Mukul Mudgal, J.
1. This writ petition challenges the order under Section 33-C(2) of the Industrial Disputes Act (hereinafter referred to as 'the Act') proceeding to compute the Minimum Wages as per the Minimum Wages Act payable to respondents 2 to 19.
2. Originally the order was passed in favor of 18 respondents. It is not in dispute that the sheltered workshop employing respondents 2 to 19 was run by the Directorate of Social Welfare and was a part of the Scheme framed in 1976. The scheme inter-alia provided for a training-cum-production centre for physically handicapped persons to train them to attain proficiency in the trade learnt in the training period. The sheltered workshop was to provided long term earning opportunities to the handicapped persons said to be less productive. The aims and objects of the scheme was to provide work opportunities to physically handicapped workers and to enable them to attain higher level of productivity. One of the eligibility clauses for the beneficiaries of the said workshop was for such handicapped persons whose production level was 60% less than that of the normal workeRs.
3. The impugned order dated 11th October, 1985 framed the following issues:
1. Whether the management is an industry within the meaning of Section 2(J) of I.D. Act ?
2. Whether the petitioner is a workman within the meaning of Section 2(s) of the I.D. Act?
3. Whether there is relationship of employer and employee between the parties?
4. Whether the application is not maintainable in view of the preliminary objections No. 4 to 10?
5. To what amount, if any, is the applicant entitled?
4. On considering the case of the petitioner that it was a social welfare measure and, thereforee, did not fall within the definition of 'industry', the Labour Court came to a finding that the workshop was an industry and could not be taken out of the said definition merely on account of the fact that it was run for the benefit of the handicapped workeRs. The Labour Court came to the finding that the management of the establishment was collecting the stitching charges from the Government Departments for fabrication of garments and after deducting the raw material charges paying the workmen on piece-rated basis. Deductions of establishment charges @ 10% and welfare charges @ 15% were also made from the wages of the concerned workmen. The management was also getting grant from the Government. The management was also exercising control by recording the employees' attendance and exercising other forms of supervision of their work. It was also found that (a) establishment was a factory within the meaning of Section 2(m)(1) of the Factories Act since manufacturing process were going on with the aid of power and no exemption was obtained by it under Section 86 of the Factories Act and (b) even though the workshop was running under a Social Welfare Scheme for manufacturing and stitching of garments, it was an industry.
5. The Hon'ble Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa and others, : (1978)ILLJ349SC , while laying down exhaustive principles governing the definition of`Industry' held as under:-
'......
(a) The consequences are (i) professions (ii) Clubs (iii) educational institutions (iv) co-operatives (v) research institutes (vi) charitable projects and (vii) other kindred adventures, if they fulfill the triple tests listed in I (supra), cannot be exempted from the scope of Section 2(j).'
6. The Hon'ble Supreme Court thus laid down the following tests to determine whether the activity in question was `Industry':-
(a) Where (i) systematic activity, (ii) organized by co-operation between employer and employee (the direct and substantial element is chimerical) (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss i.e. making, on a large scale prasad or food) prima facie, there is an industry' in that enterprise.
(b) Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector.
(c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations.
(d) If the organization is a trade or business it does not cease to be one because of philanthropy animating the undertaking.
II Although Section 2(j) uses the words of the widest amplitude in its two limbs, their meaning cannot be magnified to overreach itself.
(a) 'Undertaking' must suffer a contextual and associational shrinkage as explained in Banerji and in this judgment; so also, service, calling and the like. This yields the inference that all organized activity possessing the triple elements in I (supra), although not trade or business, may still be 'industry' provided the nature of the activity, viz. the employer-employee basis, bears resemblance to what we find in trade or business. This takes into the fold 'industry' undertakings, callings and services, adventures 'analogous to the carrying on of trade or business'. All features other than the methodology of carrying on the activity viz. In organizing the co-operation between employer and employee, may be dissimilar. It does not matter, if on the employment terms there is analogy.'
7. Considering the above tests, there is no doubt that the activities of production of garments by the petitioner is an 'industry' and while charity may be the motivating factor for the starting of the establishment the findings of the Labour Court clearly disclose as under:
(a) There is systematic activity evidenced by the regular functioning of the establishment which caters to the tailoring needs of several government departments. There is also marking of attendance and supervision of the work of the employees. Thus the test regarding systematic activity laid down by the Hon'ble Supreme Court in Bangalore Water Supply's case (supra) is fully satisfied.
(b) Since the material is supplied by the petitioner and the stitching then done by the employees systematic activity is organized by the co-operation between the employer and the employees. Thus the 2nd test of co-operation laid down in the Bangalore Water Supply's case (supra) between employer and employee is also fully satisfied.
(c) The production of the uniforms by the establishment satisfies the human wants and wishes of appropriate apparel. Thus the test of the satisfaction of human wants by the goods produced in the establishment is fully satisfied.
(d) The absence of profit motive in the venture of the petitioner/ establishment is not relevant as per the above judgment.
(e) Trade carried on merely because philanthropy to help the disabled animates the enterprise is not sufficient, to take it out of the purview of 'industry'. Consequently, I am satisfied that the petitioner is an industry as all the tests laid down by the Hon'ble Supreme Court in Bangalore Water Supply's case (supra) have been satisfied.
8. Thereafter, learned counsel for the petitioner submitted that Minimum Wages Act was not applicable. It has been found and the finding has not been challenged seriously that no exemption has been secured under Section 26 of the Minimum Wages Act. The mere fact that the employees are piece rated, does not deprive them of the benefits of the provisions of the Minimum Wages Act. Sections 17 and 26 of the Minimum Wages Act, 1948 read as follows:
'17. Minimum time rate wages for piece work. - Where an employee is employed on piece work for which minimum time rate and not a minimum piece rate has been fixed under this Act, the employer shall pay to such employee wages at not less than the minimum time rate..........
