Madan vs State of U.P. and Others

Amar Saran and Ramesh Sinha, JJ.—We have heard learned Counsel for the petitioner and Sri M.S. Pipersania, learned Standing Counsel for the respondents No. 1 and 2.

This is another case where a bunch of persons claiming themselves to be bonded labourers have approached this Court in a PIL, seeking to be freed from bondage.

We had occasion to explain the law on bonded labourers and how such matters and complaints are to be dealt with in a detailed judgment and order dated 5.1.2012 in Habeas Corpus Writ Petition No. 70403 of 2011 Sageer and others v. State of U.P. and others.

The present petition has been filed by one Madan, who states that his family members and a few other persons (26 in all) have been detained at the brick kiln of respondent No. 3 Brahampal, in village Kheratana, Police Station Sarurpur, district Baghpat and are unfree to leave the brick kiln or to work for any other person. In the petition as well as in the representation before the S.S.P. Baghpat dated 6.1.2012 it is stated, that the petitioners are made to work for as long as 18-20 hours, without payment and no medicine or hospitalization facility is provided to ill children. Significantly, in paragraph 5, it has been stated that some blank papers were got signed from the petitioners and with the aid of some criminal elements they are being forced to work at Brahmpal''s bhatta as bonded labourers. They, however, deny having voluntarily filled up any bonds to work for the brick kiln owner and pray to be released from his clutches.

We think that although persons like the petitioners may be working as bonded labourers in brick kilns, because of advances made to them, but these facts are not mentioned in the representations and the petitions because usually wrong legal advice or gratuitous advice from local barristers is tendered to such persons that if they concede that they have taken some advance, they would be unfree to leave the brick kiln until they have paid off their advance.

Obviously, this advise flows from a complete misunderstanding of the provisions of the Bonded Labour System (Abolition) Act, 1976 (in short the Bonded Labour Act). Bonded labour is usually extracted as a result of a "bonded debt," which is defined in section 2(d) of the Bonded Labour Act to mean an advance given to a labourer and in consideration of the said advance the bonded labourer is made to enter into the bonded labour system. The Bonded Labour System is defined in section 2 (g), and means a system whereby the debtor or his heirs and dependants in consideration of the advance have to render service to the creditors for a specified or unspecified period without wages or for nominal wages, forfeiting their freedom to seek employment elsewhere or to move about freely in the territory of India or to freely sell their labour at market value. After the enactment of the Bonded Labour Act, u/s 6, the liability to repay the bonded debt stands extinguished, and u/s 9, the creditor cannot accept payment against an extinguished debt, accepting which would invite a sentence of up to three years imprisonment and fine.

Factually also in the present case we find it hard to believe that the petitioners claim that they were made to work at the brick kiln for no wages without having received some advance. Situations are also not inconceivable, where labourers in need of a substantial advance for a marriage or because of illness in their family agree to work for a brick kiln owner, and after their emergency needs are met, in order to leave the employer and to avoid repaying the advance they file a bonded labour complaint. But looking to the economic condition of these poor persons, whose clout is no match to the clout of their employer, who usually live in costs in open sites without electricity or water and without medical and other facilities and education for their little children, such false cases are likely to be exceptional.

In accordance with the criteria set out in Sageer and others v. State of U.P. (supra) for ascertaining whether a person is bonded or not, and the reliefs available to bonded labourers or vulnerable landless or resourceless persons the District Magistrate and the district level Deputy/Assistant Labour Commissioner may get an inquiry made for ascertaining whether the labourers at Brahmpal''s brick kiln were bonded or not, and whether they may be provided any preventive relief or other socio-economic relief. We would also like the District Legal Services Authority (District Judge) Baghpat to get such an inquiry conducted by paralegals or legal aid lawyers attached to the Legal Services Authority at the local level.

