Domestic work is not recognized as labour and hence they have no rights such as fixed working hours, weekly offs, medical benefits or paid leave. They are not included in any labour law or Bill.
The Acts which do not include domestic workers:
- The Workman’s Compensation Act of 1923
- The Weekly Holiday Act of 1942
- The Maternity Benefit Act of 1961
- The Personal Injury Act of 1963
- Gratuity Act of 1978
- Minimum Wages Act
Legislations in terms of Domestic Labour
The Tamil Nadu Government, State of Tamil Nadu, India, included Domestic Workers in their Unorganized Workers Group. The Tamil Nadu Domestic Workers Welfare Board was constituted on the 22nd January 2007. The notification for the Minimum Wage Act for Domestic Workers was passed in August 2007.
The Central government amended the Central Civil Service Conduct rules to prohibit any government official/civil servants from employing children below the age of 14 years as domestic workers.Indian law prohibits the employment of children below 14 years age, in certain occupations in accordance to the Child Labour (Prohibition & Regulation) Act 1986. By 10th October 2006, the ban on child labour included employment of children in domestic work.
Karnataka government passed the Minimum Wage Act for Domestic workers on 1st April 2004 . Notification for Minimum Wage Act for Domestic Workers were passed in the following State governments: Kerala (23rd May 2005), Andhra Pradesh (24th April 2007) and Rajasthan ( 4th July 2007).
The Unorganised Sector Workers’ Social Security Bill, 2007 has been passed on 8th January 2008. This Bill also includes domestic workers in the unorganised sector of workers.
Migrant Domestic Workers?
Many women migrate from their villages to work as domestic workers. This migration takes two forms:
- rural to urban, and
- from India to a labour-receiving foreign country.
Whether the domestic worker remains in India or travels to the Middle East or Southeast Asia, she finds herself in a foreign environment, away from her family and adjusting to new languages, food, and cultures. Migrants are typically live-in domestic workers and are thus most vulnerable to physical and sexual abuse, excessively long working hours, and deprivation. Many of them are from tribal regions and the traditional discrimination they face as women and as live in domestic workers is compounded by their ethnicity. Despite these problems, poor women continue to migrate to cities and foreign countries as a way to supplement their families’ meagre incomes.
Increasingly, “trafficking agencies” have become a very significant factor in encouraging internal migration. In the arena of domestic work, organised trafficking is taking place as villagers living in the cities are returning to their native places to bring more women, girls and children into this labour sector. In Delhi alone there over and above hundreds of agencies which sell domestic workers. This points to the well-organised nature of the entire racket. Once the girls arrive in the cities, their wages are typically locked or they go unpaid in order to pay the traffickers a fee for securing employment.
If the girls decide to migrate on their own, they are still in danger of falling into the clutches of agents. In Delhi, scores of recruiting agents wait at the train stations for the girls to arrive from the villages. They either employ the girls directly or they hand them to local agents for a commission. The girls are often locked in a dark room without ventilation until a job is found. These agents then take commissions from the girls and the employers. The girls find themselves in a situation of bonded labour. Some agents arrange with the employers that the girls’ salaries be paid to the agents. The money is then held for a year and deposited in the agents’ bank accounts, depriving the girl of her money and the opportunity to earn interest. They are forced to work under the recruiting agent, who does not follow up on the girls’ situations once jobs are secured.
Working on wages below Minimum Wages is Forced Labour
Asiad Judgement : People’s Union for Democratic Rights (PUDR) vs. Union of India [(1982) 3 SCC 235]
“…Any factor, which deprives a person of choice of alternatives and compels him to adapt one particular course of action may properly be regarded as ‘force’ and any labour or service which is compelled as a result of such ‘force’, it would be ‘forced labour’…”.
“…Where a person provides labour or service to another for remuneration which is less than minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the word `forced labour’… as described in Article 23 of the Indian Constitution”.
Forced Labour is Bonded Labour
Bandhua Mukti Morcha vs. Union of India [1982 (2) SCC 253]
“…Whenever it is shown that a labour 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 considerations received by him and is, therefore, a bonded labour…”
THE INTER-STATE MIGRANT WORKMEN (REGULATION OF EMPLOYMENT AND CONDITIONS OF SERVICE) ACT, 1979
This Act provides provisions of appointment of Registration Officers, Registration of Agencies involved in the Inter State Workmen , provisions of Revocation of Registration and prohibition of agencies working without registration. This law provides for safeguards for workmen coming as migrants from Distant Areas so that they are not exploited.
