JUDGMENT
Aloke Chakrabarti, J.
1. The
petitioner carries on business of
manufacturing Biri and is a registered
partnership firm. It has been
contended in the writ petition that the
petitioner appointed contractors for
supplying Tendu leaf and tobacco for
the purpose of rolling Biri to various
persons in their residences and said
persons after having rolled Biri
supply the same to the Contractors
who in turn brings the same to the
factory of the petitioner which is
ultimately sold as finished product.
The petitioner was served with
notices contending that in survey, it
was found that the
petitioner/contractors had engaged
child labour in violation of provisions
contained In the Child Labour
(Prohibition and Regulation) Act,
1986. The notices were challenged In
writ petition No. 17034 of 1998. M/s.
Chhota Bhai Munna Bhai and
Company v. State of U. P. and others.
The Division Bench allowed the writ
petition by order dated 11.11.1998
and quashed the notices challenged.
In the said judgment, various findings
have been arrived at including the
findings whereby survey held was
deprecated strongly holding that
Inspectors involved in the survey did
not satisfy the requirement of law
and. therefore, survey was bad.
Observation was made therein that
demands on compensation and
notices to prosecute must be based
on a diligent and accurate survey and
take Into account two orders of
Hon’ble Supreme Court.
2. Subsequent notice issued to the petitioner again was challenged in Writ Petition No. 7601 of 1999, M/s. Chhota Bhai Munna Bhai and Company v. State of U. P. and others, wherein taking into consideration the aforesaid judgment of the Apex Court in the case of M. C. Mehta v. State of
Tamil Nadu and others, AIR 1997 SC 699 and aforesaid Division Bench judgment in the case of the present petitioner and decision of the learned single Judge of this Court in the case of A. K. Agarwal v. Assistant Labour Commissioner and others, 1998 All CJ 1371, the petitioner was granted liberty to file objection against the report of the Inspector and authority concerned was directed to decide the same. In terms of aforesaid direction, the impugned order dated 21.6.1999 at Annexure-1 to the writ petition was passed whereby the contentions of the petitioner were rejected and recovery was directed on the basis of notices already Issued. Challenging the same, present writ petition has been filed.
3. State respondents filed counter-affidavit and in view of their contentions raised in course of earlier hearing, liberty was granted and accordingly supplementary counter-affidavit was filed. The petitioner filed rejoinder-affidavit and supplementary rejoinder-affidavit.
4. Heard Mr. V. B. Upadhyay. learned counsel for the petitioner and the learned standing counsel.
5. The contention of the petitioner is that when survey in respect of present proceeding was already deprecated by Division Bench and had been found to be not in accordance with law, the present notices issued on the basis of self same survey, are liable to be quashed. Learned counsel for the petitioner referred to the counter-affidavit and supplementary counter-affidavit for the purpose of contending that the respondents admitted of holding no fresh survey and on the basis of old survey, present notices have been issued.
6. The list annexed at Annexure-2 to the supplementary counter-affidavit has been relied on behalf of the petitioner for the purpose of showing the designation of the persons holding the survey which have already been held to have been conducted by persons not satisfying prescriptions and such findings by Division Bench have not been
dislodged by any appropriate forum. With reference to Section 3 of the aforesaid Act, contention has been made by the learned counsel for petitioner that the proviso to said section exempts the petitioner even if children had been employed by the various persons engaged by the contractors for rolling Biri as such children being members of family of those persons are exempted by proviso to Section 3 of the said Act.
7. With regard to impugned notice, it has been further contended that before imposing compensation upon the petitioner, no notice had been issued and even though there is no provision in the said Act, the principle of natural justice requires such opportunity.
8. The impugned order at Annexure-1 to the writ petition has been also challenged on the ground that in the earlier writ petition filed by the present petitioner, Hon’ble single Judge directed consideration of judgment of Division Bench which In any event remains binding and. therefore, on the basis of survey which was disapproved by Division Bench, the present notices could not have been prepared nor the petitioner could be saddled with compensation.
