# M/S Neelam Restorant v. State of U.P. Thru Secy. and others

- **Citation:** (2012) 3 ILRA 1498
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-12
- **Case number:** Civil Misc. Writ Petition No. 48461 of 2012
- **Bench:** Ashok Bhushan, Mrs. Sunita Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-neelam-restorant-v-state-of-u-p-thru-secy-and-others-42337
- **Pages:** 7

## Headnote

Act 1986-Section 3-Labor Enforcement
Officer/Inspector-found children about
13 years working-following the direction
of M.C. Mehta Case directed to deposit
Rs. 20,000-on each child-argument that
Trial still going on and the petitionergranted bail-if got fair acquittal-such
direction
worthless-held-on
acquittalrequest for refund open-no ground for
quashing the impugned order.

Held: Para-19

In the present case, the complaint has
already been filed and the same is
pending. In the event the outcome of the
complaint is that there was no violation
of the provisions of Section 3 of the 1986
Act by the employer, the employer can
always request the Inspector to refund
the amount already realised. The basis
for realisation of amount of Rs.20,000/-
is an act of offending employer which is
in contravention of the provisions of the
1986 Act. In the event it is found by the
Magistrate trying the complaint that
there was no contravention of the
provisions of Section 3 of the 1986 Act
by the employer, the employer from
whom the amount has been recovered,
can always request for refund of the
same.
Case Law discussed:
(1996) 6 SCC 756; (2006) 9 SCC 225

## Text

1498 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

previous year gives a right to the
petitioner by way of a fiction to contest
elections even after the expiry of the term,
cannot be accepted. The argument is too
far fetched.

11. The writ petition lacks merit and
is hereby dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2012

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE MRS. SUNITA AGARWAL, J.

Civil Misc. Writ Petition No. 48461 of 2012

M/S Neelam Restorant
 ...Petitioner
Versus
State of U.P. Thru Secy. and others

 ...Respondents

Counsel for the Petitioner:
Sri Mukesh Kumar

Counsel for the Respondents:
C.S.C.

Child Labor (Prohibition & Regulation)
Act 1986-Section 3-Labor Enforcement
Officer/Inspector-found children about
13 years working-following the direction
of M.C. Mehta Case directed to deposit
Rs. 20,000-on each child-argument that
Trial still going on and the petitionergranted bail-if got fair acquittal-such
direction
worthless-held-on
acquittalrequest for refund open-no ground for
quashing the impugned order.

Held: Para-19

In the present case, the complaint has
already been filed and the same is
pending. In the event the outcome of the
complaint is that there was no violation
of the provisions of Section 3 of the 1986
Act by the employer, the employer can
always request the Inspector to refund
the amount already realised. The basis
for realisation of amount of Rs.20,000/-
is an act of offending employer which is
in contravention of the provisions of the
1986 Act. In the event it is found by the
Magistrate trying the complaint that
there was no contravention of the
provisions of Section 3 of the 1986 Act
by the employer, the employer from
whom the amount has been recovered,
can always request for refund of the
same.
Case Law discussed:
(1996) 6 SCC 756; (2006) 9 SCC 225

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri Mukesh Kumar, learned
counsel for the petitioner and Smt. Archana
Srivastava,
learned
Standing
Counsel
appearing for the State-respondents.

2. In pursuance of the order dated 20th
September, 2012, learned Standing Counsel
has obtained instructions and by consent of
the learned counsel for the parties, the writ
petition is being finally decided.

3. By this writ petition, the petitioner
has prayed for quashing the citation dated
30th July, 2012 issued to the petitioner for
recovery of an amount of Rs.20,000/- on
account of engagement of child labour.

4. On 16th June, 2010 the Labour
Enforcement Officer/Inspector conducted a
survey of petitioner's restaurant at 9.35 A.M.
in which survey a child labour, namely,
Shani Kumar son of Arman Singh aged 13
years was found to be engaged in
contravention of Section 3 of the Child
Labour (Prohibition and Regulation) Act,
1986 (hereinafter referred to as the 1986
Act). A complaint dated 27th April, 2011
was filed by the said Labour Enforcement
Officer/Inspector under the 1986 Act before
3 All] M/S Neelam Restorant V. State of U.P. and others

1499
the Chief Judicial Magistrate, Farrukhabad.
The
complaint
filed
by
the
Labour
Enforcement Officer/Inspector is pending
consideration before the Chief Judicial
Magistrate.

