IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:07.11.2008 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.13361 to 13371, 13399 to 13419 of 2004 and WPMP.Nos.15702 to 15712 of 2004 Marimuthu .. Petitioner in W.P.13361/04 Ashok Kumar .. Petitioner in W.P.13362/04 Marimuthu .. Petitioner in W.P.13363/04 V.A. Nagarajan .. Petitioner in W.P.13364/04 A. Prabakar .. Petitioner in W.P.13365/04 P. Thambiyannan .. Petitioner in W.P.13366, 13367, 13370/04 K.K. Arumugam .. Petitioner in W.P.13368/04 Selvam .. Petitioner in W.P.13369/04 Perumal Mesthiri .. Petitioner in W.P.13371/04 Mannatha Mudali .. Petitioner in W.P.13399/04 M. Venkatesan .. Petitioner in W.P.13400/04 Saminathan .. Petitioner in W.P.13401/04 Marimuthu .. Petitioner in W.P.13402/04 K.K. Arumugam .. Petitioner in W.P.13403/04 T.M. Madesan .. Petitioner in W.P.13404/04 P. Muthaiyan .. Petitioner in W.P.13405/04 R. Subramani .. Petitioner in W.P.13406/04 Arunachalam .. Petitioner in W.P.13407/04 T.A. Kathirvel .. Petitioner in W.P.13408/04 Kaveri .. Petitioner in W.P.13409/04 Murugesan .. Petitioner in W.P.13410/04 R. Palanivel .. Petitioner in W.P.13411/04 K.K.Arumugam .. Petitioner in W.P.13412/04 Palanisamy .. Petitioner in W.P.13413/04 Perumal Mesthiri .. Petitioner in W.P.13414/04 Kailash .. Petitioner in W.P.13415/04 Kandasamy .. Petitioner in W.P.13416/04 Prabakar .. Petitioner in W.P.13417/04 Ganesan .. Petitioner in W.P.13418/04 P.V.S. Rajendran .. Petitioner in W.P.13419/04 Vs. The Inspector of Factories O/o The Inspector of Factories Mettur, RS-2 Mettur, Salem District. ..Respondent in all Writ Petitions https://hcservices.ecourts.gov.in/hcservices/ Prayer: Writ Petitions under Article 226 of the constitution of India to issue writs of Certiorari calling for the records relating to the proceedings of the respondent in Ref.No.2872/97 dated 10.3.2004 (WP No.13361/2004),2832/97 dt. 10.3.2004 (WP 13362/2004) 4129/97 dt.23.3.2004 (WP 13363/2004), 3998/97 dt.16..3.2004 (WP 13364/2004), 2848/97 dt.10.3.2004 (WP 13365/2004) 2770/97 dt. 10.3.2004 (WP 13366/2004), 2772/97 dt. 10.3.2004 (WP 13367/2004), 2738/97 dt.10.3.2004 (WP 13368/2004), 2688/97 dt.10.3.2004 (WP 13369/2004),2771/97 dt.10.3.2004 (WP 13370/2004),2873/97 dt.10.3.2004 (WP 13371/2004),2880/97 dt.10.3.2004 (WP 13399/2004),4045/97 dt.16.3.2004 (WP 13400/2004), 2836/97 dt.10.3.2004 (WP 13401/2004),2818/97 dt.10.3.2004 (WP 13402/2004),2731/97 dt.10.3.2004 (WP 13403/2004),2963/97 dt.16.3.2004 (WP 13404/2004),2775/97 dt.10.3.2004 (WP 13405/2004), 2904/97 dt.23.3.2004 (WP 13406/2004),3137/97 dt.12.3.2004 (WP 13407/2004),3134/97 dt.12.3.2004 (WP 13408/2004),2878/97 dt.10.3.2004 (WP 13409/2004),4086/97 dt.16.3.2004 (WP 13410/2004), 2847/97 dt.10.3.2004 (WP 13411/2004),2739/97 dt.10.3.2004 (WP 13412/2004),2874/97 dt.10.3.2004 (WP 13413/2004),2881/97 dt.10.3.2004 (WP 13414/2004),2837/97 dt.10.3.2004 (WP 13415/2004), 3028/97 dt.23.3.2004 (WP 13416/2004),2855/97 dt.10.3.2004 (WP 13417/2004),2819/97 dt.10.3.2004 (WP 13418/2004),4203/97 dt.23.3.2004 (WP 13419/2004). For Petitioners in all Wps :: Mr.S.Doraisamy For Respondent in all Wps :: Mr.A.Arumugam, SGP COMMON ORDER Heard Mr.S.Doraisamy, learned counsel for the petitioners and Mr.A.Arumugam, learned Special Government Pleader taking notice for the respondent and perused the records. 2. In all these cases, the petitioners were either proprietors of Powerloom Factories or partners of Powerloom Factories situate in Tharamangalam in Salem District. The grievance of the petitioners was that they received a legal notice from the respondent during November 1997 stating that they had employed child labour in violation of the Child Labour (Prohibition and Regulation) Act, 1986 (for short Child Labour Act), when an inspection was made in respect of their establishment. The name of the child, the father's name and the age of the child was also mentioned in the notice issued to the petitioners. It was also brought to the notice of the petitioners the Judgment of the Supreme Court in M.C.Mehta vs State of Tamil nadu reported in AIR 1997 SC 699. In that Judgment, the Supreme Court gave in paragraph 27 certain directions in the following lines: "27. It may be that the problem would be taken care of to some extent by insisting on compulsory education. Indeed, Neera thinks https://hcservices.ecourts.gov.in/hcservices/ that if there is at all a blueprint for tackling the problem of child labour, it is education. Even if it were to be so, the child of a poor parent would not receive education, if per force it has to earn to make the family meet both the ends. Therefore, unless the family is assured of income aliunde, problem of child labour would hardly get solved; and it is this vital question which has remained almost unattended. We are, however, of the view that till an alternative income is assured to the family, the question of abolition of child labour would really