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Hand Book for the orientation of the S?
Enforcement Officers, Prosecutors
and Legal Practitioners on the
Elimination of Child Labour
International
Labour
Organisation
COOPOraZE^n-5««
Edited by: EL Ktendakat EUanH
Stt^FKauM*
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International Labour Organization
ILO-IPEC - Karnataka Child Labour Project
(Funded by the Government of Italy)
Hand Book for the Orientation of the
Enforcement Officers, Prosecutors and
Legal Practitioners on the Efimination of
Child Labour
INTERNATIONAL LABOUR ORGANIZATION
International Programme on the Elimination of Child Labour (IPEC)
Karnataka Child Labour Project
(Funded by the Government of Italy)
o
International
Labour
Organisation
Foreword
Large numbers of stakeholders are involved at various levels for the successful implementation
of the programmes for the elimination of child labour. Unless these stakeholders are sensitized
on issues relevant to child labour and trained about their roles and responsibilities and what to
expect from other stakeholders and institutions; a concerted, coherent, cooperative and sustained
effort towards the common goal of child labour elimination is not possible. Appropriate training
of a stakeholder builds his capacities to discharge his responsibilities as expected, and respond in
time to any emergent situation, need and expectation. A trained stakeholder follows a particular
process and is in a position to contact other actors and institutions and get their cooperation and
response as and when needed.
The capacity building should be such that the stakeholders understand the complex socio-economic,
cultural, attitudinal, political and administrative circumstances of the issue so that they are
motivated, sensitized and equipped mentally and physically to deliver the objectives successfully.
The training should provide conceptual clarity on child labour issues and instill in all the stakeholders
a sense of urgency to fulfill the mission of eliminating child labour. Training programmes would
need to focus on prompting attitudinal change, converging inter-departmental efforts and setting
specific cross-sectoral goals. Training needs of the functionaries at various levels and various
stakeholders are quite different and distinct and a common training manual for every one may not
serve the purpose.
Generally the implementing stakeholders are trained, because when they are not adequately trained,
the quality of implementation suffers. But some stakeholders who may not be implementing
stakeholders but yet have a wide influence on the outcome (both potentially positive as well as
negative), like members of the media, political and religious leaders etc. are also trained to capitalize
on their influence for the cause.
It is heartening to note that the ILO-IPEC - Karnataka Child Labour Project has developed
trainers’ handbooks for training various stakeholders like:
1.
Parents (particularly mothers)/Guardians of Child Workers.
2.
Government functionaries of Grass roots level organizations, Teachers, Anganwadi
Workers.
3.
Gram Panchayath members, SDMC members, Local Leaders of the Community
4.
5.
6.
7.
Employers, Employer Organization office bearers.
Workers, Trade Union office bearers.
Enforcement officers.
Judicial officers.
8. NGOs and Government officers of other departments in the development sector.
The manual containing modules prepared and joindy edited and field tested by Mr. Kamalakar
Halambi and Mr. Sanjiv Kumar, in Kannada and English is an important tool for training
stakeholders and preparing them to effectively combat child labour. We trust that it shall be used
widely.
Mr. BL Sridhar, IAS,
Principal Secretary Labour,
Government of Karnataka
Ms Leyla Tegmo-Reddy,
Director, ILO, South Asia.
i
Acknowledgement
Being a complex socio-economic problem the elimination of child labour requires a concerted
effort and active involvement of all the Stakeholders including the community. A large number
of Stakeholders are involved at various levels for the successful implementation of the protocols
and processes involved in the elimination of child labour. Unless these stakeholders are sensitized
to the issues relevant to child labour and trained about their roles and responsibilities and what to
expect from other stakeholders and institutions, a concerted, coherent, cooperative and sustained
effort towards the common goal is not possible. An appropriate training of a stakeholder builds
his capacities to discharge his responsibilities as expected, and respond timely and adequately to
any emergent situation, need and expectation. A trained stakeholder acts on a predictable line and
is in a position to contact other actors and institutions and get their wholehearted cooperation and
timely response.