5. Learned counsel for the petitioner,
challenging the citation dated 30th July,
2012, contends that the allegation that a child
labour was found engaged in petitioner's
concern is incorrect. It is stated that at the
time of inspection the alleged child labour
Shani Kumar son of Arman Singh, who was
about 13 years of age, was taking food. He
further contends that in the complaint the
petitioner appeared and was granted bail. It is
submitted that recovery proceeding cannot
be initiated since the complaint for trial under
Section 3 of the 1986 Act is still pending in
the Court of Chief Judicial Magistrate.

6. Learned Standing Counsel, after
obtaining instructions from the respondents,
submits that the recovery of Rs.20,000/- has
been initiated against the petitioner in
pursuance of the directions issued by the
Apex Court in the case of M.C. Mehta vs.
State of Tamil Nadu and others reported in
(1996)6 SCC 756, decided on 10th
December, 1996. She submits that State
Government has also issued a Government
order dated 5th June, 1998 in compliance of
the above judgment of the Apex Court dated
10th September, 1996. It is further submitted
that
recovery
can
be
initiated
on
contravention of provisions of the 1986 Act
by the petitioner and the fact that complaint
is pending before the Chief Judicial
Magistrate does not preclude the respondents
in initiating the proceeding for recovery.

7. We have considered the submissions
of learned counsel for the parties and perused
the record.

8. The Child Labour (Prohibition and
Regulation) Act, 1986 has been enacted to
prohibit the engagement of children in
certain employments and to regulate the
conditions of work of children in certain
other employments. Section 3 of the 1986
Act contains provisions of prohibition of
employment
of
children
in
certain
occupations and processes. Section 3 of the
1986 Act is quoted below:-

"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."

9. In Part-A of the Schedule to the
1986 Act, list of occupations has been given
in which at Item No.15 employment of
children in dhabas (road side eateries),
restaurants etc. is prohibited. Item No.15 of
the Part-A of the Schedule to the 1986 Act is
quoted below:-

"15. Employment of children in dhabas
(road side eateries), restaurants, hotels,
motels, tea shops, resorts, spas or other
recreational centres."

10. Section 14 of the 1986 Act relates
to penalties. Section 14 of the 1986 Act is
quoted below:-
1500 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

"14.
PENALTIES.-
(1) Whoever
employs any child or permits any child to
work in contravention of the provisions of
Sec. 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 Sec. 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
Sec. 9, or

(b) fails to maintain a register as
required by Sec. 11 or makes any false entry
in any such register; or

(c) fails to display a notice containing
an abstract of Sec. 3 and this section as
required by Sec. 12; or

(d) fails 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."

11. Section 16 of the 1986 Act relates
to procedure relating to offences and Section
17 of the 1986 Act provides for appointment
of Inspectors. Sections 16 and 17 of the 1986
Act are quoted below:-

"16. PROCEDURE RELATING TO
OFFENCES. -- (1) Any person, police
officer or inspector may file a complaint of
the commission of an offence under this Act
in any Court of competent 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 whom 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."

17.
APPOINTMENT
OF
INSPECTORS.
-
The
appropriate
Government may appoint inspectors for the
purposes of securing compliance with the
provisions of this Act and any inspector so
appointed shall be deemed to be a public
servant within the meaning of the Indian
Penal Code (45 of 1860)."

12. In a two Judge judgment of the
Apex Court in the case of Anant
Construction Co. vs. Govt. Labour Officer
& Inspector reported in (2006)9 SCC 225,
the Inspector after conducting survey had
directed the employer to pay compensation,
the said action of the Inspector was held to be
beyond his jurisdiction. It was held that the
jurisdiction of the Inspector does not extend
to trying of the complaint.

13. A Public Interest Litigation in Writ
Petition (C) No.465 of 1986 has already been
entertained by the Apex Court suo motu on
account of an unfortunate incident in one of
the Shivakashi Crackers Company at Tamil
Nadu where 39 persons died. The three
Judge Bench passed an order in the aforesaid
public interest litigation on 10th December,
3 All] M/S Neelam Restorant V. State of U.P. and others

1501
1996,
after
obtaining
report
of
the
Committee. The Apex Court in the aforesaid
judgment considered relevant constitutional
provisions pertaining to prohibition of child
labour i.e. Articles 24, 39(e), 39(f), 41, 45
and 47 of the Constitution. Article 24 of the
Constitution of quoted below:-

"24. Prohibition of employment of
children in factories, etc.- No child below
the age of fourteen years shall be employed
to work in any factory or mine or engaged in
any other hazardous employment.