remain a vill-o- the wisp. Now, if employment of child below that age of 14 is a constitutional indication insofar as work in any factory or mine or engagement in other hazardous work, and if it has to be seen that all children are given education till the age of 14 years in view of this being a fundamental right now, and if the wish embodied in Article 39(e) that the tender age of children is not abused and citizens are not forced by economic necessity to enter avocation unsuited to their age, and if children are to be given opportunities and facilities to develop in a healthy manner and childhood is to be protected against exploitation as visualised by Article 39(f), it seems to us that the least we ought to do is see to the fulfilment of legislative intendment behind enactment of the Child Labour (Prohibition and Regulation) Act, 1986. Taking guidance therefrom, we are of the view that the offending employer must be asked to pay compensation for every child employed in contravention of the provisions of the Act a sum of Rs.20,000/-; and the Inspectors, whose appointment is visualised by Section 17 to secure compliance with the provisions of the Act, should do this job. The inspectors appointed under Section 17 would see that for each child employed in violation of the provisions of the Act, the concerned employer pays Rs.20,000/- which sum could be deposited in a fund to be known as Child Labour Rehabilitation cum Welfare Fund. The liability of the employer would not cease even if he would desire to disengage the child presently employed. It would perhaps be appropriate to have such a fund district wise or area wise. The fund so generated shall form corpus whose income shall be used only for the concerned child. The quantum could be https://hcservices.ecourts.gov.in/hcservices/ the income earned on the corpus deposited qua the child. To generate greater income, fund can be deposited in high yielding scheme of any nationalised bank or other public body". 3. Therefore, the respondent inspected the factories and directed the petitioners to deposit a sum of Rs.20,000/- for the purpose of Child Labour Rehabilitation cum Welfare Fund. It was also stated that since the petitioners have violated by engaging child labour, which has been prohibited by Sec.3 of the Child Labour Act, the petitioners were directed to deposit the amount and they have been asked to deposit the said amount within a period of 10 days. 4. It is seen from the records in W.P.No.13361 of 2004, that pursuant to the notice, the petitioner sent a reply. The said reply was in proforma and it is stated that the particular worker by name Dhanalakshmi, D/o Kandasamy was 17 years old and she is working in the address of the petitioner as an independent weaver and the person who came for inspection had not determined the real age of the said person and sent this notice. It is also stated that during the inspection, the petitioner was not present and his signature also not obtained. Therefore, a demand was made to re-inspect the factory and cancel the show cause notice issued to them. Notwithstanding this reply, the respondent sent the final order dated 10.03.2004 stating that they have not complied with the earlier direction issued by the department despite any receipt of the notice and therefore, they were directed to comply with the notice issued to them. 5. It is against this order, the petitioners have filed the present writ petitions and the writ petitions are admitted on 05.05.2004. Pending the writ petitions, this Court granted interim stay. But, however, directed the authorities to proceed further, if any of the petitioners had employed a child less than 14 years of age, after issuing the notice to the petitioner. Subsequently, these petitions came up before this Court on 03.02.2005 and since the petitioners have not complied with the defects pointed out by the Registry, they were given time to comply with the same. Since the defects were not complied with, on the same day, they were given two week's time to comply with the same, failing which the petitions would be dismissed automatically without any further reference to this Court. 6. Mr.S.Doraisamy, learned counsel for the petitioners submitted that the procedure adopted by the respondent is contrary to the Child Labour Act and he has made a specific reference to Section 10 of the Act, which reads as follows:- "10. Disputes as to age:- If any question arises between an Inspector and an occupier as to the age of any child who is employed or is permitted to work by him in an establishment, the question shall, in the absence of a certificate as to the age of such child granted https://hcservices.ecourts.gov.in/hcservices/ by the prescribed medial authority, be referred by the Inspector for decision to the prescribed medical authority". 