ORDER
P.K. Palli, J.
1. The petitioner No. 1 is a Union of the Labourers and petitioner No. 2 is its President and in this petition, they have claimed the minimum wages to be paid to the labourers who were employed for carrying out the projects under the Jawahar Rozgar Yojna and the labourers were employed in the present case for two works, i.e. construction of boundary wall of Primary School at Akhalon Ki Dhani and for construction of incomplete boundary wall of the Primary School at Dodiyal. The order in this respect of the District Rural Development Agency, Jodhpur dated May 2, 1992 has been placed as Annex. 1 on record. It is stated that the labourers that were working on daily rate basis on the famine relief works under the above said scheme were denied the basic minimum wages. The work commenced on these two works from June 6, 1992 and completed on July 15, 1992 and the members of the petitioner Union had been employed for the works listed at Section Nos. 85 and 96 of Annex. 1.
2. The labour so employed at the said works were to be paid their wages on the muster roll basis and the grievance is that the labour were paid their wages much less than the minimum wages payable to the labour under the law. The work was stated to have been executed under the supervision of respondents No. 4 and 5 i.e. Vikas Adhikari and the Junior Engineer. Some complaints are stated to have been made by the workers and the villagers of Mageria projecting their grievance and hardship in respect of the wages being paid to them and these complaints/representations have been placed as Annexs. 2 and 3 on record. As it appears an Assistant Engineer of the District Rural Development Agency, Jodhpur was deputed to enquire and report in respect of the work done and look into the grievances of the labour. The report submitted by him is Annex. 4 on record. A challenge has also been made as the minimum wages were fixed on the strength of a notification Annex. 5 on record and it is said that it was an attempt on the part of the Government to justify the payment of wages at a much less rate than the minimum wages payable to the labour and the said notification is not only illegal but unconstitutional also. The Jawahar Rozgar Yojna has been included in the Scheduled employments and the minimum wages under the notification dated May 7, 1985 were fixed at Rs. 11/-, which were revised by the notification dated May 25, 1991 (Annex. 5) and the Government of Rajasthan suspended the procedure prescribed under Section 5 of the Minmum Wages Act, 1948 (referred to hereinafter as 'the Act') and fixed the minimum wages in exercise of the powers conferred by Section 26(2) of the Act and the labour employed on piece wages was entitled to Rs. 14/- as minimum guaranteed time wages. It is further said that the minimum wages payable to the labour engaged on the construction work were Rs. 22/- per day and the members of the petitioner Union were entitled to similar payment, whereas they had been paid Rs. 14/- only per day and the action was sought to be justified with reference to the notification Annex. 5. It was alleged to be a colourable exercise of power to deprive the labourers of their minimum wages. It has further been averred that the labour was not piece rated workers nor it could be so for the construction work of a boundary wall. There could be no segregation of work in pieces and there was, thus, no question of labour having been employed in the present case on piece wages.
3. In reply filed by the respondents No. 1 and 5 it is stated that the petition was misconceived. The notification Annex. 5 had been issued under Section 26(2) of the Act and therein the procedure prescribed under Sub-section (2) fully arms the appropriate Government for special reasons, if it thinks so fit by notification for such period as it may specify the provision of the Act or any of them shall not apply to any class of employees employed in the Scheduled employments in the locality where the work is to be carried out. The procedure laid under Section 5 can be relaxed and the employees engaged on the scheduled, employment of Jawahar Rozgar Yojna scheme were not entitled to seek the desired relief. The labour is said to have been paid the wages on the basis of the work done by them and not on the basis of daily wages or time wages. However, if, the person employed under the scheme gets wages less than Rs. 14/- on account of the work done by him Rs. 14/- is guaranteed as wages subject to having worked for the whole day. A separate written-statement was filed by the respondent No. 5 inter alia taking up the same pleas as of respondent No. 1 detailed above. The allegations that they were even paid less than the prescribed wages was denied. The scheme was purely of temporary nature to provide livelihood to those who were without any source as a famine relief.
4. An additional affidavit of Bhagirath Sharma, Administrator, Gram Panchayat, Mageria has also been placed on record wherein he has stated that at the relevant time he was working in the capacity of Administrator and used to supply the water etc. to the labour and that the work in question was being carried out under the supervision of the Vikas Adhikari and the Junior Engineer i.e. respondents No. 4 and 5 and that they used to inspect the work but no measurements of the work done by the labourers were ever carried out at the site and all the work which the labourers had carried out was done in joint venture and they were never informed that the work which is being carried out would be rated according to the specifications or measurements. He used to take the roll of the labourers.
