judgement:
Civil Appeal No. 1537 of 1970.
Appeal by special leave from the judgment and order dated the 10/30th June, 1969 of the Bombay High Court, Nagpur Bench, Nagpur in Appeal No. 90 of 1962.
1178 U. R. Lalit and A. G. Ratnaparkhi, for the Appellant.
section section Khanduja for the Respondent.
The respondent filed a suit in the Court of the Second Joint Civil Judge, Amrawati alleging that the house situated near Saraf Bazar in Amrawati had been purchased by her in 1950 for Rs. 4,000 and thereafter improvements had been affected by her to the property.
Being in need of money, she entered into an agreement with the appellant for a loan of Rs. 2,000 and it was decided that simultaneously she should execute a nominal document of sale and a rent note.
These documents were executed on January 7, 1953.
She alleged that the documents were never intended to be acted upon, and that the rent paid by her represented in fact interest at 18% on the loan.
She continued in possession of the house property throughout and, it is said, carried on repairs from time to time.
It was stated that the appellant was attempting to enforce the document as a sale deed by filing suits in the Court of Small Causes for recovery of rent.
As two suits had resulted in decrees, she considered it necessary to file the present suit for a declaration that she was, and continued to be, owner of the house property.
In defence, the appellant maintained that the sale deed represented a genuine, transaction, and ownership of the house property had passed to the appellant.
It was pleaded that the decrees passed by the Court of Small Causes operated as res judicata barring the respondent from pleading that the sale deed was merely a nominal transaction.
Reliance was also placed on section 92 of the Indian Evidence Act.
The trial court held that the sale deed was never intended to be acted upon and decreed the suit.
The appellant appealed to the District Court, Amravati, but the learned District Judge did not accept the case that a sale had taken place.
He held, however, that the transaction between the parties constituted a mortgage.
He modified the trial court decree to conform to that finding.
The High Court of Bombay, in second appeal, did not agree with the finding of the lower appellate court that the transaction was a mortgage and affirmed the findings of the trial court that the sale deed and rent note were sham documents, that the decrees of the 1179 Court of Small Causes did not operate as res judicata and that section 92 of the Indian Evidence Act did not prevent the respondent from establishing the true nature of the transaction.
Accordingly, the High Court set aside the decree of the lower appellate court and resorted that of the trial court.
When this appeal was heard by us, it appeared that the parties may settle the dispute by negotiated compromise.
It seems, however, that no compromise has been possible.
Accordingly, we proceed to dispose of the appeal on its merits.
Two points have been raised before us.
The appellant urges that the Small Causes Court decrees, in view of the general principles of res judicata, precluded the trial of the question whether the sale transaction was a genuine transaction.
The other point concerns the operation of section 92 of the Evidence Act.
The successive suits were filed by the appellant against the respondent in the Court of Small Causes for recovery of arrears of rent.
In each suit the appellant contended that she was owner of the property and the respondent was her tenant.
The tenancy was alleged on the basis of the document dated January 7, 1953 which on its terms purported to be a sale deed by the respondent in favour of the appellant.
The respondent resisted the suits.
The court decreed the suits on the finding that the document was a sale deed, and therefore the respondent was not the owner of the property but merely a tenant of the appellant.
The question is whether this finding operates as res judicata in the instant suit.
The High Court repelled the plea of res judicata on the ground that section 11 of the Code of Civil Procedure governed the case, and that as a Court of Small Causes is not competent to try a suit for a declaration of title to immovable property, the court which passed the decrees relied on by the appellant was not competent to try the present suit and therefore an imperative condition of section 11 was not satisfied.
It is contended before us on behalf of the appellant that the High Court erred in applying the statutory provisions of section 11 of the Code, and should have invoked instead the general principles of res judicata.
On that, it is submitted, all that was necessary to find was whether the Court of Small Causes was competent to try the two earlier suits and decide the issues arising therein.
We have been referred to Gulabchand Chhotalal Parikh v, State of Bombay where 1180 this Court has taken the view that the provisions of section 11 of the Code are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit, and that on the general principles of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit.
It is not necessary, it was said, "that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject matter".
The observations were made in considering the question whether decisions on matters in controversy in writ petitions under Article 32 or Article 226 of the Constitution could operate as res judicata in subsequent regular suits on the same matters in controversy between the same parties.
A number of other cases have been cited on behalf of the appellant in support of the plea of res judicata.
We have considered them and we do not think that they help the appellant.
In Muhammad Abdul Ghafur Khan vs Gokul Prasad and others the Allahabad High Court limited itself to observing that a Court of Small Causes possessed a discretion on whether to return the plaint under section 23, Provincial Small Cause Courts Act on a finding that the relief claimed depended on proof of title.
The same High Court in Madan Kishor and Another vs Mahabir Prasad and others merely observed that it was for the Court of Small Causes to decide under section 23 of the Provincial Small Cause Courts Act whether a question of title was involved in the suit and on finding so it was open to it to return the plaint.
That was also the view expressed by it in Ram Dayal Sonar vs Sukh Mangat Kalwat.
So also in Ganga Prasad vs Nandu Ram, the Patna High Court said that the Court of Small Causes had power under section 23 to return the plaint where it was of opinion that the question of title raised was so intricate that it should not be decided summarily.
To the same effect was the view expressed by the Lahore High Court in Ganesh Das vs Feroze Din. 1181 In Puttangowda Mallangowda Patil vs Nikanth Kalo Deshpande, the Bombay High Court declared that a Court of Small Causes could render a finding on an issue as to title to immovable property but only in a suit which did not ask for that relief and merely for payment of a sum of money.
Our attention was drawn to Asgarali Roshanalli and another vs Kayumalli Ibrahimji, but we find nothing there of assistance to the appellant.
Reliance was placed on the decision of the Allahabad High Court in Lala Jageshwar vs Shyam Behari Lal.
There a learned Single Judge took the view that as a Court of Small Causes is a Court of exclusive jurisdiction the restrictive conditions imposed by s 11 of the Code of Civil Procedure requiring "two fold competency" of the Court whose decision is to operate as res judicata cannot be invoked.
It was sufficient, he observed, that the decision had been rendered by a court of competent jurisdiction and it was not necessary that that court should also be competent to decide the subsequent suit.
The judgment was brought in appeal to this Court but while disposing of the appeal, Shyam Behari Lal vs Lala Jageshwar Prasad, this Court declined to decide whether a Court of Small Causes could be regarded as a Court of exclusive jurisdiction.
We find, however, that the view taken by the High Court in Lala Jageshwar Prasad (supra) was expressly overruled by a Full Bench of the High Court in Manzurul Haq and another vs Hakim Mohsin Ali and it was laid down that a Court of Small Causes could be described as a court of "preferential jurisdiction" but not as court of "exclusive jurisdiction".
It was also held by the Full Bench that a decision rendered by a Court of Small Causes in a suit for arrears of rent would not operate as res judicata in a subsequent suit filed in the Court of the Munsif for recovery of arrears of rent for a different period and for ejectment.
That the principle of res judicata could not be availed of where a decision given by a Court of Small Causes was relied on in a subsequent regular civil suit was the view also taken by the Punjab High Court in Pateshwar Parshad Singh vs A. section Gilani.
It seems to us that when a finding as to title to immovable property is rendered by a Court of Small Causes res judicata cannot 1182 be pleaded as a bar in a subsequent regular civil suit for the determination or enforcement of any right or interest in immovable property.
