Delhi High Court - Orders
Nirmal Gorana vs Govt Of Nct Of Delhi & Ors on 9 December, 2022
Author: Satish Chandra Sharma
Bench: Chief Justice, Subramonium Prasad
$~18 & 19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 1011/2018 & CRL.M.As. 6285/2018, 7098/2018
NIRMAL GORANA ..... Petitioner
Through: Mr. Umesh Kumar, Ms. Sumayya
Khatoon, Ms. Kawalpreet Kaur,
Advocates
versus
GOVT OF NCT OF DELHI & ORS ..... Respondents
Through: Mr. Gautam Narayan, ASC for
GNCTD with Ms. Asmita Singh,
Advocate with SI Rahul Kumar, PS
Anand Vihar & SI Pankaj, PS Moti
Nagar
Ms. Monika Arora, CGSC with
Mr.Yash Tyagi, Mr.Subhrodeep,
Advocates for UOI
Ms. Latika Malhotra, ASC for MCD
+ W.P.(CRL) 1165/2019
NIRMAL GORANA ..... Petitioner
Through: Mr. Umesh Kumar, Ms. Sumayya
Khatoon, Ms. Kawalpreet Kaur,
Advocates
versus
STATE & ORS ...... Respondents
Through: SI Rahul Kumar, PS Anand Vihar &
SI Pankaj, PS Moti Nagar
Signature Not Verified
Digitally Signed By:HARIOM
SINGH KIRMOLIYA W.P.(CRL) 1011/2018 & W.P.(CRL) 1165/2019 Page 1 of 14
Signing Date:21.12.2022
17:11:05
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
ORDER
% 09.12.2022
1. The Petitioner before this Court has filed the present petitions under Article 226 of the Constitution of India seeking issuance of appropriate writ, order or direction directing the Respondents to rehabilitate bonded labourers and to take necessary steps to rescue bonded labourers.
2. In W.P.(CRL) 1011/2018, the Petitioner has prayed for the following reliefs:-
"a) For an order/direction in the nature of writ of mandamus or any other writ of similar nature directing the Respondents to take immediate steps for identification of persons engaged as bonded labourers in the NCT of Delhi and taken appropriate steps for their rescue in accordance with the provisions of Bonded Labour System (Abolition) Act, 1976;
b) For an order/direction in the nature of writ of mandamus or any other writ of similar nature directing the Respondents to issue release certificates in accordance with Section 12 of the Bonded Labour System (Abolition) Act, 1976 to the bonded labourers, details of some, as available with the Petitioner, has been provided in Annexure P/20 at page no. to ;
c) For an order/direction directing the Respondents to disburse the Interim compensation amount to the rescued bonded labourers in Moti Nagar and Patel Nagar districts of the NCT of Delhi, in accordance with the Central Sector Scheme for Rehabilitation of Bonded Labourer, 2016 and/or any other law in force;Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(CRL) 1011/2018 & W.P.(CRL) 1165/2019 Page 2 of 14 Signing Date:21.12.2022 17:11:05
d) For an order/direction ensuring rehabilitation of the rescued bonded labourers in the Moti Nagar and Patel Nagar districts of the NCT of Delhi in accordance with the Central Sector Scheme for Rehabilitation of Bonded Labourer, 2016 and/or any other law in force;
e) For an Order/direction to the appropriate authorities to conduct a survey and for identification the bonded labourers engaged in the NCT of Delhi as per Section 14(e) of the Bonded Labour System (Abolition) Act, 1976 and to submit a detailed report in this regard before this Hon'ble Court.
f) For an order/direction for constitution of a vigilance committee under Section 14 of the Bonded Labour System (Abolition) Act, 1976 and to investigate into the issue of bonded labour system and to take appropriate action in accordance with law;
g) For issuance appropriate order/direction to ensure effective implementation the Bonded Labour System (Abolition) Act, 1976 so as to stop the bonded labour system in the NCT of Delhi and to identify, release and rehabilitate the bonded labourers in accordance with the orders passed by the Hon'ble Supreme Court in Bandhua Mukti Morcha vs. Union of India & Ors, 1984 (3) SCC 161 and Neeraja Chaudhary vs. State of M.P., 1984 (3) SCC 243."
3. In W.P.(CRL) 1165/2019, the Petitioner has prayed for the following reliefs:-
"1. For an order/direction in the nature of writ of mandamus or any other writ of similar nature directing the Respondents to take immediate steps for rescue of persons engaged as bonded labourers in the NCT of Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(CRL) 1011/2018 & W.P.(CRL) 1165/2019 Page 3 of 14 Signing Date:21.12.2022 17:11:05 Delhi;
2. Issue a writ in the nature of mandamus directing the respondents to take appropriate steps to issue the interim compensation for Ms. Pooja Maltho and record the statement Ms. Sarita Bai and issue direction to register FIR against the persons who engaged Ms. Sarita Bai in Bonded Labour. Investigate the whole matter and issue release certificate to Ms. Sunita Bai and Ms. Sarita Bai.