For child labour elimination, training should be such that the stakeholders understand the complex
socio-economic, cultural, attitudinal, political and administrative circumstances of the issue so
that they are motivated and sensitized and equipped mentally and physically to deliver the objectives
successfully. The training should provide conceptual clarity on child labour issues and instill a
sense of urgency to fulfill the mission of elimination of child labour in all the stakeholders. Training
programmes would need to focus on promoting attitudinal change, convergence of inter
departmental efforts and setting specific goals cross-sectorally. Training needs of the functionaries
at various levels and various stakeholders are quite different and distinct and a common training
manual for every one would be ineffectual.
In this background ILO-IPEC — Karnataka Child Labour Project has taken up this task to develop
a set of seven Self Help Training Manuals for the trainers in English and Kannada for the different
Stakeholders. We have tried to make this training manual as simple as possible. We are thankful
to Ms. Leyla Tegmo-Reddy, Director ILO, SRO, New Delhi for entrusting this work to us and
encouraging us from time to time to deliver our best. We are thankful to the Principal Secretary
Labour, Government of Karnataka Mr. BL Sridhar, IAS, Deputy Commissioners of the Project
Districts and other important stakeholders who gave their valuable suggestions for improving
these manuals. We are thankful to Mr. Mohan Chandra U., Development Consultant, for his valuable
contributions and involvement at every stage of the development of these manuals. We remember
the support given by Ms. Merlin Martis, Director-Deeds for extending the much needed institutional
support for the preparation of these manuals. We thank Mr. Thirtharama Valalambe for his excellent
illustrations. We further thank Mr. Prasad and Mr. Vinaya T.S. for providing us necessary help
required for the preparation of these Manuals. Further we thank all those who have helped
directly and indirectly in the development of these modules. We have borrowed freely from
various sources and earlier efforts in developing such material. But if any limitations remain we
are solely responsible for the same and are happy to invite comments and suggestions to be
incorporated in the next version of the manual.
Kamalakar Halambi
Sanjiv Kumar
iii
ILO-IPEC - Karnataka Child Labour Project
Contents
SECTION -1
SI. No Particulars
Page No.
1.1
Introduction
2
1.2
About the Manual
4
1.3
Preparation for the Workshop
5
1.4
Objectives of the training
7
1.5
Training Techniques / Approaches
8
1.6
Role of the Resource Persons
9
1.7
Indicative Timetable
10
v
International Labour Organization
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
A A CAO nW ;
SECTION - II
SI. No
Particulars
2.1
Training Activity 1 - Registration
14
2.2
Training Activity 2 - Inauguration
16
2.3
Training Activity 3 - Introduction: Breaking
the Ice
18
2.4
Training Activity 4 - Magnitude of Child labour
Causes and Consequences/Hazardous child
labour / Worst forms of child labour
21
2.5
Training Activity 5 - Provisions of some of the
Enactments with Child Labour Prohibition
33
2.6
Training Activity 6 - The Child
(Prohibition and Regulation) Act, 1986
Labour
35
2.7
Training Activity 7 - Determination of Age of
the Child
37
2.8
Training Activity 8 - Effective Enforcement of
Child Labour Laws
39
2.9
Training Activity 9 - Some Case Studies
41
2.10
Training Activity 10 - Repeat Session on Case
Studies
43
2.11
Training Activity 11 - Action Plan for the
Enforcement Officers
44
2.12
Training Activity 12 - Evaluation and Summing
up
46
Page No.