In order to operate as res judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue should have been heard and finally decided by the court trying such suit.
A matter which is collaterally or incidentally in issue for the purposes of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res judicata.
It has long been held that a question of title in a Small Cause suit can be regarded as incidental only to the substantial issue in the suit and cannot operate as res judicata in a subsequent suit in which the question of title is directly raised.
Poholi Mullick vs Fukeer Chunder Patnaik, Chet Ram and others vs Ganga, Anwar Ali vs Nur Ul Haq and Another, Khandu valad Keru vs Tatia valad Vithoba.
See also Mohd. Yusuf and another vs Abdul Wahid and S.A.A. Annamallai Chettiar vs Molaiyan and others.
Our attention has been drawn to Explanation VIII to section 11 in the Code of Civil Procedure recently inserted by the Code of Civil Procedure (Amendment) Act, 1976.
Section 97(3) of the Amendment Act declares that the new provision applies to pending suits, proceedings, appeals and applications.
In our opinion the Explanation can be of no assistance, because it operates only where an issue has been heard and finally decided in the earlier suit.
Accordingly, we hold that the finding rendered by the Court of Small Causes in the two suits filed by the appellant that the document executed by the respondent is a sale deed cannot operate as res judicata in the present suit.
The next contention on behalf of the appellant is that sub s.(1) of section 92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parole evidence in support of the contention.
Section 91 of the Evidence Act provides that when the terms of contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the 1183 terms of such contract, grant or other disposition of property, or of such matter, except the document itself.
Sub section
(1) of section 92 declares that when the terms of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms And the first proviso to section 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contradicting party, want or failure of consideration, or mistake in fact or law.
It is clear to us that the bar imposed by sub section
(1) of section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction.
In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms.
The sub section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham.
Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever.
For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether not recorded in the document, was entered into between the parties.
Tyagaraja Mudaliyar and another vs Vedathanni.
The Trial Court was right in permitting the respondent to lead parole evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon.
It is not disputed that if the parole evidence is admissible, the finding of the court below in favour of the respondent must be accepted.
The second contention on behalf of the appellant must also fail.
In the result, the appeal is dismissed with costs.
S.R. Appeal dismissed.

summary/full:
Being in need of money, respondent entered into an agreement with the appellant for a loan of Rs. 2,000 and it was decided that simultaneously she should execute a nominal document of sale and rent note, of her house situated near Sarafa Bazar in Amravati.
These documents were executed on January 7, 1953.
The respondent continued in the possession of the house property throughout and carried on repairs from time to time.
Since the appellant was attempting to enforce the document as a sale deed by filing suits in the Court of Small Causes for recovery of rent and the said suits had resulted in a decree, the respondent filed a suit for declaration that she was and continued to be owner of the house property.
The documents executed on January 7, 1953, it was said, were never intended to be acted upon.
In defence, the appellant maintained that the sale deed represented a genuine transaction, and ownership of the house property had passed to her.
It was further pleaded that the decrees passed by the Court of Small Causes operated as res judicata barring the respondent from pleading that the sale deed was merely a nominal transaction.
Reliance was also placed on section 92 of the Indian Evidence Act.
Dismissing the appeal by special leave, the Court ^ HELD: 1:1.
When a finding as to title to immovable property is rendered by a Court of Small Causes res judicata cannot be pleaded as a bar in a subsequent regular civil suit for the determination or enforcement of any right or interest in immovable property.
In order to operate as res judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue should have been heard and finally decided by the court trying such suit.
A matter which is collaterally or incidentally in issue for the purpose of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res judicata.
A question of title in a Small Cause suit can be regarded as incidental only to the substantial issue in the suit and cannot operate as res judicata in a subsequent suit in which the question of title is directly raised.
[H81 G 1182A C] 1177 1:2.
Explanation VIII to section 11 of the Code of Civil Procedure operates only where an issue has been heard and finally decided in the earlier suit.
[1182 D E] 1:3.
In the instant case, the finding rendered by the Court of Small Causes in the two suits filed by the appellant that the document executed by the respondent is a sale deed cannot operate as res judicata.
[1182 E] Poholi Mullick vs Fukeer Chunder Patnaik, (1874) 22 Suth W.R. 349; Chet Ram and Others vs Ganga, 1886 Allahabad Weekly Notes; Anwar Ali vs Nur Ul Haq and Another, ; Khandu Valad Keru vs Tatia valad Vithoba, (1871) 8 Bombay H.C.R.A.C. 23(24) (DB); Mohd. Yusuf and another vs Abul Wahid, A.I.R. 1948 All.
296 and S.A.A. Annamalai Chettiar vs Molaiyan and others, A.I.R. 1970 Mad. 396, approved.
Muhammad Abdul Ghafur Khan vs Gokul Prasad and others, A.I.R. 1914 All.
527; Gulabchand Chhotalal Parikh vs State of Bombay, ; Madan Kishor and Another vs Mahabir Prasad and others, A.I.R. 1929 All. 816; Ram Dayal Sonar vs Sukh Mangal Kalwar, A.I.R. 1937 All. 676; Ganga Prasad vs Nandu Ram, A.I.R. 1916 Patna 75; Ganesh Das vs Feroze Din, A.I.R. 1934 Lahore 355, Puttangowda Mallangowda Patil vs Nikanth Kalo Deshpande, XV Bombay Law Reporter 773; Asgarali Roshanalli and another vs Kayumalli Ibrahimji, A.I.R. 1956 Bombay 236: Lala Jageshwar Prasad vs Shyam Behari Lal, A.I.R. 1967 All. 125; Shyam Behari Lal vs Lala Jogeshwar Prasad, ; Manzural Haq and another vs Hakim Mohsin Ali, A.I.R. 1970 All. 604; Pateshwari Parshad Singh vs A. section Gilani, A.I.R. 1959 Punjab 420, referred to and dissented from.
The bar imposed by sub section (1) of section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction.
In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms.
The sub section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham.
Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever.
For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties.
[1183 C F] Tyagaraja Mudaliyar and another vs Vedathanni, A.I.R. 1936 Privy Council 70, followed.


judgement:
Civil Appeal No. 3527 of 1979.
Appeal by Special leave from the Judgment and order dated the 15th JaNuary, 1979 of the Karnataka High Court in Executive Second Appeal No. 89 of 1974.
Dr. Y.S. Chifale, R. B. Datar and Miss Madhu Mool Chandani for the Appellants.
section C. Javali, Ranjit KtJmar and B. P. Singh for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The respondent Dakshyani sued to recover a sum of RS.
7,324.86 paise from Narayana Swami, husband of the first appellant and father of the rest of the appellants.
The suit was decreed with costs and, in execution of the decree, certain property situated in Bangalore City was brought to sale.
The decree holder purchased the property at the execution sale held on August 19, 1969, for a sum of Rs. 28,000.
Narayana Swami having died in the meanwhile, his legal representatives, the present appellants, filed an application under the provisions of order 21 Rule 90 for setting aside the sale on various grounds.
The Executing Court dismissed the application on March 28, 1973 but on an appeal preferred by the appellants the sale was set aside on July 31, 1974.
The respondent filed a second appeal to the High Court of Karnataka.
At the hearing of the second appeal the parties entered into a compromise with the leave of the Court, such leave being necessary since mally of the present appellants were minors then 469 and are minors even now.
The Court granted leave and made an order in terms of the compromise.
