Ravi S. Dhavan, J.
1. All these writ petitions are the subject matters of an enactment, entitled the Child Labour (Prohibition and Regulation) Act, 1986 (hereinafter referred to as 'the Act') At the very out set, it may be placed on record here that initially as the arguments were addressed, vehemently opposed on behalf of the State respondents, the thrust of the submissions were based on a decision of the Supreme Court in re: M.C. Mehta v. State of Tamil Nadu and Ors.. (1994-II-LLJ-724) (SC). The common action of the .State respondents which aggrieves the petitioners, is a notice, similar in content, issued to all of them, but individually. In effect, the notice calls upon them to pay a sum of Rs. 20,000/- as compensation for allegedly having employed a child for labour. The notice alleges violation of the Act. Simultaneously, the notice announces that the proceedings, that is to say, complaints, have been filed against the erring employers before, the Chief Judicial Magistrate alleging that provisions of the Act having been violated, the erring employers be prosecuted consequently with punishment and fine as may be prescribed.
2. Initially, the defence of the State respondents was that there is not much the petitioners can complain as the Supreme Court had ordered it in its decisions that these notices be sent to the employers in violation of the Act and requiring them to pay compensation and that the State respondents were otherwise obliged to file complaints before the Chief Judicial Magistrate for the prosecution of those employers who have engaged child labour. It would also be appropriate to place on record that, the State respondents kept modulating their stand by filing several affidavits subsequent to the counter affidavits filed in the writ petitions. It may also be set on record that it was not disclosed to the Court that ten days after the judgment in re: M.C. Mehta (supra), the Supreme Court in re: M. C. Mehta v. Union of India and Ors., I.A. No. 22 in Writ Petition (C) No. 4077 of 1985, decided on December 18, 1996 had clarified its earlier decision in re: M. C. Mehta v. State of Tamil Nadu (supra). But strangely, on behalf of the State it was maintained that the notices demanding Rs. 20,000.00 for each child allegedly employed is valid and so are the prosecutions. It was even submitted that the subsequent decision of the Supreme Court is not binding on the State of Uttar Pradesh as it was a decision between parties from the Union Territory of Delhi. Subsequently, on records are certain clarifications by the Government of India itself, which was not accepted on behalf of the State of Uttar Pradesh, as it was consistently submitted that the petitioners are liable to pay the compensation and face prosecution as filed by the official agency, i.e., the Department of Labour, Uttar Pradesh, of now, at the time of dictating the judgment, during the intervening Dipawali vacations, the Court finds that official statements have been issued by the Secretary to the Government of India acknowledging that the Act, as it stands, needs drastic amendments and that the Government of India was preparing a draft for proposed amendments.
3. In between, a set of petitions have also seen a decision before a learned Single Judge but on this the parties are agreed, i.e., the counsel for the petitioners and the Chief Standing Counsel, that decision in re: Anil Kumar Agrawal v. Assistant Labour Commissioner, 1999 (81) FLR 43 have been rendered without opportunity to the State in filing a counter affidavit and that pleadings had not been exchanged.
4. Insofar as the decision of a learned Judge is concerned, on which the petitioners rely and learned Chief Standing - Counsel contends that the record is different, as the State respondents had no opportunity to file a counter affidavit, the Court shall refrain comments on merits of the aspect for the simple reason that if the order of learned single Judge aggrieves the State respondents, then, they were free to take appropriate steps, which, as of date, they have not done. Thus, as long as the order of learned single Judge remains, the State respondents are obliged to act on it. However, this Court can make a comment that so far as these cases are concerned, the State respondents cannot contend nor have done so that they were without any lack of opportunity. Not only counter affidavit, in each of the case, but, supplementary affidavits were filed, with the record of survey. On record, is also the concern expressed by the Secretary Ministry of Labour, Government of India, and the Labour Commissioner, Uttar Pradesh on the quality of the field exercise and the survey. The latter aspect has been dealt in the subsequent part of his judgment.
5. In present set of case, the employment, as alleged of child labour in an establishment or workshop by employers concerned, is diverse child labour, the rolling mill, carpet weaving, plywood industries, brick kiln, saree weaving, electrical goods, handloom, bangles, silver, scooter-motor cycle repair, press binding of books, printing presses, denting and painting, hardware shops, building and labour contracts.
6. The thrust of the argument of the petitioners has been that while the notices have been sent alleging violations of the Act, there has been no application of mind and objectivity in the State respondent in implementing the Act or the Supreme Court judgment. The notices to employers have been processed mechanically. The contention of the petitioners is that the respondents have mechanically seen the decision of the Supreme Court in re: M. C. Mehta v. State of Tamil Nadu (supra), extract the directions that anybody who employs a young labour, is liable to be called upon to pay a compensation of Rs. 20,000/- for each young labour employed and simultaneously, is to be prosecuted for violating the provisions of the Act and consequently, receive the punishment, as may be prescribed, including fine.