With respect to adult women who are employed in various household, the regulating mechanism prescribed under the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 can be adapted. The Act is notified and implemented in the State of Delhi. This Act is an act to regulate the employment of inter-state migrant workers. Under this Act, there is compulsory licensing of contractors. It applies to every contractor who employs or who employed five or more inter-state migrant workers on any day in the preceding twelve months. Contractor is defined under Section 2(b) of the Act. Section 2(b) reads as under:
“(b) “contractor”, in relation to an establishment, means a person who undertakes (whether as an independent contractor, agent, employee or otherwise) to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment, by the employment of workmen or to supply workmen to the establishment, and includes a sub-contractor, Khatadar, sardar, agent or any other person, by whatever name called, who recruits or employs workmen;”
26. While this Act has been made applicable primarily to workers in the formal sector, the definition of the contractor squarely covers the manner in which placement agencies function and in the absence of a direct legislation to deal with placement agencies for the domestic help, the mechanisms within the act can be used. Thee mechanisms include licensing, grant, revocation, suspension and amendment of licenses, specifies duties of the contractor, recommends filing of reports which includes list of persons employed through the contractor with details of their wages, levies responsibility on the contractor to ensure that timely payments are made. A combined reading of the aforesaid legislations will empower the Government to:
(a) Register the placement agencies both under the Shops and Establishments Act as and when registration becomes mandatory and under the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 with immediate effect;
(b) Direct the licensing authorities under the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 to grant licenses to the placement agencies as “contractor” for a specified period of time and make them furnish records as per the requirements under the Act;
(c) Direct the inspectors appointed under the Child Labour (Prohibition and regulation) Act, 1986 to ensure that children below 14 are not employed as domestic help and regulate the conditions of employment of children in the age group of 14-18;
In WP (Crl.) No. 619 of 2002 Delhi High Court stated :
37. In addition, based on the suggestions given by the learned counsel for the petitioners in all these writ petition, we hereby give the following directions summarized as under:
(i) There is no comprehensive legislation to take care of the problem and multiple statutes with multiple authorities – for lack of coordination and disconnect among them – are not able to tackle the issue effectively. Therefore, there is a need to study this aspect, viz., feasibility of having a legislation to regulate employment of problem of children and adult women, who are working as domestic helps. Emphasis should be laid on the regulation of placement of agencies who provide such helps. We are making these observations also for the reason that the existing laws do not provide and effective speedy remedial which could ensure that women and children are able to;
(a) Seek recovery and wages,
(b) Ensure freedom of movement,
(c) Access shelter option in case of abuse before being able to go home.
Feasibility of having control of SDMs of the areas on these placement agencies should also be worked out.
(ii) Till that is achieved, which is allowing term measure, immediate concerned respondent authority to ensure as to how various enforcement agencies of different statutes are able to work in a coordinated and cooperative manner. Necessary guidelines should be issued or rules framed in this behalf. If possible, single window enforcement agency be created so that the the NGO on behalf of such victims are able to approach the said agencies instead of knocking the doors of different authorities. (iii) For more effective implementation of the Juvenile Justice (Care and Protection of Children) Act 2000 and Delhi Commission for Women Act, following directions are issued:
(a) Labour Department will register all placement agencies. The registration process will be within a finite period of time. Failure to register within that prescribed time should invite penal action which can be prescribed by this Court.
(b) The registration process should not only be for agencies located in Delhi but also for all the agencies, who are placing women and children in homes located in Delhi. This suggestion is made in view of the apprehension expressed during discussions with the Labour Department that as soon stringent laws are brought into effect in Delhi, the agencies may shift out to the NCR region.
(c) The registration information should require:
1) Details of the agencies;
2) Number of persons, who are employed through the agencies, their names, ages and their addresses;
3) Details of salaries fixed for each person;
4) Addresses of the employers;
5) Period of employment;
6) Nature of work;
7) Details of the Commissions received from the employers.
