India: Indian Administrative Service officer ill-treated with the mushars bonded labour in his office
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ISSUES: Bonded labour; corruption; impunity; threat, right to live with dignity
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Dear Friend,
Peoples' Vigilance Committee on Human rights (PVCHR)obtained information from its activists that newly appointed IAS officer as SDM sadar of Varanasi district ill - treated and given threaten to the liberated bonded labour and also intimate PVCHR to stop their activities as an allegation of perplexing business.
Case detail:
On 1st June evening around 6:15 pm three activists of Peoples' Vigilance Committee on Human Rights along Mr. Upendra Kumar, Mr. Mrityunjay and Mr. Shiv Pratap Chaubey with the 5 mushars liberated families went to office of Sub Divisional Magistrate (SDM), Sadar. The newly appointed IAS officer (http://en.wikipedia.org/wiki/Indian_Administrative_Service) SDM sadar Mr. Vivek was very agitated and in anger said to Mrityunjay, "I will see you in later and this perplexing business will be expensive for you, stand quietly. I will correct you in 2 minutes."
The SDM was himself taking the statement and asking the question to the bonded labour in very awful manner. One hand he was giving them threat and on other hand continuously making pressure on them to give statement in the favour of brick kiln owner. He was not writing the statement as being stated by them. He said it is not the mistake by the owner but of the mate (middle man). He added now you don't need to go to organization and you stop taking the benefit and it will be good for you. SDM on the argument of labour paid 400 Rs to pay for the local conveyance.
On 31st May, 2011 three labours Nanhu, Asha and Ram Avatar under the pretext of medicine came to PVCHR office and informed their self suffering and also informed that their other colleague labour are bonded in the brick kiln factory of Ramesh Singh, Gosaipur under jurisdiction Cholapur of Varanasi district.
Immediately PVCHR intervened in the case and on 1st June, 2011 Additional District Magistrate (ADM) directed to Sub Divisional Magistrate (SDM) to take immediate action. On the guidance of SDM Nayab Tehsildar (http://en.wikipedia.org/wiki/Naib_Tehsildar)Mr. Ragvendra Singh raided the brick kiln factory and liberated the bonded labour around 3 pm. In the absence of the brick kiln owner his people served him with cold drink. He paid 500 Rupees for their conveyance to bonded labour.
Testimony
I, Nanhu Mushar, am resident of village Belwani under jurisdiction Baluwa of Chanduali district. In the month of the December, 2010 I with my brother Munna went to work in the brick kiln factory of Ramesh Singh, Gosaipur under jurisdiction Cholapur of Varanasi district. I did not take any advance but they give advance to few other families working as a labour together with me. After some time we people asked for the settlement of the account then owner make avoidance and said he will do settlement in the Holi festival then diwali and at last he said on the Ganga Dusherra.
In the month April when I asked owner money for my treatment then he said "you go home we will not give you any money and still you have to pay me 15000 Rs. when I asked I did not take any advance then he scold me and asked to run away. I return back to my house and did my treatment. I did not lose my temptation and I started to fight for my right.
I with my family and other brother working as bonded labour in same brick kiln went to Sub Divisional Magistrate (SDM) sadar office on 1st June, 2011 around 8:30 pm. In the office SDM ill –treated with us. When we informed him about our self suffering then he stare us and give threat to us that you are owing wrong business immediately I will call Superintendent of Police (S.P) and will send you to the prison. You are fabricating your owner in the fake case of Bonded Labour. When your owner was not giving your wages then why you were working there. He also added if you went to work on another brick kiln than I will involve you in fake case and send to you prison for whole life. We were continuously pleading with him but he unheard us.
After hearing the words of the SDM we all became hopeless as there is nobody to hear the poor and destitute. I afraid with the threat given by the SDM to us and I started to think what will happen to my wife and children if I will be fabricated in fake case. In the fear I wake up for the whole night.
In the judgment given by honorable Supreme Court in the case of Neeraja Chaudhary vs. State of M.P on 1984
The Commissioners and Collectors have multifarious duties to attend and even if they are anxious to help in eradication of the vice of bonded labour system, which we are sure they are, they would not find time to make any personal inquiry or investigation but they would have to rely on their subordinate officers such as tehsildars and patwaris and at many places, the patwaris and tehsildars being either in sympathy with the exploiting class or lacking in social commitment or indifferent to the misery and suffering of the poor and the down-trodden, the task of identification, release and rehabilitation of bonded labour through the official machinery would be very difficult of achievement.
