STATE Vs. UNION OF INDIA

JUDGEMENT

(1.) On the basis of the report forwarded by the National Legal Services Authority, New Delhi, the instant case has been registered as a Public Interest Litigation. It appears that it was reported in the National Legal Services Authority that children are being engaged in factories and other working spots in and around Virudhunagar District because of their poverty. Accordingly, a Panel Advocate was appointed by the District Legal Services Authority, Srivilliputhur to make enquiry based on the letter sent by one Thiru. A.V. Veera Raghavan regarding the National Child Labour Society, Virudhunagar, which reads as follows:

(2.) Considering the seriousness of the matter, we directed the Chief Secretary to the Government of Tamil Nadu, as also the other Respondents, to file counter affidavits.

(3.) The first Respondent-Union of India has filed a detailed counter affidavit stating, inter alia, that a Committee on Child Labour was set up under the Chairmanship of Shri. M.S. Gurupadaswamy, which recommended a set of comprehensive statutory provisions for providing educational facilities to child labour. Consistent with the constitutional provisions and recommendations of various Committees, the Child Labour (Prohibition and Regulation) Act, 1986 was enacted. The said Act prohibits employment of children below 14 years in hazardous occupations and processes and also regulates the working conditions of children in other employments. In the year 1987 National Child Labour Policy was announced. The action plan under this policy is multi-pronged and mainly consists of: (i) a legislative action plan; focus on general development programmes for the benefit of families of Children; and (iii) project based action plan in areas of high concentration of child labour. In pursuance of the National Child Labour Police, the Ministry of Labour & Employment, Government of India has been implementing the National Child Labour Project (NCLP)Scheme. The Scheme provides for setting up of Project Societies at the District level under the Chairpersonship of the Collector/District Magistrate for overseeing the implementation of the project. The Scheme aims at withdrawing and rehabilitating children working in identified hazardous occupations and processes through special schools and finally mainstreaming them to the formal education system. Each special school provides for enrolment of 50 children. There is a provision of two Educational Instructors and one Vocational Instructor for each special school who do the work as volunteers. A stipend of Rs. 100 per month is provided to each child. The money is credited to the Savings Account of the child. The accumulated amount is paid to the child at the time of enrolment in a formal school. Besides this, mid-day meal, vocational training and health check-ups are essential components of this Scheme. Under this programme, 12 National Child Labour Projects were initiated during the 7th Plan. Virudhunagar Child Labour Project was one of the projects taken up in the 7th Plan and it is continuing till now. As per the guidelines, the Child Labour Project has a specific time-frame and it will not continue indefinitely. The teaching and other staff of the Project Society are engaged on voluntary basis and they are being paid with a consolidated amount of honorarium. No regular scale of pay is prescribed for them. The volunteers should be from the local community/village. The main starting point of the Child Labour Project is the survey. The survey is conducted under the Chairmanship of District Collector. In the survey, information regarding the magnitude of the child labour, its classification by occupations, age, geographical distribution of child labour, information on other aspect like economic condition of parents and access to primary education are collected. On the basis of survey results, an action plan is formulated by the District Project Society, which determines the number of special schools that can be sanctioned to a particular district. Thus, the decision of continuing the school, closing it or relocating it depends on the magnitude of the problem of child labour in that geographical area which is determined by the survey. The National Child Labour Project Schools are not regular schools and they are only bridge schools, which target only children in the age group of 9 to 14 years and who are withdrawn from hazardous occupations and processes with the objective of preparing them for a maximum period of 3 years and then mainstreaming them in the formal schools. In 2004, INDUS Project was launched in India. It was an important joint initiative of Government of India and ILO (IPEC) and the US Department of Labour. It was started in 21 Districts in 5 States of Uttar Pradesh, Madhya Pradesh, Maharashtra, Tamil Nadu and Delhi. Virudhunagar was one of the districts taken up in this project. The project lasted till 31.03.2009 only. In the INDUS Project, the funding for the National Child Labour Project Schools was done by Government of India and ILO on a 50:50 sharing basis. After