# Hari Shanker v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1394
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-29
- **Case number:** Misc. Single No. 4499 of 2015
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-shanker-v-state-of-u-p-ors-45485
- **Pages:** 4

## Headnote

A. Child Labour (Prohibition & Regulation) Act,
1986-Sec.3-Petitioner-found
guilty-vide
impugned order-for employing person below-14
years
of
age-denying
the
fact-petitioner
sumitted markssheet-aged around 18 yearssecs. 10 & 16- certificate granted by-prescribed
medical officer-to be conclusive proof-child
found to be 13 years old-as per medical
certificate-Petition Dismissed.

B. Held, In the instant case it is clear that the
prescribed authority has given his considered
opinion and indicated the age of the child to be
thirteen years and in light of Section 16 of the
Act of 1986, and the said age having been
determined by the prescribed authority shall be
a conclusive evidence as to the age of the
child. In the present case I am of the view that
the age determined by the prescribed Medical
Authority is thirteen years and therefore the
proceedings drawn against the petitioner under
the Act of 1986 clearly borne out. The
petitioner has setup a case with regard to a
person whose identity has been disputed. The
photograph of the person setup by the
petitioner does not match with the photograph
which was taken at the time of incident which
is also in the records of the respondents as well
as the certificate issued by the Chief Medical
Authority. In case such a stand was taken by
the petitioner regarding identity then onus will
2 All. Hari Shanker Vs. State of U.P. & Ors.
1395
go on the petitioner to prove to the satisfaction
of the authorities concerned. While on the
other hand the State has clearly proved that
the offence has been committed by the
petitioner by employing a person whose age
has already been determined by the prescribed
Medical Authority to be less than fourteen
years.

Writ Petition dismissed. (E-8)

## Text

1394 INDIAN LAW REPORTS ALLAHABAD SERIES
that ultimately it is for the court to decide
whether in the facts and circumstances of
the case it is necessary to protect the
property which is subject matter of suit.
Also it observed that if a party fails to
prove prima facie case to go for trial, it is
not open to the court to grant interim
injunction in his favour even if he made
out a case for balance of convenience
being in his favour and that he would
suffer irreparable loss or injury if no
injunction order is granted.

21. This Court finds from the orders
impugned that no final finding has been
arrived at with regard to the title or the
claim of the petitioner to the land in
dispute to be used by him as sahan. Only a
prima facie finding has been recorded that
in the revenue records, Plot no.580 has
been recorded as raasta and in the Amin
Commissioner's report also, it was found
to be used by other persons as well and
that the houses of other persons were
opening there on the disputed piece of
land.

22. This Court therefore, does not
find any legal infirmity in the orders
impugned. It is only one of the possible
views that can be taken by the trial court
and the appellate court and this Court
under Article 227 enjoys a very limited
jurisdiction to interfere in the orders
passed by the subordinate courts.

23. The writ petition is dismissed. No
order as to costs.

24. It is, however, clarified that the
finding recorded by this Court in this order
shall not prejudice the case of the
petitioner, which is yet to be proved on the
basis of evidence led by both the parties.
----------
(2020)02ILR A1394

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.01.2020

BEFORE
THE HON'BLE ALOK MATHUR, J.

Misc. Single No. 4499 of 2015

Hari Shanker ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Gulam Rabbani

Counsel for the Respondents:
C.S.C.

A. Child Labour (Prohibition & Regulation) Act,
1986-Sec.3-Petitioner-found
guilty-vide
impugned order-for employing person below-14
years
of
age-denying
the
fact-petitioner
sumitted markssheet-aged around 18 yearssecs. 10 & 16- certificate granted by-prescribed
medical officer-to be conclusive proof-child
found to be 13 years old-as per medical
certificate-Petition Dismissed.

B. Held, In the instant case it is clear that the
prescribed authority has given his considered
opinion and indicated the age of the child to be
thirteen years and in light of Section 16 of the
Act of 1986, and the said age having been
determined by the prescribed authority shall be
a conclusive evidence as to the age of the
child. In the present case I am of the view that
the age determined by the prescribed Medical
Authority is thirteen years and therefore the
proceedings drawn against the petitioner under
the Act of 1986 clearly borne out. The
petitioner has setup a case with regard to a
person whose identity has been disputed. The
photograph of the person setup by the
petitioner does not match with the photograph
which was taken at the time of incident which
is also in the records of the respondents as well
as the certificate issued by the Chief Medical
Authority. In case such a stand was taken by
the petitioner regarding identity then onus will
2 All. Hari Shanker Vs. State of U.P. & Ors.
1395
go on the petitioner to prove to the satisfaction
of the authorities concerned. While on the
other hand the State has clearly proved that
the offence has been committed by the
petitioner by employing a person whose age
has already been determined by the prescribed
Medical Authority to be less than fourteen
years.