The term of the compromise which we are concerned is that the present appellants agreed to deposit and the present respondent agreed to receive a sum of Rs. 60,000/ in full and final settlement of the decree.
If the deposit was made on or before November 30, 1976, the sale which though confirmed by the Trial Court but set aside by the Appellate Court was to stand set aside and the second appeal of the respondent was to stand dismissed.
If the amount of Rs. 60,000/ was not deposited on or before November 30, 1976 the second appeal was to stand allowed and the sale was to stand confirmed.
Time was stated to be the essence of the contract between the parties.
The applellants were permitted under the compromise, to raise funds by sale, mortgage etc.
Of the property in question.
The appellants failed to deposit the amount in terms of the compromise.
It appeaIs that they were unable to raise the necessary funds as they could not evict the tenant who was in occupation of the property.
Finally the appellants filed an application purporting to be under sections 148 and 151 of the Civil Procedure Code to extend the time for depositing the sum of Rs. 60,000 in terms of the compromise dated June 24, 1976.
The High Court dismissed the application on the ground that the Court could not extend time where time had been stipulated by the parties themselves in the compromise arrived at between them.
The High Court purported to rely upon the decision of this Court in Hukumchand vs Bansilal and Ors.(l) Shri R. B. Datar Learned Counsel for the appellants urged that there was no limitation on the power of the Court to extend time under section 148, c. P. c. and that where a compromise had been made an order of the Court, it was certainly open to the Court to extend time under section 148 c. P. c.
He relied upon the decision of the High Courts of Bombay and Calcutta in Marketing and Advertising Associates Pvt. Ltd. vs Telerad Pvt.
Ltd.(2) Jadabendra Nath Mishra vs Manorama Debya(3).
He distinguished the decision of this Court in Hukum Chand vs Bansilal.
Shri Javali Learned Counsel for the respondent, on the other hand urged that time should not be extended by the Court, 470 in law and on principle, where the parties themselves had agreed upon the time within which the amount was to be deposited.
In Hukamchand vs Bansilal the real question which was considered was, if a mortgaged property was sold in execution of a mortgage decree and if the application to set aside the sale under order 21 Rule 90 was dismissed but time was granted by consent of parties for depositing the decretal amount etc.
could time be extended for depositing the decretal amount etc.
to avert the confirmation of sale under order 34 Rule S, except with the consent of the parties.
The answer was 'no '.
Court said on the dismissal of an application under order 21 Rule 90, confir mation of sale under order 21 Rule 92 had to follow as a matter of course.
Order 34 Rule S merely permitted the deposit to be made at any time before confirmation of the sale and there could be no question of extending the time for such deposit.
If parties agreed to have the con firmation of sale postponed, further postponement would be possible by agreement of parties only.
The Court would have no say in the matter.
148 C. P. C. would have no application.
The position was clarified by the Court thus : "The judgment debtor mortgagor had the right to de posit the amount at any time before confirmation of sale within 30 days after the sale or even more than 30 days after the sale under order XXXIV, Rule (S) (l) so long as the sale was not confirmed.
If the amount had been deposited before the confirmation of sale, the judgment debtors had the right to ask for an order in terms of order XXXlV, Rule 5 (1) in their favour.
In this case an application under order XXI Rule 90 had been made and, therefore, the sale could not be confirmed immediately after 30 days which would be the normal course; the confirmation had to await the disposal of the application under order XXl, Rule 90.
That application was disposed of on October 7, 1958 and was dismissed.
It is obvious from the order sheet of October 7, 1958 that an oral compromise was arrived at between the parties in court on that day.
By that compromise time was granted to the respondents to deposit the entire amount due to the decree holder and the auction purchaser by November 471 21, 1958.
Obviously, the basis of the compromise was A that respondents withdrew their application, under order XXI, Rule 90 while the decree holder society and the auction purchaser appellant agreed that time might be given to deposit the amount upto November, 21,1958.
If this agreement had not been arrived at and if the application under order XXI, Rule 90 had been dismis sed (for example, on merits) on October 7, 1958, the court was bound under order XXI, Rule 92 (1) to confirm the sale at once.
But because of the compromise between the parties by which the respondents were given time upto November 21, 1958 the court rightly postponed the question of confirmation of sale till that date by consent of parties.
But the fact remains that the application under order XXI, Rule 90 had been dismissed on October 7, 1958 and thereafter, the court was bound to confirm the sale but for the compromise between the parties giving time upto November 21, 1958".
The Court then referred to the refusal of the Court to extend time by a fortnight on November 22, 1958 and further observed : "The executing court refused that holding that time upto Nov. 21, 1958 had been granted by consent and it was no longer open to it to extend that time.
The executing court has not referred to order XXI, Rule 92 in its order, but it is obvious that the executing court held that it could not grant time in the absence of an agreement between the parties because order XX[, Rule 92 required that as the application under order XXI, Rule 90 had been dismissed the sale must be confirmed.
We are of the view that in the circumstances it was not open to the executing court to extend time without consent of parties, for time between October 7, 1958 to November 21, 1958 was granted by consent of parties.
Section 148 of the Code of Civil Procedure would not apply in these circumstances, and the executing court was right in holding that it could not extend time.
Thereafter, it rightly confirmed the sale as required under order XXI, Rule 92 there being no question of the appli 472 cation of order XXXIV, Rule S for the money had not been deposited on November 22, 1958 before the order J of confirmation was passed.
Tn this view of the matter, we are of opinion that the order of the executing court refusing grant of time and confirming the sale was correct".
In the case before us, the situation Is totally different.
Unlike the case of Hukam Chand vs Bansilal where there was a statuory compulsion to confirm the sale on the dismissal OF the application under order XXI Rule 90 and, therefore, postponement and further postponement of the confirmation of the sale could only be by the consent of the parties in the case before us, there was no statutory compulsion to dismiss the application under order XXI, Rule 90 in the absence of an agreement between the parties.
The court would have then decided the appeal arising out of the application on the merits.
The parties, however, entered into a compromise and invited the court to make an order in terms of the compromise, which the court did.
The time for deposit stipulated by the parties became the time allowed by the court and this gave the court the jurisdiction to extend time in appropriate cases.
Of course, time would not be extended ordinarily, nor for the mere asking.
It would be granted in rare cases to prevent manifest injustice.
True the court would not rewrite a contract between the parties but the court would relieve against a forfeiture clause; And, where the contract of the parties has merged in the order of the court, the court 's freedom to act to further the ends of justice would surely not stand curtailed.
Nothing said in Hukamchand 's case militates against this view.
We are, therefore, of the view that the High Court was in error in; thinking that they had no power to extend time.
Even so, Shri Jawali submitted that this was not an appopriate case for granting any extension of time.
We desire to express no opinion on that question.
The High Court will decide that question.
We accordingly, set aside that judgment dated 15th January, 1979, of the High Court and direct the High Court to dispose of I. A. No. VIII in Execution Second Appeal No. 89/74 in accordance with law.
The parties will bear their own costs.
P.B.R. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The respondent 's suit for the recovery of money from the first appellant 's husband was decreed and in the execution of the decree certain property of the appellant was brought to sale.
The decree holder purchased that property.
The appellant 's husband having died in the meanwhile his legal representatives filed an application under order XXI, Rule 90 of the C.P.C. for setting aside the sale.
That application was dismissed by the executing court.
On the appellant 's appeal, the sale was set aside.
At the stage of second appeal filed by the respondent the parties entered into a compromise with the leave of the court which after granting leave made an order in terms of the compromise.