Collector as a result of an order made by this Court, the tehsildar went to the villages in question and sitting on a dias with the landlords by his side, he started enquiring of the labourers whether they were bonded or not and when the labourers, obviously inhibited and terrified by the presence of the landlords, said that they were not bonded but they were working freely and voluntarily, he made a report to the Collector that there were no bonded labourers.
Bonded labourer in order to derive the benefits of this social welfare legislation, should have to go through a formal process of trial with the normal procedure for recording of evidence. That would be a totally futile process because it is obvious that a bonded labourer can never stand up to the rigidity and formalism of the legal process due to his poverty, illiteracy and social and economic backwardness and if such a procedure were required to be followed, the State Government might as well obliterate this Act from the statute book. It is now statistically established that most of bonded labourers are members of Scheduled Castes and Scheduled Tribes or other backward classes and ordinary course of human affairs would show, indeed judicial notice can be taken of it, that there would be no occasion for a labourer to be placed in a situation where he is required to supply forced labour for no wage or for nominal wage, unless he has received some advance or other economic consideration from the employer and under the pretext of not having returned such advance or other economic consideration, he is required to render service to the employer or is deprived of his freedom of employment or of the right to move freely wherever he wants. Therefore, whenever it is shown that a labourer is made to provide forced labour, the Court would raise a presumption that he is required to do so in consideration of an advance or other economic consideration received by him and he is therefore a bonded labourer
Sample Letter
To,
………………………………….
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Name of Victim:
1. Sudarshan s/o Kishori resident Karanda under jurisdiction Karanda of Gazipur district
2. Usha w /o Sudarshan resident Karanda under jurisdiction Karanda of Gazipur district
3. Ram Avtar s/o Panchu resident Karanda under jurisdiction Karanda of Gazipur district
4. Meera w/o Panchu resident Karanda under jurisdiction Karanda of Gazipur district
5. Munna s/o Ghura resident Karanda under jurisdiction Karanda of Gazipur district
6. Puspa w/o Munna resident Karanda under jurisdiction Karanda of Gazipur district
7. Nanhu s/o Ghura resident of village Belwani under jurisdiction Baluwa of Chanduali district
8. Asha w/o Nanhu resident of village Belwani under jurisdiction Baluwa of Chanduali district
9. Sarnath s/o Ghura resident of village Belwani under jurisdiction Baluwa of Chanduali district
10. Mr. Mrityunjay Rai, Human Rights Activist PVCHR
11. Mr. Upendra Kumar, Human Rights Activist PVCHR
12. Mr. Shiv Pratap Chaubey Human Rights Activist PVCHR
Subject: Please take immediate action to save the life of 5 liberated bonded labours families and safety of Human Rights Defenders
Name of Perpetrator
1. Ramesh Singh, Brick kiln owner village Gosaipur under jurisdiction Cholapur of Varanasi District.
2. Raghvendra Singh Nayab Tehsildar Sadar
3. Mr. Vivek, IAS officer, SDM Sadar
Place of Incidence:
1. Brick kiln factory village Gosaipur under jurisdiction Cholapur of Varanasi District of UP in India.
2. SDM office Sadar
Dear Sir,
I want to bring in your attention towards the case of the bonded labours of 5 Mushars resident Karanda under jurisdiction Karanda of Gazipur district and resident of village Belwani under jurisdiction Baluwa of Chanduali district working in the brick kiln factory of Ramesh Singh, Gosaipur under jurisdiction Cholapur of Varanasi district.
They labours only reimbursed with the nominal money for the fooding. When they asked for the settlement of the account then owner make avoidance and said he will do settlement in the Holi festival then diwali and at last he said on the ganga Dusherra.
On 31st May, 2011 three labours Nanhu, Asha and Ram Avatar under the pretext of medicine came to PVCHR office and informed their self suffering and also informed that their other colleague labour are bonded in the brick kiln factory of Ramesh Singh, Gosaipur under jurisdiction Cholapur of Varanasi district.
I am informed that immediately PVCHR intervened in the case and on 1st June, 2011 Additional District Magistrate (ADM) directed to Sub Divisional Magistrate (SDM) to take immediate action. On the guidance of SDM Nayab Tehsildar Mr. Ragvendra Singh raided the brick kiln factory and liberated the bonded labour around 3 pm. In the absence of the brick kiln owner his people served him with cold drink. He paid 500 Rupees for their conveyance to bonded labour
On 1st June 2011 evening around 6:15 pm three activists of Peoples' Vigilance Committee on Human Rights along Mr. Upendra Kumar, Mr. Mrityunjay and Mr. Shiv Pratap Chaubey with the 5 mushars liberated families went to office of Sub Divisional Magistrate (SDM), Sadar. SDM sadar Mr. Vivek was very agitated and in anger said to Mrityunjay, "I will see you in later and this perplexing business will be expensive for you, stand quietly. I will correct you in 2 minutes."
