for which the wages are due. If it is found that workmen are not paid regularly the contractor is liable to be rescinded.
4.13.10–The contractor shall furnish to the Engineer Incharge by the twelveth day of every month a certificate stating that payment of to all workmen employed by the contractor for the work done for the proceeding month has been made in full.
4.13.11–The contractor before he commences work shall-
(i) paste at a conspicious space on the work site a notice giving the rates of wages which have been certified as fair by the E. I.
(ii) send a copy of the notice to the Engineer Incharge.
8. It may be mentioned here that neither the State nor the respondent No. 7 controverted the allegations made in the writ petition that the members of the petitioner-union who wee admittedly working under the respondent No. 7 had not been paid the minimum wages at the rate stipulated in the notifications issued from time to time under the provisions of Minimum Wages Act. It has also not been denied that the State of Bihar had issued notifications in terms of Section 5 of the Minimum Wages Act, 1948 and thereby enhancing the rate of minimum wages with effect from 1-14982, 1-7-1982 and 1-1-1983. It has also not been denied or disputed that the member of the petitioner-union had been getting the minimum wages at the rate of Rs. 9 per day. These facts would, therefore, be deemed to have been admitted,
9. This writ petitioner was placed for admission before a learned Single Judge of this Court and at the time of admission itself various questions with regard to the maintainability of the writ petition were raised. This Court by an order dated 14-12-1983 directed for its hearing by a Division Bench and framed four questions which according to the learned Single Judge call for the decision in the present case. The said questions are as follows :-
(i) Whether the petition is liable to be thrown out on the ground that the remedy of the petitioner lies before the authority appointed under Section 20 of the Minimum Wages Act ?
(ii) Whether such applications can be entertained in view of the fact that the labourers have been employed to work in the statutory of Nepal ?
(iii) What are the duties of the principal employer, the State, in such circumstances under the Contract Labour (Regulation and Abolition) Act, 1970 ?
(iv) Is the petitioner entitled to any relief in view of the provisions of the two Acts mentioned above ?
10. The State as also the respondent No. 7 as before us, at the time of admission of the writ petition, did not arise any dispute whatsoever that the members of the petitioner-union who had been working under the respondent No. 7 in respect of its aforementioned of the State of Bihar were entitled to receive wages in terms of the notifications issued by the State of Bihar from time to time fixing the rates of minimum wages payable to the unskilled workers. However, each of them has thrown its liability to make such payment on the other.
11. On the back drop of these admitted facts, as mentioned hereinbefore, the only point that falls for determination in this case is as to whether either the State of Bihar or the respondent No. 7 or both of them should be held liable to pay the minimum wages to the workers employed by the respondent No. 7 for the aforementioned rate.
12. Mr. T. K. Prasad, the learned Senior counsel appearing on behalf of the respondent No. 7 contended that the State of Bihar having responsibility towards its workmen-citizens as a welfare state was bound to protect the workmen from exploitation and in that view of the matter inspite of terms or a contract to the contrary it had a bounded duty to pay to the concerned workmen directly or through the respondent No. 7 the minimum wages enhanced from time to time by reason of the notifications issued by the State of Bihar. The learned counsel, in this connection, has drawn our attention to the provision of Sub-section (2) and (4) of Section 21 of the Contract Labour (Regulation and Abolition) Act, 1970 and Rule 25 of the Contract Labour (Regulation and Abolition) of Bihar Rules. The learned counsel has further drawn our attention to the provision of Section 25 of the Minimum Wages Act. It was submitted that in terms of the aforementioned provisions of the Contract Labour (Regulation and Abolition) Act and the rules framed thereunder and the Minimum Wages Act the State of Bihar was primarily responsible and is bound to discharge its function and statutory duty to disburse the wages to the workmen employed by it.