7. On behalf of the petitioners, it is contended that the compensation which have been ordained by the judgment of the Supreme Court, is being realised as a coercive process without judging the factors before calling the petitioners offenders. It is contended that the Supreme Court had very clearly mentioned in its judgment that before a notice under the Act is contemplated or, for that matter, a demand for compensation is sent to the employer, the state must objectively find out that there is an 'offending' employer and that such an employer has 'in contravention of the provisions of the Act' is obliged to pay a compensation of Rs. 20,000/- for each child labour illegally employed. The petitioners repeat that each young labour employed must be in violation of the provisions of the Act so that the concerned employer is obliged to pay a compensation of Rs. 20,000/- The Petitioners have laid great stress on the observation of the Supreme Court, as has been mentioned in paragraph 27 of the judgment. The petitioners contend that the' survey which the State respondents were obliged to undertake to give effect to the judgment, is referred to paragraph 31 of the judgment. The contention is that the survey has been done haphazardly. The contention is that if the Act is violated, then a child should have been employed. The definition of 'child' is contained in Section 2(ii) of the Act which says that 'child' means a person who has not completed his fourteenth year of age. The petitioners have shown several instances where in the survey it has been simply recorded that the child alleged to have been employed is 14 years of age. The contention of the petitioner is that if the petitioners are to be penalised under the judgment of the Supreme Court or to be prosecuted or further required to pay the fine, if the prosecution succeeds, then, the person so employed must be exactly 14 years of age or below. Children or young persons employed, if 14 years plus, cannot be deemed to be a violation of the Act. Instances have been placed before the Court that in the survey which have been conducted, against the age column, it only mentioned as 14 years. The petitioners submit that this means the judgment of the Supreme Court that the prohibition, in reference to the context of the matter in which the decision was given in re: M. C. Mehta v. State of Tamil Nadu (supra), it related to hazardous industries only. The petitioners further submit that the Act has classified employment of children into two categories. In one category, employment of children in certain categories is prohibited, in the other category, the employment of children in other occupations (other than those prohibited) are to be regulated. The contention on behalf of the petitioners is that this classification is so clear in the Act. The prohibition is contained in Part II of the Act whereas the employments which are to be regulated are contained in Part III of the Act. The petitioners contend that the State respondents have confused and jumbled up the two categories indiscriminately without applying their mind to the context. The petitioners also submit that the enactment has made an exception, regard being had to certain given circumstances, to encourage inter-generation transfer of skill and has permitted a family to carry on its inherited occupation for its survival. In this regard, the petitioners have pointed out that 'family' has been defined to mean the individual, the wife or husband and their children including brothers and sisters of such individual. This definition is contained in Section 2(v) of the Act. Thus, the petitioners contend that whereas employment of children in certain occupations and industries may be prohibited, yet an exception has been made. These aspects, the petitioners contend, in summing up of their arguments, have not been taken into account.
8. The petitioners have also drawn the attention of the Court to the samples from the record of survey. The record shows that the survey work was done with the aid of Chaprasis. The quality of survey was not meant to be compromised. If the Supreme Court had ordered it, any attempt to pay lip service to the order of the Supreme Court, renders the survey mediocre and leads to misapplication of the Act against the employers who are alleged to have violated the Act.
9. Meeting the judgments of the Supreme Court, the petitioners contend that eight days after the judgment of the Supreme Court in re: M. C. Mehta v. State of Tamil Nadu (supra), the Supreme Court itself clarified its order. They referred to the order of the Supreme Court dated December 18, 1996 in M. S. Mehta v. Union of India and Ors., (supra), in this regard the petitioners contend that the Supreme Court itself directed that before a notice demanding compensation is processed and assuming that there is a defaulting employer the State respondent is obliged to modulate the compensation not as maximum at Rs. 20,000/-but (a) a reasonable compensation and, in this respect, the State respondents were required to substitute a reasonable compensation, (b) the Labour Commissioner was required to hear the employees, and (c) consider the objections. They pointed out to the order of the Supreme Court which has been passed on November 6, 1996, as is recorded in the order of November 18, 1996. In the net result it is contended on behalf of the petitioners that the last order modified the earlier order dated December 10, 1996. The petitioners have laid great stress on the following observations of the Supreme Court-
'In this case, the Labour Commissioner concluded the proceedings much earlier to the judgment of this Court which was pronounced on December 10, 1996. We accept the report and recommendation of the Labour Commissioner and direct that the compensation suggested by the Commissioner shall be recovered from the employers in each case.'
10. Now, the petitioners contend that the suggestions which were placed before the Supreme Court as a criteria, need to be taken note of. The Supreme Court had required suggestions from the Labour Commissioner. The suggestions as were made by the Labour Commissioner were:
'Criteria for Compensation in Factories:
(a) In case of child worker, who has not completed 14 years of age, found working in factory in hazardous process, a compensation of Rs. 50,000/- per child is being suggested.
