JUDGMENT S. R. Singh, J.-
1. The vexed question in the instant petition amongst others is whether 'Child Labour Compensation' can be recovered from the alleged employer of child labour to enforce obedience to the rights and liabilities stemming from the Judgment of the Apex Court M. C. Mehta's case, M. C. Mehta v. State of T. N. and others, AIR 1997 SC 699, merely on the report of the Inspector appointed under Section 17 of the Child Labour (Prohibition and Regulation) Act, 1986 (In Short the 'Act') without an opportunity of hearing being given to the alleged employer. It is on this line that the petitioner has sought for issuance of writ of certiorari quashing firstly, the notices/orders dated 9.7.1997 issued/passed by the respondent No. 1 (Annexures-4, 5. 6 and 7) ; secondly, the Government Order dated 5.6.1998 (Annexure-12) by which the Addl/Deputy/Asstt. Commissioner has been ceded power to issue recovery certificate for recovery of compensation payable by the 'offending employer' as per the judgment of the Apex Court in the case of M. C. Mehta v. State of Tamil Nadu and others (supra) and thirdly, the recovery proceedings initiated by the Collector. Mathura, against the petitioner in pursuance of the recovery certificates dated 1.7.98 issued by the respondent No. 1 for recovery of Rs. 3,20,000, Rs. 4,00,000, Rs. 80,000 and Rs. 2,00,000.
2. The facts shorn of unnecessary details are that on 30.3.95, the Inspector appointed under the Act made an inspection of the petitioner's company and gave his report, the text of which was that there was no child labour found working in the petitioner's 'Establishment'. Subsequently, on 28.7.95, the petitioner came to be served with four notices from the office of the Asstt. Labour Commissioner the substance of which is that as a result of Inspection/survey conducted at petitioner's establishment on 9.4.97, 13.4.97 and 15.4.97, child labours listed in the notices, were found working and accordingly, he was called upon to pay compensation referred to in the notices within 15 days for rehabilitation of the child labours. The petitioner, it is alleged, entered a reply, abjuring therein the engagement/appointment of any child labour in his establishments and attributed issuance of notice to reasons stemming from disinformation.
3. The petitioner, it may be pointed out. Is the Director of M/s. Oriental Rugs (P) Ltd., a company registered under the Companies Act and engaged in the business of hand-made woollen/synthetic carpets, Rugs, Druggists, Namdahs and hand-made silk carpets. The question brought to bear in the present petition is that the petitioner did not enlist the services of any 'child labour' in respect of whom he has been exacted to pay compensation at the rate of Rs. 20,000 per child labour. The other ancillary questions articulated in the petitions are that the liability to pay compensation for the rehabilitation of child labour, enlarged into a mandate by the decision of the Apex Court in M. C. Media's case, will come into play only after the employment in contravention of the Act is brought home and the employer is held to be an offending employer. The substance of the submission made by the learned counsel for the petitioner is that until conclusion of the criminal proceeding, if any launched under the provisions of the Act, the question of recovery of compensation from the owner of the 'Establishment', 'Shop', or 'Factory', as the case may be, does not come into play. In repudiation, the learned standing counsel submitted that the liability to pay compensation stems from the judgment of the Supreme Court in M. C. Mehta's case and in view of the observations made in the judgment. It is for the 'Inspector appointed' under Section 17 to "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 Rehabllitatlon-cum-welfare fund'. The aforestated observation made in M. C. Mehta's case clearly enjoins a duty upon the Inspector to adjudicate factual controversy. If any, raised by the employer.
4. I have bestowed my careful consideration to the submissions made across the bar, the questions that arise for consideration, are of legal moment. The laudable objectives sought to be accomplished by M. C. Mehta's case must, however, be achieved by lawful means.
5. Right against exploitation is a fundamental right engrafted in Articles 23 and 24 of the Constitution of India. While Article 23(1) interdicts traffic in human being and Begar and other similar forms of forced labours and postulates further that 'any contravention of this provision shall be an offence punishable in accordance with law. Article 24 albeit prohibits engagement of any child below the age of 14 years in any factory or mine or employment of hazardous nature, is mired in silence as to civil and or criminal liability of the person, engaging a child below the age of 14 years for its infringement. Prior to enactment of Child Labour (Prohibition of Regulation) Act. 1986 (In short the "Act"), there was no procedure laid down in any law for deciding in which particular employments, occupations or processes the employment of children should be banned nor was there any law to regulate the working conditions of children in most of the employment where they were not prohibited from working and were rather working in subhuman and under exploitative conditions. The Parliament enacted the Act, prohibiting engagement of children in certain employments and regulating the 'working conditions of children in certain other employments. Section 3 of the Act which forbids employment of children in certain occupations and processes reads as under :
"3. Prohibition of employment of children in certain occupations and processes.--No child shall be employed or permitted to work in any of the occupations set forth in Part A of the Schedule or in any workshop wherein any of the processes set forth in Part B of the Schedule is carried on :
Provided that nothing in this section shall apply to any workshop wherein any process is carried on by the occupier with the aid of his family or to any school established by, or receiving assistance or recognition from Government."