13. Mr. M. S. Madhup, the learned Standing Counsel No. 1 on the other hand, submitted that the provisions of Contract Labour (Regulation and Abolition) Act, 1970 have no application in the facts and circumstances of this case. Mr. Madhup further submitted that the liability to pay the minimum wages to the workmen employed by the respondent No. 7 was solely upon the said respondent and the only liability of the State of Bihar is to ensure that such payments are received by the concerned workmen. According to the learned Standing Counsel No. 1 the liability of the State of Bihar to ensure payment of minimum wages can be discharged if the concerned workmen are directed by this Court to file an application before the cometent authority in terms of Section 20 of the Minimum Wages Act. The learned Standing Counsel No. 1, in this connection, has further drawn our attention to the provision of Section 22F of the Minimum Wages Act.
14. Before proceeding further it may be mentioned here that at one point of time we have been seriously consider in the question as to whether this Court will have territorial jurisdiction to issue any writ against the respondents directing them to pay the minimum wages to the members of the petitioner-union on the ground that the work in question was being carried out in the Kingdom of Nepal and also consequent the question which arises for consideration i. e, whether the provision of the Minimum Wages Act, 1948 can be enforced in relation to the workmen who had been working in the territory of Nepal.
15. However in view of the fact that the industrial activity in question undertaken by the State of Bihar being a part of the Sovereign function of the State of Bihar and further in view of the fact that the concerned respondents have categorically admitted before us that the provision of the minimum wages would be applicable in relation to the workers employed by the respondent No. 7 for the aforementioned job it is not necessary for us to examine in details the aforementioned question. On the facts of this case we find that there exists sufficient territorial nexus to bring this case within our territorial jurisdiction to issue a writ under Article 226 of the Constitution of India as a part of the cause of action for this application arose in the State of Bihar.
16. Suffice it to say and as noticed hereinbefore, the construction of cross drainage syphoon was a part of the Western Kosi Canal. Affording the irrigational facilities to the respondents of the State of Bihar by digging the canal is undoubtedly a sovereign function. In this connection reference may be made in Article 48 of the Constitution of India which reads as follows :
48. Organisation of agriculture and animal husbandary. The State shall endeavour to organise agriculture and animal husbandary on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.
17. Apart from the fact that rendering such irrigational facilities to its citizens by the State is a sovereign function, the activities of the Irrigation Department of the State of Bihar while carrying out its object evidently come within the purview of the definition of ‘Industry’ as contemplated under the Industrial Disputes Act, 1947. Reference in this connection may be made to Bijoy Kumar Bharti and Ors. v. The State of Bihar reported in 1983 PLJR 667 and Deoraj etc. v. The State of Punjab and Ors. .
18. It is, therfore, evident that the construction of cross-drainage syphoon although was being carried out in the territory of Kingdom of Nepal, but the same was a part of the ‘industry’ of the State of Bihar, major portion whereof falls within this State, the State can be commended by this Court to discharge its legal obligations.
19. The concerned workmen are also resident of this State besides having been hired by the respondent No. 7 for the aforementioned job within the State of Bihar itself.
20. It is also admitted that the agreement in question was entered into by and between the State of Bihar and the respondent No. 7 within the jurisdiction of this Court. Apart from the aforementioned facts the alleged disputes by and between the State of Bihar and the respondent No. 7 with regard to the liability of one or the other relating to payment of minimum wages to the concerned workmen also arose within the State of Bihar.
21. There being no dispute whatsoever amongst the parties to the effect that the concerned workmen are entitled to receive the wages in terms of the notifications issued by the State of Bihar under the provision of the Minimum Wages Act, 1948, and the only dispute being as to whether the State of Bihar is also liable along with the respondent No. 7 to pay such minimum wages to the concerned workmen or not and the said dispute having arisen within the territorial jurisdiction of this State, in my opinion, there is enough territorial nexus for filing this writ petition before this Hon’ble Court. In this view of the matter it is held that this Court has the necessary jurisdiction to issue appropriate writ against the respondent as a major part of the cause of action arose within the jurisdiction of this Court.
22. Article 43 of the Constitution of India reads as follows :
Living Wage, etc., for workers.-The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers agricultural, industrial or otherwise work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas.