14. The Apex Court noted in the
judgment that in respect of child labour
punishment up to one year and fine of
Rs.20,000/- has been provided in the 1986
Act, however, the said provisions are not
effective instruments for removal of children
working in industry. It is useful to quote
paragraphs 26, 27 and 29 of the said
judgment:-

"26. Section 14 of the Act has provided
for punishment upto 1 year (minimum being
3 months) or with find upto Rs.20,000/-
(minimum being ten thousand) or with both,
to one who employs or permits any child to
work in contravention of provisions in
section 3. Even so, it is common experience
that child labour continues to be employed.
As to why this has happened despite the Act
of 1986, has come to be discussed by Neera
Burra, in her afore- mentioned book at pages
246 to 230 o the 1995 edition. It has been
first pointed out that the occupations and
processes dealt by the Act are same about
which the replealed statute (Employment of
Children Act, 1938) had mentioned, except
that in Part B, one process has been added-
the same being "building and construction
industry". According to Neera, there are a
number of loopholes in the Act which has
made it "completely ineffective instrument
for the removal of children working in
industry". One of the clear loopholes
mentioned is that children can continue to
work if they are a part of family of labour. It
is not necessary for our purpose to go into
other infirmities pointed out. Nonetheless, it
deserves to be pointed out that the Act does
not use the word "hazardous" anywhere, the
implication of which is the children may
continue to work in those processes not
involving chemicals. Neera has tried to show
how impracticable and unrealistic it is to
draw a distinction between hazardous and
non-hazardous processes in a particular
industry. The suggestion given is that what is
required is to list the whole industry as
banned for child labour, which would make
the task of enforcement simpler and
strategies of evasion more difficult. Failure :
causes

27. We have, therefore, to see as to why
is it that child labour has continued despite
the aforesaid statutory enactments. This has
been a subject of study by a good number of
authors. It would be enough to note what has
been pointed out in "Indian Child Labour"
by Dr. J.C. Kulshreshtha. This aspect has
been dealt in Chapter II. According to the
author, the causes of failure are : (1)
poverty; (2) low wages of the adult; (3)
unemployment; (4) absence of schemes for
family allowance; (5) migration to urban
areas; (6) large families; (7) children being
cheaply available; (8) non-existence of
provisions for compulsory education; (9)
illiteracy and ignorance of parents; and (10)
traditional attitudes. Nazir Ahmad Shah has
also expressed similar views in his book
"Child Labour in India". In the article at
pages 65 to 68 of 1993(3) SCJ (Journal
Section) titled "Causes of the exploitation of
child labour in India", Dr. Amar Singh and
Raghuvinder Singh, who are attached to
1502 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

Himachal Pradesh University, have taken
the same views.

..........

29. 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 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 allude, 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 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 fulfillment 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 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."

15. The Apex Court, as noted above, in
paragraph 29 of the judgment has held,
"Taking guidance thereform, we are of the
view that 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 employer
concerned pays Rs.20,000 which sum could
be deposited in a fund to be known as Child
Labour Rehabilitation-cum-Welfare Fund".

16. The ultimate directions were issued
in paragraphs 33(7) and 33(9) of the
judgment, which are quoted below:-

"33(7) A district could be the unit of
collection so that the executive head of the
3 All] M/S Neelam Restorant V. State of U.P. and others

1503
district keeps a watchful eve on the work of
the Inspectors. Further, in view of the
magnitude of the task, a separate cell in the
Labour Department of the appropriate
Government would be created. Monitoring of
the scheme would also be necessary and the
Secretary of the Department could perhaps
do this work. Overall monitoring by the
Ministry of Labour. Government of India,
would be beneficial and worthwhile.

..........

33(9). We should also like to observe
that on the directions given being carried
out, penal provision contained in the
aforenoted 1936 Act would be used where
employment of a child labour, prohibited by
the Act, would be found."

17. The three Judge Bench in M.C.
Mehta's case (supra) thus had issued
directions for realisation of compensation
from the employer on contravention of
provisions of Section 3 of the 1986 Act. The
said directions are in addition to penal
provisions which can also be enforced as is
clear from the directions in paragraph 33(9)
of the judgment. The aforesaid judgment
thus clearly indicates that realisation of
compensation
from
employer
on
contravention of Section 3 of the 1986 Act is
not to wait till complaint filed for penalty is
decided by the competent Court. The
Inspectors, who have been appointed under
Section 17 of the 1986 Act, have been
entrusted with the duties of enforcement of
the 1986 Act and realise compensation from
employer who employ any child below the
age of 14 years in any occupation as
mentioned in Part-A of the Schedule or in
any of the processes as mentioned in Part-B.