(d) The information should be available for access to the Child Welfare Committee as well as the Delhi Commission for Women. During the discussions, the Labour Department had indicated that the information would be put up on the website. Till such time, the information should not be put up on the website, the records may be made available by the labour Department to the Commission and the Committee.
38. Various suggestions given by the petitioner in W.P. (Crl.) No.619 of 2002 and to take such remedial steps, which are necessary for implementation thereof, should be taken in consideration as stated by the petitioner & as stated in paragraph 38 onwards herein be treated as the direction of this court. We also direct the respondent authorities to consider the following suggestions at the earliest :
Duties of the Commission and the Committee:
a) The Committee and the Commission will have a duty to go through the records provided by the Labour Department.
b) The Committee and the Commission will verify the information and the cases where information is found to be inadequate, seek further information from the placement agencies after duly summoning them. The Committee shall be authorized to sue the services of „Childline‟, a service set up by the Ministry of Women and Child Development, Union of India and managed by NGOs to verify the information in appropriate cases. The Commission shall identify agencies who would assist them in verifying information with respect to adult women.
c) The Committee and the Commission shall entertain complaints made by the domestic worker herself/himself of through her/his guardian, NGOs managing „childline‟ services, the employer or the police in appropriate cases.
d) The Committee or the Commission shall decide the complaints made within a period of 30 days.
Adjudication of the Complaints: The Committee and the Commission may hear the following types of cases:
a) Withholding of agreed wages;
b) Harassment including harassment by employer at the hands of the placement agencies;
c) Harassment and/abuse by placement agency proprietor/staff at their premises or at work place;
d) Non-compliance of the agreed terms;
e) Abusive working conditions which is beyond the physical capacity of the child in cases where persons between the ages 14 and 18 are employed.
f) Long hours of work;
g) Lack of basic facilities including medical care and food.
Powers of the Committee/Commission:
(a) A committee and the commission will have powers to summon the placement agencies or the employer as the case may be on a complaint made by the domestic worker or her guardian or any person employing her;
(b) Direct payment of wages as per agreed terms and in appropriate cases impose fines;
(c) Direct payment of compensation in cases where severe injuries are caused to the domestic worker during the course of the work;
(d) Direct medical assistance;
(e) Direct the placement agency to comply with the agreement with the employer or return the commission where the terms are not complies with;
(f) Impose fines on the placement agencies where it is found that terms of the agreement are not followed;
(g) Direct legal aid to the child/woman where a criminal offence has happened;
(h) Direct employers to inform the local police or the Committee/Commission in cases where the domestic worker is missing within 24 hours;
(i) In cases where a domestic worker has been placed in a home against her wishes, enable her to leave her employment and direct the agency to return the commission paid by the employer back to the employer.
39. The Petitioner in W.P. (Crl.) No.879 of 2007 has referred to Police Circular issued by DCP, Headquarters, New Delhi. This Circular requires the Delhi Police to:
a) regulate the functioning of placement agencies;
b) to ensure proper screening of domestic workers being recruited by placement agencies by maintaining the register of all such agencies;
c) Ensure that the agencies enroll applicants on the basis of formal applications containing full details including the photographs and contact addresses of the applicants, the details of previous employers, etc.
d) Verification of domestic workers is to be done by the Police.
The DCP has filed the response wherein it is stated that the matter was examined in detail and the guidelines stated in the Circular cannot be implemented as Delhi Police is already too overburdened with the law and order, security, inquiries and investigations, etc. It is also mentioned that to keep a check on the maintenance of registers, etc. of the placement agencies would not be feasible in the current scenario of heightened security concern. It is stated that the Circular is merely an executive instruction and non-compliance thereof cannot entail any penal consequence on the placement agencies. We are of the opinion that once such a circular is issued, it does not behove Delhi Police now to wriggle out of that on the pretext that this was for internal instructions and thereby refusing to adhere to the same. We, therefore, direct that the administration at the highest level in Delhi Police shall reconsider the feasibility of implementation of the instructions contained in the said.
Minors and Domestic Labour
For Domestic Labour specially the labour who are migrant above the age of 18 mechanisms can be set up in the interstate workmen Act. For Minors in the age of 14-18 although their is no legislation regulating or banning children in this age group from working but the same come in conflict with the Juvenile Justice Act and Right to Education which is a Fundamental Right.