22. The said provision although occurs in Part IV of the Constitution but when read in conjunction with Articles 14, 21 and 23 of the Constitution, the same must be held to be one of the fundamental rights of a citizen of India,
23. In terms of the aforementioned provision, thus, the State is obliged to make suitable legislation or adopt other suitable economic measures to secure to all workers inter alia a living wages. The Minimum Wages Act, 1948 is indeed a step in the aforementioned direction. The said Act undoubtedly in a beneficial piece of legislation so far as the workmen engaged in the scheduled employment are concerned. Admittedly the job in respect whereof the aforementioned contract was entered into by and between the State of Bihar and the respondent No. 7 is one of the scheduled employments mentioned in the schedule appended to the said Act. In terms of the provision of the said Act the workmen are entitled to receive the minimum wages from its employer irrespective of the fact as to whether the employer is in a position to pay the same or not.
24. For payment of minimum wages under the Act capacity of the employer to pay such wages is wholly irrelevant. Section 25 of the said Act stipulates that any contract of agreement whereby an employee either relinquishes or reduced his right to a minimum rate of wages or any privilege or concession accruing to him under the said Act shall be null and void in so far as it purports to reduce the minimum rate of wages fixed under the said Act.
25. In this view of the matter, there cannot be any doubt that employer is bound to pay the minimum wages to its workmen which became payable from time to time by reason of the notifications issued in this regard by the State of Bihar in terms of the provisions of the said Act.
26. Thus there is no dispute whatsoever that the respondent No. 7 being an employer in relation to the members of the Union, who had been working for the respondent No. 7 in respect of the aforementioned contract work was bound to pay the minimum wages to its worker.
However, the matter does not rest there. As indicated hereinbefore the State of Bihar while constructing the Western Kosi Canal was performing a sovereign function. The State for the purpose of getting the said job done employed, various contractors/agents, including the respondent No. 7. The State is thus a real beneficiary of the said work. In this view of the matter the State cannot escape from its liability from payment of the minimum wages to the concerned workmen.
27. It was, therefore, the bounden duty of the State of Bihar to see that the workmen engaged either by itself or by its agents are not in any way deprived from the benefits of the provisions of the Labour Laws including the Minimum Wages Act, 1948 and the notifications issued in terms thereof from time to time by the appropriate Government. With a view to regulate the employment of the contract Labour, the Parliament enacted the Contract Labour (Regulation and Abolition) Act, 1970. Construction work carried out by any person evidently come within the purview of the said Act.
28. In Gammon India Ltd. v. The Union of India, it has been held by the Supreme Court that the restrictions imposed upon the principal employer and/or the contractor by reason of the provision of the said Act are reasonable ones and the said Act is constitutionally valid.
29. In terms of the provisions of the said Act the principal employer has been made statutory responsible to secure the payment of wages to the contract labours.
30. By reason of the provision of the said Act the workmen are entitled to be paid directly all wages in full except the authorised standard deduction, if any. Such payments are to be made in accordance with the provision of Section 21 of the said Act. Section 21 of the said Act reads as follows :-
21. Responsibility for payment of wages.-(1) A contractor shall be responsible for payment of wages to each worker employed by him as contract labour and such wages shall be paid before the expiry of such period as may be prescribed.
(2) Every principal employer shall nominate a representative duly authorised by him to be present at the time of disbursement of wages by the contractor and it shall be the duty of such representative to certify the amounts paid as wages in such manner as may be prescribed,
(3) It shall be the duty of the contractor to ensure the disbursement of wages in the presence of the authorised representative of the principal employer.
(4) In case the contractor fails to make payment, of wages within the prescribed period or makes short payment, the principal employer shall be liable to make payment of wages in full or the unpaid balance due, as the case may be, to the contractor labour employed by the contractor and recover the amount so paid from the contractor either by deduction from any amount payable to the contractor under any contract or as a debt payable by the contractor.