9. Learned standing counsel for the respondents contended that the list at Annexure-3 to the supplementary counter-affidavit shows that a number of notices had been issued by the Labour Enforcement Officer and such notices cannot be challenged on the ground of irregularity in survey as Labour Enforcement Officers are duly authorised officers in terms of prescription of law. Learned standing counsel also contended with reference to Sections 16 and 17 of the said Act that Inspector duly appointed rightly held survey and this could not have been questioned by the petitioner.
10. It has been further contended on behalf of the respondents that certain notices have been challenged in duplicate and a list of such notices had been supplied at the time of hearing.
11. After hearing learned counsel for parties and perusing the materials on record, it appears that presently the Impugned notices have been issued on the basis of a survey which came up for consideration before the Division Bench in Writ Petition No. 17034 of 1998. M/s. Chhota Bhai Munna Bhai and Company v. State oj U. P. and others, and considering the entire circumstances in detail, the Division Bench made its observation with regard to the said survey as follows :
“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, Chaprasfs, 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 officers. 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 an 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.
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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.”
Upon observation as aforesaid, the final conclusion was reached by the Division Bench as follows :
“In reference to these cases. It is now acknowledged by learned Chief Standing Counsel, that the survey 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 petitioner, will need to be quashed. Hereinafter, the demands on compensation and notices to prosecute must be based on a diligent and accurate survey, and taken 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.”
12. After the aforesaid judgment, recovery certificate was Issued against the petitioner and they were compelled to move the Writ Petition No. 7601 of 1999, M/s, Chhota Bhai
Munna Bhai and Company v. State of V. P. and others. Taking note of decision of Division Bench and the Judgment of the Apex Court in the case of M. C. Mehta (supra), as also the judgment in Ciuil Misc. Writ Petition No. 26373 of 1998, A. K. Agarwal u. Assistant Labour Commissioner and others, decided on 2.9.1998. teamed single Judge of this Court disposed of the writ petition granting liberty to the petitioner to file objection against the report of the Inspector with a direction upon the authority competent to dispose of the same by a speaking order after giving an opportunity of hearing to the petitioner.
13. Following such direction when objection was filed, the Impugned order was passed deciding and ultimately rejecting the said objection.
14. A categorical statement was made in paragraph No. 28 of the writ petition that the impugned notices have been issued without holding any fresh survey and in paragraph 21 of the counter-affidavit, the said paragraph No. 28 has been dealt with aa follows :
“That the contentions of paragraph No. 28 of the writ petition are misconceived and false, and as such, are denied. It is stated in reply that so far the Impugned notices are concerned, this Hon’ble Court has not examined the same in the earlier writ petition which has to be examined by this Hon’ble Court on merits.”
15. At the stage of hearing, a supplementary counter-affidavit was filed. Therein nothing has been disclosed as regards fresh survey. With regard to earlier survey, which came up for consideration before Division Bench. Justification has been adduced in paragraph Nos. 3 and 4 of the said supplementary counter-affidavit.
16. At the time of hearing on behalf of petitioner. Instances have been shown from the record Indicating that findings of the Division Bench were correct on facts. It is contended on behalf of petitioner that the Division Bench in its
Judgment was rather mild n observation and said survey requires deprecation in a very strong language.
17. In view of aforesaid circumstances, it is apparent that the respondents are frustrating the direction of the Apex Court. A survey which has been already held to be irregular, is still being relied on and is attempted to be justified by the respondents when admittedly, the findings of the Division Bench have not been altered or quashed by any superior forum. Therefore, it is not proper for the authority concerned to further justify the said survey and to take action on the basis of findings in such survey. Apparently, any action including the notice and the recovery proceeding on the basis of imposition of penalty following the said survey. cannot stand.
18. Technical contention that all the persons participating in the survey were Labour Enforcement Officers and, therefore, such survey is fit and proper, can also not be accepted after findings of the Division Bench.
19. In the result, the writ petition is allowed. The impugned notices and the order dated 21.6.1999 at Annexure-1 to the writ petition arc hereby quashed. Respondents are directed to take steps strictly In accordance with the judgment of the Apex Court in the case of M. C. Mehta (supra), and the judgment and order dated 11.11.1998 in Writ Petition No. 17034 of 1998. M/s. Chhota Bhai Munna Bhai and Co. v. State of U. P.