IN THE HIGH COURT OF ALLAHABAD. Civil Misc. Writ Petition No of Decided On:

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1 Hon'ble Judges: IN THE HIGH COURT OF ALLAHABAD Civil Misc. Writ Petition No of 2010 Decided On: Appellants: Shiva Ent Udyog Vs. Respondent: National Human Rights Commission and Ors. Sunil Ambwani and Jayashree Tiwari, JJ. Acts/Rules/Orders: Bonded Labour System (Abolition) Act, Section 2, Bonded Labour System (Abolition) Act, Section 3, Bonded Labour System (Abolition) Act, Section 12, Bonded Labour System (Abolition) Act, Section 12(1), Bonded Labour System (Abolition) Act, Section 13, Bonded Labour System (Abolition) Act, Section 13(4), Bonded Labour System (Abolition) Act, Section 193, Bonded Labour System (Abolition) Act, Section 228; Minimum Wages Act, 1948; Industrial Disputes Act; Protection of Human Rights Act, Section 13, Protection of Human Rights Act, Section 14, Protection of Human Rights Act, Section 14(2), Protection of Human Rights Act, Section 18; Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979; Code of Civil Procedure (CPC), 1908; Indian Penal Code - Section 196, Indian Penal Code - Section 196(5) Disposition: Petition dismissed JUDGMENT 1. We have heard Shri Shashi Nandan, Senior Advocate assisted by Shri Nitin Gupta for the Petitioner. Learned Standing Counsel appears for the State Respondents. 2. The Petitioner has prayed for quashing the order dated issued by the Assistant Registrar (Law) of the National Human Rights Commission, New Delhi, directing the District Magistrate, Bulandshahr to initiate action against the Petitioner under the provisions of 1 P a g e

2 Bonded Labour System (Abolition) Act, 1976, and to send action taken report to the Commission within six weeks. 3. The Petitioner is a firm, engaged in the business of running a brick kiln at village Dulhaira, Vair Road, Tehsil Sikandrabad, District Bulandshahr, U.P. in the name and style of 'Shiva Bhatta'. One Shri Gopal son of Shri Bahori resident of Banal, Tehsil Shikarpur, Police Station Pahasu, District Bulandshahr made a complaint to National Human Rights Commission (NHRC), alleging that he along with his family members are held as bonded labourers by one Shri Pappan and Babu owners of 'Shiva Bhatta' situated at village Dulehara, Vair Road, District Bulandshahr. He also alleged ill-treatment and misbehaviour with women; nonpayment of wages and restrictions placed on their movement. The Commission was requested to rescue them and other persons held as bonded labourers. 4. The Director General (Investigation) NHRC was directed by the Commission to depute competent authority and to take appropriate action in the matter, as some officers of the district administration could not be examined. A further direction was given on to look into the matter. The investigation team of NHRC submitted a report after examining the documents, and the persons available on the spot and the district authorities. 5. The Commission found that a Head Constable Khurshid AH, P.S. Kotwali, Sikandrabad, had first enquired into the matter and submitted a report that there was no one at the brick kiln found as bonded labour. The Commission was of the opinion, that the police officer did not have any authority to either enquire into the matter or to verify the register, books of accounts etc. 6. The Commission further found that the District Magistrate, Bulandshahr had marked the complaint to the Assistant Labour Commissioner, who in turn directed the Labour Officer to enquire into the matter. The Labour Officer submitted a report after examining the brick kiln owners, reporting that the labourers have gone back to their home on On the statement of the employer, the non-payment of wages was not established. The brick kiln owner did not produce the register and documents relating to wages and attendance before the Labour Officer. A challan was submitted against the brick kiln owner. 7. The Assistant Registrar (Law), NHRC observed that the Sub Divisional Magistrate did not enquire into the matter. The Additional District Magistrate had appeared before the Commission and informed, that the Sub Divisional Magistrate forwarded the report to the District Magistrate. The State Government, for the reasons best known to itself, had stayed the notification under the Minimum Wages Act for the category of employment. So far as the wages of Rs per thousand brick is concerned, there was no such power with the State Government to notify the rates. By indirect method, the wages are being fixed between employer and employees. The Additional District Magistrate did not bother to collect any 2 P a g e