31. From a perusal of the aforementioned provision, therefore, it is absolutely clear that by means of the provisions of the said Act a duty upon the principal employer has been caste to see that the contract labour is paid the full wages by the contractor and in case the full wages are not paid, the principal employer is liable to make payment of wages in full or the unpaid balance due, as the case may be, subject, of course, to its right to recover the said amount from the contractor either by deduction from any amount payable to him under the contract or as the debt payable by the contractor. There cannot, therefore, be no doubt whatsoever that in the instant case the State of Bihar being a principal employer in terms of the provision of the aforementioned Act was statutorily liable to make payments to the concerned workmen wages in full or the unpaid balance due to them, as the case may be.
32. In Peoples Union for Democratic Rights and Ors. v. Union of India and Ors. , the Supreme Court has held as follows :
The Union of India, the Delhi Administration and the Delhi Development Authority must also ensure that the minimum wage is paid to the workman as provided under the Minimum Wages Act, 1948. The contractors are, of course, liable to pay the minimum wage to the workmen employed by them but the Union of India, the Delhi Administration and the Delhi Development Authority who have entrusted the construction work to the contractors would equally be responsible to ensure that the minimum wages is paid to the workmen by their contractors. This obligation which even otherwise rests on the Union of India, the Delhi Administration and the Delhi Development Authority is additionally reinforced by Section 17 of the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 in so far as migrant workmen are concerned. It is obvious, therefore, that the Union of India, the Delhi Administration and the Delhi Development Authority cannot escape their obligation to the workmen to ensure observance of these labour laws by the contractors and if these labour laws are not complied with by the contractors, the workmen would clearly have a cause of action against the Union of India, the Delhi Administration and the Delhi Development Authority.
33. It has further been held :-
Then there is the complaint of non-observance of the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and the inter-State Migrant Workmen (Regulation of Employment and Conditions of service) Act, 1979 and this is also in our opinion a complaint relating to violation of Article 21. This Article has acquired a new dimension as a result of the decision of this Court in Maneka Gandhi v. Union of India and it has received its most expansive interpretation in Francis Coralie Mullin v. The Administrator, Union Territory of Delhi . Where it has been held by this Court that the right of life guaranteed under this Article is not confined merely to physical existence or to the use of any faculty or limb through which life is enjoyed or the soul communicates with outside world but it also includes within its scope and ambit the right to live with basic human dignity and the State cannot deprive any one of this precious and invaluable right because no procedure by which such deprivation may be affected can ever be regarded as reasonable, fair and just. Now the rights and benefits conferred on the workmen employed by a contractor under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 and the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 are clearly intended to ensure basic human dignity to the workmen and if the workmen are deprived of any of these rights and benefits to which they are entitled under the provisions of these two pieces of social welfare legislation, that would, clearly be a violation of Article 21 by the Union of India, the Delhi Administration and the Delhi Development Authority which as principal employers are made statutorily responsible for securing such rights and benefits to the workmen. That leaves for consideration the complaint in regard; to non-payment of minimum wage to the workmen under the Minimum Wages Act, 1948. We are of the view that this complaint is also one relating to breach of a fundamental right and for reasons which we shall presently state, it is the fundamental right enshrined in Article 23 which is violated by non-payment of minimum wage to the workmen.
(Underlining is mine)
34. In the aforementioned decision the Supreme Court has thus clearly held that so far as the enforcement of the Labour Laws are concerned it is the duty of the State to see that the provision thereof are implemented.
35. Plainly enough where the State itself gives employment or is the principal employer it becomes all the more liable to observe the provisions of the Labour Laws. It can under no circumstances and on no pretext shirk its liability/responsibility.
36. The Supreme Court in the aforementioned case has clearly held that if a workman is not paid the minimum wages, the same would attract the provisions of Article 21 as also Article 23 of the Constitution.
37. The law has thus been stated by the Supreme Court :-
We are, therefore, of the view that where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words “forced labour” under Article 23.
38. Mr. Madhup, however, has submitted that even in the aforementioned decision the Supreme Court directed the contractor to pay the minimum wages and did not direct the Union of India or the Delhi Administration to pay the minimum wages to the workmen but merely directed them to provide for amenities to the workers as required under the provision of Contract Labour (Regulation and Abolition) Act where the contractor fails to perform his obligation in terms thereof.