(b) In case of child worker, who has not completed 14 years of age, found working in factory using non-hazardous process, a compensation of Rs. 20,000/- per child is being suggested.
(c) In case of young persons, between 14-18 years, found working in factory without obtaining certificate of fitness in hazardous process a compensation of Rs. 20,000/- per child is being suggested.
(d) In case of young person between 14-18 years, found working in a factory without obtaining certificate of fitness using non-hazardous process, a compensation of Rs. 10,000/- per child is being suggested.
Criteria for Compensation in Shops and Establishments:
(i) In petty establishment such as road side dhabas, tea shops, halwai shops, scooter cycle repair shops, tailors and other similar establishments employing 4 or less workmen, the compensation suggested is Rs. 5,000/- per child,
(ii) In small establishments such as restaurants, sweet shops, dhabas, auto repair workshops etc. employing 5 or more workmen, the suggested compensation is Rs. 10,000/- per child.
(iii) In establishments where the employer is himself physically handicapped and the establishment is a petty establishment, a token compensation of Rs. 2,000/- has been proposed.
(iv) In cases where the employer is a well established concern and is employing 100 or more workmen located in a prime market the suggested compensation is Rs. 25,000 for each child.
(v) In cases where child labour is not prohibited but only regulated Rs. 5,000/-have been recommended in all such cases irrespective of the number of employees/ status of establishment, as the employer failed to produce statutory records in respect of such children.
(vi) No compensation has been recommended in those cases where the employer has been acquitted by trial Court.'
10-A. After these suggestions have been placed before the Supreme Court the Supreme Court recorded -
'After examining various affidavits filed by the Labour Commissioner, the criteria is adopted by him and also after hearing the owners of the establishment we are of the view that the compensation suggested by the Labour Commissioner in each case is just and fair. We accept the recommendations of the Labour Commissioner. We may mention that before determining the suggested compensation the Labour Commissioner also heard all the owners of the establishments.'
11. Thus, the petitioners contend that the earlier judgment of the Supreme Court related only to the hazardous industry. In this regard, the petitioners pointed out that in the orders of the Supreme Court dated December 18, 1996 that the 'directions were given in relation to hazardous industries'.
12. On behalf of the State respondent, the arguments were addressed by learned Chief Standing Counsel, Mr. Vinod Misra, Advocate. The defence to sustain the notices for compensation requiring the erring employers to pay at the rate of Rs. 20,000/-per child labour employed, is that the notice have been issued and the complaints have been filed, strictly in accordance with the order of the Supreme Court dated December 10, 1996. It has been stressed that the Supreme Court had made it absolutely clear that wherever child labour has been employed, regardless of the occupation and the establishment, the employer concerned is required to deposit a sum of Rs. 20,000/- as compensation, thus the notices. On failure to pay this compensation, directed by the Supreme Court, it is to be recovered by coercive process. In addition, for violating the Act, the respondents were directed to file a case before the Chief Judicial Magistrate for prosecution of the occupier or the employer concerned and accordingly, a case was processed against the erring persons before the Chief Judicial Magistrate concerned. It is contended that the survey which was required by the Supreme Court by its order dated December 10, 1996, is the basis for issue of notice and filing of the complaints before the Chief Judicial Magistrate. It is further contended by learned Chief Standing Counsel that if any clarification is to be sought, then these petitioners may seek it from the Supreme Court.
13. In reference to the subsequent order of the Supreme Court dated December 18, 1996, it is contended on behalf of the State respondents that the first order had been passed by a Bench of three Judges and the subsequent one by two Judges and further the subsequent order related to a cause of action which arose within the Union Territory of Delhi and it is not binding on the State of Uttar Pradesh.
14. It is further contended that the notices which have been issued requiring the-employers to deposit the compensation in pursuance of the order of the Supreme Court dated December 10, 1996 is regardless whether the industry was hazardous or whether it related to the prohibition of employment of children in certain occupations and processes, referred to in Part II of the Act or in the matter relating to regulation of conditions of work of children as referred in Part 111 of the Act.
15. Regarding the representative survey which has been placed before the Court, it is accepted, as the survey records, that in certain field areas Chaprasis had been utilised for carrying out the survey work which was required by the first order of the Supreme Court dated December 10, 1996. It is also accepted that the survey was completed throughout the State within twelve days.
16. Having heard learned counsel for the Parties at length, before the Court examines the matter further, at the outset, the judgment of the Supreme Court ignored by the respondents, eight days after the judgment of December 10, 1996 needs to be looked at straightway.