26. Exemptions and exceptions - (1) The appropriate Government may, subject to such conditions, if any, as it may think fit to impose, direct that the provisions of this Act shall not apply in relation to the wages payable to disabled employees.
(2) The appropriate Government may, if for social reasons it thinks so fit, by notification in the Official Gazette, direct that [subject to such conditions and] for such period as it may specify, the provisions of this Act or any of them shall not apply to all or any class of employees employed in any scheduled employment or to any locality where there is carried on a scheduled employment.
[(2A) The appropriate Government may, if it is of opinion that, having regard to the terms and conditions of service applicable to any class of employees in a scheduled employment generally or in a scheduled employment in a local area [or to any establishment or a part of any establishment in a scheduled employment], it is not necessary to fix minimum wages in respect of such employees of that class [or in respect of employees in such establishment or such part of any establishment] as are in receipt of wages exceeding such limit as may be prescribed in this behalf, direct, by notification in the Official Gazette and subject to such conditions, if any, as it may think fit to impose, that the provisions of this Act or any of them shall not apply in relation to such employees.]
(3) Nothing in this Act shall apply to the wages payable by an employer to a member of his family who is living with him and is dependent on him.'
9. In this view of the matter, I am satisfied while there is no doubt that while the enterprise is motivated to help handicapped persons and undoubtedly a noble venture under the social welfare scheme it is nevertheless required in view of the findings of the Tribunal which have been affirmed in this judgment to pay the minimum wages particularly when the enterprise is run by the Government.
10. Learned counsel for the petitioner also sought to challenge the deduction which were disallowed and were made on account of establishment charges and welfare fund. There can be no deduction towards welfare fund without the consent of the workmen particularly when such deduction reduces the emoluments below the statutorily mandated minimum wages. However, the impugned order has rightly upheld the plea of the petitioner for adjustment of the amount paid to any of the employees from the welfare fund out of the eventual sum payable to them as per this judgment. Similarly establishment charges cannot be deducted because the establishment was by its activity fulfilling the requirement of the government departments. The counsel for the respondent employees has contended, and in my view rightly, that there was no evidence led that due to the handicap of the employees, the production was deficient either qualitatively or quantitatively. Once it is held that the petitioner's establishment is an industry and consequently required to pay statutorily mandated minimum wages then the system of payment will obviously have to undergo a change and since the respondents do not want the welfare fund deductions to be made, it is made clear that the petitioner is not obliged to give welfare measures other than those mandated by law. If the disabled are doing work which has not been shown to be deficient quantitatively or qualitatively, then to deprive them even the statutorily mandated minimum wages does not behoovea government establishment. The provisions of Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995(hereinafter referred to as `the Act') indicates the present legislative intent. The Statement of Objects and Reasons of the said Act reads as follows:
'(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training, employment and rehabilitation of persons with disabilities;
(ii) to create barrier free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis non-disabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;
(v) to lay down a strategy for comprehensive development of programmes and services and equalization of opportunities for persons with disabilities; and
(vi) to make special provision of the integration of persons with disabilities into the social mainstream.'
Section 47 of the Act mandates as under:-
'47. Non-discrimination in Government employments._ (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
(2) No promotion shall be denied to a person merely on the ground of his disability: Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.'
Thus if the wages of an employee who incurs disability during employment are protected without taking into account his output, then I see no reason whatsoever why the disabled whose quality and quantity of work are not questioned should be denied dignity of labour by paying them less than the minimum wages merely on ground of their being disabled. Philanthropy without dignity of labour to the physically challenged demeans their self respect. In any event the government is expected to be a model employer in accordance with the current legislative interest demonstrated by the Statement of Objects and Reasons of the Disabilities Act. The State is thus according to the above Statement of Objects and Reasons inter alias required to ensure the training employment and rehabilitation of persons with disabilities and further required to ensure that there is barrier free environment and no discrimination against a disabled person viz-a-viz non-disabled persons.
11. The interim order staying the order holding the establishment liable in principle to pay minimum wages was passed by this Court was as far back as 1986. The Minimum Wages payable to the respondents are still required to be actually computed. The matter is, thereforee, remanded back to the Labour Court II to make a computation of the minimum wages payable up to September, 2003 not later than 31st January, 2004. The amount so computed will be paid to respondents or their legal heirs of those deceased on or before 15th February, 2004 failing which it will carry interest @ 12% per annum from the date of computation. The parties to appear before the Labour Court No. II on 13th October, 2003 along with their respective computations.
12. A copy of this order along with the record, if sent to this Court, be sent to the Labour Court No. II on or before 1st October, 2003. The Registry to ensure that the order is complied with and record sent back forthwith.
13. In the meanwhile, in view of the findings recorded in this judgment and with effect from 1st October, 2003, the respondents 2 to 19 shall be paid wages in accordance with Minimum Wages Act without prejudice to the pleas of either of the parties as raised in the CWP No. 954/2003.
14. While the subject matter of this dispute and the pendency of this writ petition in this Court from 1986 largely due to inaction by the petitioner at various stages of the writ petition would have necessitated levying of heavy costs, I have refrained from doing so as Mr. Tandon for the petitioner has put forward his case very fairly.
15. The pleas raised by the petitioner challenging the impugned order dated 11.10.85 are rejected. The writ petition stands disposed of accordingly.
16. Copy of the order be given dusty to the counsel for the parties on payment of usual charges.