IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08..07..2011 C O R A M THE HON'BLE Mr. M.Y. EQBAL, CHIEF JUSTICE and THE HON'BLE Mr. JUSTICE T.S.SIVAGNANAM Writ Petition No.15882 of 2010 (Taken up P.I.L.) 1. Union of India, rep. by The Secretary to Government, Ministry of Social Welfare, New Delhi. 2. The Chief Secretary, Government of Tamil Nadu, Fort St. George, Chennai-9. 3. The Secretary/Commissioner to Government of Tamil Nadu, Social Welfare and Nutritious Meal Scheme Department, Fort St. George, Chennai-9. 4. The District Collector (The Chairperson, National Child Labour Project), Virudhunagar District, Virudhunagar. .. Respondents PRAYER : Petition taken up on the basis of the report dated 26.5.2010 submitted by N. Gopal, "B" Panel Advocate, Legal Services Authority, Srivilliputhur for a writ of mandamus directing the first respondent to allot sufficient funds either to provide noon-meal or to provide required materials for providing Noon-Meal for the students studying in Special Schools functioning under the Nutritious Food Scheme in Tamil Nadu, thereby enabling the Government of Tamil Nadu to avert Child Labour. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner :: Mr. V. Ayyathurai For Respondent-1 :: Mr. M. Ravindran, Addl. Solicitor General *for Assisted by Mr.A.S.Vijaya Raghavan Senior Central Government Standing Counsel For Respondents-2 & 3 :: Mr. S. Venkatesh, Govt. Pleader Assisted by Mr. T.N. Rajagopalan, Addl. Govt. Pleader And Mr. R. Vijayakumar, Addl. Govt. Pleader O R D E R The Hon'ble the Chief Justice 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 :- "I want to submit that I have been appointed by the District Legal Services Authority to enquire into the matter based on letter of A.V. Veera Raghavan and to submit a report along with my opinion on 11.5.2010. On 11..5.2010, I went to Virudhunagar to meet Project Director, National Child Welfare Project situated at Virudhunagar. I have gathered particulars concerned with the affair of "Special School Students Hunger" at Virudhunagar District. National Child Labour Project was started in Virudhunagar District in the year 1987. Initially, special schools were run by N.G.Os., which later came under the National Child Labour Society. It is well known that concentration of child labourers in Match Factories and Fire Works. The trend of child labour had decreased over the past two decades as per census data and SSA date on out of school children. ILO, TPEC programme on child labour https://hcservices.ecourts.gov.in/hcservices/ was operated from 2000 2003. After the withdrawal of IPEC programme dated in the name of NCLP project continued, followed by that, the project was run as INDUS till 2007. After, the project is again converted into NCLP. Indus project was initiated in the District, and 83 special schools were functioning. Every year, encrolment campaign and awareness activities were held and the working children in the age group of 9 -14 were encrolled in the special schools run by the NCLP. Virudhunagar District emerged as a role model and representatives from Maharashtra, Madhya Pradesh, Uttar Pradesh, Gujarat, Karnataka etc. visited this project. The international evaluation team reviewed the District in 2007 and appreciated the efforts of the District Administration in eradicating of child labour. Despite the efforts of District Administration in eradicating Child Labour, unfortunately the District Project Society is facing financial crisis. Due to this crisis, the District Administration is not in a position to release funds for staff salary, stipend and Noon-Meal of special school children. On account of this, the teachers association of NCLP has filed a writ petition against the Administration. Moreover, in the district, there are 39 NCLP schools are running with 1262 children, but according to G.O.I. Letter only 22 schools are approved and sanctioned Rs.52 lakhs as Grant-in-Aid in that total amount, only Rs.21 lakhs was released (through E transfer on 2.4.2010) saying that the remaining Rs.34 lakhs is already available in the district as an unspent balance. Due to no release of funds, the financial position in the district has become critical. Total number of special schools situated in Virudhunagar District is 40. No. of students allowed is 2000 (40 x 50), but the admitted children in the school are 1193. Total no. of students admitted in regular schools already is 7720 and admitted during 2009-2010 is 428. So, the total no. of students is 8148. For each school, Rs.1000/- is granted as rent and Rs.1500/- is granted for the consolidated pay of teacher and Rs.800/- is given as monthly wage to the cooking servant. For each student, Rs.5/- is allotted for Noon Meal. During 2004-05, the existing NCLP converted in to INDUS Project. The project activities were started in this district April 2004, but the funds was released by the ILO https://hcservices.ecourts.gov.in/hcservices/ and expenditure were admitted only from September 2004, till then the expenditure for running the project, i.e. for teacher salary and etc. during 2004-2005 amounting to Rs.28,92,708/- was spent from the already available funds under NCLP Society. For the NCLP students, the noon-meal expenditure of Rs.3,79,882/- and stipend expenditure of Rs.3,83,847/- were deducted by the Government of India during the period of 2005-06. NCLP Office Administration expenditure