17. The Court does not find the submissions on behalf of the State respondents satisfactory that the matter should be looked into by the weightage of the Coram of the Bench, as having been delivered by a Bench of three Judges and two Judges. This is not an exercise in stare decisis or the mechanics of binding precedents. But, a simple case of a Court clarifying its earlier order or judgment. Suffice it to say that if the judgment was being clarified by the Supreme Court, there can be no better clarification than by the Court which rendered the judgment. In the circumstances, the second order of the Supreme Court of December 18, 1996, is very relevant. In the order of December 18, 1996, the first thing which has to be taken into account is on what the Supreme Court has accepted after submissions had been made by the Labour Commissioner so that it became a part of the earlier decision. It is on record of this order that the suggestions were made before the Supreme Court by the Labour Commissioner. That suggestions have been made is one aspect of the matter. In reference to the suggestions, the Supreme Court observed -
'After examining various affidavits filed by the Labour Commissioner, the criteria adopted by him and also after hearing the owners of the establishments we are of the view that the compensation suggested by the Labour Commissioner in each case is just and fair. We accept the recommendations of the Labour Commissioner. We may mention that before determining the suggested compensation the Labour Commissioner also heard all the owners of the establishments.
18. Thereafter, the Supreme Court clarified its orders of December 10, 1996. In this regard, the Supreme Court observed that the directions were given in relation of hazardous industries. The Supreme Court further observed -
'In this case, the Labour Commissioner concluded the proceedings much earlier to accept the report and recommendations of the Labour Commissioner and direct that the compensation suggested by the Commissioner shall be recovered from the employers in each case.'
19. The question now arises on what exactly was the compensation which had been suggested by the Labour Commissioner came to be accepted by the Supreme Court. In this context the Supreme Court order reads -
Mr. Ashok Kapoor, Labour Commissioner has placed before this court a list of 1740 children who were recovered while working in various industries/business houses/ factories. In the list, the name and address of the establishment, name of the child, young person, age, nature of business and amount of compensation suggested have been indicated. In each case the Commissioner has suggested compensation ranging from Rs. 2,000/- to Rs. 25,000/- The compensation has been fixed in each case by the Commissioner on the following criteria-
Criteria for Compensation in Factories:
(a) In case of child worker, who has not completed 14 years of age, found working in factory in hazardous process a compensation of Rs. 50,000/- per child is being suggested.
(b) In case of child worker, who has not completed 14 years of age, found working in factory using non-hazardous process, a compensation of Rs. 20,000/- per child is being suggested.
(c) In case of young person, between 14-18 years, found working in factory without obtaining certificate of fitness in hazardous process, a compensation of Rs. 20,000/- per child is being suggested.
(d) In case of young persons, between 14-18 years found working in a factory without obtaining certificate of fitness using non-hazardous process a compensation of Rs. 10,000/- per child is being suggested.
Criteria for Compensation in Shops and Establishments -
(i) In petty establishments such as road side dhabas, tea shops, halwai shops scooter/cycle repair shops, tailors and other similar establishments employing 4 or less workmen, the compensation suggested is Rs. 5000/- per child,
(ii) In small establishment such as restaurants, sweet shops, dhabas, auto repair workshops etc. employing 5 or more workmen, the suggested compensation is Rs. 10,000/- per child.
(iii) In establishments where the employer is himself physically handicapped and the establishment is a petty establishment, a token compensation of Rs. 2000/- has been proposed.
(iv) In cases where the employer is a well established concern and is employing 100 or more workmen, located in a prime market the suggested compensation is Rs. 25,000/-for each child.
(v) In cases where child labour is not prohibited but only regulated Rs. 5000/-have been recommended in all such cases irrespective of the number of employees/ status of establishments, as the employer failed to produce statutory records in respect of such children.
(vi) No compensation has been recommended in those cases where the employer has been acquitted by the trial court.
Under the directions of this Court notices were issued to all the establishments where the children were employed to show cause to this Court, if they so wish, persons responding to the notice were heard by us. Most of them admitted that the children named in the list were recovered from their respective establishments.'
20. After this much, with so much on record, this Court feels that this should have been the end of the matter. But, unfortunately, the State respondents have not accepted the situation and circumstances of the second order of the Supreme Court and the Chief Standing Counsel reiterates that he has instructions from the law department to reiterate that the notices, as have been sent, are correct. In other words, the State respondents are not prepared to accept that the Supreme Court had clarified its order of December 10, 1996 and further reiterates, in on uncertain terms, and categorically, that the notices calling for a deposit of Rs. 20,000/- as compensation for each child alleged to be employed. Consequently, such of those who have received notices, are liable to pay compensation as demanded. A very rigid approach.
21. The State respondents are not prepared to reduce the rate of compensation as has been suggested by the Supreme Court in its subsequent order nor are prepared to look into the matter afresh as has been taken as an exercise by the Supreme Court on what had happened on the suggestion of the Labour Commissioner regarding the subject matter. The Chief Standing Counsel submits that he has instructions to state that the second order of the Supreme Court is not binding on the State of U.P. as it relates to the Union Territory of Delhi. Insofar as the High Court is concerned, both the orders of the Supreme Court are binding on every civil and judicial authority who in the territory of India shall act in aid of the Supreme Court Article 144 Constitution of India.
