REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL NO. 1186 OF 2012
(Arising out of S.L.P. (Crl.) No. 2853 of 2012)
Phool Kumari .... Appellant(s)
Versus
Office of the Superintendent
Central Jail, Tihar, New Delhi and Anr. .... Respondent(s)
2
O R D E R
P.Sathasivam,J.
1) Leave granted.
2) This appeal is directed against the final order dated 19.05.2011
passed by the High Court of Delhi at New Delhi in Criminal Misc. Case No.
2243 of 2010 whereby the High Court disposed of the petition filed by the
appellant herein.
3) Brief facts:
(i) The appellant was convicted by the trial Court in case FIR No. 487
of 1995 under Sections 323, 342, 307 read with Section 34 of the Indian
Penal Code, 1860 (in short ‘IPC’) and sentenced to rigorous imprisonment
(RI) for 10 years and, thereafter, the High Court, in an appeal filed by
the appellant, reduced the period of sentence to 5 years. The appellant
remained in Tihar Central Jail, New Delhi from 24.03.2007 to 23.12.2010
i.e., for a period of 3 years and 10 months after grant of remission.
During this period, she was allotted work in Medical Inspection (MI) room
as ‘Sewadar’ (Assistant) for assisting the Doctors in OPD of Jail No. 6.
Apart from that, she was also taking care of the cleanliness of the said
room till her release.
(ii) In the year 2009, the appellant, through her husband, filed an
application before the Superintendent of Jail for the payment of wages for
the work done during her custody in prison but the same was rejected.
Aggrieved by the same, he filed a complaint before the visiting Judge,
Additional Sessions Judge (ASJ) for the release of wages for the work done
by his wife. After perusing the documents on record, by order dated
08.04.2010, the visiting Judge (ASJ) rejected the said complaint.
(iii) Aggrieved by the said order, the appellant filed a petition under
Section 482 of the Code of Criminal Procedure, 1973 (in short ‘the Code’)
before the High Court of Delhi for quashing the order dated 08.04.2010,
passed by the visiting Judge (ASJ) and also prayed for the release of her
wages. The High Court, by impugned order dated 19.05.2011, disposed of the
petition taking note of the fact that the appellant has already been
released from jail and relying upon the affidavit filed on behalf of the
DIG (Prisons) stating therein that the prisoners who perform hard labour
are given the wages and the appellant performed soft labour work during her
period in jail and whenever the appellant was given hard labour work, she
had drawn wages for that period.
(iv) Challenging the said order, the appellant has filed this appeal by
way of special leave before this Court.
4) Heard Ms. Prachi Bajpai, learned counsel for the appellant and Mr.
Sidharth Luthra, learned Additional Solicitor General for the respondents.
5) Ms. Prachi Bajpai, learned counsel for the appellant, after taking
us through the entire materials including the impugned order of the High
Court, submitted that inasmuch as the convicts working in M.I. Room of
another Jail were getting payments for the same work, the appellant was
denied and paid wages only for few months which aspect has not been
considered by the High Court. According to the learned counsel, the Jail
Authorities and the High Court failed to appreciate that the appellant was
throughout engaged in M.I. room for assisting doctors in OPD and was taking
care of the cleanliness till her release, hence, she is entitled for wages
in terms of various Government Orders for the said period.
6) On the other hand, Mr. Sidharth Luthra, learned ASG after placing
relevant circulars/instructions/orders applicable to various types of
prisoners, their eligibility, entitlement of wages for their work and
details about the work done and wages paid to the appellant submitted that
she was paid as per the rules and she is not entitled to any further
amount.
7) We have considered the rival submissions and perused all the
relevant materials. In order to understand the case better, it is useful
to refer certain relevant provisions applicable to the prisoners in Delhi.
Types of Imprisonment
Section 53 of the IPC defines 5 kinds of punishment which includes
punishment for life and two other kinds of imprisonment i.e., rigorous and
simple imprisonment. Rigorous imprisonment is one which is required by law
to be completed with hard labour. Section 36 of the Delhi Prisons Act,
2000 prescribes that the convicts sentenced to simple imprisonment shall be
employed only so long as they desire but cannot be punished for neglect of
work.