3. To provide adequate rehabilitation of the three rescued minor girls in accordance with the provisions of Central Sector Scheme for Rehabilitation of Bonded Labour, 2016;
4. To initiate prosecution against those who are guilty of forcing the three minor girls into bonded labour in accordance with the provisions of the Bonded Labour System (Abolition) Act, 1976;
5. For an order/direction ensuring rehabilitation of the bonded labourers in the NCT of Delhi in accordance with the Central Sector Scheme for Rehabilitation of Bonded Labourer, 2016 and/or any other law in force;
6. For an Order/direction to the appropriate authorities to conduct a survey and research on the rampant practice of bonded labour under Central Sector Scheme for Rehabilitation of Bonded Labourer, 2016."
4. At the outset, Mr. Gautam Narayan, learned ASC for GNCTD, submits that a similar issue has been looked into by this Court in the case of Walter Kerketta v. Sub-Divisional Magistrate-Delhi South East District & Ors., W.P.(C) 9744/2017. It is stated that various Status Report were filed in Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(CRL) 1011/2018 & W.P.(CRL) 1165/2019 Page 4 of 14 Signing Date:21.12.2022 17:11:05 the matter from time to time in the aforesaid case. He has also informed this Court that the Government has framed the Standard Operating Procedure (SOP) for release of immediate financial assistance to the rescued bonded labourers in GNCTD, as directed by this Court on 04.07.2018 in the case of Walter Kerketta (supra).
5. This Court after careful consideration of the SOP issued in the matter, has passed a detailed and exhaustive order on 04.07.2018 in W.P.(C) 9744/2017 and the same is reproduced as under:-
"1. This writ petition complains regarding the action and omissions of the concerned authorities for preventing bonded labour as well as failure to rescue bonded labourers from unscrupulous employers despite the several judicial precedents commencing from the Bandhua Mukti Morcha as well as the enactment of the Bonded Labour System (Abolition) Act, 1976. Several instances of rescues effected by the respondents of a person from bonded labour have been placed in the writ petition. It cannot be disputed that the several judicial precedents as well as the statutory scheme have been unable to prohibit this menace and to protect the rights of the bonded labourers.
2. Concerned therewith this writ petition was filed seeking issuance of appropriate writ, order or directions to the respondents for grant of immediate financial rehabilitative assistance to the victims of bonded labour in Delhi which is to be placed at the disposal of the District Magistrate under the Government of NCT of Delhi.
We may note that extensive reference has been made to the Central Sector Scheme for Rehabilitation of Bonded Labourer, 2016 which has been notified by Government of India on 18th May, 2016.Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(CRL) 1011/2018 & W.P.(CRL) 1165/2019 Page 5 of 14 Signing Date:21.12.2022 17:11:05
3. Pursuant to the orders passed by this Court, we are informed by Mr. Gautam Narayan that during the pendency of this writ petition, the Government of NCT has undertaken a massive exercise for framing of Standard Operating Procedure for release of immediate financial assistance to the rescued bonded labourers in the NCT of Delhi which has been finalized after discussion and in collaboration with the petitioner.
The Government of NCT has placed before us under cover of a letter dated 14th June, 2018 by Sh. R.K. Gupta, Section Officer (Coord-HQ), a copy of the report of the Committee which was constituted for the purpose under the Chairmanship of the District Magistrate (South East) and has finalised the enclosed Standard Operating Procedure (SOP). We have scrutinized the procedure which has been delineated in the said report. Prescription has been made inter alia for pre- rescue protocol; rescue and inquiry protocol; post-rescue protocol and makes specific stipulations regarding the release of financial assistance. The SOP prescription reads as follows:
"STANDARD OPERATING PROCEDURE FOR INDENTIFICATION OF BONDED LABOURERS AND RELEASE OF IMMEDIATE FINANCIAL ASSISTANCE A. PRE-RESCUE PROTOCOL
1. The DM/SDM should ensure that the forms at Annexure-I and Annexure-II are made available and Annexure-II are made available to all the officers involved in the inquiry and rescue of the labourers.[Such officers will include officials from the DM/SDM office, Labour Department, Police Department and Child Welfare Committee].Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(CRL) 1011/2018 & W.P.(CRL) 1165/2019 Page 6 of 14 Signing Date:21.12.2022 17:11:05
2. The DM should ensure that every rescuing team mandatorily comprises of the officials mentioned at clause 2 of the SOP of the Ministry of Labour and Employment [MOLE] dated 17.08.2017 bearing F.No.S- 11012/01/2015-BL(Pt). The rescue team should also comprise of a member/s of the Bonded Labour Vigilance Committees constitute under Section 13 and 14 of the BLA.