DELHI HIGH COURT ORDER DATED 15 JULY 2009 WP(C) No. 9767/09, WP(Crl)2069/05, W.P.(C) Nos.15090/06, 4125/07, 4161/08
17. The Action Plan provides for detailed procedure for rehabilitation andsocial integration of the child labour as well as training and capacity building of duty bearers.\
18. In a bid to ensure proper coordination amongst different agencies of the Government of NCT of Delhi, the Action Plan defines the role andresponsibilities of various departments/authorities involved in the process in the following consolidated manner:
“7.7. The Responsibilities of the Respective Departments
7.7.1. Delhi Police
The concerned Deputy Commissioner of Police should:
a. Make the necessary arrangements of police force for raids as per the demand and requirement of Action Force;
b. Personally participate in the raids conducted by the Action Force;
c. Should take charge of the child labour liberated by the Action Force;
d. Should take steps to arrest the owners/employers of the child labour as per provision of Indian Penal Code Sec. 331, 370, 374 and 34 as well as provisions of Sec. 23, 24, 26 of Child Justice (Care and Protection) Act. They should register the crime and take all the necessary future steps to conduct further criminal proceedings;
e. Should treat the liberated child labour with respect and honour and hand them over to children’s home in the charge of officers of Women and Child Welfare Department;
f. Put forward the cases of child labour as per Section 32 with the help of Action Force in front of Child Welfare Committee. As per the decision of the
Child Welfare Committee, the children should be handed over to their parents through JAPU if the children are from other states.
7.7.2. Department of Labour, GNCTD:
a) To keep the areas in their jurisdiction where the child labour is likely to be hired under continuous active surveillance.
b) In case the child labour is found to be employed and if their number is high, then immediate action should be taken within 24 hours after contacting the District Collector and police officers by carrying out a raid through Action Force. If the number of child labour is less, then immediate action should be taken to liberate them on the very day with the help of departmental colleagues and police.
c) To keep track of the planning and conduct of every child labour rescue operation. It should be ensured that adequate number of officers and shop inspectors are present during the raid. There should be active participation in the liberation of child labour. Necessary action should be carried out against the employer of the child labourer as per the provisions of Section 3 of Child Labour (Prohibition and Regulation) Act, 1986; if this is applicable. If Section 3 of the Act is not applicable then action should be taken under provisions of Section 7, 8, 9, 11, 12 and 13.
d) Even if the job carried out by the child worker does not fall under the dangerous job category, the child labourer should be liberated from the clutches of unscrupulous employers and handed over to the police with a view to eradicate the undesirable practice of child labour and bringing these children under the mainstream of education.
e) To document all details of the liberated child worker by obtaining details from him in an affectionate manner and furnishing a copy to the police department. A complaint against the employer of the child labourer should be lodged (with the help of Task Force, if necessary) with the police and his statement should be recorded as a matter of formality and duty.
f) While obtaining information from the child labourer, if it is found that the employer had paid any money as financial assistance, loan advance etc. to the parents, then immediate report should be made to the District Collector for declaring the child labourer as ‘forced’ labourer and a copy should be endorsed to the Government through the Commissioner.
g) Due care of the liberated child labourers should be taken till they are sent to the Children’s Home and it should be seen that they are provided with proper food, water and other facilities in time.
h) As per the definition specified in Section 2(K) of the Juvenile Justice (Care and Protection of Children) Act 2000, the individual who is below 18 years of age should be considered as a child. Therefore in the course of raid, if child workers above 14 years of age are found, then they should also be liberated from the clutches of the employer(s) and handed over to the police.
i) A sum of Rs. 20,000/- (Rupees Twenty Thousand) should be recovered from the employer of child labourer subjected to legal action vide Section 3 of Child Labour (Prohibition & Regulation) Act 1986 as per the directives issued by the Hon’ble Supreme Court in the M.C. Mehta case, 1996 and credited to the District Chila Labour Welfare Fund of the District to which the child originally belongs.
j) To designate nodal officers at senior level to be part of the District Level Child Labour Task Force (districtwise) and also for the rescue team.
k) To strengthen the intelligence network through the Community Workers of the Labour Department on the status of out-of- school children, places of work involving children and their employers/contractors/middlemen, etc.
l) Necessary legal action should also be taken against the employers of child labourers under the following legislations and corresponding Rules (wherever applicable):
i. Delhi Shops and Establishment Act, 1954
ii. Minimum Wages Act, 1948
iii. Motor Transport Workers Act, 1961
iv. Factory Act, 1948
v. Interstate Migrant Workmen (Regulation of Employment and Condition of Services) Act, 1979. vi. Contract Labour (Regulation & Abolition) Act, 1970.