The SDM was himself taking the statement and asking the question to the bonded labour in very awful manner. One hand he was giving them threat and on other hand continuously making pressure on them to give statement in the favour of brick kiln owner. He was not writing the statement as being stated by them. He said it is not the mistake by the owner but of the mate (middle man). He added now you don't need to go to organization and you stop taking the benefit and it will be good for you. SDM on the argument of labour paid 400 Rs to pay for the local conveyance.
The provisions contained in Section 10 of the Bonded Labour System (Abolition) Act, 1976 (hereinafter referred ad 'The Act') are required to be followed strictly while making an inquiry. Attention must be paid to the provisions contained in sub-clause (g) of Section 2 of the Act, which points out the system of forced or partly forced labour where one has to presume that labourer has entered into an agreement with the creditor to the effect that in consideration of an advance obtained by him or for any economic consideration received by him, he would render services without wages or with nominal wages and he forfeits the freedom of employment or other means of livelihood or he forfeits the right to move freely or forfeits the right to appropriate or sell at market value any of his property or product of his labour or the labour of a member of his family. This includes the system of forced or partly forced labour and presumption is required to be raised.
Sub-clause (i) of Section 2 of the Act, defines 'nominal wages'. If the wages, which are less than the Minimum Wages fixed by the government, are paid the provision is attracted. The officer should know about the decision of the Apex Court wherein the broad, liberal and expansive interpretation of the definition of 'bonded labour system' is given. According to the interpretation, it is not necessary to prove beyond doubt the element of loan/debt/advance in the creditor/debtor relationship. Such an element can always be implied or assumed. This is on account of the fact that the creditor and the debtor represent two diametrically opposite sections of the society. Traditionally the debtor is poor, resourceless and in need of defense, whereas the creditor is rich, resourceful and dominant. Thus, their relationship is an unequal exchange relationship. If the debtor is rendering certain services to the creditor without any wage or with nominal wage, it is to be presumed that he is doing it not out of any charity but out of some economic consideration. It is on account of this that it is not necessary to prove beyond doubt the element of loan/debt/advance.
The provisions contained in Article 23 of the Constitution of India are also not noticed by the officers. Even if remuneration is paid, labour supplied by the persons would be hit by Article 23 if it is forced labour i.e. service has been rendered by force or compulsion. Article 23 strikes at all form of forced labour even if it has its origin in a contract voluntarily entered in to by the person obligated to provide or service.
It should not be forgotten that the poor people in this country, who are uneducated or mostly belong to Scheduled Castes and Scheduled Tribes, Have no other alternative but to survive on the earth with whatever is paid. They are required to do work as directed by their masters and they have no alternative but to accept whatever is paid to them. It is for the officers exercising powers under the Bonded Labour System (Abolition) Act, 1976, to read between the lines and to understand the circumstances under which a poor person is compelled to work. He would send a complaint as a last resort. Without making any inquiry from such labourers and to accept the version of the employer is nothing but breach of the duty cast upon them. It is their duty to raise a presumption when the employer has failed to produce relevant records required to be maintained under the Minimum Wages Act and to declare labourers as bonded labourers when they are not paid Minimum Wages According to law and no satisfactory evidence is produced as pointed out under the Minium Wages Act.
Law mandates that the employer shall maintain registers and records giving particulars of employees employed by him, the work performed by them, the wages paid to them and the receipt obtained. When the brick Kiln owner claims that he has paid minimum wages under Minimum Wages Act, then it is for him to produce documentary evidence in proof of payment to show that he has paid wages in accordance with law. It is for this purpose that he is required to maintain muster roll and other record. If the employer fails to produce the books of accounts then the District Magistrate or the officer authorized by him must raise the presumption that the labourers were kept as bonded labourers.
Every employer is required to maintain a register of wages in form X. He shall mention the details of the person employed and the entries pertaining to the wages for a period for which he worked. A wage slip in form XI shall be issued by every employer to every person employed by him. He shall get the signature or thumb impression of every person employed, on the register of wages and wage slip. These entries in the register shall be authenticated by the employer or any person authorized by him in this behalf. A muster roll shall be maintained by every employer at the work spot and in form IX and the attendance of each person employed in the Establishment shall be recorded daily in that form within three hrs. of the commencement of the work shift. It has been observed by the Commission that the team who visits the brick kiln for inspection does not take trouble to verify as to whether the employer is maintaining these records as mandated by Law. The team also does not verify if the entries in the register of wages and wage slips have been authenticated by the employer or by any other person authorized by him in this behalf. In the absence of these documentary evidence and books of accounts, a duty is caste on Distt. Magistrate to presume that the allegations made in the complaint are true and they are being kept as bonded labourers.