18. In the present case, the petitioner
himself has brought on the record copy of the
complaint which indicates that Inspector on
survey made on 11th June, 2010 found a
child labour of 13 years aged working. The
directions of the Apex Court in M.C. Mehta's
case (supra), which directions are referable to
Article 141 of the Constitution of India, have
rightly been followed by the Inspector.
Learned Standing Counsel has also referred
to a Government order dated 5th June, 1998,
which has been placed by the learned
Standing Counsel for perusal of the Court, by
which the State Government has issued
direction in compliance of the directions of
the Apex Court in M.C. Mehta's case (supra)
for recovery of Rs.20,000/- from the guilty
employer as arrears of land revenue. Thus
the citation to recover Rs.20,000/- as arrears
of land revenue on the basis of survey made
by the Inspector on 11th June, 2010 is clearly
justified. We do not find any error in the
citation which may warrant interference by
this Court in exercise of writ jurisdiction.
However, it is necessary to observe that the
recovery of Rs.20,000/- on the ground of
violation of Section 3 of the 1986 Act on the
basis of survey shall always be subject to
decision on the complaint if the same is filed
by the Inspector on the basis of survey
report.

19. In the present case, the complaint
has already been filed and the same is
pending. In the event the outcome of the
complaint is that there was no violation of
the provisions of Section 3 of the 1986 Act
by the employer, the employer can always
request the Inspector to refund the amount
already realised. The basis for realisation of
amount of Rs.20,000/- is an act of offending
employer which is in contravention of the
provisions of the 1986 Act. In the event it is
found by the Magistrate trying the complaint
that there was no contravention of the
provisions of Section 3 of the 1986 Act by
the employer, the employer from whom the
1504 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

amount has been recovered, can always
request for refund of the same.

20. In result, the prayer of the petitioner
for quashing the citation dated 30th July,
2012 cannot be accepted and is refused.
However, it shall be open for the petitioner to
seek refund of the amount in the event it is
held in the complaint filed against him that
no offence is committed by the employer
under Section 3 of the 1986 Act.

21. Subject to above, the writ petition is
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.11.2012

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE ADITYA NATH MITTAL, J.

Civil Misc. Writ Petition No. 50928 of 2012

Smt. Punam Singh

 ...Petitioner
Versus
State of U.P .and another ...Respondents

Counsel for the Petitioner:
Mrs. Arti Raje
Sri R.N. Singh

Counsel for the Respondents:
C.S.C.

Regulation of Coaching Act 2002-Section
3-Restrictions
on
running
coachingpetitioner
running
coaching
duly
registered-list of teachers not supplies in
registration form-petitioner's husband
teaching as ad-hoc teacher in local
college-submission that under section 2
K of U.P. Higher Education (Group-A)
Service Rules 1985-hence restriction by
D.I.O.S. Uncalled for-held-contract/adhoc teachers getting salary from public
exchequer-are within purview of Act-to
avoid
ambiguity-Govt.
To
issue
necessary notification to avoid defect the
very
purpose
of
the
Act-petition
dismissed.

Held: Para-9 and 10

The entire object and purpose of the Act
would be defeated, if the court accepts
the submission of the petitioner for
exempting
the
adhoc,
part-time
or
contract
teachers
appointed
in
the
Government Schools and Colleges and
are getting salary/remuneration from
public exchequer the purview of the Act,
and to permit them to teach in the
coaching institutions.

For the aforesaid reasons, we do not find
any force in the submission of the
learned counsel for the petitioner that
the contract/ad hoc teachers are not
included within the meaning teachers
under
Section
2
(K)
of
the
U.P.
Regulation of Coaching Act 2002. The
writ petition is dismissed.

(Delivered by Hon'ble Sunil Ambwani,J.)

1. We have heard Sri R.N. Singh
holding brief for the counsel for the
petitioner. Learned standing counsel
appears for the State respondents.

2. On 15.10.2012, we passed the
following order:-

"List has been revised. No one
appears for the petitioner.

It is alleged that the petitioner is
running coaching institute by the name
of Krishna Coaching Institute in which
her husband is also teaching. She has
prayed for writ of mandamus restraining
the District Inspector of Schools, Karvi,
Chitrakoot not to harass the petitioner for
imparting coaching and establishing the
coaching
centre.