3 documents or agreement which may have been entered into between the workers of the brick kiln and the owners. No settlement under the Industrial Disputes Act before the Conciliation Officer was entered into or produced to verify the payment of wages. The brick kiln owner did not produce the relevant records, on which the employer was fined for Rs. 250/-. Instead of protecting the interest of the labourers, the NHRC found that all the authorities got together to protect the brick kiln owner. 8. The Assistant Registrar (Law), NHRC, thereafter recorded finding that one Shri Deep Chand Thekedar brought families to the brick kiln, and had paid different amounts in advance to the labourers ranging from Rs at the village. After their arrival at the brick kiln, the owners had paid the labourers ranging from Rs. 20,000 to Rs. 40,000 each. The books of account, registers, wage slips were not maintained. The brick kiln owner thereafter detained them at the brick kiln, until he had recovered the advance. On the arrival of the police, they were set free, and in the process the payment of minimum wages was forgotten by all concerned. No one had taken action for enforcement and payment of minimum wages at all. 9. Shri Shashi Nandan appearing for the Petitioner submits that on the material available before the NHRC, it could not have come to the conclusion, that the Petitioner had committed any offence under the Bonded Labour System (Abolition) Act, 1976 (in short, the Act of 1976). The Protection of Human Rights Act, 1993, does not give powers to the National Human Rights Commission to record findings of violations of law and for taking action under the Act of 1976 unless there was sufficient material to arrive at such finding. The Act of 1993 provides for limited powers for enquiries in case of detention of a person. The direction given to the District Magistrate passed in haste without giving an opportunity of hearing to the Petitioner, and without making out the basic ingredients of the offence under the Act of 1976, is entirely illegal and is required to be set aside by this Court. 10. The documents annexed to the writ petition would show that the complaint was made to the District Magistrate, Bulandshahr on alleging that the Applicants are poor, dalit labourers belonging to 'Jatav' caste working at 'Shiv Bhatta'. They are engaged as labourers, for pathai and other manual work by Shri Pappan & Babu - the owners of the brick kiln. They were not paid wages for six months. They were abused and threatened, if they demand their wages. They do not have any other source of income and were finding it difficult to maintain their families. They wanted to be released from the brick kiln, to work at some other place. The complaint was made by Shri Gopal son of Shri Bahori and 19 other persons including minor children. The police officers, who visited the spot after receiving the complaint from the District Magistrate, reported that the complainants were working at the brick kiln. They had some differences with the contractor on payment of wages on which they had under some instigation lodged the complaint. The allegations in the complaint were not found to be true and were baseless. The report was accompanied with signed statements of some labourers dated including some of the complainants namely Kalawati; Arti; Ajai; Suresh; 3 P a g e