of Rs.1,51,632/- for the year 2007-08 is not sanctioned by the Government of India. Hence, the unspent balance amount of Rs.43,59,676/- shown is the Budget provision for the year 2008-09 had already been utilized at the time of implementation of the project. Representations are frequently made by the special school teachers for non-payment of salary, noon meal charges, rent, stipend etc. The International Labour Organization had provided funds to INDUS and Indus had provided funds from 2004 to September 2008. From September 2009, the Central Government had omitted to sanction amount for the Noon meal of the student, studying in special schools. Upto March 2010, from the effort of the District Collector, Virudhunagar District, funds were raised from various sources to provide noon meal to the students and to provide salary to the staff of the special schools. The District Collector, being the Chairperson of the National Child Labour Project of Virudhunagar District, had represented to the Commissioner, Social Welfare and Nutritious Food Scheme, Tamil Nadu Government to provide either noon meal to the students studying in the special schools, through schools functioning under Nutritious Food Scheme or to provide materials for providing noon-meal. The representation of the District Collector was accepted on 2.4.2010 and the District Collector had ordered to the Nutritious Food Scheme centers to provide noon meal to the students studying in the special schools by adding them as additional beneficiaries along with students already benefited by the said scheme from 3.4.2010 onwards. From 3.4.2010 onwards, noon meal is being provided to the student studying in the special schools which are under https://hcservices.ecourts.gov.in/hcservices/ control of National Child Labour Project. The main reason for this unwanted situation on 1.4.2010 is lack of funds. So to say, the absence of funds in the NCLP. The main aim and goal of establishing the Special Schools is to prevent the children from going to factories instead of schools. The children are going to factories and other working spots in order to eke their livelihood, due to their poverty. In order to attract the children to come to the school, noon meal is provided to them. At least they will be coming to schools to have their noon meal and thereby, they will study in the school. If no meal is provided, again they will go to work at factories for wage in order to provide food for their stomach. The aim and goal of Government will end in failure. So, in order to avoid such unwanted circumstances, the Central Government should provide required funds to the National Child Labour Project as it had done in earlier times." 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 https://hcservices.ecourts.gov.in/hcservices/ 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 shoudl 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 magnititude 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 santioned to a particular district. Thus, the decision of continuing the school, closing it or relocating it depends on the magnititude 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. Virudhunagarwas 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 unhder the Mid Day Meal Scheme of the Government of India. To ensure https://hcservices.ecourts.gov.in/hcservices/ uniformity in the system, Planning Commission vide their letter datred 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. Accoridng to the guideliens 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 comapred 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 relase 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 relased 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 beginnning of the https://hcservices.ecourts.gov.in/hcservices/ 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 Vs. Government of Tamil Nadu in Writ Peittion (Civil) No.465/1986. 4. The 4th respondent – District Collector and Chairman, Child Labour Advisory Board, Virudhunagar District has filed his counter affidavit. In his counter, it is stated that the petitioner association is neither registered nor recognised by any of the respondents herein. After the directions of the Supreme Court in the case of M.C.Metha Vs. State of Tamil Nadu, a revised strategy for the National Child Labour Project was deviced and adopted by the Central Government during the 10th Plan Period (2002-2007). Each special school provides for enrolment of 50 children. There is a provision of two educational instructors and one vocational instructor for every special school. A sum of Rs.100 per month is provided to each child and credited to the savings account of the child. The accumulated amount is paid to the child at the time of his/her mainstreaming. Besides this, nutritious meal, vocational training and health check- ups are the other essential components of the Scheme. It is further stated that the National Child Labour Project is a Central Scheme and fully funded by the Union Government. In addition to the abvoe, the Tamil Nadu Governemnt provides one set of free uniform every year to the children of NCLP special schoosl since 2003, free bus passes to the needy children, cash awards to NCLP mainstreamed children scoring high marks in X & XII standard examinations, monthly educational assistance for 2 year period to 50 students for purusing higher