vi
International Labour Organization
ILO-IPEC - Karnataka Child Labour Project
o
SECTION - III
SI. No
Particulars
3.1
Causes for Child Labour______________________
3.2 ___ Consequences of Child Labour________________
3.3 ___ Magnitude of Child Labour____________________
3.4
United Nations Convention on the Rights of the
Child (CRC) : 1989____________________________
3.5
ILO and Child Labour____________________
3.6
Karnataka Child Labour Project______________
3.7
Special provisions related to child labour and
child rights in the Constitution of India_________
3.8
Protective legal provisions for the employment
of children and definition of ‘Child’ under
various Acts__________________
3.9
The Juvenile Justice (Care and Protection of
Children) Act, 2000
_______________________
3.10
Supreme Court Directions on Child Labour_____
3.11
Hazardous Child Labour______________________
3.12
Children in the Worst Forms of Child Labour
3.13
Selected Myths and Reahties about Child
Labour_______________________
3.14
List of occupations and processes in which child
labour is prohibited under the Child Labour
(Prohibition and Regulation) Act, 1986__________
3.15
Provisions of some of the Important Enactments
with Child Labour Prohibition
3.16
Effective Enforcement of Child Labour Laws
3.17
Some Case Studies____________________
3.18
Determination of Age of the Child______________
3.19
Understanding and Communicating with the
Vulnerable Child
3.20
The Child Labour (Prohibition and Regulation)
Act, 1986 and Rules
.21
The Child Labour (Prohibition and Regulation)
(Karnataka) Rules, 1997
vii
International Labour Organization
Page No.
52
54
55
59
60
62
66
67
69
72
74
75
76
80
83
92
100
138
141
148
172
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
I faS
Xk
0
SECTION - IV
SI.
No.
Particulars
4.1
Annexure - I
Friendship Band and the Mask
of Child Labour
182
4.2
Annexure — II
The Mask of the Happy Child
184
4.3
Annexure — III
Acronyms
185
4.4
Annexure — IV
A
Model
Presentation
Point
186
4.5
Annexure - V
Child Labour Free Karnataka :
A Vision
189
4.6
Annexure - VI
General Format of a Complaint
190
4.7
Annexure - VII
Format of a Show Cause
Under the Child
Notice
Labour
(Prohibition
&
Regulation) Act, 1986
192
4.8
Annexure — VIII
Format of a Show Cause
Notice : Under Section 24 of
the
Karnataka
Shops
&
Commercial
Establishment
Act, 1961
194
4.9
Annexure - IX
For training purposes : A
Model
Format
for
Spot
Inspection
Report
(Spot
Mahazar
195
Page No.
vm
Power
4
A
SECTION -1
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
< 11 f i IM' bl
1.1 Introduction
International Labour Organization (ILO) has initiated the ‘Karnataka Child Labour Project
(KCLP)’ to combat child labour and economic exploitation among adolescents in
Chamarajnagar and Bidar Districts of Karnataka State. The mandate of this three-year
project is to try out workable models and to identify best practices with downstream service
oriented activities at the community level, which will be implemented through eight
components. Capacity building of all the stakeholders including the enforcement officers,
prosecutors and legal practitioners is integral to any strategy to combating child labour.
With reference to child labour, enforcement has two aspects. Firstly, ensuring that laws on
free and compulsory education are implemented and all out of school children are put in
school; secondly, enforcing labour laws on employment of children and ensuring that all of
them are released and rehabilitated. This manual primarily deals with the second type of
enforcement. Enforcement leading to conviction is a more real and effective deterrent with
a wide demonstration effect. But, for enforcement to be a deterrent, its frequency has to be
such that at least one in ten defaulters is caught and convicted. Throughout India, very few
cases are registered under Child Labour laws and also conviction is insignificant as there are
no interest groups to support the enforcement of the legislation banning child labour.
Booking a criminal case is a very difficult task as it involves resistance at all levels. No one,
neither the public nor even the NGOs comes to witness the inspection note drawn on the
spot; doctors may not cooperate to give the age certificate; the employer and the general
public are hostile. Even the child worker and his/her guardians are non-cooperative.
Cooperation from police and other concerned departments is not forthcoming. Elected
representatives at all levels interfere with the case. Public prosecutors may demand a more
elaborate panchanama. In the courts, a number of dates are given and the personal appearance
of the inspectors is insisted upon. Often, false allegations are hurled at the inspecting officers.