4 Gyan Singh; Geeta and Khushbu who had stated that they had made the complaint under some ones instructions. They are living at the brick kiln and that they had no complaint against the owner of the brick kiln nor they have any dues to be paid by him. The Labour Enforcement Officer, Sikandrabad visited the brick kiln ten days after the police had visited the spot. He had relied upon the statement given to the police that the complainants had no further grievance, and arrear of wages due to be paid, and that they had left the brick kiln on their own. Shri Satish Babu had given statement that some workmen were engaged by him for Pathai which were on Rs. 2000/- per thousand brick. They were not bonded labourers. They were paid at the interval of 15 days and were living at the brick kiln. The Labour Enforcement Officer reported that the complainants had left the brick kiln but that the brick kiln owner did not produce the attendance register; payment register and the register under the Minimum Wages Act, He enclosed the statement of brick kiln owner dated The Sub Divisional Magistrate visited the spot on and confirmed the facts found by the Labour Enforcement Officer. He also relied upon the report of the police and Labour Enforcement Officer and the statements of the brick kiln owner and recorded the statement of one Shri Hira Lal and Deep Chand. They were not the complainant. These persons stated that there were some dispute between the workmen and the brick kiln owner on which they have left the brick kiln to some where else. There were no dues pending to be paid to them. The Assistant Labour Commissioner, Bulandshahr also filed a similar report. 11. In the statement of Sub Divisional Magistrate, Sikandrabad dated same facts were repeated with the admission that the required registers and documents were not maintained by the brick kiln owner. The Additional District Magistrate reiterated the statement on There is absolutely nothing to show that the complaint was investigated by the police. The Labour Enforcement Officer or the Sub Divisional Magistrate also did not make enquires. All of them recorded statements of brick kiln owner and some labourers who were found on the brick kiln. Their reports were based only on the material produced by the brick kiln owner. 13. The Protection of Human Rights Act, 1993 was enacted to fulfill the obligation of the Government of India as a party to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on 16th December, Though the human rights as embodied in the covenant stand substantially protected by the Constitution, the growing concern in the country and abroad about issues relating to human rights, the changing social realities and the emerging trends in the nature of crime and violence, and the review of the existing laws required greater accountability and transparency of the enforcement of the existing laws, procedures and system of administration of justice. It was thought proper to devise efficient methods of dealing with the situation. The human rights are defined under Section 2(d) to mean rights relating to life, liberty, equality and dignity of the individual 4 P a g e

5 guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India. The "International Covenants" have been defined under Section 2(f) as substituted by Act 43 of 2006 to mean the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, adopted by the General Assembly of the United Nations on the 16th December, 1966 and such other Covenant or Convention adopted by the General Assembly of the United Nations as the Central Government may, by notification, specify. 14. The National Commission of Human Rights constituted under Section 3, is the highest body for protection of human rights in the country chaired by a Chairperson, who has been a Chief Justice of the Supreme Court, and consists of members one of whom is or has been Chief Justice of the High Court; two persons having knowledge of, or practical experience in matters relating to human rights are appointed as members. The Chairperson of National Commission for Minorities; National Commission for the Scheduled Castes, the National Commission for the Scheduled Tribes and the National Commission for Women, are its deemed members. 15. The functions and powers of the National Human Rights Commission are enumerated in Section 12 including in Section 12(1), such other functions as the Commission may consider necessary for the promotion of human rights. The violation of human rights or abetment thereof; negligence in the prevention of such violation by a public servant is also under the purview of the enquiries either suo motu or on a petition presented to it by a victim. The Commission may intervene in any proceedings, visit any jail or other institutions where persons are detained; review the safeguards provided under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation. 16. The Commission is given powers under Section 13 of a Civil Court trying a suit under the Code of Civil Procedure, 1908 and has power of summoning and requiring any person, subject to privilege which may be claimed by him to furnish information on such points or matters as are useful for making enquiries. It shall be deemed to be a Civil Court under Sub-section (4) and proceedings are judicial proceedings within the meaning of Section 193 and 228 and for the purposes of Section 196 of the Indian Penal Code, under Sub-section (5). In the investigation under Section 14 the Commission can utilize the services of any officer or investigation agency of the Central Government or any State Government, which may be subject to the directions and control of the Commission under Sub-section (2) to summon and enforce the attendance of any person and examine him; require the discovery and production of any document and requisition of any public records. 17. After enquiry the Commission may take any of the steps provided in Section 18 including the payment of compensation or damages to the complainant or to the victims or members of 5 P a g e