Section 9(1) enjoins a duty upon every occupier in relation to an Establishment in which the child was employed or permitted to work immediately before the date of commencement of the Act in relation to such Establishment to send to the Inspector within whose territorial limits the Establishment is situate, a written notice within a period of 30 days from the date of commencement of the Act, listing particulars, namely the name and situation of the Establishment, the name of the person in actual management of the Establishment, the address to which communication relating to Establishment should be sent and the nature of the occupation and processes carried in the Establishment. Sub-section (2) casts a similar obligation upon every occupier in relation to an Establishment who employs or permits to work any child after the commencement of the Act 'Child' has been defined in Section (2) (ii) to signify a person who has not completed his 14 years of age. The definition clause defines also the words 'appropriate Government' and 'Establishment' amongst other words. Section 10 of the Act visualises that if any question arises between 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 by the Prescribed Medical Authority, be referred by the Inspector for decision to the Prescribed Medical Authority. The contravention of the provisions of the Act, it is prescribed, will manifest itself in penalties of law in the manner provided in Section 14 of the Act which is excerpted below to elicit instant recognition :
"14. Penalties.--(1) Whoever employs any child or permits any child or permits any child to work in contravention of the provisions of Section 3 shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees or with both.
(2) Whoever, having been convicted of an offence under Section 3, commits a like offence afterwards, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years.
(3) Whoever-
(a) fails to give notice as required by Section 9, or
(b) fails to maintain a register as required by Section 11 or makes any false entry in any such register ; or
(c) fails to display a notice containing an abstract of Section 3 and this section as required by Section 12 ; or falls to comply with or contravenes any other provisions of this Act or the rules made there under, shall be punishable with simple imprisonment which may extend to one month or with fine which may extend to ten thousand rupees or with both."
Section 16 envisages a procedure relating to offences and enables any person, police officer or Inspector to Institute a complaint of the commission of an offence under the Act in any Court of competent jurisdiction. Sub-section (2) contains a rule of evidence and provides that every certificate as to the age of child which has been granted by a Prescribed Medical Authority, shall for the purposes of the Act, be clinching evidence as to the age of child to whom it relates. Appointment of Inspectors is visualised by Section 17 of the Act.
6. The Act Imposes criminal liability upon a person engaging a child labour in contravention of the provisions thereof but lists out no civil liabilities upon such person. In M. C. Mehta v. State of Tamil Nadu, AIR 1997 SC 699. the Supreme Court after portraying stark realities that in India like many other countries "Children are exploited lot "imposed, for the first time, a civil liability upon the 'offending employer' of a child labour to pay compensation at the rate of Rs. 20.000 per child labour with a view to raising fund known as 'Child Labour Rehabilitation-cum-welfare Fund' in the following words :
"It may be that the problem would be taken care of to some extent by insisting on compulsory education. Indeed, Neera thinks that If there is at all a blueprint for taking 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 perforce 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 will-o-the-wisp. Now, If employment of child below that age of 14 is a constitutional indiction in so far 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(1) it seems to us that the least we ought to do is to see to the fulfilment of legislative intendment behind enactment of the Child Labour (Prohibition and Regulation) Act, 1986."
