The Madhya Pradesh High Court held that employing services of a worker without pay shall amount to begar which is prohibited under Article 23 of the Constitution. The employee had to establish discharge of duties merely. Further, the burden of proof shifted on to the employer to prove otherwise.
The petitioner was appointed as a data entry operator at the Government Medical College, Gwalior. The appointment order stipulated three months starting, May 2018. However, in August 2018, the services were extended for an additional twelve months without the issuance of any order by the Chief Medical and Health Officer, Gwalior. After that, the respondent employer denied salary from August 2018 to July 2019 in the absence of any fresh order or extension letter.
Therefore, the petitioner filed a writ petition under Article 226 of the Constitution as the act violated her fundamental rights. The petitioner produced the certificates issued under the seal and signature of the department head, as proof of discharging duties from August 2018 to July 2019.
The Court had to decide whether the employee could claim salary for the period when there existed no order of appointment in the first place.
The Court rejected the respondent’s argument that the Chief Medical Officer was never a competent authority to issue the appointment order of the petitioner. It had contended that since there was no valid appointment there existed no question of extension of the services. However, the Court has observed that the petitioner was paid for the initial tenure of three months, and hence the competency cannot be under scrutinization.
Further, the Court noted the violation of provisions of Article 23 of the Constitution. Article 23 prohibits and punishes the offence of begar and other similar forms of forced labour. It placed reliance on the apex court’s judgement in People’s Union For Democratic Rights V. Union of India. The Supreme Court iterated that other forms of forced labour included services which are extracted from a person without paying any remuneration.
Moreover, the Court remarked that to enforce a right to remuneration, the employee need not establish the legality of his appointment but has to develop due discharge of duties merely. After that, the burden shifts on the employer to either deny the discharge of duties by the employee or to pay the due remuneration to the employee. The Court has asserted that – “There is no third option available to the employer and any attempt to project a third option would lead to the drawing of an adverse inference against the employer of being guilty of exploitation of labour/ begar.”
The judgement was pronounced by a single judge bench comprising of Justice Sheel Nagu. The Court directed the respondent to pay the unpaid salary to the petitioner within 30 days of the order. Moreover, the petitioner was entitled to interest at the rate of 10% per annum over the principal amount of the unpaid salary. The respondents had to pay the interest as they were guilty of indulging in the constitutionally prohibited vice of begar.
Since the functionaries of the State have not acted as a welfare State in the present case, the Court had imposed a cost of ₹10,000. The same shall be donated to the High Court Bar Association, Gwalior to assist and rehabilitate the members facing financial distress due to the lockdown.
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