50pcntwagededctnMADRAShc-hol;ds it unconstitutional-16 pg

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation : 15.11.2018
Date of Pronouncement : 01.02.2019
CORAM :
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
and
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P (MD)No.14653 of 2017
K.R.Raja
... Petitioner
vs.
1.The State of Tamil Nadu,
Rep.by the Home Secretary,
Prison Department,
Secretariat, Fort St.George,
Chennai – 600 009.
2.The Additional Director General of Police,
The Inspector General of Police,
CMDA Tower – II, No.1,
Gandhi Irwin Road,
Chennai – 600 008.
... Respondents
Prayer : Writ Petition is filed under Article 226 of the
Constitution of India, to issue a Writ of Declaration, to declare
the Rule No.481 of the Tamil Nadu Prison Rules, 1983 to the
extent of 50% of the wages earned by the prisoners deducted for
up keeping of the prisoners and 20% of the wages credited to
prison fund to be paid to the victims, as illegal and against law
and justice, consequently to direct the respondents to increase
the prisoners wage in the State of Tamil Nadu credited to the
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prisoners cash property account from 30% to at least 75%
within the time stipulated by this Court.
For Petitioner
: Mr.R.Alagumani
For Respondents
: Mr.N.Shanmugaselvam,
Additional Government Pleader
ORDER
(Order of the Court was made by
G.R.SWAMINATHAN, J.)
This writ petition has been filed in public interest.
The
petitioner seeks issuance of a writ of declaration for declaring
that Rule 481 of Tamil Nadu Prison Rules, 1983 is null and void
to the extent it enables deduction of 50% of the wages earned by
the prisoners. The writ petitioner also questions the crediting of
20% of the wages to prison funds to be paid to the victims.
2.The government strongly opposes the prayer and has
filed a detailed counter affidavit in this regard.
It is the stand of
the Government that the impugned Rule was amended pursuant
to the directions of the Hon'ble Supreme Court in the decision
reported in (1998) 7 SCC 392 (State of Gujarat and another vs.
Hon'ble High Court of Gujarat). 1/5th of the wages earned by the
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prisoners is being apportioned to the victim compensation fund
payable to the victims affected by the criminal acts of the
prisoners.
It is further stated that
the average cost of food,
clothing and other amenities provided to the workers comes to
Rs.153/- per day per prisoner.
is deducted
for
Even though 50% of the wages
the up keep of the prisoners, the deducted
amount being Rs.100/-, Rs.90/- and Rs.80/- from the skilled,
semi-skilled
and
unskilled
prisoners
respectively,
is
not
sufficient to meet this cost. The respondents also state that the
wage payable to the prisoners is being reviewed and enhanced
periodically.
The counter affidavit also sets out the measures
taken by the authorities in reaching out to the beneficiaries of
the
victim
compensation
fund.
The
submission
of
the
respondents is that the impugned rules do not deserve to be
struck down.
3.The issue regarding payment of wages to prisoners came
up for consideration before the Hon'ble Supreme Court in State
of Gujarat and another vs. Hon'ble High Court of Gujarat (1998) 7
SCC 392). The following directions were issued by the Hon'ble
Supreme Court :
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“50.The above discussion leads to the following
conclusions :
(1) It is lawful to employ the prisoners sentenced
to rigorous imprisonment to do hard labour whether he
consents to do it or not.
(2) It is open to the jail officials to permit other
prisoners also to do any work which they choose to do
provided such prisoners make a request for that
purpose.
(3) It is imperative that the prisoner should be
paid equitable wages for the work done by them. In
order to determine the quantum of equitable wages
payable to
constitute
prisoners, the State concerned shall
a
wage-fixation
body
for
making
recommendations. We direct each State to do so as
early as possible.
(4)Until the State Government takes any decision
on such recommendations, every prisoner must be paid
wages for the work done by him at such rates or
revised rates as the Government concerned fixes in the
light of the observations made above. For this purpose,
we direct all the State Governments to fix the rate of
such interim wages within six weeks from today and
report to this Court of compliance of this direction.
