Nirmal Gorana vs State Of Tripura And Ors

It is unfortunate, rather shocking that despite and in spite of prohibition under the constitution and the statutory provisions, certain persons/establishments are continuing to keep human beings as their slaves and employ them as bonded labourers. It is equally shocking that till date there is no proper mechanism, within the State of Tripura, for enforcing what is commonly known as the "Labour Laws". The Central Government has enacted and framed the Bonded Labour System (Abolition) Act, 1976 (hereinafter referred to as "the Bonded Labour Abolition Act"); the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (hereinafter referred to as "the Migrant Workmen Act"); the Central Sector Scheme for Rehabilitation of Bonded Labourer, 2016 (hereinafter referred to as "the Bonded Labourer Rehabilitation Scheme"). Yet, the State has not constituted the District Vigilance Committee(s) for enforcing the statutory provisions.

The writ petitioner, a public spirited person, by inviting attention of this Court of violation of international law obligations under the Universal Declaration of Human Rights and International Labour Organization (ILO) convention highlighted the practice of migrant labourers detained illegally and subjected to carrying out functions as a bonded labourer under coercion, threat and intimidation.

With the intervention of this Court, 7(seven) individuals kept as bonded labourers stand released. Also the State has taken all necessary steps for providing statutory benefits to these 7(seven) rescued bonded labourers. Also all financial assistance stands provided. Insofar as the personal grievance of individuals is concerned, it stands redressed and no other and further directions are required to be issued qua them.

But, however, it is seen that under the provisions of the Bonded Labour Abolition Act, the Sub-Divisional Level Vigilance Committees have yet to be constituted. This committee has an important function under the Act to discharge. The said Act was enacted to provide for abolition of bonded labour system with a view to preventing the economic and physical exploitation of the weaker sections of the people and for matters connected therewith or incidental thereto.

By virtue of Section 4 of the Bonded Labour Abolition Act, the bonded labour system stands abolished and every labourer stands freed and discharged from any obligation to render any bonded labour.

In fact, by virtue of Section 5, all custom, tradition, contract or agreements are statutorily held to be void and inoperative. The Act mandates all bonded debts to stand extinguished; the property of the bonded labourer to be freed from mortgage and render such labourer not to be evicted from homestead; and the creditor not to accept payment against extinguished debt (Sections 6, 7, 8 & 9 of the Act).

The said Act casts duties upon the authorities in implementing the provisions with rigour for which purpose a vigilance committee is mandatorily required to be constituted under Section 13 of the Act. The function of such committee is not only to advise the District Magistrate/authorized officer as to the efforts made and action taken for ensuring proper implementation of the Act but also to provide for economic and social rehabilitation of the freed bonded labourer. In addition, the offences for which cognizance stands taken or not are required to be monitored. Any violation of the Act entails penal consequences with the imposition of punishment of imprisonment for a term up to one year or with fine.

The Migrant Workmen Act was enacted to regulate the employment of inter-State migrant workmen and provide for their conditions of service and for matters connected therewith. Chapter II of the said Act mandates registration of establishments employing inter-State migrant workmen and Chapter III mandates licensing of contractors engaged in the activity relating to migrant labourers. Chapters IV & V lay down the duties and obligations of the contractors and the welfare measures to be taken with regard thereto. In terms of Chapter VI, the Government is under an obligation to appoint inspectors for the purposes of carrying out the provisions of the Act. The said inspectors are under an obligation and duty to carry out inspection of the records to be maintained by all including the contractors as also the place of establishments.

Article 23 of the Constitution of India prohibits trafficking of human beings and forced labour. It reads as under:

"23. Prohibition of traffic in human beings and forced labour.-(1) Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

(2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them."

Also child labour in factories is prohibited by virtue of Article 24, which reads as under:

"24. Prohibition of employment of children in factories, etc.-No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment."