the INDUS Project was over, it was decided that all the 21 INDUS Districts would be taken up in the NCLP Scheme funded by the Govenrment of India. Consequently, from April, 2009, Virudhunagar was taken up in the NCLP Scheme and the Project is being funded by the Government of India. In the counter affidavit it is further stated that the original provision in the NCLP Scheme was for providing nutrition to all the children at Rs. 5 per child in NCLP Schools. In all the normal schools, the nutrition was provided under the Mid Day Meal Scheme of the Government of India. To ensure uniformity in the system, Planning Commission vide their letter dated 28.02.2009 directed that in future, the nutrition to NCLP Schools be provided under the Mid Day Meal Scheme. Accordingly, proceedings were issued by the Ministry of Human Resources Development, Government of India. It is stated that there are detailed guidelines for maintaining accounts under this scheme. According to the guidelines the Grant-in-Aid released to the Project Societies should be utilised exclusively for the purposes for which it has been sanctioned and should be in accordance with the item-wise approved annual budget. No departure in the expenditure from the approved budge is permissible without prior approval of the Ministry of Labour and Employment. The admissibility of expenditure incurred by the Project Society is assessed on the basis of income and expenditure statement. For calculating the admissible grant for a particular year, the item-wise actual expenditure is compared against the approved budget. Transfer of fund from one item of expenditure to other item is not permissible. The actual expenditure should not exceed the approved item-wise budget. As per the terms and conditions of the Grant-in-Aid, the Project Societies are expected to submit Utilisation Certificates in prescribed formats. Utilisation Certificate refers to the funds actually received by the Project Society in a particular year, and the actual amount utilised in that particular year. Utilisation Certificate has to be signed by the Chartered Accountant of the Project Society and counter signed by the District Collector-cum-Chairman of the Project Society. It is stated that Virudhunagar Project Society has a history of huge unspent balances right from 2003-04 till now. It is further stated that the from the accounts it is very clear that Government of India has been releasing funds for child labour on a very regular basis based on the requirements and funds available with the Society. However, the Project Society has to follow the Government financial norms and to submit complete audited accounts for funds received from the exchequer. There is absolutely no intention on the part of the Government not to release the admissible expenditure to the Virudhunagar NCLP Society. As per the Monthly Progress Report for the month of February 2009, the total numbers of children attending the Special Schools were calculated as 1,117 in Virudhunagar District. The project envisages 50 children per school. Thus, only 22 schools with 1,117 children could be operated. The Virudhunagar District Project Society was released an amount of Rs. 37,23,239/- in 2007-2008, Rs. 48,04,801/- in 2008-2009 and Rs. 21,13,124/- in 2009-10. As per the practice, the amount remaining unutilised with the Project Society in the previous year will be adjusted in the Grant-in-Aid released in the subsequent years. It is stated that Rs. 22,29,000/- and Rs. 17,83,200/- as admissible towards mid-day meal and stipend respectively for 1,486 children in the NCLP School for the financial year 2005-2006 was reimbursed to the NCLP Society during the release of 2007-2008 budget. It is stated that as per the audited statements of accounts furnished by the Project Soceity, an amount of Rs. 41,23,105/- is shown as unspent balance at the beginning of the Financial Year 2008-09, which was utilised during the subsequent year. As per the accounting procedure of the Ministry, the annual admissible budget for the year will be released after adjusting the unspent balance for the previous year. As per the accounts for the financial years 2005-06 to 2008-09, Central Government has been constantly releasing the funds to the NCLP Project Society. The release of fund to the NCLP School is done mainly based on the functioning of the NCLP School and the utilisation of fund released earlier. As regards the noon meal, it is stated that noon meal is being provided by the State Government in accordance with the Mid Day Meal Scheme of the Ministry of HRD, and as such, funds were not required to be released by the 1st Respondent - Union of India. The contention that children attend school only for the sake of Mid-Day meal is denied in the counter. Finally, as regards the statement about the children going back to work, it is stated that it is for the State Government to enforce the provisions of Child Labour (Prohibition and Regulation) Act, 1986 and also the directives of the Hon'ble Supreme Court in M.C. Mehta v. Government of Tamil Nadu in Writ Petition (Civil) No. 465/1986.