Under a term of the compromise, the appellants agreed to deposit, and the respondent agreed to receive a sum of Rs. 60,000/ in full and final settlement of the decree.
It was also stated that if the deposit was not made on or before the stipulated date, the sale was to stand confirmed and the second appeal of the respondent was to stand.
Having found it difficult to deposit the money in terms of the compromise, the appellants filed an application under Ss. 148 and 151 of the C.P.C. praying that the time for depositing the money in terms of the compromise be extended.
The High Court dismissed this application on the ground that the Court could not extend time where time had been stipulated by the parties in the compromise arrived at between them.
In appeal to this Court it was contended on behalf of the appellants that where a compromise had been made the order of the Court, it was open to the Court to extend the time under section 148 C.P.C.
Allowing the appeal and remanding the case to the High Court to dispose of the execution second appeal afresh in accordance with the law. ^ HELD: As there was no statutory compulsion to dismiss the application under order XXI, Rule 90, C.P.C, in the absence of an agreement between the parties, the Court would have decided the appeal arising out of tho application 468 on the merits.
The parties in the instant case however entered into a compromise and invited the court to make an order in terms of the compromise, which the Court did.
The time for deposit stipulated by the parties became the time allowed by the Court and this gave the Court the jurisdiction to extend time in appropriate cases.
Time would not be extended ordinarily, nor for the mere asking but would be granted in rare cases to prevent manifest injustice.
Where the contract of the parties has merged in the order of the Court the Court 's freedom to act to further the ends of justice would not stand curtailed.
The High Court was in error in thinking that they had no power to extend time.
[472 B F] Hukumchand vs Bansilal and ors.
; , , held inapplicable.


judgement:
ition (Crl.) No. 1179 of 1982.
(Under Article 32 of the Constitution of India) Govind Mukhoty for the Petitioner.
Altaf Ahmed, Girish Chahdra and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by 477 BHAGWATI, J.
The issue of Indian Express dated 26th August A 1982 carried a news item that a large number of migrant workmen from different States including the State of Orissa were working on the Salal Hydro Electric Project in difficult conditions and they were denied the benefits of various labour laws and were subjected to exploitation by the contractors to whom different portions of the work were entrusted by the Central Government.
The People 's Union for Democratic Rights thereupon addressed a letter to Mr. Justice D.A. Desai enclosing a copy of the news report and requesting him to treat the letter as a writ petition so that justice may be done to the poor labourers working in the Salal Hydro Electric Project.
The letter was placed before a Bench of this Court and it was treated as a writ petition and by an order dated 10th September, 1982 this Court directed that the Union of India, the.
State of Orissa, the Labour Commissioner, orissa at New Delhi.
the State of Jammu and Kashmir and the Labour Commissioner (J & K) should be shown as respondents to the writ petition and issued notice to the Union of India, the State of Orissa and the Assistant Labour Commissioner of Orissa at New Delhi to show cause against the writ petition.
This Court also directed the Labour Commissioner, Jammu to visit the site of the Salal Hydro Electric Project and ascertain (i) whether there are any bonded labourers employed on this project and if so, to furnish their names; (ii) whether there are any migrant workers who have come from other States; (iii) what are the conditions in which the workers are living; and (iv) whether the labour laws enacted for their benefit are being observed and implemented Pursuant to this order made by the Court, the Labour Commissioner Jammu visited the site of the Salal Hydro Electric Project and made an interim report on 11th October, 1982 and this was followed by a final report dated 15th October, 1982.
The writ petition there P after came up for hearing on 3rd November 1982.
and on that date, the Court pointed out that the Secretary, Union of India, Ministry of Home Affairs, the State of Orissa, the Labour Commissioner orissa at New Delhi, the State of Jammu and Kashmir and the Labour Commissioner (J & K) had already been impleaded as respondent Nos.
I to S but since the reports made by the Labour Commissioner, Jammu disclosed that the Salal Hydro Electric Project was being carried out by the .
Government of India, the Court directed that the Union of India in the Labour Ministry as also the Chief Labour Commissioner (Central) may also be added as respon 478 dents Nos. 6 and 7 to the writ petition and that notice of the writ petition shall go immediately to them alongwith copies of the two reports.
The Court also directed that the Union of India and the Chief Labour Commissioner (Central) should file their affidavit or affidavits within two weeks from the date of the order dealing with the various averments made in the two reports of the Labour Commissioner, Jammu and particularly the final report made by him, since the final report disclosed prima facie that there were certain violations of labour laws committed by the Central Government and the contractors.
The Court also directed following its decision given on 18th September 1982 in People 's Union for Democratic Rights vs The Union of India(l) that "the Union of India and the Chief Labour Commissioner (Central) shall ensure that hereafter minimum wage is paid directly by the Central Government or the contractors as the case may be, to the workmen employed by them without the intervention of any sub contractors or jamadars or khatedars and without any deduction whatsoever except such as may be authorised statutorily.
The reference to sub contractors in this order will be confined only to those sub contractors who have not been licenced under the Contract Labour (Regulation and Abolition? Act 1 956 because if any such sub contractors have been licenced, they would fall within the definition of contractor and would therefore be liable for payment of minimum wage directly to the workers without any deduction.
The Union of India and the Chief Labour Commissioner (Central) will also, in the meanwhile, ensure that sections 16 to 19 of the Contract Labour (Regulation and Abolition) Act, 1956 read with the relevant rules made under that Act are complied with, as the same are mandatory and the Central Government is the appropriate authority to enforce the provisions of those ' sections.
" It appears that the Union of India and the Chief Labour Commissioner (Central) were not able to file their affidavit or affidavits within the time granted to them with the result that the time had to be extended twice and ultimately an affidavit dated 14th December, 1982 was made by one H.S. Raju, Deputy Secretary to the Government of India in the Ministry of Labour and Rehabilitation and it was filed in court on behalf of the Union of India.
It was on the basis of the two reports made by the Labour Commissioner, Jammu and the affidavit in reply filed by H.S Raju on behalf of the Union of India alongwith certain other documents produced at the hearing that the writ petition was argued before us, 479 The Salal Hydro Electric Project is a power project undertaken by the Government of India with a view to increasing the generation of electric power in the country by utilising the waters of river Chenab.
It is a gigantic project located near village Salal in Jammu and the Government of India has entrusted it to the National Hydro Electric Power Corporation for execution on 'agency basis '.
There are certain portions of the work in connection with the Project which are being executed by the National Hydro Electric Power Corporation itself through workmen directly employed by it, while certain other portions of the work are entrusted to contractors of whom the principal four are Hindustan Construction Company Limited, Gammon India Limited, T.R. Gupta Private Ltd. and Asia foundation Construction Company.
These contractors in their turn are doing a part of the work entrusted to them through workmen directly employed by them while a part of the work has been allotted by them to sub contractors described as 'piece wagers '.
The workmen employed by the National Hydro Electric Power Composition, the contractors and the sub contractors are mostly from other States such as U.P., Bihar and Orissa.
There is no uniform pattern of employment in regard to these workmen but so far as Oriya workmen are concerned, they are usually recruited by khatedars from their villages in Orissa and given advances before being taken for work.
So also some Bihari workmen were found by the Labour Commissioner (J & K) to have received such advances before coming to the project site.