In Bandhua Mukti Morcha vs. Union of India & others, (1984) 3 SCC 161, the Apex Court observed that where legislation is already enacted by the State providing these basic requirements to the persons, particularly belonging to the weaker section of the community and thus investing their right to live with basic human dignity, the State can certainly be obligated to ensure observance of such legislation, for inaction on the part of the State in securing implementation of such legislation would amount to denial of protection under Article 21, more so in the context of Article 256.

The Apex Court in Neeraja Chaudhary vs. State of M.P., (1984) 3 SCC 243, with anguish, highlighted the apathy on the part of the State in implementing the labour laws in the following terms:

"We wonder how these outcastes of humanity, forgotten by their fellow being and neglected, by their government, must be eking out their daily existence: how they must be feeding the hungry bellies of their children and how they must be covering the shame of their wives. These unfortunate human beings for whom life is a long unceasing rigel with no resources except perhaps a forlorn hope, who cannot even cry for help because they know that it will be a cry in the wilderness which no one will hear and who drag on their earthly existence in the hope that one day death will relieve them from their misery and suffering, today ask the Legislature, the Executive and the Judiciary, "What have you done for us; have we not a right to live with human dignity and share with all of you the fruits of freedom and development or are we consigned to a life of slavery and starvation where we see before our eyes the emaciated bodies of our children with hollow cheeks, sunken eyes and shrivelled bodies withering away and dying ?"

In fact, in Public Union for Civil Liberties vs. State of Tamil Nadu & others, (2013) 1 SCC 585, the Apex Court issued the following directions to be adhered to by all the functionaries and stakeholders:

"16. After hearing the amicus curiae and other learned counsel appearing in these proceedings and also taking note of the previous orders passed by this Court, we are inclined to give the following directions, apart from the directions already issued:

16.1. Fresh surveys be conducted periodically once in three years in all the States/UTs in accordance with the provisions of the Act and the revised report, the findings of the survey should be made a part of a computerized data base available on the websites of all concerned.

16.2. The responsibility of conducting the surveys is on the District Level Vigilance Committees and Sub Divisional Vigilance Committees of the States/UTs and such committees should submit their reports to the NHRC. This should be done in every three years and Committees also should be reconstituted in every three years.

16.3. Bonded labour, it may be noticed, is rampant in brick kilns, stone quarries, crushing mines, beedi manufacturing, carpet weaving, construction industries, agriculture, in rural and urban unorganized and informal sector, power looms and cotton handlooms, fish processing etc. The Vigilance Committees are directed to give more attention to these areas and take prompt action in case violation is noticed.

16.4. Large numbers of children are working as domestic help in the urban, town and rural areas with no chance to go to schools even though the education from standard I to VIII is compulsory under the Right of Children to Free and Compulsory Education Act, 2009. Local Panchayats and local bodies should identify such children and ensure that they get proper education. We are not unmindful of the fact that in some households they treat the domestic help just like their children and give food, clothing and education but they are exception.

16.5. Many of the States/UTs reporting NIL status with respect to existence of Bonded labourers. This might be due to the faulty methodology adopted by them for conducting such surveys. Guidelines on the methodology of identification of bonded labourers formulated by Shri SR Shankaran, Chairman of the Expert Group constituted by the NHRC be followed and implemented by all the States/UTs with suitable modifications to suit local conditions.

16.6. All the States/UTs should calculate firm requirements of fund for rehabilitation of freed bonded labourers and steps be taken to enhance the rehabilitation package from the present limit of Rs.20,000.

16.7. The District Magistrates are directed to effectively implement Sections 10, 11 and 12 of the Act and we expect them to discharge their functions with due diligence, with empathy and sensitivity, taking note of the fact that the Act is a welfare legislation.

16.8. The District Magistrate and the State Government/UTs would see that the Minimum Wages Act, the Workmen's Compensation Act, the Inter-State Migrant Workmen Act, and the Child Labour (Prohibition and Regulation) Act are also properly and effectively implemented.