A person sentenced to simple imprisonment cannot be required to work
unless he volunteers himself to do the work. But the Jail officer who
requires a prisoner sentenced to rigorous imprisonment to do hard labour
would be doing so as enjoined by law and mandated by the court. [Vide State
of Gujarat & Anr. vs. Hon’ble High Court of Gujarat, (1998) 7 SCC 392].
Thus, while a person sentenced to simple imprisonment has the option
of choosing to work, a person sentenced to rigorous imprisonment is
required by law to undergo hard labour. The undertrials are not required
to work in Jail.
Classification of Labour
Rule 43 of the Delhi Prisons (Transfer of Prisoners, Labour and Jail
Industry, Food, Clothings and Sanitation) Rules, 1988 (in short ‘the Delhi
Prisons Rules’) classifies labour into three classes, namely, Hard Labour,
Medium Labour and Light Labour. Hard Labour is further divided into three
categories; skilled, semi-skilled and unskilled. The Inspector General
may, with the sanction of the Delhi Administration from time to time,
prescribe the description of works to be carried out and the tasks to be
fixed for labour in respect of each class. It is brought to our notice
that since the Delhi Jail Manual does not give detailed description as to
what kind of work/task will fall under which category of labour, the Jail
Authorities rely upon the Punjab Jail Manual framed under the Prisons Act,
1894 for determining the same.
Distinction between work given to male and female convicts:
Under Rule 45 of the Delhi Prisons Rules, female convicts shall not,
in any case, exceed two third of the maximum task for hard labour and
medium labour, respectively, prescribed in respect of adult male convicts.
Employment of Prisoners
Chapter VII of the Delhi Prisons Act, 2000, deals with the “Employment
of Prisoners”. Under Rule 2(k) of the Delhi Prisons (Definition) Rules,
1988, a convict is described as a Criminal prisoner.
Section 35 of the Delhi Prisons Act, 2000 deals with employment of
criminal prisoners. Sub-section (1) states that a criminal prisoner
desiring to be employed on labour, may be employed with the permission of
the Superintendent, subject to such restrictions as may be prescribed in
the rules made under this Act.
Sub-section (2) states that no criminal prisoner sentenced to labour
or employed on labour at his own desire shall, except on an emergency, with
the sanction in writing of the Superintendent be kept to labour for more
than 8 hours in a day.
Sub-sections (3) and (4) deal with medical examination and check-up
and the placement of criminal prisoners on work based on their health.
The Office of the Director General (Prisons), Prison Headquarters,
Tihar, New Delhi, released Standing Order 38 bearing
No.F.10(7832)/CJ/Legal/2012/2626 dated 24.05.2012 laying down rules
relating to the employment of convicts for the guidance of the prison staff
in accordance with the provisions mentioned in the Delhi Jail Manual.
Determination of wages:
The rate of wages provided to convicts in Tihar Jail is prepared by a
Wage Fixation Committee constituted by the Principal Secretary (Home),
Government of NCT of Delhi. The said Committee comprises of: (i) DIG
(Prisons) as Chairperson, (ii) Dy. Secretary (Finance expenditure) and
(iii) Deputy Commissioner of Labour as Members.
The Committee decides wages keeping in view the present economic
scenario, minimum wages notified by the Govt. of Delhi for workers, the
expenses on the upkeep of a prisoner and deduction towards the Welfare
Fund. The scale of wages paid to prisoners in various States was also
taken into consideration.
The Committee also considers the criteria for wages as prescribed in
Model Prison Manual for the superintendence and management of prisons in
India formulated by the Bureau of Police Research and Development (BPR&D),
Ministry of Home Affairs, Government of India. It also takes into
consideration the rate of minimum wages notified by the Delhi Govt. in the
notification dated 18.03.2011 which is as under:-
|Category |Rates |Revised rates from 01.02.2011 |
| |w.e.f. |Per month (Per |
| |01.02.2010 |day) |
| |(Rupees) | |
|Unskilled |5278.00 |6084.00 |234.00 |
|Semi-skilled |5850.00 |6734.00 |259.00 |
|Skilled |6448.00 |7410.00 |285.00 |
The office of the Director General (Prisons), Prison Headquarters,
Tihar, New Delhi, released Standing Order – 10 bearing No.
