Order
1. Leave granted.
2. The point raised in this appeal is whether the Inspector appointed under the Child Labour (Prohibition and Regulation) Act, 1986 (hereinafter referred to as “the Act”) had the power to pass an order holding that the labour employed by the appellant were below the age-limit prescribed under the Act and to also direct the appellant to pay compensation.
3. The appellant was carrying on construction business in 1997. The Inspector, being Respondent 1 herein, visited the construction site of the appellant and issued a notice to the appellant on 1-4-1997 asking for an explanation within seven days with regard to the employment of child labour (three persons to be exact) on the construction site. The appellant relied upon two certificates, one issued by the Sarpanch, Gram Panchayat and the other issued by the Medical Officer, PHC Palem certifying that the child labour were in fact above the age of 14 years when the labour was employed. The Inspector, however, by an order dated 16-2-2002 demanded that the appellant should have deposited Rs 20,000 per child with the Child Labour Rehabilitation and Welfare Fund. If the appellant failed to do so, action would be taken for recovery of the amount as arrears of land revenue.
4. This order was impugned by way of a writ petition. The writ petition was disposed of by directing Respondent 1 to hear the appellant. Respondent 1 heard the appellant and by an order dated 4-3-2004 reiterated that in the course of the survey it was found that the appellant had in fact engaged child labour. The certificates produced by the appellant were rejected on the ground that they were not certificates issued by the prescribed medical authority mentioned under Section 16(2) of the Act. The explanation, therefore, given by the appellant was rejected. The amount of Rs 60,000 was sought to be reimposed by way of compensation in keeping with this Court's order in M.C Mehta v. State of T.N WP No. 465 of 1986
5. The appellant challenged this order again before the High Court under Article 226 of the Constitution. In the writ petition the appellant had submitted that the Inspector had no jurisdiction to decide the dispute between himself and an occupier but was bound to refer the dispute for decision to the prescribed medical authority under Section 10 of the Act. The High Court, however, did not consider this aspect of the matter at all. It dismissed the writ petition filed by the appellant on the ground that the certificates produced by the appellant were unreliable. The quantum of penalty was also upheld. The appellant was therefore directed to make payment of Rs 60,000 within a period of four weeks, failing which it would carry interest at the rate of 12% per annum. The appellant has since deposited the amount of sixty thousand pursuant to the order passed by this Court.
6. In our opinion the appeal must be allowed. Section 16(2) of the Act no doubt prescribes the procedure related to offences which reads as follows:
“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.”
Therefore, under this section jurisdiction of the Inspector to file a complaint with regard to any offence under the Act does not extend to the trying of the complaint which, as sub-section 3 of Section 16 specifically provides, only courts not inferior to the Metropolitan Magistrate or a Magistrate of the First Class may try.
7. Besides, Section 16(2) does not make the production of certificate mandatory. In fact it is open to persons proceeded against under the Act to raise a dispute as to the age of the persons employed. This is envisaged under Section 10 of the Act which says:
“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.”
8. Therefore, when the appellant produced the certificates before the Inspector, the Inspector was bound to refer the matter to the prescribed medical authority for decision. He was neither competent to decide the issue nor was he entitled to hold that in the absence of certificate of age, his own survey report would stand.
9. It also appears that the Survey Inspector did not have the jurisdiction to in effect impose a fine. The imposition was also contrary to the provision of Section 16(3) of the Act.
10. Rule 17 of the Child Labour (Prohibition and Regulation) Rules, 1988 (hereinafter referred to as the Rules) relied on by the respondents no doubt provides that:
“17. Certificate of age.—(1) All young persons in employment 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, shall produce a certificate of age from the appropriate medical authority, whenever required to do so by an inspector.”
Rule 17(1) deals with the obligation on the part of young persons to produce the certificates of age from the appropriate medical authority and does not pertain to the obligation of the employer. If the employer may, on reasonable material, raise a dispute before the Inspector regarding a child's age, the Inspector can only refer the dispute to the prescribed medical authority under Section 10. The position is clear. Therefore, the impugned order of the Inspector being without jurisdiction, his order and the order of the High Court are set aside and the appeal is allowed. The appellant will be at liberty to withdraw the amount deposited.