Writ Petition dismissed. (E-8)

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Mr. Gulam Rabbani, learned
counsel for the petitioner as well as learned
Standing Counsel appearing for the respondents.

2. The petitioner has approached this Court
being aggrieved by the order dated 09.07.2015
passed by the Deputy Labour Commissioner,
Faizabad Division Faizabad, whereby petitioner
has been found to be guilty of Section 3 of the
Child Labour (Prohibition and Regulation) Act,
1986 (hereinafter referred to as Act, 1986) and a
penalty of Rs.20,000/- has been imposed upon
him for employing the person below the age of
fourteen years.

3. The brief facts of the case are that
petitioner runs a Motor Cycle repairing shop in
the name and style Pappu Hero Honda Repairing
Centre, Mawai Chauraha Faizabad and on
13.08.2013 the Labour Enforcement Officer/
Inspector, Faizabad. Respondent No.4 came to
the shop of the petitioner and found one Sonu to
be working in the repair shop. On the basis of the
aforesaid a show cause notice dated 18.12.2013
was given to the petitioner with direction to give
a reply to the allegations stated therein with
regard to the fact that he had employed a minor in
his shop who was found during the inspection of
the premises of the petitioner. The petitioner has
submitted his reply on 12.02.2014 and denying
the fact that he had employed any minor in his
shop and submitted a marksheet of a student
named as Shiv Kumar having the date of birth as
15.02.1996 and submitted that person so named
in the show cause notice is not a minor and is
aged around eighteen years and therefore there is
no violation Section 3 of the of Act, 1986.

4. Subsequently another show cause notice
was given to the petitioner by the Deputy Labour
Commissioner, Faizabad dated 18.06.2014
reiterating the same facts. It has been submitted
that reply of the said show cause notice could not
be given. It is relevant to submit that the order
dated 18.06.2014 as well as order dated
18.12.2013 are similarly worded and reply to the
show cause notice 18.12.2013 was already been
submitted by the petitioner. The impugned order
was
passed
by
the
Deputy
Labour
Commissioner, Faizabad after taking into
account the reply submitted by the petitioner.

5. The counsel for the petitioner has
submitted that the impugned order is illegal
and arbitrary, inasmuch as the person who
was employed in the premises of the
petitioner was not a minor and he had
provided a copy of the High School
Certificate of the said Sri Shiv Kumar,
which indicates that he is nearly eighteen
years of age.

6. In light of the above he has
vehemently submitted that the impugned
order is liable to be set-aside being passed
contrary to the provisions of the Act.

7. Learned Standing Counsel on the
other hand has supported the impugned.
He has submitted that during the time of
inspection on 13.08.2013 a minor was
found to be working in the Motor Cycle
repairing shop of the petitioner. He has
further submitted that the age of the child
was confirmed when he was produced
before the Chief Medical Officer, Faizabad
who after examining the boy issued a
certificate dated 14.08.2013 indicating the
1396 INDIAN LAW REPORTS ALLAHABAD SERIES
boy age to be thirteen years. The photo of
the person whose age was determined by
the Chief Medical Officer was also affixed
with a certificate issued by him.

8. It has been submitted that in light
of the conclusive proof of the age of the
person so found in the premises of the
petitioner, there is a clear violation of
Section 3 of the Act, 1986 for which the
petitioner has been found to be guilty and
penalty imposed thereupon.

9. I have heard the learned counsel for
the parties and perused the record.

10. The premises of the petitioner were
inspected on 13.08.2013 and the said person
was produced before the Chief Medical
Officer who certified that the date of birth of
Sonu is 13 years by the certificate dated
14.08.2013. The entire controversy in the
present petition relates to the identity and the
age of the person so found during inspection.
The petitioner on one hand has submitted a
High School Certificate of one person known
as Shiv Kumar, whose date of birth has been
shown as 15.02.1996 and has submitted that
on the date when the premises were inspected
he was not minor. While on the other hand the
State has relied upon Medical Certificate
issued by the Chief Medical Officer, who
determined the age of the person who was
found in the premises at the time of inspection
to be thirteen years.