3. The information received by the DM/SDM pertaining to a situation of bonded labour, whether from an NGO or other source, must be kept strictly confidential and the rescue should be done within 24 to 48 hours so as to prevent a tip-off to the accused employers.
B. RESCUE AND INQUIRY PROTOCOL I. IDENTIFICATION AND PRELIMINARY EXAMINATION OF THE RESCUED VICTIM:
1. The rescue must be done in a manner that assures all victims of their safety and dignity. Representatives from the various departments involved, particularly the police department, must be present on the ground at the time of the rescue.
2. The rescued victims must be separated from the accused and the rescued victims should be taken to the DM/SDMs office.
3. The officials present must be familiar with the contents and purpose of Annexure I and II, and the same can be ensured at the Pre-Rescue meetings itself. The officials must, subsequent Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(CRL) 1011/2018 & W.P.(CRL) 1165/2019 Page 7 of 14 Signing Date:21.12.2022 17:11:05 to separating the accused from the victims, conduct an immediate preliminary inquiry by filing out the Annexure under the supervision of the DM/SDM.
4. The said Annexure and other government records/forms filled in by any other Government Department (viz. Labour Department/CWC/Vigilance Committee etc.) must be counter-signed by the SDM/DM.
5. The preliminary inquiry and the filing of the Annexures and other requisite government forms pertaining to the rescued victims and the accused must be completed within 24 hours of the rescue.
6. On the basis of the preliminary inquiry and information recorded, the DM/SDM must make a prima-facie finding/report as to whether the case is one of bonded labour or not and pass an order recording the same within 24 hours.
FINDING OF THE PRELIMINARY
EXAMINATION:
7. The DM/SDM in his preliminary inquiry report shall either conclude that the case is one of bonded labour or that it is not one of bonded labour and pass an order recording the same within 48 hours of the rescue.
C. POST RESCUE PROTOCOL
8. In case the DM/SDM is of the view that the rescued victim, prima facie, appears to be bonded labourer based on his preliminary inquiry then the following procedure is to be Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(CRL) 1011/2018 & W.P.(CRL) 1165/2019 Page 8 of 14 Signing Date:21.12.2022 17:11:05 adhered to:
8.1 The DM/SDM shall issue a Release Certificate along with Annexure-I and II to each of the rescued bonded labourer within 24 hours of the rescue (as per SOP dated 17.08.2017 of the MoLE, GOI).
8.2 The DM/SDM shall ensure that victims who do not have any identification are assisted with applying for an Aadhar card within 48 hours of the rescue and shall ensure that the same are received as soon as possible. [The concerned NGO shall assist the DM/SDM in this process]. The DM/SDM shall also ensure that the details of the rescued victims is entered into the rehabilitative database. The database shall be created and maintained by each DM in terms of clause 5 (x) of the CSS Scheme- 2016 of MoLE, GoI.
8.3 The DM/SDM shall also ascertain whether the victims have bank accounts immediately upon the completion of the preliminary inquiry report.
If the Bank Account of the Rescued victim is already operational:
8.4 The concerned DM/SDM must grant the rescued Bonded Labourer the Immediate Financial Assistance of Rs.20,000/- (by way of IMPS-Immediate Payment Service) or by way of Cheques/Demand Draft as per clause 5(xiv) of office Memorandum dated 18 th May, 2016 (CSS Scheme) read with addendum dated 17.01.2017 to the CSS Scheme within a week from the date of rescue. Alternatively, if there Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(CRL) 1011/2018 & W.P.(CRL) 1165/2019 Page 9 of 14 Signing Date:21.12.2022 17:11:05 are any difficulties in verifying the account or making payment, a cheque/demand draft of the value of the immediate financial assistance of Rs.20,000/- must be handed over to the adult rescued bonded labourer and in case of minor, the same shall be handed over to the CWC for disbursement instead of making electronic payment within a week from the date of rescue.
In case the Rescued victim does not have a Bank Account:
8.5 The DM/SDM shall grant the rescued Bonded Labourer the Immediate Financial Assistance of Rs. 20,000/- by way of a cheque/demand draft which shall be handed over to the adult rescued bonded labourer and to the CWC in the case of a minor child bonded labourer. Such payment must be made within a week from the date of rescue.
8.6 In the alternative to the above mode of payment via cheque/demand draft, the concerned NGO under the directions of the concerned SDM may assist the victims in opening a bank account expeditiously and make electronic payment of the immediate compensation of Rs.20,000/- within a week from the date of rescue.
