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Case Analysis: Anil Kumar Agarwal v/s Assistant Labour Commissioner, Mathura - Special Reference To Child Labour (Prohibition And Regulation) Act, 1986

Facts Of The Case
The case deals with the filing of the Writ Petition of Certiorari by the Petitioner who is the Director of Oriental Rugs Private Limited. The said company is registered under the Company Act and deals with the manufacturing of Handmade Carpets ( Wool, Synthetic, Silk), Rugs, Namdahs etc.

The petitioner received several notices from the office of Assistant Labour Commissioner, Mathura that he is required to pay compensation within 15 days from the date of the notice served for recuperation of Child Labours who worked at the factory as per the reports of the Inspector appointed under the Act who inspected the factory on several dates i.e 9th, 13th and 15th April of 1997.

As per the petitioner, there's no child labour at the establishment and he has been served the notice for compensation at the rate of 20, 000 Rupees per Child Labour without providing him the proper opportunity to hear his side of the case. As per the notice served, the petitioner had to pay the following amount: Three Lakhs and Twenty Thousand Rupees, Four Lakhs Rupees, Eighty Thousand Rupees and Two Lakhs Rupees respectively.

The writ of certiorari is basically filed by the Petitioner to get the notices regarding compensation quashed, to put stay on the authority provided by the Central Government to the Assistant Labour Commissioner to issue recovery certificates for the compensation from the Employer as per the MC Mehta Case and to stop the action of Collector of collecting compensation.

Issues Raised
  • Whether the notices served to the Employer for the compensation regarding child labour only on the basis of reports of the Inspector under the Act are valid.
  • Whether the Employer has the right to be heard before the execution of MC Mehta Guidelines
Laws Applied

Child Labour (Prohibition and Regulation) Act, 1986:

Sec-2(2)- A person under the age of Fourteen will be considered as a Child for the Implementation of the Act

Sec-3- This section prohibits the working of the Child in any of the establishment provided under Schedule A of the Act. Besides that, It also restricts the working of Child at any place where the process mentioned in Schedule B is carried on. However, if the Occupier of such place is taking assistance from his family members or the child working in the School aided or having recognition by the government, then this Act won't be applicable.

Sec-9- This section imposes a duty upon the occupier of the establishment to furnish a notice to the Inspector having jurisdiction within 30 Days from the Date of commencement of the Act regarding the Name, Adress and other Details of the Establishment, Management and the nature of work being done there if such establishment has employed or permits child to work.

Sec-10- It states that if there is any dispute as to the age of a person working in the establishment between the Inspector and the Occupier in absence if any Age Certificate of such person, Inspector shall refer the concerned Medical Authority.

Sec- 14- It provides for the Imprisonment of Occupier for Minimum 3 Months to Maximum 1 year or Fine of Minimum 10,000 Rupees to Maximum 20,000 Rupees or both if he has employed any Child or allows such employment in his establishment and thereby violating Sec-3 of the Act. For the repeated offenders, the Imprisonment will increase from Minimum 6 Months to Maximum 3 Years.

Sec-16- It states that if an offence has been done under the Act, the concerned Inspector has to file the case atleast at the court of Magistrate's First Class and Age certificate of the child will be conclusive evidence.

Sec-17- Inspectors are appointed by the appropriate government for the compliance of the provisions of the Act. Their prime work is to inspect the establishments to check if any Child labour is there or not
Constitution Of India

Doctrine of Double Jeopardy/Art-20(2):

No person shall be prosecuted and punished for the same offence more than once (applicable only in criminal case)

Right against Exploitation:

Art-23 basically prohibits the human trafficking and forced labour whereas Art-24 prohibits the working of a Child under the Age of 14 in any Factory, Mines or any hazardous employment.
Art-39(e)- Health and Strength of the Child of Tender Age shall not be abused.

M.C Mehta V. State of Tamil Nadu:

For the first time, it imposed a civil liability upon the offender employee to pay Twenty Thousand Rupees per child as compensation for employing any child labour which is known as " Child Labour rehabilitation cum Welfare Fund".