39. In the aforementioned case the contract itself had not come to an end as is the situation obtaining herein. Further in the aforementioned case the liability of the principal employer in terms of Section 21 of the Act was not considered.
40. In this view of the matter there cannot be any doubt whatsoever that the State is jointly and severally liable to pay the minimum wages to the workmen employed by the respondent No. 7 in respect of the aforementioned job.
41. In fact, as noticed hereinbefore, the State has not denied its liability.
42. Mr. Madhup has conceded before us that the State has the liability to ensure the payment but his main contention was that such payment can be ensured by initiation of a proceeding under the provision of the Minimum Wages Act.
43. In this connection Mr. Madhup has placed the strong reliance upon Bidi Leaves and Tobacco Merchants, Association, Condia and Ors. v. The State of Bombay, reported in AIR 1962 SC 485 and submitted that as the Minimum Wages Act provides for settlement of dispute by and between the employers and employees in terms of provision of Sections 20 and 21 thereof, only the forum provided for therein can be taken recourse to. The learned counsel has drawn our pointed attention to the following observations of the Supreme Court in the aforementioned case:
Therefore, the Act has made a specific provision for the enforcement and implementation of the minimum rates of wages prescribed by notifications. The present notification purports to ignore the said provisions and sets up a machinery to settle the said disputes. Clauses 1 and 2 prescribed the revised minimum rates of wages. If, in the matter or payment of the said wages, any disputes arise they must be left for adjudication by the authority prescribed by Section 20. That is another reason why the doctrine of implied powers cannot be invoked in support of the validity of the impugned clauses in the notification.
44. The said decision was rendered absolutely in a different situation and in a different set of facts. In the instant case, there is no dispute whatsoever and as clearly indicated hereinbefore that the concerned workmen inspite of the revision in the minimum wages were not paid due wages. There is also no dispute with regard to the quantum of amount payable to the workmen. The only dispute in this case which arises for consideration as to whether the State of Bihar is liable for payment of such minimum wages to the concerned workmen or not in terms of statutory obligation as contemplated under Section 21 of the Contract Labour (Regulation and Abolition) Act, 1970 as also in terms of its constitutional obligation under Articles 21 and 23 of the Constitution. Further evidently when the said decision was rendered. Contract Labour (Regulation and Abolition) Act, 1970 was not enacted. The decision of Bidi Leaves and Tobacco Merchants’ Association has thus no application in the instant case.
45. Mr. Madhup has further placed reliance upon a Division Bench decision of this Court in Minimum Enforcement Officer (Central) v. Presiding Officer, Labour Court and Authorities under the Minimum Wages Act, Patna, reported in 1975 BBCJ 426 in support of his contention that an application under Section 20 of the Minimum Wages Act is maintainable at a point of time when workmen concerned were not in the employment. There cannot be any dispute with regards to the proposition of law as laid down in the said decision. In the said case it has merely been held that only because a person is not in the employment this application in terms of Section 20(2) of the Minimum Wages Act, 1948 cannot be rejected if he files a claim within the statutory period. In the instant case, however, as noticed hereinbefore, not only there is no dispute with regards to the quantum of amount payable to the concerned workmen by the respondent No. 7, it is also not disputed that the workmen are in law entitled to the minimum wages in terms of the notifications issued from time to time by the State of Bihar. Further, this case is pending for a long time before this Court and as noticed hereinbefore that the Contract has also come to an end. Taking into consideration these aspects of the matter, we are of definite opinion that it would not be proper for us to ask the workmen to file any application under Section 20(2) of the Minimum Wages Act before the prescribed authority.
46. Further, it is now well-settled by various decisions that when a writ petition is admitted it would be unfair to refuse to exercise jurisdiction. Reference in this connection may be made to a Division Bench decision of this Court in Govind Sharan and Ors. v. The State of Bihar and Ors. reported in 1983 BBCJ 5.
47. In Chairman, Board of Mining Examination and Anr. v. Ramjee, , the Supreme Court has held as follows :-
Law is meant to serve the living and does not beat its abstract wings in the jural void. Its functional fulfilment as ‘social engineering’ depends on its scrutinized response to situation, subject-matter and the complex of realities which require ordered control. A holistic understanding is simple justice to the meaning of all legislations. Fragmentary graps of rules can misfire or even backfire, as in this case.