Now the (hereinafter referred to as Contract Labour Act) being applicable to the establishments pertaining to the project work, the Executive Engineers of the National Hydro Electric Power Corporation having supervision and control over the .respective establishments are registered as principal employers and the contractors to whom different portions of the work are entrusted for execution are licensed under the provisions of that Act.
Since the project work is being carried on by or under the authority of the Central Government.
the Central Government is the appropriate Government in relation to the establishments pertaining to the project work and the contractors are licensed by the Licensing officers appointed by the Central Government.
The sub contractors to whom different portions of the work are entrusted by the contractors, however, do not hold any licence, through they fall within the definition of the word 'contractor ' in clause (c) of section 2 of the Contract labour (Regulation and Abolition) Act 1970 and it is pre 480 cisely in order to circumvent the provisions of the Contract Labour(Regulation and Abolition) Act, that they are called "piece wagers ' instead of sub contractors.
The project work is thus carried out by workmen employed by the National Hydro Electric Power Corporation or by contractors licensed under the provisions of the or by sub contractors who are euphemistically described as 'piece wagers '.
The question raised in this writ petition is whether the workmen employed in the project work are ensured the rights and benefits provided to them under various labour laws such as Contract Labour (Regulation and Abolition) Act, 1956, the and the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act.
So far as the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service Act, 1979 (hereinafter referred to as the Inter State Migrant Workmen Act) is concerned, the final report of the Labour Commissioner (J & K) clearly shows that its provisions have not beeen implemented at all and the workmen are denied many of the benefits and advantages provided under it.
This statement in the final report of the Labour Commissioner (J&K) is not denied on behalf of the Union of India in the affidavit in reply made by H.S. Raju, Deputy Secretary to the Government of India, Ministry of Labour and Rehabilitation and the only explanation offered is that the lnter State Migrant Workmen Act though passed in 1979 did not come into force until 2nd October 1980 and the relevant notifications appointing various authorities under that Act were issued only in June, 1982 and that was the reason why "no action could be taken by the officers of CRM earlier".
It is also averred in the affidavit in reply that "most of the workers from other States have gone to Salal Project for work OD their own and are therefore strictly speaking not migrant workmen" within the meaning of the definition of that term contained in the Inter State Migrant Workmen Act.
We do not think that this justification given in the affidavit in reply for not ensuring the benefits and facilities provided under the Inter State Migrant Workmen Act to atleast some of the workrnen and particularly Oriya workmen can be accepted as valid.
lt is clear from the Statement of objects and Reasons that the Inter State Migrant Workmen Act was enacted with a view to eliminating abuses to which workmen recruited from one State and taken for work to another State were subjected by the contractors, sardars or khatedars recruiting them.
The mal 481 practices indulged in by the contractors, sardars or khatedars in A regard to workmen recruited by them for work outside their State may be found briefly summarised as follows in the Statement of objects and Reasons: "Though the Sardars promise at the time of recruit ment that wages calculated on piece rate basis would be settled every month, the promise is not usually kept once the worker comes under the clutches of the con tractor, he takes him to a far off place on payment of railway fare only.
No working hours are fixed for these workers and they have to work on all the days in a week under extremely bad working conditions.
The provisions of the various labour laws are not being observed in their case and they are subjected to various malpractices.
" It was felt that since Inter State migrant workmen are generally illiterate and unorganised and are by reason of their extreme poverty, easy victims of these abuses and malpractices, it was necessary to have a comprehensive legislation with a view to securing effective protection to Inter State migrant workmen against their exploitation and hence the Inter State Migrant Workmen Act was enacted.
This Act received the assent of the President on 11th June, 1979 but it was brought into force only on 2nd October 1980 by a notification issued under section J sub section (3).
The Inter state Migrant Workmen (Regulation of employment and Conditions of Service) Rules 980 (hereinafter referred to as the Central p Inter State Migrant Workmen Rules) were also made by the Central Government and brought into force with effect from 2nd October 1980.
But, unfortunately, through the Inter State Migrant Workmen Act and the Central Inter State Migrant Workmen Rules came into force from 2nd October, 1980, the bureaucratic appratus for implementing the provisions contained in the Act and theP Rules wls not set up by the Central Government for a period of more than 20 months and it was only in the month June.
1982 that the Central Gnvernment appointed various authorities such as Registered ol1icers, Licensing officers and [nspeclors.
Lven so we fail to see why the obligations of contractors set out in section l2 and wages, welfare and other facilities provided in jsections 13 to l(i of the Inter State Migrant Workmen Act could 482 not be made available to Inter State migrant workmen employed in the project work and the Central Government as the appropriate Government could not enforce the saLne from and after 2nd october 1980.
When the Act aod the Rules came into force with effect from 2nd october, 1980, the provisions contained in section 12 and sections 13 to 16 became clearly applicable to the establishments pertaining to the, project work and there was no justification for the Central Government to delay any longer the implementation of these provisions in, so far as Inter State migrant workmen were concerned.
The Central Government in any event ought to have enforced the provisions relating to registration of principal employers and licensing of contractors as also the provisions set out in section 12 and sections 13 to 16 from June, 1982 when the various authorities contemplated under the Act were appointed by the Central Government.
We do not think the Central Government can escape its obligation to enforce the provisions of the Inter State Migrant Workmen Act on the plea that there are no later State migrant workmen employed in the project work The final report of the Labour Commissioner (J & KJ clearly shows that Orriya workmen employed on the project site were recruited by khatedars from their villages in Orissa and brought to the project site for work and they would clearly be Inter State migrant workmen within the definition of that term clause (e) of section (2) of the Inter State Migrant Workmen Act.
We would therefore direct the Central Government to take immediate steps for enforcement of the provisions of the Inter State Migrant Workmen Act in regard to Inter State migrant workmen employed is the project work.
The Central Government will at once proceed to identify 'Inter State migrant workmen ' from amongst the workmen employed in the project work and adopt necessary measures for ensuring to them the benefits and advantages provided under the inter State Migrant Workmen Act.
We would like the Central Government to file as affidavit within one month from today setting out what steps have been taken for securing implementation of the provisions of the enter State Migrant Workmen Act at the project site whether the executive engineers of the Central Government or the National Hydro Electric Power Corporation have been registered as principal employers under section 4 and the contractors, sub contractors or 'piece wagers ', khatedars and sardars have been licensed under section 8, whether the contractors and sub contractors or piece wagers are carrying out the obligations imposed upon them under section 12 and whether wages and allowances stipulated in sections 13.
14 and 15 and other facilities provided in section 16 are being 483 made available to the inter State migrant workmen employed in the project work.
That takes us to the question whether the provisions of the and the Contract Labour Act are being followed in relation to the workmen employed on the project site.
But before we consider this question, we may point out that, in regard to the suggestion made in the writ petition that there are amongst the Oriya workmen bonded labourers who are forced to provide labour by the khatedars who have recruited them, the final report of the Labour Commissioner (J & K) points out that. "by and large there is no evidence of any worker having been detained and not allowed to go home against his wish" and "there is no bonded labourer in the project whether the employment is direct or through the contractors or sub contractors".
We must therefore proceed on the basis that there is no violation of the provisions of the .
But so far as the and the Contract Labour Act are concerned, the report of the Labour Commissioner (J and K) does reveal that there are violations of the provisions of these two statutes.
Section 2 clause (c) of the Contract Labour Act defines "contractor" in relation to an establishment, to mean "a person who undertakes to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment, through contract labour or who supplies contract labour for any work of the establishment and included a "sub contractor." (emphasis supplied).