22. The Act itself has made two classifications on the employment of children as labour. Firstly, the Act prohibits the employment of children in certain occupations and processes. Secondly, the Act is permissive in engaging child labour but regulates the conditions of working of such labour. In the first category, where employment of a child is prohibited, the Act provides it so in Part II. Where employment is permissive but regulates the conditions of work, the Act has so provided in Part III. Logically, where the Act permits engagement of child labour but regulates conditions of work, what is prohibited, has been mentioned in the Schedule. The Schedule itself is in two parts, Part A and Part B. Part A of the Schedule relates to occupations and Part B relates to processes. The two, put together, reads thus -
The Schedule
(See Section 3)
Part A
Occupations
Any occupation connected with
(1) Transport of passengers, goods or mails by railway;
(2) Cinder picking, cleaning of an ash pit or building occupation in the railway premises;
(3) Work in a catering establishment at a railway station, involving the movement of a vendor or any other employee of the establishment from one platform to another or into or out of a moving train;
(4) Work relating to the construction of a railway station with any other work where such work is done in close proximity to or between the railway lines;
(5) A port authority within the limits of any port;
(6) Work relating to selling of crackers and fireworks in shops with temporary licences;
(7) Abattoirs/Slaughter Houses.
Parts 8
Process
(1) Bidi making.
(2) Carpet-weaving,
(3) Cement manufacture, including bagging of cement.
(4) Cloth printing, dyeing and weaving.
(5) Manufacture of matches, explosives and fire works.
(6) Mica-cutting and splitting.
(7) Shellac manufacture.
(8) Soap manufacture. (9) Tanning
(10) Wool-cleaning.
(11) Building and construction industry.
(12) Manufacture of slate pencils (including packing)
(13) Manufacture of products from agate.
(14) Manufacturing process using toxic metals and substances such as lead mercury, manganese, chromium, cadmium, benzene, pesticides and asbestos.
(15) 'Hazardous processes' as defined in Section 2(cb) and, dangerous operations, as notified in rules made under Section 87 of the Factories Act, 1948 (63 of 1948)
(16) Printing as defined in Section 2(k)(iv) of the Factories Act, 1948 (63 of 1948)
(17) Cashew and Cashewnut dealing and processing.
(18) Soldering processes in electronic industries.
23. The Schedule has been provided as a consequence of Section 3 occurring under Part II. Whereas Part II of the Act prohibits employment of a child in certain occupations and processes, the proviso to Section 3 is making an exception. The proviso reads -
'Provided that nothing in this Section shall apply to any workshop wherein any process is carried on by the occupier with the aid of his family or to any school established by, or receiving assistance or recognition from Government.'
24. Thus, while the Act prohibits and the Schedule provides that where a child may not be employed, this rigidity is removed by the proviso to Section 3. The processes being: carried out by an occupier with the aid of his family is permitted. The word 'occupier' has been defined in Section 2(vi) as having nexus to an establishment or workshop and has further been explained as a person who has limited: control over the affairs of establishment or workshop. 'Family' has also been defined in Section 2(v). In simple terms, it has been explained as the immediate family, that is to say, referring to the occupier, as wife or the husband, if that be the case, their children, brothers and sisters. The word 'child' has also been explained in Section 2(ii) as being a person who has not completed his fourteenth year of age. Thus, there is no occasion for any one to ignore the exception to Section 3 that notwithstanding the prohibition a process may be carried on by an occupier with the aid of his family. This part of the Act does not refer to a home. But the Act is explaining a circumstance that regard being had to the conditions in this country, an inter-generation occupation may be passed on from father to son to grandson. The Act provides for this plainly. It does not need any further explanation. The Court would go this far to say that such of the processes and occupations which have been so provided in the Schedule may be carried out by an 'occupier' with the aid of his 'family'. It is on record that the survey of the State Government had not taken this into account.
25. Now, the Court refers to those occupations where the Act regulates the conditions of work. Section 6 of the Act provides that Part III insofar as it regulates the conditions of work of child labour, applies to those establishments in which none of the occupations or processes, in the context of Section 3, is carried on. This aspect of regulating the conditions of work of children, from what has been shown to the Court by record, has not been taken care of. It also appears that the State respondents have not understood the provisions which provides for regulating the conditions of work of children. Part III of the Act which provides for regulating the work of children does not provide for any blanket protection to an employer that there may be an indiscriminate employment of children in occupations or processes other than those referred to under Section 3. This is not so. The Act only grants an indulgence that such of those occupations and processes other than those referred to under Section 3, permit the engagement of children but their conditions of work, whether it is the period of work or holidays, shall be regulated. But the proviso to Section 3 permits the occupier to carry on an occupation with the aid of his family. Thus, in this regard there is no blanket exception which has been provided and insofar as regulation is concerned, as has been prescribed, in Part III, it shall apply universally to all processes and occupations even though they may have been exempted by the Act. Otherwise, the legislative intent would not be complete. Explaining the situation in this context, regulation means that if a child is in school, then he should be seen in school. Only that much work should be put in by a child as his age would take. Children also need holidays. The Act, thus, obliges an employer whoever the might be, to ensure that children have holidays! to themselves and during school time they are not employed. Beyond a certain period, children should not work. In no part of the survey which was placed before the Court, could it be indicated why the survey team did not make an enquiry: the time when the child was located any why he was not in school.