6 his family, if any violation.of human rights or negligence in the prevention of violation of human rights is found. The Commission can also initiate proceeding for prosecution and for suitable action as it may deem fit against the person or persons under Sub-section (a) of Section In the present case the Commission has not taken any action by imposing any damages or in recommending prosecution under Section 18 against the concerned persons to the concerned Government. It has, after recording prima facie findings that the enquiry conducted by the District Magistrate through the Additional District Magistrate and Sub Divisional Magistrate and Labour Enforcement Officer, was insufficient and that the facts brought out in the complaints were verified by non-maintenance of any records by the brick kiln owners and for non payment of the minimum wages, directed the District Magistrate, which is included within the meaning of authority under Section 18(a) to initiate action in the matter and submit action taken report within six weeks. 19. The submission of Shri Shashi Nandan, that the violations under Bonded Labour System (Abolition) Act, 1976 was not established and that in any case the National Human Rights Commission has no authority to direct implementation of the Act of 1976 and for prosecution under the Act is wholly unfounded. His further argument, that prima facie findings do not establish any violation of the Act of 1976 completely overlooks the definition of the Bonded Labour System defined under Section 2(g) and its abolition under Section The complaint in substance alleged that one Shri Deep Chand Thekedar had paid different amounts in advance to the families to work at the brick kiln at the rate ranging from Rs to Rs. 4000/- at the village and on the arrival at the brick kiln the owner paid an amount ranging from Rs. 20,000/- to Rs. 40,000/- to the labourers. In lieu of this amount of which no record was kept despite mandate of law, they were required to work at the brick kiln. This system of payment is not only in violation of the Minimum Wages Act and Payment of Wages Act, but also clearly amounts to Bonded Labour System which means a system of forced or partly forced labour under which a surety for a debtor enters, or has, or is presumed to have entered into an agreement with the creditor to the effect that in consideration of an advance and in consideration of interest by any of his lineal ascendants or descendants and in consideration of the interest, where such advance is evidenced by any document, would be treated as bonded labour system, in addition to any customary or social obligation or any obligation devolving of succession or for any economic consideration received by him or by any of his lineal ascendants or descendants. The definition of bonded labour system is very wide, and includes in the explanation any system of forced or partly forced labour under which any workman including contract labour as defined in Contract Labour (Regulation and Abolition) Act, 1970 or an Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 is required to render labour or service in circumstances of the 6 P a g e

7 nature mentioned in sub Clause (1) of the clause and is subjected to all or any of the disabilities under sub Clauses (2) to (4). 21. If an amount is advanced in consideration of promise to engage in work, coupled with some more advance paid it has to be presumed that the parties to the arrangement entered into an agreement of labour in consideration of such advance, whether or not it is evidenced by any document, taken by him or any of his lineal ascendants or descendants being the economic consideration for such work is included in the bonded labour system. This arrangement has to be deemed to be included, of forced labour or forfeiture of the freedom of the employment or any other means of livelihood and to move freely throughout the country. This form of contract labour is also included in the bonded labour system. 22. The submission, that the bonded labour system must precede a debt which is to be repaid by manual labour, is too narrow and a limited understanding by the bonded labour system prevalent in the country. The definition of bonded labour system under Section 2(g) of the Act of 1976 takes into consideration all kind of systems of forced labour prevalent in the country, including the forced labour performed by the labourers at the brick kiln in consideration to the amount advanced to bring them to the site of the work and thereafter payment made to them as a consideration of the agreement of work. It is nothing but a bond under which they have to work forfeiting their freedom of employment or any other means of livelihood or to move freely throughout the territory of India. 23. Coming to the present case we find that the complaint included all the elements of bonded labour system as defined under Sub-section (2) (g) of the Act of It was not investigated properly by the police, administration and the Labour Enforcement Officer. They simply took the statement of brick kiln owner and the workers, who are found to be working other than the complainant on the site. The district administration and labour enforcement authorities were required to conduct a detailed enquiry to find out whether the brick kiln owner had engaged them on giving advance forfeiting their rights arising out of their employment and freedom of their livelihood. A police Constable and thereafter the Sub Divisional Magistrate completed the formality of inspecting the brick kiln and thereafter the Labour Enforcement Officer. 24. The violation of the The Bonded Labour System, (Abolition) Act of 1976, is without any doubt a violation of human rights as defined under Section 2(d) and (f) of the Protection of Human Rights Act, 1993 for which the National Human Rights Commission has the authority conferred by the Protection of Human Rights Act, 1993, to enquire, investigate and to take steps provided under Sections 13, 14 and 16 of the Act. 25. The writ petition is dismissed. 7 P a g e