# Court in Smt. Madhulika Pathak v. State of U.P. & ors. 2011 (3) ADJ 91

- **Citation:** (2012) 1 ILRA 63
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-19
- **Bench:** Amar Saran, Ramesh Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-in-smt-madhulika-pathak-v-state-of-u-p-ors-2011-3-adj-91-42254
- **Pages:** 5

## Headnote

Constitution of India, Article 226-Public
Interest Litigation-claiming release from
clutches of the owner of brick kilninspite of working from 18-22 hours not
getting any salary, the family members
denied medicines and hospitalizationdistrict Legal Services directed to inquire
and submit report-certain guide lines
issued for proper implementation of
Bounded Labour System Abolition Act.
64 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

## Text

1 All] Madan V. State of U.P. and others
63

"If the element of indigence and the
need to provide immediate assistance for
relief from financial deprivation is taken
out from the scheme of compassionate
appointments, it would turn out to be
reservation in favour of the dependents of
an employee who died while in service
which would be directly in conflict with
the ideal of equality guaranteed under
Articles 14 and 16 of the Constitution."

20. It is thus clear that rule of
compassionate appointment has an object
to give relief against destitution. It is not a
provision
to
provide
alternate
employment
or
an
appointment
commensurate with the post held by the
deceased employee. It is not by way of
giving similarly placed life to the
dependents of the deceased. While
considering the provision pertaining to
relaxation under 1974 Rules, the very
object of compassionate appointment
cannot be ignored. This is what has been
reiterated by a Division Bench of this
Court in Smt. Madhulika Pathak Vs.
State of U.P. & ors. 2011 (3) ADJ 91.
The decision in Vivek Yadav (supra) has
been considered later on by another
Division Bench in Nagesh Chandra Vs.
Chief Engineer, Vivasthan Ga Warg &
Ors. decided on 7th January, 2011 in
Special Appeal No.36 of 2011 and Court
said:

"Though in the judgment it has been
held that when the rules are prevailing for
relaxation for making the application, a
member of the family, on attaining
majority, can file an application for due
consideration but in the judgment itself it
has been held that the law relating to
compassionate appointment is no longer
res integra. The right of compassionate
appointment does not confer a right but it
does
give
rise
to
the
legitimate
expectation in a person covered by the
rules that his application should be
considered, if otherwise he meets with the
requirement."

21. In the light of the exposition of
law, as discussed above, I do not find any
reason to issue such a mandamus, as
sought by the petitioner in the present writ
petition.

22. The writ petition therefore lacks
merit. Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.01.2012

BEFORE
THE HON'BLE AMAR SARAN,J.
THE HON'BLE RAMESH SINHA,J.

Public Interest Litigation (PIL) No. - 3782 of 2012

Madan

 ...Petitioner
Versus
State of U.P. Thru' Its Home Secy &
others

 ...Respondents

Counsel for the Petitioner:
Sri Atul Kumar

Counsel for the Respondents:
Sri M.S. Pipersania (S.C.)
C.S.C.

Constitution of India, Article 226-Public
Interest Litigation-claiming release from
clutches of the owner of brick kilninspite of working from 18-22 hours not
getting any salary, the family members
denied medicines and hospitalizationdistrict Legal Services directed to inquire
and submit report-certain guide lines
issued for proper implementation of
Bounded Labour System Abolition Act.
64 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
(Delivered by Hon'ble Amar Saran,J. )

1. We have heard learned counsel
for the petitioner and Sri M.S. Pipersania,
learned
Standing
Counsel
for
the
respondents No. 1 and 2.

2. This is another case where a
bunch of persons claiming themselves to
be bonded labourers have approached this
Court in a PIL, seeking to be freed from
bondage.

3. We had occasion to explain the
law on bonded labourers and how such
matters and complaints are to be dealt
with in a detailed judgment and order
dated 5.1.12 in Habeas Corpus Writ
Petition No. 70403 of 2011 Sageer and
others Vs. State of U.P. and others

4. The present petition has been filed
by one Madan, who states that his family
members and a few other persons (26 in
all) have been detained at the brick kiln of
respondent No. 3 Brahampal, in village
Kheratana,
Police
Station
Sarurpur,
district Baghpat and are unfree to leave
the brick kiln or to work for any other
person. In the petition as well as in the
representation before the S.S.P. Baghpat
dated 6.1.2012 it is stated, that the
petitioners are made to work for as long
as 18-20 hours, without payment and no
medicine or hospitalization facility is
provided to ill children. Significantly, in
paragraph 5, it has been stated that some
blank papers were got signed from the
petitioners and with the aid of some
criminal elements they are being forced to
work at Brahmpal's bhatta as bonded
labourers. They, however, deny having
voluntarily filled up any bonds to work
for the brick kiln owner and pray to be
released from his clutches.

