M. Ramachandran, J.@mdashThe first and second respondents required services of Guards for watch and ward duties in their Diesel Power Project, Kozhikode. Quotations had been invited by Ext. P3 for the work commencing from 1.6.2001, as the practice adopted was to engage contract workmen. The participants were required to quote single rate in the prescribed schedule. Ext. P4 indicated that the selection of agency would mainly be based on the assessed eligibility for taking up the work, and not based on the rate quoted alone. The 4th respondent Association stands preferred for the work and the Original Petition has been filed in the above context, challenging the selection.
2. The petitioner submits that the background which led to the preference also may be relevant. The second respondent-Kerala State Electricity Board had selected petitioner during the immediate past year and wages paid to the guards were between Rs. 80 to 90. While the work was going on, the third respondent-Assistant Labour Officer had intervened and had advised them that the minimum wages, as prescribed by Ext. P4 Government Order dated 29.3.1999 are payable and for the category of Security Guard, the rates revised stand as Rs. 140/- per day. On that understanding, and after taking the Board also into confidence, when tenders were floated, they had quoted a price of Rs. 4,38,984/- of which Rs. 4,31,000/- was required for payment of minimum wages to the 16 personnel engaged, and the balance, administrative expenses. But unmindful of the minimum wages liability, the 4th respondent had quoted Rs. 3,45,000/- and when the contract was proposed to be awarded, petitioner had obtained interim orders, prohibiting finalisation of contract by filing O.P. No. 6535/2001. Taking into account the offer of the Board that a fresh tender will be floated, the Original Petition was closed. Petitioner continued to supply workmen.
3. But the 4th respondent''s quotation, of lower rate, again has been accepted, and the Original Petition has come to be filed, highlighting the self same point that is; whether a quotation offering wages lesser than prescribed minimum wages could be acceptable, and the contract between the parties, whether opposes public policy. Mr. Chandrasekharan submits that the underquoting results in exploitation of labour, and the Supreme Court had occasion to criticise the attempt. According to him, a contract for facilitating payment below minimum wages is unenforceable, and therefore the present proceedings to which a public sector enterprise is a party deserves to be set aside.
4. Counter affidavits have been filed by an officer of the K.S.E. Board as well as the contractor. It is stated that the contract employment is a temporary arrangement. Now they have assessed the need as that of nine watchmen. The tenders of the 4th respondent, being the lowest, was accepted, as it is the practice in vogue, and it is a policy decision to be taken as to whether stipulation for minimum wages also has to be incorporated in the tenders. As seem the averments are of not much help.
5. The 4th respondent has pointed out that the Original Petition is centered round the only argument of minimum wages as per Ext. P4, but the same is not applicable to the Board, and therefore, the argument are misconceived, and the Original Petition is not to be entertained. Apart from stating that Ext. P4 is not relevant they do not refer to any other stipulations as regards minimum wages. So long as the tender notice was silent about payment of minimum wages, they submit that the said condition could not be read into it. As the parties pressed for an early hearing, the third respondent has not got an opportunity to file an affidavit.
6. The petitioner relied on the decision of the Supreme Court reported in
7. These arguments appear to be relevant and to the point. Exploitation in any form of labour is impermissible. Ext. P4 of course applies to Government alone, and unless adopted, the same cannot bind the Board. However, it is seen that employment in security services has been added as a scheduled industry, by G.O. (M.S.) 98/98/LBR dated 10.11.1998. The parties however were not able to give any details, as regards the minimum wage prescribed, under the categories and nature of classes envisaged as coming within the purview of the notification. Therefore, the impact of any such statutory notifications also have to be examined by the Board when they invited for quotations. Even if the work of K.S.E. Board did not come as such within the Minimum Wages Notification, an impossible condition could not have been incorporated in the quotation and minimum wages liability also had to be got ensured. For a Security Agency, if it was mandatory that it should pay minimum wages to the persons drafted by them, it was impossible for supplying the employees at a still lower rate to a principal. Being a model employer, a public sector enterprise should be first to adopt and apply terms and conditions which are laws of the land. They are not obliged to accept the lowest tenderer, going by the tender conditions, and quality could be ensured, taking note of the work that is expected to be extracted.
8. Section 25 of the Minimum Wages Act prohibits contracting out. Such contract is null and void if attempt is made for payment of reduced wages than minimum fixed by the notification. The picture that emerges from Ext. R4(c), a declaration by members of the fourth respondent is pathetic. It states that since there is no scope for securing a job in the Kozhikode District, where Minimum wages could be expected, they are prepared to work for Rs. 1900/- per month. This supports the statement of Sri Chandrasekharan that there is forced labour, and the opportunity is exploited. By paying low wages, an employer may gain transitory gains, but ultimately it acts against public interest, affecting good will, health and productivity of citizens. The Minimum Wages Act is brought to provide for minimum wages in certain employments. The Act is to protect the needs of employees in unorganised sector, who may not be able to assert their claims or decent wages for subsistence level of wages, due to various disabilities and characteristics of the avocation concerned. The Government has appointed advisory committee for the purpose by stepping in as protector of right. Therefore, circumventing the recommendations of such expert committees, an employer is not permitted to carry on a venture, and interference of this court may therefore be justified.
9. On the strength of interim orders, the workmen of the petitioner are attending to work even now. I direct that the said position is to be continued. If the Original Petition is rejected, another hardship also is likely to result. The third respondent has advised for payment of minimum wages and it is likely to be enforced. On the strength of the lower quotation, persons represented by the 4th respondent if inducted, can claim the minimum wages thereafter, and as the principal employer under the Contract Labour (Regulation and Abolition) Act, the first and second respondents, notwithstanding the tender conditions would be obliged to pay the higher wages from the date of engagement, if it ultimately turns up that such wages are payable. As the rates of quotations may turn out to be meaningless, the petitioner is not to suffer any prejudice for no fault of theirs.
10.It will be permissible for the Board to replace the workmen by the regular workers, if they choose. But if they want to continue contract employees, fresh tenders are to be invited, after ascertaining from the Labour Department of the State, the minimum wages a security workman is to receive. Tender conditions have to be appropriately modified, so that no sweated labour results. I find that the petitioner and the 4th respondent are espousing the cause of ex-servicemen who are identically situated. They should at least notice that a competition amongst themselves have landed their members in degrading positions.
11. The first and second respondents also will be within their rights to engage the number of workmen at their discretion even as at present. The senior most employees or if it is not workable, the seniors in age should be permitted to work, subject to age stipulations. Steps for fresh tender notifications should be completed within four months from today, if the decision is taken to continue engaging such workmen.
12. The Original Petition is disposed of with the above directions. The second respondent should pay the costs of the petitioner and the 4th respondent, quantified at Rs. 1000/- each.