Section 12 sub section (1) then proceeds to enact that with effect from such date as the appropriate Government may, by notification in the official Gazette, appoint, no contractor to whom this Act applies, shall undertake or execute any work through contract labour except under and in accordance with a ' licence issued in that behalf by the licensing officer.
It is therefore clear that not only a contractor but also a sub contractor who comes within the definition of the term 'contractor ' in section 2 clause (e) is bound to obtain a licence under section 12 subsection (1) before he can undertake or execute any work through contract labour.
Now according to the final report of the Labour Commissioner (J & K), the contractors at the project site have undoubtedly obtained the requisite licence under section 12 sub section (1) but the 'piece wagers ' who are really nothing but sub contractors, have not cared to obtain such licence and yet they have undertaken and are executing portions of the project work entrusted to them by the contractors, through work 484 men employed by them either directly or through khatedars.
This is clearly in violation of the prohibition enacted in section 12 subsection (1).
It is obvious that the object of the 'piece wagers ' or the sub contractors in not applying for a licence under section 12 sub section (I) is to evade their obligations under sections 16 to 21 read with Rules 41 to 62 of the Contract Labour (Regulation and Abolition) Central Rules.
1971 hereinafter.
referred to as the Contract Labour Central Rules) and to render these provisions difficult of application in relation to the Sections 16 to 21 read with Rules 41 to 62 provide for making various facilities available to workmen employed by contractors for securing their health and welfare and 'piece wagers ' or subcontractor who are 'contractors ' within the meaning of that term in section 2 clause (c) cannot escape their obligations under these provisions by not applying for a licence under section 12 sub section (1).
In fact, if sub contractors undertake or execute any work through contract labour without obtaining a licence under section 12 sub section (1), they would be guilty of a criminal offence punishable under section 23 or section 24.
We would therefore direct the Central Government as the enforcing authority to take immediate steps for ensuring that the 'piece wagers ' or sub contractors do not execute any portion of the project work without obtaining a licence under sec.
12 sub section (I) and that they carry out their obligations under sections 16 to 21 read with Rules 41 to 62.
Of course, if the contractors who have employed 'piece wagers ' or sub contractors have provided the facilities set out in sections 16 to 21 read with Rules 41 to 62 not only to the workmen employed directly by them but also to the workmen employed by the 'piece wagers ' or sub contractors, nothing more may remain to be done by the 'piece wagers ' or sub con tractors.
But there can be no doubt that the 'piece wagers ' sub contractors are equally responsible for implementing the provisions contained in these sections.
The Central Government will in the report to be submitted by it on or before state whether the 'piece wagers ' or sub contractors have obtained the requisite licence under section 12 sub section (1) or they are executing the portion of the project work entrusted to them without obtaining such licence and whether the provisions set out in sections 16 to 21 read with Rules 41 to 62 are being implemented in relation to the workmen employed by the 'piece wagers ' or subcontractors.
The final report of Labour the Commissioner (I&K) also points out that whereas the National Hydro Electric Power Corporation 485 has provided canteens and rest rooms to its workmen as required A by sections 16 and 17 of the Contract Labour Act and Rules 41 to 50 of the Contract Labour Central Rules, the contractors and 'piece wagers ' or sub contractors have not provided such canteens and rest rooms in breach of their obligations under these provisions.
It is also mentioned in the final report of the Labour Commissioner (J & K) that adequate washing facilities are not provided at work sites, though there is clearly as obligation on the contractors and 'piece wagers ' or sub contractors to do so under clause (c) section 18 read with Rule 57.
The Central Government has, in the affidavit in reply made on its behalf by H. section Raju stated rather half heartedly that facilities for canteens are reasonably made but conceded that "as canteens provided by the contractors are not of the prescribed specifications action has been taken by the Regional Labour Commissioner for prosecution of the contractors for their failure to provide canteens with specified specifications".
We would therefore direct the Central Government to take immediate steps for ensuring that canteens, rest rooms aud washing facilities are provided by the contractors and 'piece wagers ' or sub contractors to the workmen employed by them in accordance with the requirements of sections 16, 17 and 18, clause (c) read with Rules 41 to 50 and 57 and the Central Government will make a report to this Court on or before 30th April, 1983 setting out what steps have been taken for securing implementations; of these provisions and whether these provisions have been complied with by the contractors and 'piece wagers ' or sub contractors.
So far as medical facilities are concerned, we are glad to know that according to the final report of the Labour Commissioner (J & K), adequate medical care is provided to the workmen employed on the project site.
It is pointed out in the final report of the Labour Commissioner (J & K) that some minors were found to have been employed on the project site but the explanation given was that "these minors accompany make members of their families on their own and insist on getting employed".
This Court has pointed out in its judgment in the Asiad Workers case(l) that construction work is a hazardous employment and therefore under Article 24 of the Constitution, no child below the age of 14 years can be employed in construction work.
We are aware that the problem of child labour is a H 486 difficult problem and it is purely on account of economic reasons that parents often want their children to be employed in order to be able to make two ends meet.
The possibility of augmenting their meagre earnings through employment of children is very often the reason why parents do not send their children to schools and there are large drop outs from the schools.
This is an economic problem and it cannot be solved merely by legislation.
So long as there is poverty and destitution in this country, it will be difficult to eradicate child labour.
But even so an attempt has to be made to reduce, if not eliminate the incidence of child labour, because it is absolutely essential that a child should be able to receive proper education with a view to equipping itself to become a useful member of the society and to play a constructive role in the socioeconomic development of the country.
We must concede that having regard to the prevailing socioeconomic conditions, it is not possible to prohibit child labour altogether and in fact, any such move may not be socially or economically acceptable to large masses of people.
That is why Article 24 limits the prohibition against employment of child labour only to factories, mines or other hazardous employments Clearly, construction work is a hazardous employment and no child below the age of 14 years can therefore be allowed to be employed in construction work by reason of the prohibition enacted in Article 24 and this constitutional prohibition must be enforced by the Central Government.
The Central Government would do well to persuade the workmen to send their children to a nearby school and arrange not only for the school fees to be paid but also provide, free of charge, books and other facilities such as transportation.
We would suggest that whenever the Central Government undertakes a construction project which is likely to last for some time, the Central Government should provide that children of construction workers who are living at or near the project site should be given facilities for schooling and this may be done either by the Central Government itself or if the Central Government entrusts the project work or any part thereof to a contractor, necessary provisions to this effect may be made in the contract with the contractor.
That takes us to the question whether wages are being paid to the workmen in accordance with the provisions of the relevant statutes.
The final report of the Labour Commissioner (J & K) agrees that there is hardly any irregularity in so far as payment of wages to the 487 workmen employed by the National Hydro Electric Power Corporation and the contractors is concerned but points out that in case of workmen employed by the 'piece wagers ' or sub contractors, payment of wages is made directly only to those workmen "who are employed individually" and to other workmen, like Oriya labourers who are employed in groups, wages are paid through khatedars and in this latter case, there are complaints of deductions by khatedars on account of advances made to the workmen in their native places, messing charges etc.
, though "the muster rolls prepared and maintained do not reflect the deductions.
" Now this Court has held in Asiad Workers case (supra) that the minimum wages must be paid to the workmen directly without any deductions save and except those authorised by the statute.
Wages due to the workmen employed by the 'piece wagers ' or sub contractors must therefore be paid directly to the workmen without the interventation of khatedars, and no deductions can be made from the wages on account of any advances alleged to have been made by the khatedars to the workmen.