5. We think that although persons
like the petitioners maybe working as
bonded labourers in brick kilns, because
of advances made to them, but these facts
are not mentioned in the representations
and the petitions because usually wrong
legal advice or gratuitous advice from
local barristers is tendered to such persons
that if they concede that they have taken
some advance, they would be unfree to
leave the brick kiln until they have paid
off their advance.

6. Obviously, this advise flows from
a complete misunderstanding of the
provisions of the Bonded Labour System
(Abolition) Act, 1976 (in short the
Bonded Labour Act). Bonded labour is
usually extracted as a result of a "bonded
debt," which is defined in section 2(d) of
the Bonded Labour Act to mean an
advance given to a labourer and in
consideration of the said advance the
bonded labourer is made to enter into the
bonded labour system. The Bonded
Labour System is defined in section 2 (g),
and means a system whereby the debtor
or
his
heirs
and
dependants
in
consideration of the advance have to
render service to the creditors for a
specified or unspecified period without
wages or for nominal wages, forfeiting
their
freedom
to
seek
employment
elsewhere or to move about freely in the
territory of India or to freely sell their
labour at market value. After the
enactment of the Bonded Labour Act,
under section 6, the liability to repay the
bonded debt stands extinguished, and
under section 9, the creditor cannot accept
payment against an extinguished debt,
accepting which would invite a sentence
of up to three years imprisonment and
fine.
1 All] Madan V. State of U.P. and others
65

7. Factually also in the present case
we find it hard to believe that the
petitioners claim that they were made to
work at the brick kiln for no wages
without having received some advance.
Situations are also not inconceivable,
where labourers in need of a substantial
advance for a marriage or because of
illness in their family agree to work for a
brick
kiln
owner,
and
after
their
emergency needs are met, in order to
leave the employer and to avoid repaying
the advance they file a bonded labour
complaint. But looking to the economic
condition of these poor persons, whose
clout is no match to the clout of their
employer, who usually live in tents in
open sites without electricity or water and
without medical and other facilities and
education for their little children, such
false cases are likely to be exceptional.

8. In accordance with the criteria set
out in Sageer and others Vs. State of U.P
(supra) for ascertaining whether a person
is bonded or not, and the reliefs available
to bonded labourers or vulnerable landless
or resourceless persons the District
Magistrate
and
the
district
level
Deputy/Assistant Labour Commissioner
may get an inquiry made for ascertaining
whether the labourers at Brahmpal's brick
kiln were bonded or not, and whether they
may be provided any preventive relief or
other socio-economic relief. We would
also like the District Legal Services
Authority (District Judge) Baghpat to get
such an inquiry conducted by paralegals
or legal aid lawyers attached to the Legal
Services Authority at the local level.

9. The need for taking advances by
labourers arises because there is no
effective system, governmental or nongovernmental for providing adequate
credit without strings to such landless and
resourceless persons. We therefore think
that if the economic conditions of such
poor, landless, resourceless and persons,
wherever they may be residing are
improved and credit from banks and other
government or fair non-governmental
agencies are made available to them to
meet the shortfalls in their daily and
emergency needs, they are less likely to
look for advances and consequently their
risk of becoming bonded to their
employers would decline. The conditions
of such workers need to be improved both
in their home areas as also at the place of
destination (as in the case of migrant
labourers), where they are working in the
unorganized sector. The employers should
also be advised to increase wages and to
improve working conditions of the
labourers so that instead of trying to tie
down labourers by raising advances, the
employers succeed in obtaining labourers
to work for them because of good wages
and more humane working conditions.

10. Assistance at the place of origin
as well as at the place of destination of the
bonded
labour,
would
require
the
involvement not only of the District
Magistrate, and local labour department,
but agencies which have a presence in
both the areas. These could mean the U.P.
State Ministry of Social Welfare and
Women's
and
Child
Development,
Ministry of Labour and the State Human
Rights Commission or the State Legal
Services Authority, if the source and
destination of the labourer fall within the
same State, and the Ministry of Social
Welfare
and
Women's
and
Child
Development in the home State of the
poor labourer, where he originates from
another State, or the National Human
Rights Commission, the Union Labour
66 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Ministry, the National Legal Services
Authority, which have jurisdiction over
both the States.

We, therefore:

1.Direct
the
D.M.
and
S.S.P.
Baghpat, and the local labour department
to inquire into the matter and to give the
bonded
labourers
appropriate
reliefs
including all the socio-economic benefits
to which they maybe entitled as laid down
in Sageer and others vs. State of U.P
(supra).

2.We also direct the District Judge,
Baghpat
(District
Legal
Services
Authority) to immediately get the matter
examined, by the local Legal Services
authority with the aid of para legals or
legal aid panel or other lawyers for
deciding whether the petitioner and others
were kept in bondage and the socioeconomic reliefs to which they are
entitled.