(5)We recommend to the State concerned to make
law for setting apart a portion of the wages earned by
the prisoners to be paid as compensation to deserving
victims of the offence, the commission of which entailed
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the sentence of imprisonment to the prisoner, either
directly or through a common fund to be created for this
purpose or in any other feasible mode.”
4.As rightly contended by the Government, the provision for
deduction from the prisoners' wages for the
purpose of
compensating the victims cannot be questioned since it was
made only pursuant to and in terms of the direction given by the
Hon'ble Supreme Court.
We are of the view that apportioning
1/5th of the prisoners' wages for
crediting to the victims
compensation fund cannot be said to be unreasonable.
5.The learned counsel appearing for the writ petitioner
strongly contended that the impugned Rule violates Article 14
and 23 of the Constitution of India by providing for deducting
50% of the prisoners' wages towards their upkeep.
Of course,
the Government endeavours to sustain the said Rule by pointing
out that even this is not sufficient to meet the upkeep of the
prisoners. The stand of the Government begs the question. The
wages of the prisoners are fixed in terms of Rule 480 of Tamil
Nadu Prison Rules, 1983.
Admittedly, the statutorily fixed
minimum wages are not paid to the prisoners.
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parameters apply in this regard.
Therefore, after fixing a wage
that is not in consonance with the provisions of the Minimum
Wages Act, it is not open to the respondents to now argue that
even deduction of 50% of the prisoners' wages is not sufficient to
meet the cost of their upkeep. Therefore, we reject the stand of
the Government.
The answer to the issue on hand lies in
Paragraph No.44 of the aforesaid judgment of the Hon'ble
Supreme Court. It reads as follows :
“44.When all aspects are considered, we are
inclined to think that the request of the Government to
permit them to deduct the expenses incurred for food
and clothes of the prisoners from the minimum wages
rates is a reasonable request. There is nothing
uncivilised or unsociable it it. But the government
cannot deduct any substantial portion from the wages
on that account. The Government can arrive at the
reasonable percentage to be deducted from Minimum
wages taking into account the average amount which
the government is spending per prisoner for providing
food, clothes and other amenities to him.”
6.What has been stated above cannot be characterized as
obiter.
It has
been categorically laid down by the Hon'ble
Supreme Court that the Government cannot deduct any
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substantial portion from the wages of the prisoners. It can make
only a reasonable deduction.
But, the moot question is whether
deducting 50% of the prisoners' wages can be said to constitute
substantial deduction.
7.The word substantial has not been received any statutory
definition.
decisions
However, we can usefully refer to some of the
where
the
expression
“substantially
financed”
occurring in the Right to Information Act, 2005 came up for
consideration.
The Madras High Court in the decision reported
in (2010) 5 CTC 98 (New Tiruppur Area Development Corporation
Ltd vs. State of Tamil Nadu) held as follows :
24.On the question of being substantially
financed, there is no clear definition as to what is
meant by the term “substantially financed”. The
Supreme Court while dealing with the Taxation on
Income (Investigation Commission) Act, 1947 (Central
Act 30 of 1947), had an occasion to deal with a
provision where the term substantive was attacked
as vague and after its amendment indicating the
quantum, the provision was held to be definite and
clear vide its judgment in Shree Meenakshi Mills Ltd.
v. Visvanatha Sastri, 1955 (1) SCR 787: AIR 1955 SC
13. The following passage found in paragraph 13
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may be usefully extracted below:
“13.…It was argued in ‘Mohta’s case (A)’ as well as in
these Petitions that the classification made in Section
5(1) of the impugned Act was bad because the word
“substantial” used therein was a word which had no
fixed meaning and was an unsatisfactory medium for
carrying the idea of some ascertainable proportion of
the whole, and thus the classification being vague
and uncertain, did not save the enactment from the
mischief of Article 14 of the Constitution. This alleged
defect stands cured in the amended Section 34
inasmuch as the legislature has clearly indicated in
the statute what it means when it says that the object
of the Act is to catch persons who to a substantial
extent had evaded payment of tax, in other words,
what was seemingly indefinite within the meaning of
the word “substantial” has been made definite and
clear by enacting that no evasion below a sum of one
lakh is within the meaning of that expression.”