Not conducing the enquiries immediately by the officer concerned amounts to nothing but frustrating the object of the Act. The philosophy of the Constitution, the intention of the Parliament in enacting and amending Labour Welfare Legislation and the Law interpreted by Supreme Court that the denial of minimum wages tantamount to forced labour and infringement of Article 23 of Constitution of India thus, affecting the provisions of Bonded Labour System (Abolition) Act.
The officer conducting an enquiry shall also report whether the employer has committed breach of any of the provisions contained in the Labour Legislations and particularly, the Bonded Labour System (Abolition) Act, 1976, Payment of Wages Act, 1936; Minimum Wages Act, 1948; Prevention of Scheduled Castes and Scheduled Tribes (Atrocities) Act, 1989; Interstate Migrant Workmen (Regulation of Employment and Conditions of Services) Act, 1979; Contract Labour (Regulation and Abolition) Act, 1970; Child Labour (Prohibition and Regulation) Act, 1976; and Weekly Holidays Act, 1942.
He shall also report about the Vigilance Committee constituted under the Act for the area wherein brick kiln is situated and its constitution, if constituted. He shall also report about the function of such committee and the assistance taken of member of members of such committee, a Non-governmental organization or a social worker during the inquiry giving all details.
He shall also verify the license issued by the competent authority under the Provisions contained under the Environmental Laws and shall record his satisfaction about the same with license number, etc. and the name of issuing authority.
Therefore I urge you to take immediate steps to put an end to slave-like practices like bonded labour in the brick kiln factory and take appropriate action as mentioned in the judgement given by honorable Supreme Court Neeraja Chaudhary vs. Government of Madhya Pradesh and Bandhuwa Mukti Morcha vs. Government of India.Issue release certificate and register the case against brick kiln owner under the Bonded Labour Act, 1976 and under SC ST (Prevention of Atrocities) Act,1989 .Government of Uttar Pradesh also open special schools in the brick kiln factories for their migrant children.
Please took the necessary action against SDM Mr. Vivek Kumar and provide the security to freed bonded labourers as well as Human Rights defenders.
Thanking You
Sincerely Yours
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Please send letter to:
1.Ms. Mayawati
Chief Minister
Chief Minister's Secretariat
Lucknow
Uttar Pradesh
INDIA
Fax: + 91 522 223 0002 / 223 9234
E-mail: csup@up.nic.in
2. Shri Mukul Wasnik
Minister, Ministry of Social Justice & Empowerment
Sardar Patel Bhawan
Sansad Marg
New Delhi - 110 001
INDIA
Fax: + 91 11 23742133
E-mail: ddpg2-arpg@nic.in
3. Chairperson
National Commission for Scheduled Castes
5th Floor, Lok Nayak Bhawan
Khan Market
New Delhi 110 003
INDIA
Fax + 91 11 2463 2298
4. Director General
International Labour Organisation
International Labour Office, 4, route des Morillons
CH-1211 Geneva 22
SWITZERLAND
Fax: + 41 - 227988685
E-mail: cabinet@ilo.org
5. Chairperson
National Human Rights Commission
Faridkot House, Copernicus Marg
New Delhi 110001
INDIA
Fax + 91 11 2338 4863
E-mail: chairnhrc@nic.in
6. Director and ILO Representative in India
International Labour Organization
Sub Regional Office for South Asia
India Habitat Centre, 3rd Floor, Core 4B
Lodi Road, New Delhi 110 003
INDIA
Fax: + 91 11 24602111
E-mail: sro-delhi@ilodel.org.in
7. Chief Technical Adviser
Promotion the Prevention and Elimination of Bonded Labour in South Asia (PEBLISA)
Sub-regional Programme, International Labour Organization
Sub Regional Office for South Asia
India Habitat Centre, 3rd Floor, Core 4B
Lodi Road, New Delhi 110 003
INDIA
Fax: + 91 11 24602111
E-mail: sro-delhi@ilodel.org.in
8. Ministry of Labour and Employment
Minister Labour and Employment,
120, A-Wing, Shram Shakti Bhawan,
New Delhi-110001
INDIA
Tel: +91 11 2371 0240/ 2371 7515
Fax: +91 11 India:
Urgent Appeal Desk (pvchr@pvchr.org)
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