If there are any advances repayable by the workmen to the khatedars or any messing charges are to be paid, they may be paid by the workmen to the khatedars after they receive the full amount of wages due to them from the 'piece wagers ' or sub contractors.
But on no account can any deductions be made from such wages and they must be paid to the workmen directly without the intervention of any middleman.
Moreover, section 21 sub section (2) of the Contract Labour Act requires that every principal employer shall nominate a representative 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 amount paid as wages in such manner as may be prescribed and under sub section (3) of section 21, it is the duty of the contractor to ensure that disbursement of wages is made in the presence of the authorised representative of the principal employer.
It is stated in the final report of the Labour Commissioner (J&K) that this statutory obligation under sub sections (2) and (3) of section 21 is also not carried out and so far as the workmen employed by the 'piece wagers ' or sub contractors are concerned, payment of G wages to them is Dot supervised by any authorised representative of the contractors or the National Hydro Electric Power Corporation or the Central Government nor is the payment of wages made in the presence of such authorised representative and the workmen are left to the mercy of the 'piece wagers ' or sub contractors and their staff.
This statement is, of course, disputed in the affidavit is reply filed on behalf of the Central Government but we have our own doubts 488 whether this denial is well founded of the requirement of sub sections (2) and (3) of section 21 is strictly carried out and payment of wages to the workmen employed by the 'piece wagers ' or sub contractors is made in the presence of an authorised representative of the National Hydro Electric Power Corporation of the Central Government, there is no reason why the workmen should complain to the Labour Commissioner (J & K) in regard to payment of wages because in that event they would he receiving their full wages directly from the 'piece wagers ' or sub contractors without the intervention of khatedars and free from any deductions whatsoever Moreover it is also pointed out by the Labour Commissioner (J & K) in his final report that over time wages earned by workmen are not received by them in their entirety and almost 50 per cent is taken away by khatedars but the muster sheets do not reflect the correct position and "are treated as mere formality".
The Central Government has not dealt specifically with this complaint in its affidavit in reply beyond merely denying that over time wages are not paid.
It may be noted that this complaint has been made by the Labour Commissioner (J & K) after making a full and detailed enquiry from the workmen employed by the 'piece wagers ' or sub contractors and there is no reason why these workmen should have given false information to the Labour Commissioner (J & K) or the Labour Commissioner (J & K) should have made a statement in his final report which was not borne out by the enquiry made out by him.
The Labour Commissioner (J&K) also states that according to the information gathered by him from the workmen, he found that no weekly off day is allowed to the workmen "except in case of labour directly employed by the National Hydro Electric Power Corporation or other contractors".
The Central Government in its affidavit in reply has denied that the workmen are not being granted weekly off day with wages and pointed out that the minimum rates of wages fixed by the Central Government are inclusive of the element of weekly day of rest and no extra wages are legally payable to the workmen under the .
Now there can be no doubt that the minimum rates of wages fixed by the Central Government include the element of weekly day of rest and that no extra wages are legally payable to the workmen for the weekly off days.
But the complaint made in the final report of the Labour Commissioner (J &; K) is not that extra wages are not 489 being paid to the workmen for the weekly off days but that weekly paid off days are not given to the workmen, meaning thereby that the workmen are required to work even on their weekly paid off days.
These complaints have to be remedied by the Central Government by taking appropriate action and the only way in which this can be done effectively is by carrying out periodically detailed inspections and insisting that every payment of wages must be made by the 'piece wagers ' or sub contractors in the presence of the authorised representative of the National Hydro electric power Corporation or of the Central Government.
The Central Government has averred in its affidavit in reply that its officers are regularly carrying out inspections and it has given various dates on which such inspections were carried out during the year 1982.
The particulars of inspections given by the Central Governments would show that during a period of 12 months, only for inspections were carried out in case of three contractors, two inspections in case of one contractor and one inspection each in case of three other contractors.
We find it difficult to accept that these inspections carried out by the officers of the Central Government were adequate.
It is necessary to carry out more frequent inspections and such inspections have to be detailed and thorough, for then only it will be possible to ensure scrupulous observance of the labour laws enacted for the benefit of workmen.
We would therefore direct the Central Government to tighten up its enforcement machinery and to ensure that thorough and careful inspections are carried out by fairly senior officers at short intervals with a view to investigating whether the labour laws are being properly observed, particularly in relation to workmen employed, either directly or through khatedars, by the contractors as well as the 'piece wagers ' or sub contractors '.
The Central Government must also strictly enforce the requirement that payment of wages particularly to workmen employed either directly or through khatedars by the 'piece wagers ' or sub contractors is made in the presence of an authorised representative appointed by the National Hydro Electric Power Corporation or the Central Government and wages are paid directly to the workmen without the intervention of khatedars and free from any deductions whatsoever, except those authorised by law.
It is not enough merely to go periodically and examine the muster rolls or muster sheets showing payment of wages, because even where wages are paid through khatedars and deductions are made, the muster rolls or muster sheets would invariably show payment of 490 full wages and would not reject the correct position.
The Central Government must ensure, and that is the direction we give, that every payment of wages, whether it be normal wages or over time wages, shall be made directly to the workmen, without any deductions in the presence of an authorised representative of the National Hydro Electric Power Corporation or the Central Government.
When payment of overtime wages is made to the workmen, the Central Government must ask its authorised representative to check up with reference to the overtime work done by the workmen, whether they are receiving the full amount of over time wages due to them or any part of it is being taken away by the khatedars.
This evil can to a large extent be eliminated if payment of over time wages is made directly to the workmen instead of routing it through the khatedars.
The Central Government will promptly carry out these directions which are being given by us and will make a report to this Court on or before 30th April, 1983, setting out what steps it has taken for carrying out these directions and how far they have been implemented.
It is only if the officers of the National Hydro Electric Power Corporation and the Central Government are sensitive to the misery and suffering of workmen arising from their deprivation and exploiation that they will be able to secure observance of the labour laws and to improve the life conditions of the workmen employed in such construction projects.
There is also one other matter to which our attention has been drawn by the Labour Commissioner (J & K).
He has p pointed out in his final report that the National Hydro Electric Power Corporation as also the contractors and 'piece wagers ' or sub contractors are paying to the workmen employed by them wages at the rate of Rs. 9 per day, whereas the minimum wage payable to workmen in the construction industry as per the notification issued by the State of Jammu & Kashmir is Rs. 10 per day.
The result is that whereas a workman employed in construction industry in the State of Jammu & Kashmir would be entitled to a minimum wage of Rs. 10 per day a workman employed in the Salal Project which is being carried out in the State of Jammu & Kashmir would be getting only Rs. 9 per day because it is a work which is being carried out by the Central Government.
This is a 491 rather anomalous situation to which we may draw the attention of A the Central Government.
We accordingly adjourn this writ petition to 6 5 1983 We shall take it up for further hearing after we have received the report from the Central Government in accordance with the directions given in this judgment.
H.L.C. Petition allowed.

summary/full:
On the basis of a news item that migrant workmen employed in tho Salal Hydro Electric Project were being denied the benefits of various labour Iaws, the Peoples ' Union for Democratic Rights addressed a letter to an Hon 'ble Judge of the Court requesting that the same be treated as a writ Petition and justice be done to the workmen.
The request was acceded to and in compliance with a direction made, the Labour Commissioner, Jammu, visited the site of the project, ascertained the position and submitted two reports which disclosed inter alia that the project was being carried out by the Government of India.