26. During the course of hearing, it appears the Secretary of Labour Government of India was expressing reservations at the scheme for implementation which had been drawn up. Rather than explaining what the Secretary said, it could be best to reproduce what he has recorded. Insofar as the implementation of the legislation is concerned, and this includes the implementation of the directions of the Supreme Court, on the surveys, the Secretary, Ministry of Labour, Government of India, records -
Surveys
Survey is not a head counting exercise. It is not like stamping of ballot papers at the time of elections. Survey is basically a tool of discovery and discovery in this case refers to those unseen, unknown, innocent and unfortunate sections of the society who have come from one part of the country to another not of their option or violation but with their migrant parents or with the tacit (though illegal) consent of their parents and who are being forced to contribute their hard manual labour at a tender formative and impressionable stage of human development when they are supposed to be at school and not at the workplace. Survey therefore, can be meaningful only if we succeed in creating around us a core group of individuals who are animated, who carry with them an empathy and sensitivity for these unfortunate sections of the society and yet the most precious of human resources and can go about the job with a lot of sensible discretion and circumspection, with total vigilance, secrecy and confidentiality of operation and not with the type of intensive publicity and propaganda as has usually been the case with the surveys conducted in pursuance of the judgment of the Supreme Court.
What, unfortunately, has been highlighted in the guidelines is a routinised, formalised and stereotaped way of conducting a survey such as appointing officer, maintaining records and documentations etc.
It is not going to yield any desired results. There is no mention about proper orientation and training of the members of the Survey Team before proceeding to conduct the actual survey nor is there any mention of evaluating the accuracy and authenticity of the survey by sample check at higher levels. Similarly, there is no mention about conducting repeat survey in a particular area where the findings of the earlier survey are suspected or have not produced desired results'.
27. In the same theme as the concern expressed by the Secretary, Labour Government of India, at the time when the surveys were being conducted, the Labour Commissioner, Uttar Pradesh at Kanpur by his letter of April 17, 1997 was writing to the different District Magistrates in the State. For instance, on record is a letter No. 69.71/No. Section (4-2). Letter Box No. 220 dated April 17, 1997 which was addressed to the District Magistrate, Bhadohi. The Court has been indicated that this letter went as a circular Statewise to all District Magistrates. The letter is in Hindi, It reads:
Dear Sir,
The progress report which has so far been received in this office about the survey of child labour of district Bhadohi is unsatisfactory. Therefore, it is essential that special attention is immediately paid towards it. It is, therefore, requested that in sequence of the directions issued earlier by this office kindly ensure effective-supervision of the survey through the senior officer, by maintaining mobility and agility so that the survey may be accurate and reliable.
Sincerely
Sd/
(V.K. Sharma
District magistrate (By name)) Bhadohi
Letter No. above dated April, 1997
Dear Sir,
I am herewith submitting the copy of the above mentioned D.O. with this intention that the progress which has been received till now regarding the survey conducted in district Bhadohi about child labour is unsatisfactory. Vide my D.O. No. 1961-98 dated April 7, 1997. It was expected from you that during the period of survey continuous mobility/agility shall be maintained through all you subordinate officers but it appears that the compliance of the orders issued from this office are not being ensured in their entirety. It is your personal responsibility to get the survey work accomplished in a result oriented manner. Therefore, there should be no laxity of any kind in this matter or else the concerned officer shall be personally responsible.
Sincerely
Sd/-.
(V.K. sharma)
(1) Sri R.N. Rai
Addl. Labour Commissioner,
Varanasi.
(2) Sri A. K. Rai,
District magistrate,
Bhadohi
28. Also relevant are instructions which were given by the Labour Commissioner, U.P. to the relevant Officers and Factory Inspectors. This is the letter which records that in Uttar Pradesh the survey was conducted between April 9, 1997 to April 20, 1997. The letter was written two days before this survey was about to be conducted. The context of the circular was that the survey should inspire confidence and that the information collected should inspire public confidence. The letter of the Labour Commissioner is produced.
Dear Sir,
During the period from April 9, 1997 to April 20, 1997 survey is being conducted in the State for determining child labour in the hazardous and non hazardous procedures. It is very important that correct and reliable information is compiled during the survey. With this purpose kindly direct all your Subordinate Assistant Labour Commissioner and Labour Enforcement Officers to the effect that during the survey of the respective earmarked areas they should travel comprehensively and remain agile and should keep in touch during such travel with the surveyors/supervisors so that if any difficult/question arises at any point regarding the survey then the same may be solved on the spot itself. Maintain the morale of the surveyors so that they may receive and compile the information correctly and in sequence of the orders issued. In this connection special attention is to be paid to those districts where there is majority of child labour and where the survey of houses is also being got conducted. During the survey of firms, factories establishments and of houses of catchment areas respectively you should always remain agile.