7.7.3.Women and Child Welfare Department, GNCTD
a) Generation of awareness among masses against the practice of child labour. Steps should be taken for the rehabilitation of local child labourers with the help of Deputy Commissioner (DC) and voluntary organizations, if the child labourer happens to be from the local area.
b) Take charge of child labourers liberated by the Action Force and see that they are provided adequate food, clothing and shelter. Due care should be taken about their safety.
c) If the child worker happens to be a local person, she/he should be inducted in the mainstream of education with the help of education officer. If possible, he/she should be provided job oriented technical education.
d) The Superintendent of the Children Home to which the liberated Child Labourers have been placed should arrange for the interaction/taking of statements by the concerned Child Welfare Committee.
e) Information about instructions of the Child Welfare Committee should be independently submitted to the DC and Labour Commissioner every month.
f) DWCD, GNCTD should designate nodal officers at senior level who can be part of the District Child Labour Task Force for every district.
g) Issue letters to the respective CWCs to nominate a member who can be part of the District Child Labour Task Force. Such member of the CWC can be a link between the CWC and District Child Labour Task Force for all practical purposes, including, attending the pre-rescue planning meeting of the Task Force, issuing Orders for the interim care and custody of the rescued child reports (SIR), verification/identification of their families and their ultimate repatriations/follow-up. The CWC Member will get the inquiry done and Social Investigation Report prepared under JJ Act in a child friendly manner at the camp/home/hostel/RBC where the children have been lodged.
h) To keep the Homes ready for the reception and suitable accommodation of the rescued child labours.
7.7.4.Education Department, GNCTD
a) In order to absorb the liberated child labourer into mainstream of education without any discrimination, (sex/caste etc.) they should be offered free and compulsory education and should be compelled to receive it.
b) Various schemes sponsored by the Central and State Governments should be implemented for this purpose.
c) During their educational period, they should get the benefit of free meals scheme of the State Government.
d) The Department will set up initially 250 Alternative Innovate Education Centres (AIEC)/NRBCs in the areas of child labour concentration and/or in the areas having large number of out-of-school children. The Department would also ensure that all the children at NRBCs/RBCs are given free mid day meal (as assured by the Department, vide UEE Mission letter no. 39, dated 11.4.2009).
e) Care should be taken to see that the child labourer develops liking for the education.
f) The education officer and Principal of the school should be held responsible for the dropouts among the child labourers receiving education.
g) Parents of child labourer should be counseled to stress the importance of education among the labourers.
h) Monitoring of academically weaker children in schools will be done with the involvement of CRC and NGOs for (as assured by the Department, vide UEE Mission letter no. 39, dated 11.4.2009) preventing dropouts.
i) The concerned District Urban Resource Centre Coordinator (DURCC) will send a monthly report to the Dy. Commissioner of the District with a copy of the same to the SPD (SSA) and Director (Education), GNCTD about the following:
i. School wise and class wise attendance and drop-outs corresponding to the number of children enrolled;
ii. Number of out-of-school children in the district (school wise and class wise) along with the list;
iii. The efforts made for awareness/sensitization/educational counseling of children and their parents.
Such reports should be examined in the following meeting of the district level Task Force and of the state level Steering Committee as well as at the highest level in the Education Department of GNCTD for remedial measures.
j) Department will ensure that all its schools have adequate number of teachers in proportion to children in each class (subject specific, wherever applicable) and they are maintaining punctuality. It should also introduce a system of incentive/reward for its schools which maintains higher enrolment/retention of out-of-school children and prevent dropouts as well as a system of disincentives for those who consistently fail to identify, enroll and retain the out-of- school children.