The need for taking advances by labourers arises because there is no effective system, governmental or non-governmental for providing adequate credit without strings to such landless and resourceless persons. We therefore think that if the economic conditions of such poor, landless, resourceless and persons, wherever they may be residing are improved and credit from banks and other Government or fair non-governmental agencies are made available to them to meet the shortfalls in their daily and emergency needs, they are less likely to look for advances and consequently their risk of becoming bonded to their employers would decline. The conditions of such workers need to be improved both in their home areas as also at the place of destination (as in the case of migrant labourers), where they are working in the unorganized sector. The employers should also be advised to increase wages and to improve working conditions of the labourers so that instead of trying to tie down labourers by raising advances, the employers succeed in obtaining labourers to work for them because of good wages and more humane working conditions. Assistance at the place of origin as well as at the place of destination of the bonded labour, would require the involvement not only of the District Magistrate, and local labour department, but agencies which have a presence in both the areas. These could mean the U.P. State Ministry of Social Welfare and Women''s and Child Development, Ministry of Labour and the State Human Rights Commission or the State Legal Services Authority, if the source and destination of the labourer fall within the same State, and the Ministry of Social Welfare and Women''s and Child Development in the home State of the poor labourer, where he originates from another State, or the National Human Rights Commission, the Union Labour Ministry, the National Legal Services Authority, which have jurisdiction over both the States.

We, therefore:

Direct the D.M. and S.S.P. Baghpat, and the local labour department to inquire into the matter and to give the bonded labourers appropriate reliefs including all the socio-economic benefits to which they may be entitled as laid down in Sageer and others v. State of U.P. (supra).

We also direct the District Judge, Baghpat (District Legal Services Authority) to immediately get the matter examined, by the local Legal Services authority with the aid of para legals or legal aid panel or other lawyers for deciding whether the petitioner and others were kept in bondage and the socio-economic reliefs to which they are entitled.

We would also like the Principal Secretary Social Welfare and Women and Child Development, U.P., the State Human Rights Commission, the National Human Rights Commission, State Legal Services Authority, the Principal Secretary, Labour, U.P., Secretary, Labour, Government of India, National Legal Services Authority and State Legal Services Authority to oversee the matter and to give appropriate general directions, including enforcement of all labour related laws as well as socio-economic relief in the present case as also in other cases, and for preventive reliefs to check vulnerable persons from falling into bondage. The National Legal Services Authority, the National Human Rights Commission and the Union Ministry of Labour may also consider coordinating this matter, as also other bonded matters relating to bonded labour, and the provision of socio-economic reliefs in the present case and other cases as directed in Sageer and others v. State of U.P. and others with the International Labour Organization and the UNDP. All the aforesaid authorities may submit compliance reports by the next listing.

The copy of the present order along with earlier order dated 5.1.2012 passed in Habeas Corpus Writ Petition No. 70403 of 2011 in Sageer and others v. State of U.P. and others may be forwarded to the D.M., Baghpat; S.S.P. Baghpat; Deputy/Assistant Labour Commissioner, Baghpat; District Judge, Baghpat; Registrar, National Human Rights Commission, New Delhi; Registrar, U.P. State Human Rights Commission, Lucknow; Member Secretary, National Legal Services Authority, New Delhi; Member Secretary, U.P. State Legal Services Authority, Lucknow; Principal Secretary, Social Welfare and Women and Child Development, U.P., Lucknow; Principal Secretary, Labour, U.P., Lucknow; Secretary, Labour, Government of India, New Delhi, within 10 days by the Registry.

The copy of the present order along with copies of the earlier order in Sageer and others v. State of U.P. and others may be given to the learned A.G.A. within 10 days.

Issue notice to the respondent No. 3 returnable within four weeks.

The U.P. State Legal Services Authority may also furnish this Court with a progress report regarding setting up Legal Aid Clinics and engaging paralegals, and Legal Aid lawyers as was directed in the case of Sageer and others v. State of U.P. (supra) on 5.1.2012

List on 21.2.2012, for submission of further compliance reports.