PS/DG(P)/2011/902-911 dated 27.07.2011 regarding the revision of wages to
the convicts. The following is the latest wage structure for the
prisoners.
|Remuneration Wages |Wages credited to the |Net Payable |
| |Welfare Fund | |
|Unskilled – 70.00|18.00 |52.00 |
|Semi-skilled – 81.00 |20.00 |61.00 |
|Skilled – |25.00 |74.00 |
|99.00 | | |
Details of the appellant relating to her custody
The appellant was convicted by the trial Court in case FIR No. 487 of
1995 under Sections 323, 342, 307 read with Section 34 IPC and sentenced to
RI for 10 years. Thereafter, the High Court of Delhi reduced the sentence
of the appellant to RI for 5 years. The appellant was admitted in jail on
24.03.2007 and subsequently released on 23.12.2010. The total period
undergone by the appellant in custody is 3 years 10 months after grant of
remission. During this period, the appellant was assigned work in MI room
as Sewadar which includes assisting Doctors in OPD and ‘Mulhiza’ and for
additional labour allotted to her, she was paid wages at Rs. 44 for 8
hours.
8) By placing relevant certificates/orders/statement of accounts,
learned ASG has brought to our notice that the appellant was allotted hard
labour for the period w.e.f. September, 2009 to March, 2010 and the wages
were duly paid to her in accordance with the rates prevalent for the
aforementioned period. In support of the above claim, he also produced a
copy of the Jail Account Ledger Statement relating to the wages prevalent
at that time. In addition to the above information, learned ASG has also
placed the relevant accounts relating to payment of wages duly acknowledged
by the appellant. On the other hand, Ms. Prachi Bajpai, learned counsel for
the appellant, while accepting various circulars/orders issued by the
Government/Jail Authorities, strongly denied the claim that the appellant
had been paid wages for the whole period she worked. In other words,
according to the counsel, except for the period October-December, 2009 and
January, 2010 for her work in M.I. room, she was not paid for any other
period. It is also the stand of the counsel for the appellant that even
for the said period, the appellant was paid only due to the interim orders
passed by the High Court. Learned counsel for the appellant also refuted
the claim of signatures in the Ledger produced by learned ASG during the
course of hearing. She also pointed out that the appellant-convict did not
put her signature as shown in the Ledger which was produced before this
Court. She also pointed out that except for the above mentioned period,
she was not paid any amount, though according to her, she attended all
kinds of work in M.I. room. She also pointed out that the stand taken by
the Jail Authorities before the visiting Judge (ASJ), High Court and before
this Court is contradictory in nature and cannot be accepted. Finally,
learned counsel for the appellant asserted that the stand of the Jail
Authorities that the appellant had been paid all her wages is blatantly
wrong and not acceptable.
9) In the earlier part of our order, we have highlighted various
provisions applicable to convicts in prison, particularly, in Tihar Jail.
It is the simple case of the appellant that during her actual custody,
viz., 3 years 10 months, she was assigned work in M.I. room as Sewadar
(Assistant) which includes assisting Doctors in OPD and ‘Mulhiza’ and
additional labour was also allotted to her and except for the above
mentioned period, she was not paid any wages. On the other hand, it is the
definite case of the jail authorities that for the work done, the convict
had been paid wages as per the circulars/orders applicable to her.
10) In view of the conflicting stand taken by both the sides and
assertion of the appellant about her signature and certain entries in the
Ledger, in order to do substantial justice, we permit the appellant to make
a fresh representation to the visiting Judge giving all the details about
the work done during the period of custody within a period of 4 weeks from
today. On receipt of the representation, we direct the visiting Judge to
inspect and peruse the Ledgers/documents with the assistance of the jail
authorities in the presence of the appellant duly assisted by Supreme Court
Legal Services Committee, preferably, Ms. Prachi Bajpai, and pass an order
within a period of 3 months thereafter. The said decision has to be
communicated to the appellant and the respondent-Jail Authorities. In the
ultimate inquiry, if it is found that the appellant is entitled to any
amount in addition to the amount already settled as wages, the same shall
be paid within a period of 4 weeks thereafter. It is further made clear
that except highlighting the grievance of the appellant and various
circulars/orders of the Jail Authorities, we have not expressed anything on
the merits of the claim of either party.
11) The appeal is disposed of with the above direction.
………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(RANJAN GOGOI)
NEW DELHI;
AUGUST 09, 2012.
-----------------------
14