7. Right against exploitation is guaranteed by Articles 23 and 24 of the Constitution. Article 39(f) casts a duty upon the State to direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. Infringement of fundamental right guaranteed by Article 24, it. seems, is a tort which is actionable per se, that is without proof of actual damage and consent by the child and/or his parents is no defence and if right to education is a fundamental right. State is equally liable to pay compensation for not providing free education to children, upto the age of 14 years belonging to weaker section of society. There is no denying the fact that the laudable constitutional objectives aforestated were- sought to be achieved by the Supreme Court in the manner indicated in M. C. Mehta's case (supra) but the principle of law well-settled is that no man should be condemned unheard and, therefore, it follows that before, an employer is asked to pay compensation, he must be given reasonable opportunity of being heard as against the report submitted by the Inspector for realisation of the compensation at the rate of Rs. 20,000 per child. The objections, if any, filed by the employer on receipt of the show cause notice must also be reckoned with analytically in a lawful and adjudicatory manner before proceeding to realise the amount of compensation. The imperative function of the Inspector appointed under Section 17 of the Act, is to secure compliance with the provisions of the Act, and see that for each child employed in antagonism of the provisions of the Act, the Employer concerned pays Rs. 20,000. The position of the Inspector qua the provisions encapsulated in the Act is that of a Prosecutor and it must not be expected of him to discharge the adjudicatory functions. It would have been ideal, if the "appropriate Government" had been proactive in framing the rules and procedure for the enforcement of rights and liabilities arising from large scale infringement of fundamental rights of the children below the age of 14 years as a result of failure to perform public law duty under the constitution which is sue generis, i.e.. a class in itself as recognised by the Supreme Court in its judgment in M. C. Mehta's case. In the absence of rules, I find no other judicial artema live/forum for adjudication of any dispute arising out of Inspection report except the authorities empowered to issue recovery certificates for realisation of the amount of compensation vide G. O. dated 5.6.1998, namely, the Addl./Deputy/ Asstt. Labour Commissioner who are well equipped to perform adjudicatory function after notice to the Employer to show cause why the recovery certificate for realisation of the amount of compensation at the rate of Rs. 20,000 per child be not Issued. It cannot be repudiated that Addl./Deputy/Asstt. Labour Commissioner appointed for Issuance of recovery certificates are Independent authorities and being connected with adjudication of labour disputes, it would be within their briefs to decide any controversy such as the controversy whether the child labour is below 14 years and whether the child labour said to have been engaged is pursuing any employment of hazardous nature. In Seth Banarasi Das v. District Magistrate/Collector, Meerut, (1996) 2 SCC 689, the Supreme Court held that proceedings for recovery are like execution proceedings and Recovery Officer/Collector too can examine all questions going to the root of liability but since the Government have appointed Addl./Deputy/Asstt. Labour Commissioner to Issue recovery certificates, propriety dictates that disputes, if any, going to the root of liability be resolved by such officer before Issuing the recovery certificates.
8. The submission by the learned counsel for the petitioner that the liability to pay child labour compensation at the rate of Rs. 20.000 per child would arise only after the Employer is convicted in a criminal prosecution launched under the provisions of the Act, does not commend to me for acceptance. The reason is that the standard of proof in a criminal prosecution is 'beyond reasonable doubt' while civil cause can be decreed on the basis of 'preponderance of evidence'. While criminal liability of the Employer of child labour arises for violation of the provisions of the Act, civil liability to pay compensation arises due to violation of the fundamental right as per M. C, Mehta's case which has created new rights and obligations enforceable by law. The infringement of a fundamental right or any other right conferred by the Constitution is a wrong under public laws, and it would be 'unjust, unduly harsh and oppressive on account of their poverty or disability or socially or economically disadvantageous position to require the person or persons affected by such infringements to initiate or pursue action in civil courts. An order of acquittal in a criminal charge under the Act does not. In my opinion, forestall an action for realisation of child labour compensation according to M. C. Mehta's case. An order of conviction under the Act can, no doubt, be legitimately made the basts for fastening the civil liability to pay the child labour compensation as per M. C. Mehta's case and substantive punishment with imprisonment with or without fine as visualised by Section 14 of the Act, would not. In my opinion, bar civil action for realisation of the compensation. Article 20(2) of the Constitution will have no application for the reason that the civil liability to pay child labour compensation as per M. C. Mehta's case arises from violation of fundamental right against exploitation guaranteed by Article 24 of the Constitution read with Article 39(1) and recognised as such, by the judgment of the Supreme Court in M. C. Mehta's case over and above the criminal liability of the Employer under the Act.
9. The learned counsel for the petitioner has not been able to ferret out any infirmity in the Government Order dated 5.6.1998 which empowers the Addl./Deputy/Asstt. Labour Commissioner to issue recovery certificates for realisation of the child labour compensation from the Employers of the identified child labours engaged in hazardous processes.
10. As a result of the foregoing discussion, I find no case made out for quashing the impugned Government Order dated 5.6.1998 and feel called to dispose of the writ petition vis-a-vis the relief for quashing the impugned notices/orders and recovery certificates issued by the respondent No. 1 -- Asstt. Labour Commissioner, Mathura, with the directions that in case the petitioner files objection before the concerned Asstt. Labour Commissioner, within a month, the latter shall go into its tenability and dispose it of by a reasoned order. Pending disposal of the objection, the Impugned notices/orders and recovery certificates shall remain in suspended animation which shall be resilient to change as per the decision which may be taken on the objection of the petitioner.