11. To resolve the controversy,
the provisions relating to determination
of age as provided in the Child Labour
(Prohibition and Regulation) Act, 1986
are as under:-

"16. Procedure relating to
offences- (1) Any person, police officer
of Inspector may file a complaint of the
commission of an offence under this Act in any
Court or contempt jurisdiction.

(2) Every certificate as to the age of
a child which has been granted by a
prescribed medical authority shall, for the
purposes of this Act, be conclusive evidence as
to the age of the child to whim it relates.

(3) No Court inferior to that of a
Metropolitan Magistrate or a Magistrate of the
first class shall try any offence under this Act."

12. From the above, it is clear that
the certificate granted by the prescribed
Medical Authority shall be the conclusive
evidence as to the age of Child and in the
present case certificate dated 14.08.2013
issued by the Chief Medical Officer has
determined the age of the child to be
thirteen years. While on the other hand
Section 10 of the Act of 1986 relates to
dispute as to the age which is quoted for
ready reference:-

"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 by the prescribed
medical authority, be referred by the
Inspector for decision to the prescribed
medical authority."

13. A bare reading of Section 10 of
the Act of 1986 clearly indicates that the
dispute will arise only in a case where no
certificate has been granted by the
Prescribed Medical Authority. Petitioner
on the other hand has contended that the
High School Certificate issued by the
Board indicates that the child is above
seventeen years of age. While the
certificate issued by the Chief Medical
Authority, Faizabad indicates that the age
2 All. C/M Baroda U.P. Gramin Bank Vs. The Presiding Officer, Employees Provident Fund & Ors.
1397
of the child is thirteen years. The provision
of Section 10 of the Act of 1986 would be
attracted only in absence of any certificate
issued
by
the
prescribed
Medical
Authority.

14. In the instant case it is clear that
the prescribed authority has given his
considered opinion and indicated the age
of the child to be thirteen years and in light
of Section 16 of the Act of 1986, and the
said age having been determined by the
prescribed authority shall be a conclusive
evidence as to the age of the child. In the
present case I am of the view that the age
determined by the prescribed Medical
Authority is thirteen years and therefore
the
proceedings
drawn
against
the
petitioner under the Act of 1986 clearly
borne out. The petitioner has setup a case
with regard to a person whose identity has
been disputed. The photograph of the
person setup by the petitioner does not
match with the photograph which was
taken at the time of incident which is also
in the records of the respondents as well as
the certificate issued by the Chief Medical
Authority.

15. In case such a stand was taken by
the petitioner regarding identity then onus
will go on the petitioner to prove to the
satisfaction of the authorities concerned.
While on the other hand the State has
clearly proved that the offence has been
committed by the petitioner by employing
a person whose age has already been
determined by the prescribed Medical
Authority to be less than fourteen years.

16.

The
Deputy
Labour
Commissioner has considered the entire
conspectus of the case and has come to a
clear finding against the petitioner and
imposed penalty of Rs.20,000/- upon him.
No other fact or material had been brought
on record which may persuade this Court
to interfere with the impugned order. No
other ground was urged by the petitioner.

17. In pursuance to the interim order
of this Court dated 06.08.2015, the
petitioner
has
already
deposited
Rs.20,000/- on 18.08.20215. In light of the
above no further action in this regard is
required to be taken.

18. I do not find any reason to
interfere with the order of the Deputy
Labour Commissioner. The writ petition is
without merit and is hereby dismissed.
----------
(2020)02ILR A1397

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.01.2020

BEFORE
THE HON'BLE ALOK MATHUR, J.

Misc. Single No. 5973 of 2011

C/M Baroda U.P. Gramin Bank
 ...Petitioner
Versus
The
Presiding
Officer,
Employees
Provident Fund & Ors. ...Respondents

Counsel for the Petitioner:
Anupras Singh

Counsel for the Respondents:
Pradeep Raje, Om Prakash Pandey, Rajesh
Kumar Verma

A. Service Law-Employees Provident Fund &
Misc. provisions Act, 1952-Sec. 7A-Regional
Rural
Banks
Act,
1976-Petitioner
bankchallenging order of Tribunal-denied to pay
towards
EPF
of-engaged
sweepers-paid
consolidated amount on monthly basis-by
Branch Manager-on the ground-not employees
of the Bank-u/s 2(f)-any person employed for