Sincerely
Sd/-
(V.K. sharma)
All Regional/Additional Deputy Labour Commissioner
Letter No. 1961-92/No. Section (4-4)/94 dated April 7, 1997
copy : (1) Forwarded for information and necessary action to all the officers of Head-quarters and Factory Director/Boilers.
(2) Forwarded for information to the Principal Secretary Labour U.P. Government Lucknow
29. Before the Court, documents have been placed to show the tenor of the survey work. The example chosen by the State respondents is from the survey conducted in the district of Allahabad. The Court notices from the information which has been given by the record that the survey teams were constituted to represent Inspectors, were, in fact, Chaprasis, Nayab Moharrir, Skilled Fitters, Section Record Clerks, Assistant Teachers, Vaccinators and Urdu Translators etc. The Court is weeding out persons bearing the nomenclatures as Principals of Schools, or Revenue Officials, but of those which the Court has mentioned between Chaprasis and Translators only one aspect is relevant, whether they were officials as gazetted Government offices. A specific enquiry was made from learned Chief Standing Counsel to take instructions and give an answer, in the affirmative or negative, on the status of these officers. It was stated before the Court that these persons were neither gazetted Government staff nor officers. The Court is mentioning this aspect of the matter as the Secretary to the Government of India himself expressed concern in the lack of quality in the contents of survey. The Secretary, Government of India, has already observed that a head counting exercise would yield no result. He has virtually labelled the survey as on exercise in mediocrity. The Labour Commissioner, Uttar Pradesh was already sending out a caution that the samples which are coming in from the field officers on the survey, were not satisfactory. :
30. About the time when the survey was coming to a close, the Principal Secretary was writing to the Divisional Commissioners and the District magistrates of the areas where the survey had been undertaken. This is the letter dated April 23, 1997. In this letter, it was observed that, in the context of the survey. It has come to the knowledge of the State Administration that the purpose for which the survey had been undertaken, the desired results are not being precipitated. In these circumstances an appeal was being sent on behalf of the State Government. The appeal made by the Labour Minister, Uttar Pradesh, desired that wherever child labour may have been, engaged, such cases ought to be monitored at the level of the Gram Sabha and City Wards, and after the matter has been discussed at a schedule meeting of these bodies, the information be sent to the State Government. The appeal also cautions the administration that they survey work should be strictly monitored by the senior officers.
31. These cases are of certificate action by certiorari, in the writ jurisdiction of the High Court. The High Court is obliged to certify the record, and the consequential action. All these circumstances, put together, render the state of the record in such a state that it does not inspire confidence, regard being had to the circumstances that the survey was being conducted on the directions of the Supreme Court, which, under the Constitution (re: Article 144) obliges all authorities, civil and judicial, in the territory of India to act in aid of the Supreme Court. When the exercise was put into execution, it was one of mediocrity.
32. Then there is another aspect which, apparently, ought to have been remedied by the time Supreme Court had given its second order. This is the order of December 18, 1996. The second order clarified that the first order was in relation to hazardous occupations only, implying thereby, that the subject matter of the first order dated December 10, 1996 were of those circumstances which came within the meaning of Part II of the Act. A prohibition on the employment of child labour with the exception that a process may have been carried on by an occupier with the aid of his family. If the exception is not the case, then clearly there is a prohibition to engage child labour, all instances outlined, in Part II. These perhaps were matters which undoubtedly required a notice to the offending employer on prima facie information collected during the survey, for having engaged or employed child labour when it was prohibited and consequently a complaint by the State Administration for prosecution of the offending employer. Payment of compensation of Rs. 20,000.00 is consequential. Of course, this means that the amount of compensation was to see a matching deposit by the State Government for the creation of a trust fund for the benefit of the child employee. But these were cases, other than those, which came under Part III. These are the cases which are mentioned in the subsequent order of the Supreme Court. For instance, in the present cases before the Court, there are cases where a child may have been employed in a general merchandise shop, electrical goods shop, a bangle maker, a hardware shop, a scooter repair shop, a book binder. These are processes where the employment of child is not prohibited. Similar process would include children working at a roadside Dhaba, tea stall, denting shop, Halwai shops, basket weaver of putting it in a lighter vein the butcher, the baker and the candle stick maker. These would come under Part III. What would be the measure of compensation which could be realised if a child labour may have been employed in violation of the regulatory provisions. In this context, it must be kept in mind that the engagement of a child is not prohibited, but a child should be seen to be working when he should be at school. The order of the Supreme Court of December 18, 1996 takes notice of the criteria of compensation which was suggested and accepted. This relevant portion of the order reads thus:
i)
Petty Shopsas the roadside Dhabas, tea shops,Halwai Shops, Scooter/Cyclerepair shops, tailors and other similar establishments employing 4 or less workmen.