7.7.5.Health Department, GNCTD
a) After receiving information about the raid of Action Force through Labour Officer/Police Officer, complete medical examination of liberated child labourers should be carried out.
b) Immediate medical treatment should be initiated, if required.
c) Clear cerficiate of age (issued by medical officers not below the rank of Government Assistant Surgeon) of the liberated child labouer should be furnished immediately to the investigating police officer or Government labour officer as per their demand.
d) Expenses incurred towards the treatment and issuance of medical certificate should be met by the DC from the District Child Welfare Fund and should be recovered from the employer of the child labourer and reimbursed to the District Child Welfare Fund after recovery.
7.7.6.Municipal Corporation of Delhi (MCD)
a) Under its Slum Development Programme, the MCD should enhance the standard of living of all children living in the slums within its jurisdiction and particularly ensuring effective access to free health check up and medical care, quality education, recreation, vocational training and community life.
b) MCD Schools should provide free and compulsory education to all rescued child labourers belong to Delhi irrespective of their age (by arranging accelerated learning for the older children through NRBCs wherever necessary for mainstreaming them to age appropriate classes) without any discrimination (sex/caste etc.). They should be mentoring the non-formal education programmes run by NGOs in various slums with a view to bringing all out-of- school children in the area into the fold of mainstream education.
c) The Headmasters and the teachers of the MCD schools will hold a monthly meeting of the parents for sensitizing/counselling them about importance of the education. Experts/communities leaders would be invited to such meetings.
d) MCD will also have sensitization/counselling programmes for the slum-dwellers in general about the importance of education for their children and the facilities available for the same as well as the long-term evil impacts of child labour through meetings, prabhat feries, documentary films, etc. in the colonies.
e) The MCD should ensure that all its schools have adequate number of teachers in proportion to children in each class (subject specific, wherever applicable) and such teachers are maintaining punctuality. It should also introduce a system of incentive/reward for its schools which maintains higher enrolment/retention of out-of-school children and prevent dropouts as well as a system of disincentives for those who consistently fail to identify, enroll and retain the out-of-school children.
f) The Education Department of MCD will obtain the list of children who are not attending schools and will instruct the Principal of the concerned school(s) to bring such children back to school.
g) The concerned Zonal Dy. Education officer (DEO) will send a monthly report to the Dy. Commissioner of the District with a copy of the same to the Labour Commissioner and the Education Department of MCD about the school wise and class wise attendance and drop-outs corresponding to the number of children admitted. The report should also include the efforts made for sensitization/educational counseling of children and their parents. Such reports should be examined in the following meeting of the district level Task Force and of the state level Steering Committee as well as in the Education Department of MCD for remedial measures.
h) The Zonal Deputy Education Officer (DEO) will be responsible as the Nodal Officer on behalf of MCD on various matters relating to the pre-rescue planning, rescue and post-rescue rehabilitation/education in the concerned MCD area(s).
7.7.7.Deputy Commissioner of the District concerned
a) To ensure that no incidence of child labour in any form is found within his/her jurisdiction.
b) To get the meeting of the District level Task Force on Child Labour on monthly basis and to preside over the same.
c) To forward a copy of the monthly meetings of the District level Task Force on Child Labour, detailed report of the review meeting should be sent to the Government of NCT of Delhi through Labour Commissioner.
d) To get a list of all voluntary organizations dealing with the problems of child labour prepared with areas of their expertise and to ensure that such list is updated on regular basis. Along with these organizations, public awareness drives should be arranged. Public opinion should be generated to stress that education is the right of every child and is a first step towards progress.
e) To get constantly updated about the raids, rescues and rehabilitations of child labourers in the district and to extend all necessary support to the rescue team.
f) To ensure that all necessary actions are taken within his competence under the Bonded Labour System (Abolition) Act and Rules, 1976 as well as under the ‘Centrally Sponsored Plan Scheme for Rehabilitation of Bonded Labour’, if the facts and circumstances in which child labourers are found lead to the presumption that they are forced labourers/bonded labourers.
g) To also ensure that Rs.20,000/- per child labourer is recovered from his/her employer and credited along with Rs.5000/- to the District Child Labour Welfare Fund, as per the direction of the Hon’ble Supreme Court of India in the case of M.C. Mehta, 1996.
h) To furnish a utilization certificate to the Government through the Labour Commissioner about the funds stated above on half yearly basis, before 30 September and 31 March every year.
i) Guidance may be sought (wherever necessary) from the Labour Commissioner with regard to the utilization of collected funds. As far as possible, the amount collected should be utilized for the rehabilitation of the child labourers for whom the amount is collected.
j) As per the judgment of the Supreme Court cited above, adult unemployed member of the family of the child labourer should be provided employment there in his place and the child should be directed to receive education.
k) In case the child has taken up the job due to economic condition of the family, adequate efforts should be made to provide all benefits to the family under all relevant developmental and social security schemes of the Government.