16.9. Directions are issued to all Gram Panchayats, local bodies to report, in case they come across any case of bonded labour, to the District Magistrate who will take appropriate follow-up action under the Act.

16.10. The States of Andhra Pradesh, West Bengal, Jharkhand, Bihar and the NCT of Delhi are directed to ensure compliance with orders passed by the NHRC as highlighted in its revised report.

16.11. The States and the Union Territories should continue to submit six-monthly reports to NHRC.

16.12. All the States/UTs to constitute Vigilance Committee, if not already constituted within six months." (emphasis supplied)

This Court by virtue of Articles 142 and 144 of the Constitution of India, is duty bound to ensure implementation thereof. 14. In Tripura, there are large number of brick kilns which are made operational by engaging migrant labourers. Pursuant to order dated 27.02.2019, Ms. Nivedita Bhaumik, Deputy Labour Commissioner to the Government of Tripura, carried out inspection of certain brick kilns and informed the Court of the pathetic conditions of the labourers. However, as a result of constant monitoring of the present petition, on 12.03.2019, the Court was informed that the labourers engaged in the activity of manufacturing of bricks are now working voluntarily and as such, it cannot be said that any longer there are bonded labourers working in Tripura. But it is a matter of record that till date, there is no proper mechanism for enforcement of the provisions of the Bonded Labour Abolition Act and the Migrant Workmen Act.

Mr. A.K. Bhowmik, learned Advocate General appearing for the respondents-State, has invited our attention to the communication dated 23rd August, 2018 that of Sri Rajit Punhani, Director General, Labour Welfare, Ministry of Labour & Employment, Government of India, which reads as under:

"Dear, Sir/Madam,

As you are aware the Central Sector Scheme for Rehabilitation of Bonded Labour, 2016 provides for financial assistance for the Survey of bonded labourers @ Rs.4.5 lakhs per district, Rs.5.00 Lakhs for Evaluatory Studies @ Rs.1.00 lakh per Evaluatory Study per district/region and for Awareness Generation @ Rs.10.00 Lakhs per State per annum. The Central Government will give 50% of the amount required for conducting Survey, Awareness Generation and Evaluatory Studies in advance and the remaining 50% would be reimbursed on the receipt of Utilisation Certificates along with reports of Survey, Evaluatory Studies and awareness creation programmes to this Ministry.

I hope you would appreciate that all these three components are crucial to effective implementation of the BLSA Act and the 2016 Scheme. Thus, I request you to kindly look into the matter and ensure that Survey, Awareness Generation and Evaluatory Studies are undertaken on priority basis in your State during this financial year.

Your attention is also invited to the Central Sector Scheme for Rehabilitation of Bonded Labour, 2016, which provides for immediate release of Rs.20,000/- to the released bonded labour by the State/UT Government and for getting the same reimbursed by this Ministry later. You are also therefore, requested to forward all such pending proposals to this Ministry, for claiming reimbursement, without any further delay."

This is to fulfill the obligation under the scheme referred to supra.

Still further, it is seen that there is no mechanism for implementation of the Central Sector Scheme for Rehabilitation of Bonded Labourer, 2016. The District Magistrates are required to submit claims to the District National Child Labour Project Society for release of funds under the said scheme. Even this has not been done till date.

As such, we direct the Secretary, Department of Labour, Government of Tripura, respondent No.1 herein, to ensure that forthwith, all committees are constituted and inspectors are nominated to carry out the respective provisions of various statutes. Also steps for submitting claims under the scheme are taken immediately.

The entire process for enforcing and providing the benefits under the various provisions of such schemes and the Acts referred supra be positively completed within a period of one month from today.

With the aforesaid observations, the present petition stands disposed of.

At the end, we must appreciate Mr. Mintu Debbarma, learned counsel for the petitioner, to initiate this litigation and to draw the attention of the Court for the interest of the bonded labourers.