Appropriate secretarial assistance and stationery may not be made available to them. Mobility
(vehicle) of the inspecting officer is also a constraint. Insufficient training of the enforcement
officer, insufficient monitoring and lack of incentives (both negative and positive) do not
allow good quality cases to fructify into conviction. It is said that legislation is likely to be
effective only where there is a capable administration determined to implement the laws,
where the working child is visible, and where there is relatively no advantage from child
work.
The enforcement of child labour laws is much more complex than any simple enforcement.
In die case of child labour, on the one hand, the enforcement authority has to collect evidence,
draw a panchanama on the spot for prosecution and also simultaneously release the child
worker, get his/her age ascertained and arrange for his/her rehabilitation. Many NGOs
argue that unless the Government lays down clear guidelines for rehabilitating the child’s
family, enforcement will not be effective. Due to these complexities, very few cases have
been booked throughout India. In Karnataka, after a new inspection protocol
was evolved wherein a multi-departmental team consisting of a labour officer,
an education officer, a revenue officer, an NGO and a doctor go together for
enforcement the number and quality of cases and the conviction rates have
improved considerably.
2
ILO-IPEC - Karnataka Child Labour Project
4
tf
Enforcement is both preventive as well as curative; its impact goes beyond the case by
demonstration and deterrence. Criminal conviction resulting in jail term has an electrifying
effect where not only the convicted person but the employers are also careful in not employing
children. Compared to any other intervention enforcement is more cost effective. Many still
argue that enforcement impacts the child worker’s family as their source of income is affected.
It may appear to be logically true that at the micro level that enforcement cannot compensate
a child worker’s family its loss of income, but at the macro-level, the ‘Child Worker’ does not
technically add anything additionally to the GDP, as only adult labour is replaced. Adult
labour becomes under-employed or unemployed and this has far more complex ramifications
as the number of unemployed and under-employed is much larger than the number of child
workers in our economy. Complete abolition of child labour should not make much difference
to the average income of the child worker’s family as the loss of income of the child worker
will be offset by the increase in the wages of the adult in the same family. This proposition
needs validation by appropriate studies. Also, the existence of child labour increases the
supply of the work force in a market, reducing their bargaining power and decreasing the
prevailing wage rate, and the reverse should happen with the elimination of child labour.
Enforcement as a strategy has not been used effectively. Some of the funds allocated for
NCLP projects should be allocated for augmenting man-power, vehicle and other contingent
resources required for stricter enforcement.
Minimum needs for successful enforcement:
For any enforcement to be meaningful and effective, the requirements are standard laws,
standard institutions to legislate, execute, adjudicate and communicate (media), standard
monitoring and enforcement, standard communication and community participation
(including civil society organizations, Panchayat Raj Institutions, self-help groups, trade unions,
parents and children themselves, etc.). As discussed earlier, the laws on child labour are
sectorally focused; leaving enough loopholes for the defaulters to re-engineer the business
process and wriggle out of the net - burden of proof of the child’s age quantum of punishment
and non-provisioning of special courts for this purpose have all contributed to the non
effectiveness of the legislation. Complete prohibition of child labour; simplifying
presumptions regarding age, strengthening the penal provisions and making executive
magistrates hear the ‘child labour’ cases are certain measures that will improve the situation.
In developing countries, standard institutions are a distant dream but appropriate
communication campaigns and capacity building exercises empower them sufficiendy to
come up to expectations. Existing manpower and resources devoted to child labour
eradication are insufficient to provide standard monitoring and enforcement. The present
labour inspectorate is geared only to meet the needs of the formal sector and formal work
place monitoring. The challenge of informal workplace monitoring will not be possible
without large-scale community participation.
This two days capacity building module is designed to train and orient the
enforcement officers, prosecutors and legal practitioners towards understanding
child labour issues and laws and to facilitate them in drawing up an action plan
so that they can initiate a proactive enforcement and prosecution process to
6 ]
eliminate child labour.
n
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
i I -» T-e ■
1.2 About the Training Manual
(A note on the Manual for Training of Enforcement Officers, Prosecutors and Legal Offic
ers)
There are four sections in this manual.