7.8. The above roles and responsibilities of concerned departments /authorities of Government of NCT of Delhi will be required for implementing both Strategy – I (Social Mobilization for Total Abolition of Child Labour) and Strategy – II (Pre-rescue, Actual-rescue, Interim care, Enforcement of Laws, Repatriation and Rehabilitation of Child Labour).”
19. Subsequent to the filing of the aforesaid Action Plan, the Labour Department of Government of NCT of Delhi has raised some issues. According to the Labour Department, CLPRA, 1986 prohibits employment of children only in certain scheduled occupations and processes. Consequently, according to the Labour Department, child workers employed in non-hazardous jobs cannot be rescued. The Labour Department has further urged that in the Action Plan it has been stipulated that all children between the age of 14 to 18 years have to be liberated and handed over to the police, even though CLPRA, 1986, defines child as a person who has not completed 14 years of age.
20. On a perusal of CLPRA, 1986, we are of the view that under the said Act, only child workers employed in scheduled occupation and processes can be liberated and children employed above the age of 14 years cannot be rescued.
21. However, in our view, the Juvenile Justice (Care and Protection of Children) Act, 2000, would apply to children between the age of 14 and 18 years as well as to those children employed below the age of 14 years in non-scheduled occupation and processes. Consequently, the said children would be governed by the Juvenile Justice (Care and Protection of Children) Act, 2000 as well as Bonded Labour System (Abolition ) Act, 1976, if applicable and not by CLPRA, 1986, as stipulated in the Delhi Action Plan prepared by the National Commission.
22. Moreover, at the request of Labour Department, we direct that the responsibility of lodging a police complaint against an employer employing child labour would lie with the Delhi Police and not the Labour Department as directed in the Delhi Action Plan. We further clarify that the authority to
take action under the Bonded Labour System Abolition Act, 1976, would be the Deputy Commissioner of District concerned and not the Labour Department. Accordingly, paras (e) and (f) of para 7.7.2 of the Delhi Action Plan are amended.
23. It is further clarified that the recovery of fine of Rs.20,000/- as stipulated by the Supreme Court in M.C. Mehta‟s case will not have to await a conviction order of the offending employer. The said amount would be recovered as arrears of land revenue and the said amount would be utilized for the educational needs of the rescued child even if the child has subsequently crossed the age of 14 years.
24. The Deputy Director, Child Welfare, has also filed a Status Report stating that considering the capacity and existing strength of NGOs‟ and Government run institutions in Delhi, the department would be able to accommodate only about 500 additional children every month, since the restoration efforts take about 30 to 40 days‟ time. The said Status Report, however, states that all efforts would be made to motivate NGOs to enhance their capacity to accommodate more children and to register more Children Homes.
25. Keeping in view the aforesaid infrastructural limitation, we direct the labour department to begin implementing the Delhi Action Plan by accommodating for the time being about 500 children every month.
26. Moreover, being cognizant of the fact that ground level reality may be different from the one projected in the Action Plan, we grant liberty to the above-mentioned authorities to seek clarification or amendment of the Action Plan from this Court.
27. To conclude, we would only quote what Dr. Dorothy I. Height, a social activist, has said, “we have got to work to save our children and do it with full respect for the fact that if we do not, no one else is going to do it.”
28. Consequently, we accept the Delhi Action Plan which provides a detailed procedure for interim care and protection of the rescued children to be followed by Labour Department as prepared by the National Commission with the modifications mentioned hereinabove in paras 20 to 26 and we further direct all the authorities concerned to immediately implement the same. The Government of NCT of Delhi through the Labour Department is directed to file its First Taken Report to this Court after six months.