3.We would also like the Principal
Secretary Social Welfare and Women and
Child Development, U.P., the State
Human Rights Commission, the National
Human Rights Commission, State Legal
Services
Authority,
the
Principal
Secretary,
Labour,
U.P.,
Secretary,
Labour, Government of India, National
Legal Services Authority and State Legal
Services Authority to oversee the matter
and to give appropriate general directions,
including enforcement of all labour
related laws as well as socio-economic
relief in the present case as also in other
cases, and for preventive reliefs to check
vulnerable persons from falling into
bondage. The National Legal Services
Authority, the National Human Rights
Commission and the Union Ministry of
Labour may also consider co-ordinating
this matter, as also other bonded matters
relating to bonded labour, and the
provision of socio-economic reliefs in the
present case and other cases as directed in
Sageer and others Vs. State of U.P. and
others with the International Labour
Organization and the UNDP. All the
aforesaid
authorities
may
submit
compliance reports by the next listing.

4.The copy of the present order along
with earlier order dated 5.1.12 passed in
Habeas Corpus Writ Petition No. 70403
of 2011 in Sageer and others Vs. State of
U.P. and others may be forwarded to the
D.M.,
Baghpat;
S.S.P.
Baghpat;
Deputy/Assistant Labour Commissioner,
Baghpat;
District
Judge,
Baghpat;
Registrar,
National
Human
Rights
Commission, New Delhi; Registrar, U.P.
State
Human
Rights
Commission,
Lucknow; Member Secretary, National
Legal Services Authority, New Delhi;
Member Secretary, U.P. State Legal
Services Authority, Lucknow; Principal
Secretary, Social Welfare and Women
and Child Development, U.P., Lucknow;
Principal
Secretary,
Labour,
U.P.,Lucknow;
Secretary,
Labour,
Government of India, New Delhi, within
10 days by the Registry.

5.The copy of the present order along
with copies of the earlier order in Sageer
and others Vs. State of U.P. and others
may be given to the learned A.G.A.
within 10 days.

6.Issue notice to the respondent No.
3 returnable within four weeks.

7.The U.P. State Legal Services
Authority may also furnish this Court
with a progress report regarding setting up
1 All] Bal Krishna Awasthi and another V. Managing Director, U.P.S.R.T.C. and others
67
Legal
Aid
Clinics
and
engaging
paralegals, and Legal Aid 0.79"lawyers as
was directed in the case of Sageer &
others vs State of U.P. (supra) on 5.1.12

8.List on 21.2.2012. for submission
of further compliance reports.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition no. 5272 of 2012

Bal Krishna Awasthi & another

 ...Petitioner
Versus
Managing
Director,
U.P.S.R.T.C.
and
others

 ...Respondents

Counsel for the Petitioner:
Sri Venu Gopal
Sri B.N. Tiwari

Counsel for the Respondent:
Sri R.A. Gaur

U.P.
State
Roadways
Transport
Corporation
Act,
1950-Section
45Retirement Age Group "C" EmployeeNotice to retire on 58 years-challenged
on ground of G.O. Dated 20.12.11-by
which Govt. directed for enhancement of
age
from
58
to
60
years-heldmisconceived-mere
direction
for
consideration without confirmation by
Board of Director and approved by Govt.
-accepting burden of financial expensessuch G.O. Can not over ride the statuteretirement
at
58
years
age-properpetition dismissed.

Held: Para 14

Moreover, the Government order which
is sought to be relied by petitioners also
nowhere talks of any straightway grant
of benefit of extension of age of
retirement
to
employees
of
public
corporations. Para 2 of Government
Order
dated
20.12.2011
says
that
respective corporations shall examine
their matter to find out whether they are
financially capable of bearing the burden
likely to be caused by extension of age of
retirement from 58 to 60 years. If they
find that such a burden can be borne by
them, the matter shall be placed before
the Board of Directors and in case they
pass a resolution to this effect for
extension of age of retirement from 58
to 60 years, such proposal shall be
forwarded
to
the
Administrative
department of the concerned corporation
for
its
examination/
scrutiny
and
approval. It is only after obtaining
approval of respective department of the
concerned
corporation,
order
for
extending age of retirement from 58 to
60
years
can
be
issued
and
not
otherwise. It also says that its procedure
shall be followed by every corporation
separately and extension of age shall be
made applicable only after approval of
Government
for
which
no
financial
burden
shall
be
borne
by
State
Government. Therefore, the Government
order dated 20.12.2011 by itself does not
talk of any suo motu extension of age of
retirement from 58 to 60 years but
provides a procedure to be followed by
respective individual corporation and
after following said procedure when
approval of concerned department is
obtained, only then requisite order can
be issued.
Case law discussed:
1992 (Suppl) 3 SCC 217; JT 2001 (8) SC 171;
1998 (8) SCC 469; 1998 (8) SCC 154; AIR
1936 PC 253; 2001 (4) SCC 9; 2002 (1) SCC
633; 2005 (13) SCC 477; 2005(1) SCC 368;
2008 (2) ESC 1220

(Delivered by Hon'ble Sudhir Agarwal,J. )

1. By means of impugned order,
petitioners, who are admittedly Group 'C'
employees, have been retired on attaining