Before the enactment of 1986 Act, there was no such procedure or protection present in order to stop the exploitative actions of employers over the Child Labours working in their establishments. Though Right against Exploitation was there since the inception of the Constitution, but it didn't mentioned whether the violation of Art-24 will result in either Civil Liability or Criminal Liability of the Employer. In short, no explicit protection was there.

The Act of 1986 expressly provided a protective blanket to the vulnerable category of children who fall in the employment in various establishments due to poverty. The Act has clearly provided criminal liability via a procedure that is to be followed under Sec-16 for any offence committed and the punishment under Sec-17.

The Judgement provided in MC Mehta case imposed a civil liability upon the employer to pay compensation if he has employed any Child Labour for his rehabilitation. The basic idea before bringing this judgement was to stop the Child Labour at the grass root level by providing Compulsory Education to Children. But the education of a child would be an idealistic assumption if the family is dying under poverty and does not have any means of earning. Besides that, the constitution of India expressly prohibits the abuse of Children of tender age for economic necessities and puts an obligation to provide development opportunities of the future assets. So, for the achievement of such policies, the fulfillment of the objectives of the 1986 Act is sine qua non and therefore the Fund is created for fulfilling the correlated objectives.

Audi Alteram Partem i.e Right to be heard is the part of Natural Justice and the violation of such right would invalidate the whole Action. The Employer had the right to counter against the report made by the Inspector and denial of such right and directly jumping to the collection of compensation cannot be considered lawful.

His lordship observed that the role of an Inspector under the Act is that of a Prosecutor who lodges a case against the occupier in the court and he himself is not an adjudicatory authority whose report will be considered as a conclusive evidence for proving the guilt of occupier. Adding to the same, he observed that the competent adjudicatory authority to check whether the person is a Child under the Act or to check the validity of reports made by the Inspector would be the Labour Commissioner.

Such person has to act as an Adjudicatory Authority and shall provide an opportunity to an accused employer as to why recovery certificates shall not be issued against him for paying the compensation. He mentioned the case of Seth Banarasi Das V. District Magistrate, Meerut, where it was observed that before issuing any recovery certificates, it is the duty of Labour Commissioner to check the liability of the accused employer and he shall be provided an opportunity to provide his case as against the reports of Inspector.

His lordship rejected the contention made by the learned counsel of petitioner where he stated that the liability of the Occupier (Director) to pay compensation of twenty thousand rupees per head will arise only when he is convicted of an offence under the Act (Criminal). His lordship negated such contention by stating that the compensation imposed over the petitioner is due to the civil liability for the violation of Fundamental Rights of such children as propounded in the MC Mehta case, which requires only preponderance of evidence as a standard of proof and Doctrine of Double Jeopardy of the Constitution would not be attracted since it is not applicable over civil liability. While for the case under the Act, the evidence beyond reasonable doubt is required.

After analysing all the arguments from both the sides, His lordship observed that the writ petition filed by the Petitioner stands to be rejected on the ground that no concrete arguments were put forth by the petitioner to infirm the order of compensation out of civil liability made. However, the petitioner was provided one month opportunity against the paying of compensation under the Act of 1986(Criminal) to present his case before the Assistant Labour Commissioner and till then, the recovery certificates will be in dormant stage.

Present Scenario
The Act of 1986 was amended in the year 2016 as Child Labour (Prohibition and Regulation) Amendment Act, 2016 where the punishments have become more stringent in order to remove the child labour cases at the ground level. As per the Amendment, Punishment for employing any Child at the establishment will attract the imprisonment of Minimum 6 Months to Maximum 2 Years or Fine of Minimum 20,000 Rs to Maximum 50,000 Rs or both. The offence under the Act is now categorised as cognizable in nature so as to keep it more stringent. However, the exception for the same is provided i.e if a child is working in a Family Business with a condition that his/her education should not be hampered.

The government again brought an Amendment via Child Labour ( Prohibition and Regulation) Amendment Rules, 2017, so as to provide a broader framework for protecting the interests of Child and to stop the Child Labour in Industries.