Rs. 5000. 00per child.
ii)
In small establishments such as restaurants, sweet shops, dhabas, auto-repair workshops etc. employing 5 ormore workmen.
Rs. 10,000/- per child.
iii)
In establishments where the employer is himself physically handicapped and the establishmentis a petty establishment
Rs. 2000.00 per child.
iv)
In cases where the employer is a well establishedconcern and is employing 100or more workmen, located in a prime market.
Rs.25,000.00per child
v)
In cases where the child labour is not prohibitedbut only regulated.
Rs. 5000.00
vi)
Where as a consequence of trial on the prosecutionsought by the State the employer stands acquitted by the trial Court.
No compensation.
33. Contrary to what was contended on behalf of the State respondents, the Supreme Court had itself indicated that its order, of December 10, 1996 related to hazardous work. This clarification is clear in the second order of the Supreme Court. Insofar as non- hazardous jobs are concerned, in paragraph 31 the Supreme Court in its order of December 10, 1996, in this context, made an observation in sub-paragraph (10), that the Inspector will have to see that the working hours of children are not more than four to six hours a day and they receive education at least for two hours each day and that it would be ensured that the entire cost of education is borne by the employer. On the demand and payment of compensation, the Supreme Court had clarified in its second order of December 18, 1996, on the contentions of the State respondents, that if any of the petitioners have any doubt, they may approach the Supreme Court for clarification. In this regard, learned Chief Standing Counsel referred to sub-paragraph (8) of paragraph 31 of the order of the Supreme Court dated December 10, 1996. Insofar as the observation of the Supreme Court in sub-head (8) is concerned, it is in two parts. The first part required the Secretary, Ministry of Labour, Government of India, to apprise the Supreme Court within one year of the order on compliance of the directions given by the Supreme Court. The second part permits the petitioners that should they require any further or other orders in the context of the compliance report (when filed), it would be open to them to seek such orders. When one of the compliance report was being filed before the Supreme Court in the public interest litigation, Mr. M.C. Mehta, the petitioner, sought and received clarifications. On this the submission was made at the bar on behalf of the State of U. P. that the case related to the Union Territory of Delhi and the State of U.P. is not bound by it. This order is of the Supreme Court. It is a judgment in rem on a public cause and public law, and not a private dispute. Thus, this Court mentions at the expense of repetition that the State respondents are obliged to follow the orders by the Constitution. The subsequent order of the Supreme Court is also binding on the State respondents. The Secretary, Labour, Government of India and the Labour Commissioner, Uttar Pradesh, were themselves critical of the manner in which the survey was conducted. They had reservations about its quality and content. Further, it would be an incongruity if the High Court were to direct a cycle repair shop owner to go all the way to the national capital to seek a clarification when the Supreme Court mentioned in its subsequent order that the compensation would stand modified instead of that which was indicated for hazardous processes in the first order. If yet the State of U.P. and the State respondents feel that they need any clarification, it is entirely upto them to seek it.
34. Before concluding, regard being had to over all circumstances, on the pleadings filed on record, of the survey reports, of the correspondences between the Government of India and the State of U.P., or, for that matter, between the principal Secretary, State of U.P. with the Divisional Commissioners and the District magistrates, one thing is clear that the notice, in the context of the present cases, do not strictly conform to achieve a desired result. This apprehension had already been expressed by the Secretary, Labour, Government of India, and the Labour Commissioner, Uttar Pradesh. The notice had not taken into account the subsequent order of the Supreme Court. The notice had not taken into account that the industries are hazardous and yet the occupations may be non-hazardous, so as to come within the exception clause of the processes carried on by the occupier with the aid of his family. The notices which have been issued to those engaged in non-hazardous processes, is conspicuous by the absence of noticing the second order of the Supreme Court which requires the occupier to deposit a compensation lesser than that which was mentioned in the first order of the Supreme Court. The notices which were issued to the petitioners, is the consequence of the survey. On the diligence and the excellence of the survey will depend the contents of the notice. The surveys were questioned from within, by the Secretary, Labour, Government of India, and the Labour Commissioner, U.P.
35. In reference to these cases, it is not acknowledged by learned Chief Standing Counsel, that the surveys were not conducted with due diligence and regard being had to these cases if the subsequent order of the Supreme Court is taken into account, in some cases the notice need to be modulated, more so, in the matter of non- hazardous processes. If that be the case, then, the notice so issued in these cases, qua the petitioners will need to be quashed. Hereinafter, the demands on compensation and notices to prosecute must be based on a diligent and accurate survey, and take into account the two orders of the Supreme Court, of December 10, 1996 and December 18, 1996. The survey must take into consideration the concern which has been expressed by the Secretary, Ministry of Labour, Government of India, and the Labour Commissioner, Uttar Pradesh. The notices, thus, are quashed.
36. The petitions succeed. There will be no order on costs.