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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

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)

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  

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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,  

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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  

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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.  

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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  

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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.  

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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:  

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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 w.e.f.  

01.02.2010  

Revised rates from 01.02.2011 Per month               (Per day)

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(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  Welfare Fund

Net Payable

Unskilled –      70.00 18.00 52.00 Semi-skilled –  81.00 20.00 61.00 Skilled –          99.00 25.00 74.00    

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  

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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  

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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  

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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  

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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.

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