5. Learned counsel appearing for the petitioners has vehemently argued that the notification Annex. 5 was liable to be quashed as the same was in misuse and abuse of the powers and that the notification completely violates the provisions of the Minimum Wages Act in respect of the minimum wages to be paid to the labour and that the petitioners were entitled to minimum wages and that they were paid much less than the prescribed rates. It was not a task work and for that purpose our attention has been invited to Annex. 4 which is the report of the Assistant Engineer who had been deputed to assess the work, measure and listen, to the grievances of the labourers. It is further said that the notification does not comply with the parameters of Sections 3, 4 and 5 of the Act. Scheduled employment under Section 2 of the Minimum Wages Act reads as under ;-
'(g) 'scheduled employment' means an employment specified in the Schedule, or any process or branch of work forming part of such employment'
6. Section 3 deals with the fixation of minimum rates of wages and proviso to Sub-section (1) of Section 3 reads as under:
'Provided that the appropriate Government may, in respect of employees employed in an employment specified in Part II of the Schedule, instead of fixing minimum rates of wages under this clause for the whole State, fix such rates for a part of the State or for any specified class or classes of such employment in the whole State or part thereof.'
7. Section 4 deals with the minimum rate of wages in respect of scheduled employments under Section 3 and Section 5 prescribes the procedure for fixing and revising minimum wages and under Section 26. The appropriate Government in case it so thinks fit can suspend the provisions of the Act in certain contingencies. The provisions contained in the said section are reproduced hereunder for the facility of reference:
'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 to disabled employees.
(2) The appropriate Government may, if for special 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.
(2-A) 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.
Explanation : In this sub-section a member of the employer's family be deemed to include his or her spouse or child or parent or brother or sister.'
8. We have carefully gone through the contents of the writ petition. It may be usefully stated here that in respect of the provisions of Section 26 no challenge has been laid nor any other section, rule or provision of the above said Act has been challenged as ultra vires or unconstitutional. The challenge has only been made to Annex. 5 that the provisions of Section 26(2) have been misused. So far as the power of the State Government is concerned, the same emanates from the provisions of the Act and it was in exercise of those powers that the wages were fixed at Rs. 14/- and thereby the relevant provisions of the Act were suspended. The same notification i.e., Annex. 5 prescribes the minimum wages at the rate of Rs. 22/- in supersession of the earlier notification dated May 17, 1985 whereby the rates had been fixed at Rs. 11/- per day and in exercise of the powers under Section 26(2) the Government had extended the provisions to Jawahar Rozgar Yojna and suspended the provisions of Section 5 for a period of one year.
9. It is argued by the learned counsel that the period of one year prescribed had already expired when the work in question was taken from the labourers for the construction of the boundary walls in question, since the work that is carried out by the labour in the present case commenced on June 6, 1992 and was completed on July 15, 1992.
10. We have also taken into consideration the additional affidavit of the Administrator of the Gram Panchayat, who has stated that here was no question of task work carried out at the site, no measurements were taken and the labourers had jointly participated in carrying out the construction of the boundary walls. The allegations in this affidavit have also been made against the respondents No. 4 and 5.
11. Learned counsel appearing for the petitioner has pressed into service the case i.e. Kamji and Ors. v. The State of Rajasthan and Ors. (1980 WLN (UC) 90); A.N. Pathak and Ors. v. Secretary to the Government, Ministry of Defence and Anr. (1987-II-LLJ-140) (SC); Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi and Ors. (1992-II-LLJ-452)(SC); Sanjit Roy v. State of Rajasthan (1983-I-LLJ-220XSC); Ram Prasad Dindor v. The State of Rajasthan (1993-I-LLJ-766) Raj; for declaring the notification as ultra vires.
12. In Sanjit Roy's case (supra), their Lordships of the Supreme Court had an occasion to examine the provisions of the Rajasthan Famine Relief Works Employees (Exemption from Labour Laws) Act (21 of 1964), which had excluded the applicability of the Minimum Wages Act in relation to the workmen employed on famine relief work and it was observed that the workmen having been paid less than the minimum wages to such workmen was invalid as offending the provisions of Article 23 of the Constitution of India. Their Lordships further held that the provision providing a lesser wages also operates against Article 14 of the Constitution of India.
13. The case reported in (1992 II LLJ 452 SC); cited by the learned counsel dealt with an absolutely different proposition under the Jawaharlal Nehru Rozgar Yojna as the persons employed under the said scheme as casual labour were seeking the relief of regularisation. The writ petition was dismissed and the request of the petitioner for directing the respondents to regularise them was not acceded to. These observations were made in a different context in a different scheme.
14. After having carefully perused the record and having heard the learned counsel at length we are of the opinion that in the present case the question of any task work does not arise. Such a work for the construction of the boundary wails had been carried out by the labour jointly and the labour carried out by them shall have to be calculated on the basis of time rated workers and not piece rated workers and the labour deserves to be paid the basic minimum wages of Rs. 22/-per day as is the rate prescribed in the notification Annex. 5 itself. The view which we have taken in the matter is based purely on compassionate grounds and in the peculiar facts and circumstances of this case and in no case it would be taken as a precedent. The question of examining the vires of Annex. 5 does not arise in the situation.
15. In the result, the respondents are directed to calculate the difference of wages between the amount actually paid and the amount which is payable under the said notification at the rate of Rs. 22/- per day and the same be paid to the labour employed to carry out the said works at the two sites within a period of four months from today. The petition is allowed in the aforesaid terms. No orders as to costs.