Monday, August 1, 2011

NHRC response on Bonded labour case

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National Human Rights Commission, New Delhi, India

Case Details of File Number: 8826/24/39/2011-BL

Diary Number 39639
Name of the Complainant LENIN, SECRETARY GENERAL
Place of Incident SAKARA
Date of Incident 1/1/1991
Direction issued by the Commission These proceedings shall be read in continuation of the earlier proceedings of the Commission dated 26.4.2011. In response, a letter dated 9.6.2011 has been received from Distt. Magistrate, Jaunpur along with the copy of the report dated 16.5.2011 received from Sub-Divisional Magistrate, Madiahu having been sent to the Commission vide letter dated 17.5.2011. Perusal of the same reveals that during enquiry the statement of Rajender, Guddu, etc. was recorded who informed that the rate for moulding of bricks was fixed at Rs. 300/- per thousand bricks but the brick kiln owner made payment only @ Rs.150/- per thousand bricks. On demand of full wages they were threatened by the persons named in the statement. During enquiry brick kiln owner Subhash Singh was also examined who stated that the labourers came at his brick kiln on 7.9.2010 and have not been coming to the brick kiln since 20.2.2011. It is further revealed that all the labourers were given a diary wherein the details of the work done and payment made was written by him or his munshi. The labourers have been paid the wages as per the work done by them. Since he has to take some amount from the labourers and as such they have made this false complaint so that they may not have to return the said amount due to him. It is also revealed that since the brick kiln owner failed to produced the books of accounts and as such criminal action has been taken. The labourers have also expressed danger to their lives and as such they are not going back to their houses. Incharge police station Sureri has been requested to provide protection to them. The Commission has considered the report. The copy of the statement which is on the file does not reveal as to on which date it was recorded, by whom it was recorded as it is not certified by any of the members of the investigating teams. In the report it has not been stated that as to on which date Sub-Divisional Magistrate along with other officers visited the brick kiln. The labourers have expressed apprehension about danger to their lives and incharge police station Sureri has been requested to provide protection to the labourers. When the brick kiln owner has not produced any books of accounts how statement made by the brick kiln owner that the labourers owe him money can be relied upon. The said statement is recorded by Labour Enforcement Officer, Jaunpur on 3.3.2011 which prima-facie shows that the Investigating team visited the brick kiln on 3.3.2011. As per the statement made by the brick kiln owner, the labourers stopped coming to the brick kiln w.e.f. 20.2.2011. In these circumstances, Commission is unable to place reliance on the report. The report received is an eye wash. Parliament has enacted various legislations including Bonded Labour System (Abolition) Act, 1976. Various other Statutes, such as Payment of Wages Act, 1936; Minimum Wages Act, 1948; Prevention of Scheduled Castes and Scheduled Tribes (Atrocities) Act, 1989; Interstate Migrant Workmen (Regulation of Employment and Conditions of Services) Act, 1979; Contract Labour (Regulation and Abolition) Act, 1920; Child Labour (Prohibition and Regulation) Act, 1976; Employment and Conditions of Service Act, 1979; and Weekly Holidays Act, 1942 were required to be examined. It was the duty of the enquiry officer to have seen whether there is complete compliance of all the labour legislations. The provisions contained in Section 10 of the Act are not strictly followed while making an inquiry. Attention is not paid to the provisions contained in sub-clause (g) of Section 2, which points out the system of forced or partly forced labour where one has to presume that labourer has entered into an agreement with the creditor to the effect that in consideration of an advance obtained by him or for any economic consideration received by him, he would render services without wages or with nominal wages and he forfeits the freedom of employment or other means of livelihood or he forfeits the right to move freely or forfeits the right to appropriate or sell at market value any of his property or product of his labour or the labour of a member of his family. This includes the system of forced or partly forced labour and presumption is required to be raised. Sub-clause (i) of Section 2 defines 'nominal wages'. If the wages, which are less than the Minimum Wages fixed by the government, are paid the provision is attracted. The officer should know about the decision of the Apex Court wherein the broad, liberal and expansive interpretation of the definition of 'bonded labour system' is given. According to the interpretation, it is not necessary to prove beyond doubt the element of loan/debt/advance in the creditor/debtor relationship. Such an element can always be implied or assumed. This is on account of the fact that the creditor and the debtor represent two diametrically opposite sections of the society. Traditionally, the debtor is poor, resourceless and in need of defence, whereas the creditor is rich, resourceful and dominant. Thus, their relationship is an unequal exchange relationship. If the debtor is rendering certain services to the creditor without any wage or with nominal wage, it is to be presumed that he is doing it not out of any charity but out of some economic consideration. It is on account of this that it is not necessary to prove beyond doubt the element of loan/debt/advance. The provisions contained in Article 23 of the Constitution of India are also not noticed by the officers. Even if remuneration is paid, labour supplied by the persons would be hit by Article 23 if it is forced labour i.e. service has been rendered by force or compulsion. Article 23 strikes at all forms of forced labour even if it has its origin in a contract voluntarily entered into by the person obligated to provide labour or service. It should not be forgotten that the poor people in this country, who are uneducated or mostly belong to Scheduled