Since the present Act do not quantify the amount of
funding required the Court will have to apply proper
test in each case and apply the provisions of the RTI
Act to those authorities.
25.Under the RTI Act, quantum of the finance to
hold a body being considered as substantially
financed is not specified. That was why this Court in
Tamil Nadu Road Development Company Limited,
rep. by its Director-in-charge, Chennai v. Tamil Nadu
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Information Commission, 2008 (8) MLJ 17, which
was confirmed by the Division Bench vide judgment
Tamil Nadu Road Development Company Limited,
rep. by its Director-in-Charge, Chennai v. Tamil Nadu
Information
Commission,
Chennai and
another,
rep.
by
its
2008
(6)
MLJ
Registrar,
737,
in
paragraph 16 observed as follows:
“16....The word “substantial” is not defined in the
Act. For the word “substantial” it is not possible to lay
down any clear and specific definition. It must be a
relative one, however, “substantial” means real or
actual as opposed to trivial.”
8.The Hon'ble Delhi High Court in the decision reported in
ILR (2010) 4 Del 1 (Indian Olympic Association vs. Veeresh
Malik) held as follows :
“48.The next issue is the meaning of the
expression “substantially financed”. This is, in the
opinion of this court, crucial for a determination as to
whether the body or institution is a public authority.
The petitioners’ arguments on this point have been
that for a body to be “substantially financed” state
finance or funding has to be more than 50%; there
should be an element of permanent dependence
about such financing, that such financing should not
be only in respect of capital expenditure, and that the
body receiving the funds or finances should not be a
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venture or ad-hoc body, but a continuous one. It is
also argued that loans advanced, as in the case of
commercial
transactions,
do
not
amount
to
“substantial financing” of the institution.
49.The term “substantially financed” has not
been defined. ....
Oxford’s Shorter English Dictionary defines the term
“substantial” as follows:
“substantial….A adjective.
3. Of ample or considerable amount or size; sizeable,
fairly large.
4. Having solid worth or value, of real significance;
solid, weighty; important, worthwhile.”
The
term
“substantial”
denotes
something
of
consequence, and contrary to something that is
insignificant or trivial. It implies a matter of some
degree of seriousness. The question is whether the
term itself suggests, in the context of “substantial
financing” a predominant or overwhelming financing.
In
other
words,
does
“substantial”
read
with
“financing” mean that the major funding should from
the relevant source, i.e. state or governmental
source.”
9.The Hon'ble Supreme Court in the decision reported in
(2013) 16 SCC 82 (Thalappalam Service Coop.Bank Ltd vs. State
of Kerala) held as follows :
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46....The expression “substantially financed”,
as such, has not been defined under the Act.
“Substantial” means “in a substantial manner so as
to be substantial”. In Palser v. Grinling, while
interpreting the provisions of Section 10(1) of the
Rent and Mortgage Interest Restrictions Act, 1923,
the House of Lords held that “substantial” is not the
same as “not unsubstantial” i.e. just enough to avoid
the de minimis principle. The word “substantial”
literally means solid, massive, etc. The legislature
has used the expression “substantially financed” in
Sections 2(h)(d)(i) and (ii) indicating that the degree of
financing must be actual, existing, positive and real
to a substantial extent, not moderate, ordinary,
tolerable, etc.
47.We often use the expressions “questions of
law” and “substantial questions of law” and explain
that any question of law affecting the right of parties
would not by itself be a substantial question of law.
In Black’s Law Dictionary (6th Edn.) the word
“substantial” is defined as
“Substantial.—Of real worth and importance; of
considerable
value;
valuable.