The Amendment Act Has Been Criticized On Various Grounds Such As:
Minimising the list of Prohibited Activities, Power of Appropriate Government to remove any of the activity from the scope of Hazardous Industry.

The exception granted to family Business which can act as a tool for exploitation of such vulnerable group because of the very reason that no specific working hour has been provided by the Act and it had just mentioned that after the School Hour, working is allowed. Keeping in mind the tender Age of Children, these loopholes can be harshly violated for economic advantage.
Current Judicial Activism on Prohibition Of Child Labour:

Court On Its Own Motion vs The State Of Jharkhand (2016):
In this case, Hon'ble High Court asked the State Government to provide the information in the Public Domain as to the actions taken by it to curb the forced Child Labour in the state as well as the policies and frameworks made in order to facilitate such prevention and Prohibition.

Jayakumar Nat v. State of NCT of Delhi(2015): In this case, Hon'ble Delhi High Court ordered the Government of Delhi to bring in the Action Plan for the rehabilitation of Children taking out of Forced Labour and to provide the economic assistance to the family of such children.

Roshan Kumar Gupta & Ors. vs State Of Bihar & Anr: In this case, the Hon'ble Court affirmed the fine that was imposed upon the petitioner to employ a Child Labour at his establishment and his writ petition as regards to the grant of opportunity to hear his case was quashed since the Judgement of MC Mehta clearly stated that fine would be imposed upon Employer/ occupier as part of his civil liability for the violation of Fundamental Rights of Child under Art-24.

Bachpan Bachao & Ors. vs Union Of India & Others: In this case, the Hon'ble High Court of Delhi outlined the duties and powers of the commission to hear the issues of Exploitation of Children in working Environment and it also has to take care of Medical and other requirements for proper rehabilitation.

Human Dignity is considered as quintessence of Human Rights. Children are considered as that part of Human Society which is very vulnerable to any kind of abuse, be it physical, mental or economic. Having regard to this, the Constitution of India expressly provided Art-24 as a Fundamental Rights which states that no child shall be employed in any type of hazardous Industries. Besides that, it imposes a duty upon the State to protect the Health and Strength of Children of Tender Age from any commercial exploitation and to provide adequate opportunities to Children for their growth and development in Art-39 (e) and Art-39(f) respectively.

At an International Level, The Declaration of Rights of Child, 1959 and International Convention on Rights of Child, 1989, explicitly talks about the protection of social, political, economic and Educational interest of this vulnerable category which is to be followed by the Member Countries. Having regard to both International And Domestic Frameworks, Child Labour (Prohibition and Regulation) Act, 1986, was brought in force to penalize and prosecute the occupier employing any Child under the Age of 14.

The case of Anil Kumar Agrawal V. Assistant Labour Commissioner highlights the severity of the offence of employing Child Labour at the establishment. It also highlights the civil liability of the occupier for violating the the fundamental rights of Child as propounded in the case of MC Mehta V. State of Tamil Nadu. Though the accused employer has the right to be heard in case of his liability under the 1986 Act since the criminal liability requires evidence beyond reasonable doubt, the fine will be imposed over him as a compensation cum Fund for rehabilitation of Child as a part of Civil Liability.

The question for the debate here is that whether the concerned Act has succeeded in prohibiting Child Labour?. The answer seems to be negative because as per the findings of ILO, India has around 1.1 Crores of Children (Under Age of 14) working in factories or other establishment, according the census of 2011. The outbreak of Covid has further increased the Child Labours In India. More than 10,500 cases were registered under the Act in 2019 , but only half of the cases were able to reach the prosecution. Hence, it can be undoubtedly said that bringing up the golden legislations will be of no use until the implementation of the same is done properly.

  • AIR 1997 SC 699
  • (1996) 2 SCC 689
  • Kanimozhi Karunanidhi, Covid has led to major rise in child labour, The Hindu Business Line (June 11, 2023, 08:46 PM)

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