studies, awards to best performing District Collectors and llocal bodies and additonal honorarium of Rs.500/- per month to the teachers and staff of NCLP from March 2010 from the State funds. It is stated that as per the guidelines for the Implementation of National Child Labour Projects issued by the Union Government, Ministry of Labour and Employment, New Delhi the honorarium to the staff of National Child Labour Project schools is fixed as under : https://hcservices.ecourts.gov.in/hcservices/ (i) Educational Instructor - Rs.1,500 per month (ii) Vocational Instructor - Rs.1,500 per month (iii) Clerk cum Accountant - Rs.1,400 per month (iv) Peon/Helper - Rs.800 per month It is further stated that most of the teachers working in the NCLP Project Schools in Virudhunagar District were untrained teachers and to improve the quality of education to be imparted to the children, these teachers were given training with the coordination of the Education Department of the State Government. As far as the payment of honorarium for the Special School Teachers are concerned, it is stated in the counter that the Union Government had released a sum of Rs.21,13,124/- during the month of March, 2010, out of which teachers and helpers were paid upto August 2009. The children were provided with nutritious meal up to March 2010 from Union Government Funds and the children are provided with nutritious meal through the Social Welfare and Nutritious Meal Department of the State from April, 2010 onwards. Since, the funds required for running the Virudhunagar NCLP project are to be provided by the Union Government, the State Govenrment has requested the Union Government for early sanction of funds. As far as preventing the closure of the special schools is concerned, it is stated that - (a) the National Child Labour Project is a time bound project. (b) As per the guidelines, the number of special schools are to be opened by the district NCLP Society on the basis of number of child labour available in a district, with the sanction of the Union Government. (c) The number of schools in a district would increase or decrease depending upon the number of Child Labour in a district. (d) The success of the Project lies in its earliest winding up on achieving its objective of total eradication of child labour. (e) Appointment of teachers in the special schools is temporary and voluntary in nature, which was brought to the notice of the concerned individuals at the time of their appointment. (f) The National Child Labour Project is an outcome of the policy and programme of the Union Government for the rehabilitation of working children. The issues with regard to running the special schools under the District NCLP Project to its sanctioned number and funding them will fall under the purview of the Union Government. The details of the activities of the Special Schools in Virudhunagar District are stated as follows:- https://hcservices.ecourts.gov.in/hcservices/ Year No. of Schools functioning No. of Children admitted in the special schools No. of children mainstreamed into regular schools 1999-2000 83 3758 357 2000-2001 79 3472 389 2001-2002 79 3126 534 2002-2003 69 3150 611 2003-2004 83 3026 636 2004-2005 69 2953 919 2005-2006 59 948 1645 2006-2007 54 1569 661 2007-2008 49 1448 652 2008-2009 44 1299 455 2009-2010 40 1193 428 2010-2011 (Upto June) 39 1262 476 2010-2011 (upto July) 20 980 Not applicable The 4th respondent has further provided the details of the enforcement of the Child Labour (Prohibition & Regulation) Act, 1986 and the Factories Act, 1948 (Section 67 Prohibition of Employment of Child Labour) in respect of Virudhunagar Distruct during the years 2006 to 2010 as follows: No. of establishments inspected - 10,089 No. of violations noticed - 79 No. of Children identified and rescued from employment – 79 No. of prosecutions filed in the Courts - 96 No. of cases ended in conviction - 36 Fine imposed - Rs.3,20,000/- On the basis of the above statement, the 4th respondent – District Collector, Virudhunagar District has stated that the State Government is proactive and is continuing to take steps enumerted above to eradicate child labour in all forms of employment in the State, as a result of which the incidence of child labour has been reduced considerably in the State of Tamil Nadu. The 4th respondent in his counter further furnished details of the amount sanctioned for Virudhunagar District under the Scheme and how it was spent during the last three financial years i.e., https://hcservices.ecourts.gov.in/hcservices/ 2007-2008, 2008-2009 and 2009-2010. 2007-2008 2008-2009 2009-2010 Opening Balance as on 1st April 43,31,524.20 5,29,606.15 72957.15 Funds Received: 1. Government of India 19,61,384.00 41,23,105 43,31,875.00 2. Govt. of Tamil Nadu 95551 1,50,929 - 3. By interest 1,44,585.95 38539 7169 4. Other receipts - 37950 4250 5. Advance from INDUS - 13,22, 600 - 6. Advance from DRDA - - 10,00,000.00 7. Advance from Labour Commission - - 5000 LESS EXPENDITURE Item of Expenses 2007-2008 2008-2009 2009-2010 A) Society Accounts 1. Staff Salary 7,95,412 7,28,326 1,36,500 2. Travelling Expenses 2,65,290 2,48,856 40419 3. Telephone Expenses 30192 24852 1562 4. Fuel Expenses 1,16,444 88951 6091 5. Child Labour Day Expenses 5432 13965 - 6. SHG Revolving Expenses 1,36,545 2,58,093 - 7. Vehicle Maintenance 23107 12255 - 8. Office Maintenacne Expenses 1,86,023