Notes on cases Article 23 and 24:

PUDR vs Union Of India & Others, 1982 AIR 1473

It was held by the Hon’ble Court that the right of a poor worker to directly approach the
Supreme Court under Article 32 of the Constitution of India for the enforcement of rights
created under various labour laws and particularly under the provisions of Contract Labour
(Regulation and Abolition) Act, 1970, Interstate Migrant Workmen (Regulation of
Employment and Conditions of Service) Act, 1977, Equal Remuneration Act, 1976,
Employment of Children Act, 1970 and Minimum Wages Act, 1948 is correct. Hence, the
scope of the meaning of article 21 of the Constitution (right to life) to include the right to
livelihood along with the ‘right to live with basic human dignity’ was extended by the
Hon’ble Supreme Court.

Also, a wider meaning has been given to the provisions of Article 21, 17, 23 of the
Constitution of India, so as to cover the cases of Non-payment or less payment of wages to
the workers which they are entitled under the relevant provisions of law. The Court further
held that the scope of Article 23 is wide and unlimited and strikes at “traffic in human
beings” and “beggar and other forms of forced labour” wherever they institute.

It is not merely “beggar” which is prohibited by Article 23 but also all other forms of forced
labour as it is violative of human dignity and contrary to basic human values, therefore,
violates Article 21 also. The Court held that the word force within this article has a very wide
meaning. It includes physical force, legal force and other economic factors which force a
person to provide labour at a wage less than the minimum wage. Hence, if a person is forced
to provide labour for less than the minimum wage, just because of poverty, want, destitution
or hunger, it would be accounted for as forced labour.

With respect to Article 24, the Court held that the construction work falls in the field of
hazardous employment. Thus, children under the age of fourteen must not be employed in the
construction work even though it has not been mentioned explicitly under the Employment of
Children Act 1938. The Court further recommended that the state government revise the
schedule and add the construction industry to the list of industries that pose a risk to public
health.

M.C. Mehta v. State of Tamil Nadu and others (1996) 6 SCC 756
This case arose out of a public interest litigation filed by M.C. Mehta in the Supreme Court of
India under Article 32 of the Constitution of India, in respect of employment of children in
matches and fireworks industries in Sivakasi. Since the problem of child labour was rampant
throughout the country, the court thought it appropriate to deal with the issue in a wider
manner treating it as a national problem.
Observations and directions made by the Supreme Court:
The Supreme Court recognised that Sivakasi had ceased to be the only centre employing
child labour; the malady was no longer confined to that place. The court also recognised that
child labour was an all-pervasive national problem in India even after 50 years of
independence – and despite the enactment of various legislations. Further, the Supreme Court
recognised poverty as a basic cause for child labour. The court observed that until an
alternative income was assured to the family, child labour could never be effectively tackled.

To resolve the problem of child labour, the Supreme Court gave the following directions:

 Every state government must conduct a survey, to be completed within six months, on the
types of child labour carried out in the state.

 The survey could begin with the modes of employment mentioned under Article 24 of the
Constitution of India. The most hazardous employment would rank first in priority, to be
followed by a comparatively less hazardous employment, and so on.

 To ensure compliance with Child Labour (Prohibition and Regulation) Act, 1986, an
employer must be asked to pay a sum of Rs 20,000 as compensation for every child
employed in contravention of the provisions of the Act.

 The employer would be liable to pay this amount even if he were to disengage the child
presently employed.

 The inspectors, appointed under Section 17 of the Act, would bear the responsibility of
ensuring this.

 The sum paid as compensation should be deposited in a fund to be known as Child Labour
Rehabilitation-cum-Welfare Fund.

 Such a fund should be established district-wise or area-wise.

 The fund so generated should be used only for the concerned child. The income earned
through the fund would also be a part of the fund. To generate greater income, the fund could
be deposited in a high-yielding scheme of any nationalised bank or other public body.

 The State should ensure that an adult member of the family (whose name would be
suggested by the parent/guardian of the concerned child) whose child is in employment in a
factory or a mine or in other hazardous work gets a job anywhere, in lieu of the child.
 The employment could be combined with other assured employment as this would not
require generation of much additional employment.

 The employment so given could be in the same industry where the child was employed or a
public undertaking, and could be manual in nature. The undertaking chosen for employment
shall be one that is nearest to the place of residence of the family.

 In those cases where it would not be possible to provide employment to the adult member,
the appropriate government would deposit a sum of Rs 25,000 every month for each child
employed in a factory, a mine, or any other hazardous employment, in the Child Labour
Rehabilitation-cum-Welfare Fund.