Castes and Scheduled Tribes, have no other alternative but to survive on the earth with whatever is paid. They are required to do work as directed by their masters and they have no alternative but to accept whatever is paid to them. It is for the officers exercising powers under the Bonded Labour System (Abolition) Act, 1976, to read between the lines and to understand the circumstances under which a poor person is compelled to work. He would send a complaint as a last resort. Without making any inquiry from such labourers and accepting the version of the employer is nothing but breach of the duty cast upon them. It is their duty to raise a presumption when the employer has failed to produce relevant records required to be maintained under the Minimum Wages Act and to declare labourers as bonded labourers when they are not paid Minimum Wages according to law and no satisfactory evidence is produced as pointed out under the Minimum Wages Act. Law mandates that the employer shall maintain registers and records giving particulars of employees employed by him, the work performed by them, the wages paid to them and the receipt obtained. When the brick kiln owner claims that he has paid minimum wages under Minimum Wages Act then it is for him to produce documentary evidence in proof of payment to show that he has paid wages in accordance with law. It is for this purpose that he is required to maintain muster roll. If the employer fails to produce the books of accounts then the Distt. Magistrate or the officer authorized by him must raise the presumption that the labourers were kept as bonded labourers. Every employer is required to maintain a register of wages in form X. He shall mention the details of the person employed complete the entries pertaining to wage period. A wage slip in form XI shall be issued by every employer to every person employed by him. He shall get the signature or thumb impression of every person employed, on the register of wages and wage slip. These entries in the register shall be authenticated by the employer or any person authorized by him in this behalf. A muster roll shall be maintained by every employer at the work spot and kept in form IX and the attendance of each person employed in the Establishment shall be recorded daily in that form within three hrs. of the commencement of the work shift. It has been observed by the Commission that the team who visits the brick kiln for inspection does not take trouble to verify as to whether the employer is maintaining these records as mandated by Law. The team also does not verify if the entries in the register of wages and wage slips have been authenticated by the employer or by any other person authorized by him in this behalf. In the absence of these books of accounts a duty is caste on Distt. Magistrate to presume that the allegations made in the complaint are true and they are being kept as bonded labourers. The Commission, while calling upon the District Magistrate to submit the report, specifically pointed out that he shall not only report about the functioning of the Vigilance Committee but shall also convey about the assistance taken of Member /Members of such Committee, a Non-Governmental Organization or a Social Worker during the enquiry giving all details. The Supreme Court, in case Neeraja Choudhary Vs. State of M.P. reported in (1984) 3 SCC 243, has pointed out that it would be difficult to rely on the enquiry or investigation made by subordinate officers such as Tehsildars and Patwaris as they are found either in sympathy with the exploiting class or lacking in social commitment or indifferent to the misery and sufferings of the poor and the downtrodden. Panchayats may have vested interests and having regard to the functioning, may not be more effective in the task of identification and release of bonded labourers. The Apex Court pointed out the incident about the Tehsildar making an enquiry and submitting a report. Apex Court pointed out that whenever any officer of the District Administration goes to a place for identification and release of bonded labourer on the basis of the information given by such representative of the Social Action Group, he shall take such representative with him and a copy of report made by him shall be handed over immediately to such a representative. Despite this decision reported in 1984, today, the situation has not at all improved. The District Magistrate was, therefore, asked to take the assistance of a Member of the Vigilance Committee or a Social Worker or an NGO, who can in a friendly manner talk to the labourers. The labourers realizing that the person, who has come to enquire, is a friend and may communicate the truth. To suppress these aspects, it is found that in no case so far it is reported that the District Magistrate or his subordinate has taken the assistance of an NGO or a Social Worker or a Member of a Vigilance Committee despite pointing out the need. Report prepared without assistance of such independent agency cannot be relied upon. If the enquiries are not conducted immediately by the officer concerned amounts to nothing but frustrating the object of the Act. The philosophy of the Constitution, the intention of the Parliament in enacting and amending Labour Welfare Legislation and interpreted by Supreme Court that the denial of minimum wages tantamount to forced labour and infringement of Article 23 of Constitution of India thus, affecting the provisions of Bonded Labour System (Abolition) Act. It is clear that there is a violation of human rights and various labour welfare legislation. The damage caused cannot be repaired but can be remedied by declaring them as bonded labourers and further by rehabilitating after issuance of certificate in accordance with the policy of the government. However, if the Distt. Magistrate, Jaunpur, UP is unable to act within a period of four weeks as per mandate of law, and direction of the Supreme Court given in various decisions, he shall personally appear before the Commission and shall explain the reasons thereof on 5.8.2011 at 11.00 A.M. On failure of either, coercive process may be issued.
Action Taken Additional Information Called for (Dated 6/30/2011 )
Status on 8/1/2011 Response from concerned authority is awaited.

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