Other General post-rescue provisions for bonded labourers
9. Once the SDM/DM issues release certificate and grants the Immediate Financial Assistance to the rescued Bonded Labourer, he shall immediately send the complete file to the Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(CRL) 1011/2018 & W.P.(CRL) 1165/2019 Page 10 of 14 Signing Date:21.12.2022 17:11:05 released bonded labourer along with all requisite documents to the concerned ADM enabling him/her to initiate appropriate proceedings of summary trial. If the DM/SDM finds during the pendency of the summary trial, the rescued victim is in need of any assistance, it should provide such assistance under any other law or scheme.
10.After receiving the file form the SDM/DM, the concerned ADM, exercising powers under Section 21 of the Bonded Labour Act, shall conduct proceedings of summary trial of the offences committed under the Bonded Labour Act and shall conclude the same within the time stipulated in the SOP dated 17.08.2017. The Labour department must immediately initiate proceedings for the recovery of back wages from the accused employers/owners, including wages for overtime in accordance with the Minimum Wages Act, 1948.
11.The Authorities can take the assistance of NGO's and Vigilance committees for carrying out this SOP and must keep the complainant/complainant NGO updated about steps being taken under this SOP including the supplying of relevant documents and records pertaining to the rescue".
4. The above Standard Operating Procedure shows that every aspect of pre and post rescue as well as release of financial assistance has been provided for. The Standard Operating Procedure suggested by the Committee appointed by the Government of NCT of Delhi is approved and taken on record. The respondents shall take urgent steps to ensure that the above procedure Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(CRL) 1011/2018 & W.P.(CRL) 1165/2019 Page 11 of 14 Signing Date:21.12.2022 17:11:05 and the scheme for release of financial assistance as well as rehabilitation of the rescue bonded labour is efficiently implemented.
5. We place on record our appreciation for the elaborate exercise undertaken in drafting the Standard Operating Procedure.
The writ petition is disposed of in the above terms.
6. A status report regarding implementation of the Standard Operating Procedure be placed on record within four weeks from today. We also direct the Government of NCT of Delhi to place this Standard Operating Procedure on the website in an appropriate file so far as the same is put in public domain.
7. List on 14th August, 2018 for reporting compliance. "
6. A Coordinate Bench of this Court while disposing of the writ petition bearing W.P.(C) 9744/20217 has directed the Government to file a Status Report in the matter. Thereafter a Status Report was filed and this Court on 14.08.2018 in W.P.(C) 9744/2017, has passed the following order:-
"1. In pursuance of the order passed on July 04, 2018 with regard to implementation of the Standard Operating Procedure, status report has been filed by the counsel representing the Govt. of NCT of Delhi, which indicates that the Operating Procedure has been implemented and various aspects connected thereto are being monitored and implemented by the Competent Authority. However, learned counsel appearing for the petitioner invites our attention to Clauses at A-1 and A-3 of the Standard Operating Procedure, which read as under and points out that the status report does not deal with following two Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(CRL) 1011/2018 & W.P.(CRL) 1165/2019 Page 12 of 14 Signing Date:21.12.2022 17:11:05 aspects of the matter.
"A. PRE-RESCUE PROTOCOL
1. The DM / SDM should ensure that the forms at Annexure-I and Annexure-II are made available to all the officers involved in the inquiry and rescue of the labourers. [Such officers will include officials from the DM/SDM office, Labour Department, Police Department and Child Welfare Committee].
XXXX XXXX XXXX
3. The information received by the DM/SDM pertaining to a situation of bonded labour, whether from an NGO or other source, must be kept strictly confidential and the rescue should be done within 24 to 48 hours so as to prevent a tipoff to the accused employers."
2. We direct the Competent Authority to ensure, if not already done, that a procedure for implementing aforesaid two procedures is contemplated in the Operating Procedure, are brought into place and implemented. Needless to emphasise that in case of any default in implementing Clause A-3 as decided hereinabove, the petitioner shall be at liberty to bring this fact to the notice of the Court for taking consequential action.
3. Petition stands disposed of."
7. In the considered opinion of this Court, since an order on a similar subject matter already exists, the SOP is in existence and the Status Report has already been filed, no further orders are required to be passed in the present petitions and the same stand disposed of, along with all the pending Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(CRL) 1011/2018 & W.P.(CRL) 1165/2019 Page 13 of 14 Signing Date:21.12.2022 17:11:05 applications.
8. It is needless to mention that the Government shall strictly enforce the SOP which has been framed by the Government on the subject, as per the directions issued by this Court in the case of Walter Kerketta (supra). The Government shall also carry out periodic reviews regarding the enforcement of the SOP.
SATISH CHANDRA SHARMA, CJ SUBRAMONIUM PRASAD, J DECEMBER 09, 2022 hsk Signature Not Verified Digitally Signed By:HARIOM SINGH KIRMOLIYA W.P.(CRL) 1011/2018 & W.P.(CRL) 1165/2019 Page 14 of 14 Signing Date:21.12.2022 17:11:05