 In case of obtaining employment for an adult, the parent/guardian shall have to withdraw
their child from work. Even if no employment was provided, the parent/guardian shall have
to see that the child is spared from the requirement to work, as an alternative source of
income would have become available to him.

 The employment given or payment made would cease to be operative if the child is not sent
by the parent/guardian for education.

 On discontinuation of the employment of the child, his education would be assured in a

suitable institution. It would be the duty of the inspector to see to it that free and compulsory
education up until the age of 14 is provided to the child.

 Penal provision contained in the Child Labour (Prohibition and Regulation) Act, 1986,
would be used where employment of a child labour prohibited by the Act is found.

 Also, wherever child labour is employed in non-hazardous jobs (which is permissible under
the Child Labour (Prohibition and Regulation) Act, 1986), the working hours of the child
must not be more than four to six hours a day. Every child so employed must receive
education for at least two hours each day. The entire cost of education must be borne by the
employer. It would be the responsibility of the inspector to ensure this.

 Monitoring Authorities

o The district collector would be responsible for monitoring the functioning of the inspectors.
o In view of the magnitude of the task, a separate cell in the Labour Department of the
appropriate government would be created.
o The Secretary of the Labour Department would be responsible for monitoring the scheme.
o Overall monitoring by the Ministry of Labour, Government of India, would be beneficial
and worthwhile.
 Secretary, State of Karnatka v. Umadevi, 2006.

When appointments were made in contravention of mandatory provisions of the Act and
statutory rules framed thereunder and by ignoring essential qualifications, the appointments
would be illegal and cannot be regularized by the State. The State could not invoke its power
under Article 162 of the Constitution to regularize such appointments. This Court also held
that regularization is not and cannot be a mode of recruitment by any State within the
meaning of Article 12 of the Constitution of India or any body or authority governed by a
statutory Act or the Rules framed thereunder. Regularization furthermore cannot give
permanence to an employee whose services are ad hoc in nature. It was also held that the fact
that some persons had been working for a long time would not mean that they had acquired a
right for regularization. This Court also held that past alleged regularisation or appointment
does not connote entitlement to further regularization or appointment. It was further held that
the High Court has no jurisdiction to frame a scheme by itself or direct the framing of a
scheme for regularization.
The employees before us were engaged on daily wages in the concerned department on a
wage that was made known to them. There is no case that the wage agreed upon was not
being paid. Those who are working on daily wages formed a class by themselves, they cannot
claim that they are discriminated as against those who have been regularly recruited on the
basis of the relevant rules. No right can be founded on an employment on daily wages to
claim that such employee should be treated on a par with a regularly recruited candidate, and
made permanent in employment, even assuming that the principle could be invoked for
claiming equal wages for equal work. As has been held by this Court, they cannot be said to
be holders of a post, since, a regular appointment could be made only by making
appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The
right to be treated equally with the other employees employed on daily wages, cannot be
extended to a claim for equal treatment with those who were regularly employed. That would
be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in
service even though they have never been selected in terms of the relevant recruitment rules.
The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.
It is therefore not possible to accept the argument that there must be a direction to make
permanent all the persons employed on daily wages. When the court is approached for relief
by way of a writ, the court has necessarily to ask itself whether the person before it had any
legal right to be enforced. Considered in the light of the very clear constitutional scheme, it
cannot be said that the employees have been able to establish a legal right to be made
permanent even though they have never been appointed in terms of the relevant rules or in
adherence of Articles 14 and 16 of the Constitution.
This Court held that in order that a mandamus may issue to compel the authorities to do
something, it must be shown that the statute imposes a legal duty on the authority and the
aggrieved party had a legal right under the statute or rule to enforce it. This classical position
continues and a mandamus could not be issued in favour of the employees directing the
government to make them permanent since the employees cannot show that they have an
enforceable legal right to be permanently absorbed or that the State has a legal duty to make
them permanent.
The argument that Article 23 of the Constitution is breached because the employment on
daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted
the employment at their own volition and with eyes open as to the nature of their
employment. The Governments also revised the minimum wages payable from time to time
in the light of all relevant circumstances. It also appears to us that importing of these theories
to defeat the basic requirement of public employment would defeat the constitutional scheme
and the constitutional goal of equality.
In view of our conclusion on the questions referred to, no relief can be granted, that too to an
indeterminate number of members of the association. These appointments or engagements
were also made in the teeth of directions of the Government not to make such appointments
and it is impermissible to recognize such appointments made in the teeth of directions issued
by the Government in that regard. We have also held that they are not legally entitled to any
such relief. Thus, on the whole, the appellants in these appeals are found to be not entitled to
any relief. These appeals have, therefore, to be dismissed.

Note: You have to read Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802