7. Therefore, in terms of Section 10, no enquiry has been conducted and final notice directing deposit of a sum of Rs.20,000/- is illegal and suffers from error of jurisdiction. 8. This Court is unable to agree with the said submission because the petitioners have not created any dispute with reference to the age of the child in question. In fact, in the affidavit sworn to by each of the petitioners, in paragraph 4, it is stated as follows:- "4. On receipt of the above notice, I gave a reply to the respondent stating that I have not employed any children aged below 18 years and hence I need not deposit any amount. After the receipt of my reply the respondent did not proceed further. Hence I was under impression that the respondent was satisfied with my reply since I have not employed child in my establishment". 9. In W.P.No.13361 of 2004, while a reply to the show cause notice has been made, in other writ petitions, there is no averment that a reply was made by the petitioners disputing the show cause notice issued by the department. Even in W.P.No.13361 of 2004, it must be stated that the reply itself after mentioning the name of the worker wrongly, admits that the particular child Dhanalakshmi was 17 years old. Such an admission goes contrary to paragraph 4 of the counter affidavit made by the petitioner. Even otherwise, in respect of other writ petitions, the same averment has been made without disclosing as to the identity of the child and also any proof which the petitioner possess to prove the child was above 14 years. In fact, after the enactment of the Child Labour Act, it is not as if the burden of proving the age of the child is only vests with the department. In the present cases, the show cause notices definitely come out with the age of the child as ascertained during the inspection and it has also been mentioned in the show cause notices that if any employer or an occupier wants to dispute that age, he ought to have come with with a specific plea as to the age of the child and records if any of the child maintained by the factory. Even otherwise, the supporting document from the parents of the child could have been produced. Therefore, when Section 10 talks about the question arising between the Inspector and the occupier as to the age of any child means, there must be a real dispute with reference to the age of the child and not a casual observation made in the affidavit filed before this Court after 7 years from the date of inspection. 10. Under such circumstances, when the other writ petitioners have not even raised any dispute as found from the affidavit, this Court is unable to agree with the legal plea raised by the https://hcservices.ecourts.gov.in/hcservices/ petitioner in ground No.5(e). Conducting of an enquiry with reference to the age of the child is not an automatic procedure unless the employer disputes the stand taken by the Inspector of Factories. Therefore, the petitioners having not raised any dispute cannot rely upon Section 10 of the Act for the purpose of shifting the burden on the respondent to prove the age of the child. The respondent has only acted pursuant to the direction issued by the Supreme Court, which is binding on all the authorities concerned and there can be no exception either to the show cause notice or to the final order passed by the respondent which are impugned in the writ petitions. Therefore, all the writ petitions are misconceived, devoid of merits. Accordingly, all writ petitions will stand dismissed. Before concluding, it is necessary to recapitulate a passage from M.C.Mehta's case (cited supra), wherein Hansaria, J has quoted a poem and observed as follows:- "I am the child. All the world waits for my coming. All the earth watches with interest to see what I shall become. Civilisation hangs in the balance. For What I am, the world of tomorrow will be. I am the child. You hold in your hand my destiny. You determine, largely, whether I shall succeed or fail, Give me. I pray you, these things that make for happiness. Train me, I beg you, that I may be a blessing to the world" Mamie Gene Cole It may be that the aforesaid appeal lies at the back of the saying that "child is the father of man". To enable fathering of a viliant and vibrant man, the child must be groomed well in the formative years of his life. He must receive education, acquire knowledge of man and materials and blossom in such an atmosphere that on reaching age, he is found to be a man with a mission, a man who matters so far as the society is concerned". https://hcservices.ecourts.gov.in/hcservices/ No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. rg To The Inspector of Factories O/o The Inspector of Factories Mettur, RS-2, Mettur, Salem District. 3 ccs to Mr.S. Doraisamy, Advocate, SR. 62431, 62432, 62430 1 cc to Government Pleader, SR. 62301, 62300 W.P.Nos.13361 to 13371, 13399 to 13419 of 2004 KG (CO) kk, km 6/12 https://hcservices.ecourts.gov.in/hcservices/