The petition was heard on the basis of the reports made and tho affidavits in reply filed by the Union of India pursuant to the directions made in that behalf.
The National Hydro Electric Power Corporation which had been entrusted with the execution of the work relating to the project was carrying out certain portions of the work through workmen directly employed by it and had entrusted the remaining portions to several contractors.
The contractors, in their turn, were doing a part of the work given to them through workmen directly employed by them while the remaining part had been allotted by them to subcontractors.
The being applicable to the establishments pertaining to the project work, the Executive Engineers of the National Hydro Electric Power Corporation having supervision and control over the respective establishments were registered as principal employers and the contractors to whom different portions of the work were entrusted for execution were licensed by the licensing officers appointed by the Central Government but the sub contractors did not hold any licence.
The sub con tractors were being called 'piece wagers ' with a view to circumvent the provisions of the Act.
The workmen employed on the project were mostly drawn frorm other states.
There was no uniform pattern of employment but so far as Oriya workman were 474 concerned they were usually recruited by khatedars from their villages in Orissa and given advances before being taken to the project site.
Some Bihari workmen were also found to have received such advances.
The contractors and 'piece wagers ' had not provided rest rooms, canteens and washing facilities to the workmen employed by them.
The 'piece wagers ' were making payments to workmen like Oriya labourers who were employed in groups, through khatedars and there were complaints of deductions on account of advances made to them, messing charges, etc., although the muster rolls did not reflect the deductions.
Payments of wages made by 'piece wagers ' were not being supervised by any authorised representative of the principal employers or of the Central Government and almost fifty per cent of over time wages earned by workmen was being taken away by khatedars.
The provisions of the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 conferring benefits and advantages on workmen were not being implemented.
No weekly off day was being allowed in respect of workmen employed by 'piece wagers.
Some minors were also found employed on the project site.
The minimum wage fixed for workmen employed on the project was found to be a rupee less than that fixed by the State Government for workmen employed in tho construction industry.
Allowing the petition, ^ HELD: The Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 was enacted with a view to eliminating abuses to which workmen recruited from one State and taken for work to another State were subjected by the contractors, sardars or khatedars recruiting them.
The Act and the rules framed thereunder came into force with effect from October 2, 1980 and became applicable to the establishments pertaining to the project work.
The Central Government ought to have enforced the provisions contained in sections 12 to 16 and also those relating to registration of principal employers and licensing of contractors at least.
from June, 1982 when the various authorities contemplated under the Act were appointed.
The stand taken by the Central Government that the workers had gone to Salal Project for work on their own and therefore, strictly speaking, they were not migrant workmen, cannot be accepted as valid.
Oriya workmen recruited by khatedars from their villages in Orissa and brought to the project site for work are lnter State migrant workmen within the meaning of section 2 (e) of the Act.
[480 H; 481 F; 482 A E] 2.
Not only a contractor but also a sub contractor who comes within the definition of the term 'contractor in section 2 (c) of the Contract Labour Regulation and Abolition) Act, 1970 is bound to obtain a licence under sub section
(I) of section 12 thereof before he can undertake or execute any work through contract labour.
Sections 16 to 21 of the Act read with rs.
41 to 62 provide for making various facilities available to workmen employed by contractors for securing their health and welfare and 'piece wagers ' or sub contractors who are 'contractors ' within the meaning of s 2 (c) cannot escape their obligations under these provisions by not applying for a licence under sub section
(1) of section 12.
In fact, if sub contractors under 475 take or execute any work through contract labour without obtaining a licence under sub (l) of section 12, they would be guilty of a criminal offence punishable under 8. 23 or section 24.
[483 G; 484 B D] 3.
Sub.s.
(2) of section 21 of the requires that 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 duly of such representative to certify the amount paid as wages in such manner as may be prescribed and under sub section
(3) of section 21 it is the duty of the contractor to ensure that disbursement of wages is made in the presence of the authorised representative of the principal employer.
Wages due to workmen employed by the 'piece wagers ' or sub contractors must be paid directly to the workmen without the intervention of khatedars, and no deductions can be made from the wages on account of any advances alleged to have been made by the khatedars to the workmen.
[487 C F] Peoples ' Union for Democratic Rights & ors.
vs Union of India & ors.(Asiad workers ' Case) [1983] I S.C.R. 456, referred to.
Under article 24 of the Constitution no child below the age of 14 years can be employed in 'construction work ' which has been declared to be a hazardous employment in the Asiad Workers ' case.
This constitutional prohibition must be enforced.
The children of construction workers living at or near the project site should be given facilities for schooling and this may be done either by the Central Government itself or if the Central Government entrusts the project work or any part thereof to a contractor, necessary provisions to this effect may be made in the contract with the contractor.
[485 G H; 486 D G] Asiad Worker 's Case, referred to. 5.
There can be no doubt that the minimum rates of wages fixed by the Central Government include the element of weekly day of rest and that no extra wages are legally payable to the workmen for the weekly off days.
The complaint made is not that extra wages are not being paid for the weekly off days but that weekly paid off days are not being given to the workmen, meaning thereby that the workmen are required to work even on their weekly paid off days These complaints have to be remedied by the Central Government by taking appropriate action and the only way in which this can be done effectively is by carring out periodically detailed inspections.
[488 G H; 489 A B] The following directions were made by the Court: (i) The Central Government will at once proceed to identify inter state migrant workmen employed in the project work and adopt necessary measures for ensuring to them the benefits and advantages provided under the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979.
[482 F] (ii) The Central Government will take immediate steps for ensuring that 'piece wagers or the sub contractors do not execute any portion of tho project 476 work without obtaining a licence under sub section
(I) of section 12 of the and that they carry out their obligations under that Act and Rules framed thereunder.
It will also take immediate steps for ensuring that canteen, rest rooms and washing facilities are provided by the contractors and piece wagers ' or sub contractors to the workmen employed by them in accordance with the requirements of sections 16, 17 and 18(c) read with rs.
41 to 50 and 57.
[484 G, 485 D E] (iii) The Central Government will tighten up its enforcement machinery and ensure that thorough and careful inspections are carried out by fairly senior officers at short intervals with a view to investigating whether the labour laws are being properly observed, particularly in relation to the workmen employed either directly or through khatedars by the contractors as well as the 'piece wagers ' or sub contractors.
The Central Government must also strictly enforce the requirement that payment of wages particularly to workmen employed either directly or through khatedars by the 'piece wagers ' or sub contractors is made in the presence of an authorised representative appointed by the National Hydro E1ectric Power Corporation or the Central Government and wages are paid directly to the workmen without the intervention of khatedars and free from any deductions whatsoever, except those authorised by law.
When payment of overtime wages is made to the workmen, the Central Government must ask its authorised representative to check up with reference to the over time work done by the workmen, whether they are receiving the full amount of over time wages due to them or any part of it is being taken away by tho khatedar"s, [489 D H, 490 A C] (iv) The Central Government will take note of the anomalous situation in which a workman employed in the Salal Project is getting a minimum wage of only Rs. 91 per day because it is a work which is being carried out by the Central Government whereas a workman employed in construction industry in the State of Jammu and Kashmir would be entitled to Rs. 10/ per day.
[490 F H, 491 A] (v) The Central Government will file an affidavit setting out the steps taken by it in respect of directions (i) to (iii) above within one month from the date of the judgment.
[485E, 490 C D]