Belonging
to
substance; actually existing; real; not seeming or
imaginary; not illusive; solid; true; veritable. …
Something
worthwhile
as
distinguished
from
something without value or merely nominal. …
Synonymous with material.”
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The word “substantially” has been defined to
mean “essentially; without material qualification; in
the main; in substance; materially”. In Shorter
Oxford English Dictionary (5th Edn.), the word
“substantial” means “of ample or considerable
amount of size; sizeable, fairly large; having solid
worth or value, of real significance; solid; weighty;
important, worthwhile; of an act, measure, etc.
having force or effect, effective, thorough”. The word
“substantially” has been defined to mean “in
substance;
essentially,
as
a
substantial
intrinsically”.
thing
Therefore
or
being;
the
word
“substantial” is not synonymous with “dominant” or
“majority”. It is closer to “material” or “important” or
“of considerable value”. “Substantially” is closer to
“essentially”.
Both
words
can
signify
varying
degrees depending on the context.
48.Merely
providing
subsidies,
grants,
exemptions, privileges, etc. as such, cannot be said
to be providing funding to a substantial extent,
unless the record shows that the funding was so
substantial to the body which practically runs by
such funding and but for such funding, it would
struggle to exist. ....”
10.Applying the principles laid down in the aforesaid
decisions, one can safely come to the conclusion that deducting
50% of the wages would certainly qualify as substantial
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deduction. Article 23 of the Constitution prohibits 'Begar'.
It
reads as under :
23.Prohibition of traffic in human beings and
forced labour.
(1) Traffic in human beings and begar and
other similar forms of forced labour are prohibited
and any contravention of this provision shall be an
offence punishable in accordance with law.
(2)Nothing in this article shall prevent the
State from imposing compulsory service for public
purpose, and in imposing such service the State
shall not make any discrimination on grounds only
of religion, race, caste or class or any of them.”
11.The Hon'ble Division Bench of the Allahabad High Court
in Writ – A No.31696 of 2016 dated 13.04.2018 observed that the
word 'Begar'
is of indian origin and has been adopted in the
English vocabulary. A labour or service which a person is forced
to give without receiving any remuneration is begar.
different
forms.
Taking
work
remuneration is also begar.
without
paying
It can take
adequate
Likewise, making a substantial
deduction from wages without any justifiable reason would also
constitute begar and a violation of Article 23 of the Constitution
of India. Admittedly, the prisoners in Tamil Nadu are not paid
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the wages as prescribed in the Minimum Wages Act.
Therefore,
making a substantial deduction from the wages prescribed under
the Prison Rules runs counter to the directions laid down by the
Hon'ble Supreme Court in the decision reported in (1998) 7 SCC
392 (State of Gujarat and another vs. Hon'ble High Court of
Gujarat).
It violates Article 23
of the Constitution of India,
besides being unreasonable.
12.We therefore hold that Rule 481 of Tamil Nadu Prison
Rules, 1983 is unconstitutional to the extent it provides for
deduction of 50% of the wages from the prisoners. It is open to
the
Government
to
provide
for
a
lesser
and
reasonable
percentage of deduction which would be in accord with the law
laid down by
the Hon'ble Supreme Court in the aforesaid
decision.
13.This writ petition stands partly allowed. No costs.
(K.K.SASIDHARAN,J.) & (G.R.SWAMINATHAN, J.)
01.02.2019
Index
Internet
Skm
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: Yes / No
: Yes / No
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To
1.The Home Secretary, Prison Department,
Secretariat, Fort St.George, Chennai – 600 009.
2.The Additional Director General of Police,
The Inspector General of Police,
CMDA Tower – II, No.1, Gandhi Irwin Road,
Chennai – 600 008.
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K.K.SASIDHARAN, J.
and
G.R.SWAMINATHAN, J.
Skm
W.P (MD)No.14653 of 2017
01.02.2019
http://www.judis.nic.in
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