48. In State of Karnataka v. L. Muniswami and Ors. it has been held by the Supreme Court :-
The ends of justice are higher than the ends of mere law though justice has got to be administered according to the laws made by the legislature.
49. In Rashtriya Mill Mazdoor Sangh, Bombay v. Apollo Mills Ltd. and Ors. , the Supreme Court observed as follows :-
Social justice is not based on contractual relations and is not to be enforced on the principles of contract of service. It is something outside these principles and it invoked to do justice without a contract to back it.
50. In R. B. Diwan Badri Dass and Ors. v. Industrial Tribunal, Punjab, Patiala and Ors. , Gajendragadkar, J. (as his Lordship then was) observed relating to the role of social justice in the realm of contract in Industrial adjudication in the following terms :
The broad and general question raised in this case on the basis of the employer’s freedom of contract has been frequently raised in industrial adjudication, and it has consistently been held that the said right is now subject to certain principles which have been evolved by industrial adjudication in advancing the cause of social justice. The doctrine of the absolute freedom of contract has to yield to the higher claims for social justice.
51. In the Manager, Government Branch Press and Anr. v. D. B. Belliappa, it has been held as follows :-
The overtones of this ancient doctrine are discernible in the Anglo American jurisprudence of the 18th Century and the first half of the 20th Century, which relationalised the employer’s absolute right to discharge the employee. “Such a philosophy”, as pointed out by K. K. Mathew, J. (vide his treatise : “Democracy, Equality and Freedom”, page 326) of the employer’s dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers. “To bring it in tune with vastly changed and changing socio-economic conditions and mores of the day much of this old, antiquated and unjust doctrine has been eroded by judicial decisions and legislation particularly in its application to persons in public employment, to whom the constitutional protection of Articles 14, 15, 16 and 311 is available. The argument is, therefore, overruled.
52. Taking thus into consideration the case from all its remifications the answer to the questions posed at the time of admission of this writ petition are as follows :-
Regarding question No. 1
The application cannot be thrown out on the ground that the remedy of the petitioner lies before the authority appointed under Section 20 of the Minimum Wages Act.
Regarding question No. 2
This question need not be answered as it has been held that this Court has jurisdiction to entertain the writ petition as a part of cause of action arose within the territorial jurisdiction of this Court. There cannot be any doubt that the workmen would have faced enormous difficulties in approaching by the forum of the Presiding Authority as envisaged under Section 20(2) of the Minimum Wages Act in view of the fact that they had been working within the territorial limits of the Kingdom of Nepal and as such they were rightly advised to invoke the writ jurisdiction of this Court.
Regarding question No. 3
The State as the principal employer in terms of the provision of Contract Labour (Regulation and Abolition) Act, 1970 is statutorily bound to pay the difference in minimum wages to the concerned workmen.
Regarding question No. 4
The petitioner in view of the provision of Minimum Wages Act and Contract Labour (Regulation and Abolition) Act as also in view of Articles 21 and 23 of the Constitution is entitled to the relief, as prayed for, in this writ petition from this Court.
53. In the premises, this writ petition is allowed and the State of Bihar is hereby directed to pay the difference in wages to the concerned workmen who are the members of the petitioner-union within a period of one month from the date of receipt of a copy of this judgment.
54. However, it is made clear that such payment by the State of Bihar and/or by the respondent No. 7 would not prejudice their respective claims against each other and such a claim, if any, may be enforced either in terms contained in Arbitration Clause contained in the agreement or in terms of the provision of Section 21(4) of the Contract Labour (Regulation and Abolition) Act, as the case may be, but in no circumstances the respondent shall delay the payment of minimum wages to the concerned workmen.
55. Let a writ of mandamus be issued accordingly.
56. In view of the facts and circumstances of this case the petitioner is also entitled to the cost of the application to be recovered from both the State of Bihar as also the respondent No. 7 in equal proportions which is quantified at Rs. 10,000.