The first section contains information which will help the trainers understand this training
manual and guide them in organizing the training successfully.
The second section contains the training activities, which can be part of a two days training
program for the enforcement officials. As child labour is a very vast subject, all the important
issues cannot be included in the two days’ program due to constraints of time. Based on
local needs the trainer is at liberty to include other relevant issues by making suitable changes
in the schedule. In case of time constraint the sessions may be reduced carefully without
affecting the overall impact of the training.
The third section contains reference articles related to training activities, which will help in
preparing power point presentations or flipcharts.
The fourth section contains a model power point presentation which may be used as a flip
chart with suitable modifications. This section gives a prototype of a friendship band and
masks to be used for sensitizing participants.
All the training activities demand total participation. Trainers are requested to internalize
the whole manual before organizing the training.
Certain methods and approaches have been suggested. Based on local need if the trainer
feels that he should use some other method which will be more effective, he can do so after
discussing the same with the Project Director of the NCLP and the District Lead Agency.
But it should be ensured that the issues taken up in the identified modules reach the
participants.
Each training activity is divided into several sub activities, and contains the following:
• Title
• Duration
• Objectives
• Text
• Materials
• Methods / Approaches
• Process / Activities
• Expected Out come
• Key Question
• Indicators of success
• Instruction
4
ILO-IPEC - Karnataka Child Labour Project
<
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Ti I M’fal
1.3
Preparations for the Workshop
1Rffi.!
Conducting a workshop for the enforcement officers and prosecutors is easier said than
done. This calls for meticulous preparation and planning. The following points will be helpful
in organizing the workshop:
Collect information on various enforcement officers and prosecutors functioning in
your area
Consolidate the data thus gathered and focus on the following information:
o
o
o
o
o
o
The name of the official/the area of work
The approximate number of years of their work in the area
What are their main achievements or lack of it till now?
What is the child labour situation in their area?
What is their understanding of the issue of child labour?
What are the bottlenecks in child labour law enforcement in the area?
You will obtain the necessary background material and the delegates to be invited for
the workshop based on the above information
Based on this arrange a suitable venue for the workshop
o
o
o
o
o
The venue should be located away from the noise of the town but must be
well connected by public transport to enable the participants to reach it
It must accommodate a minimum of 30-50 persons
Prepare a small stage
Toilets, parking facilities and generator will be an added advantage
It is desirable to have a separate room for food and refreshments
After the venue is decided, fix a suitable date after consultating with the trainee’s
representatives
Invite the suitable resource persons and furnish all the details of the workshop to
them. Collect required information from the resource persons regarding the materials
required to be kept ready and other arrangements to be made during their sessions.
Confirm the availability of the equipments well in advance (for e.g. OHP projector,
LCD projector, Slide projector, etc.). If possible provide the copies of the speech /
lecture material to the delegates before or during the workshop
Dispatch invitation letters to all the delegates; it would be better if you personally
invite them to the workshop
• During the workshop make suitable arrangements for light breakfast, serving
tea twice a day, water to drink, and lunch
tk
•
Arrange for a banner to be displayed as a backdrop to the stage or a
O
board containing the information on the workshop
5
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
B' 1 *aS®»
If available make use of loud speakers/microphones
As far as possible the reading material should be in the local language and use
examples from local experiences
Keep sufficient stationeries and other materials required for the workshop ready
Form a task force of volunteers to assist you in the workshop, and brief them
thoroughly about the organizational details of the workshop
Display banners/posters in the training hall depicting child labor and the remedies
to address the issue of child labour
Prepare a tentative budget of the workshop
Please bear in mind the following aspects with regard to meeting the workshop
expenses:
o
o
6
Although this workshop may be sponsored either by the Child Labour
Project or Sarva Shiksha Abhiyan, various organizations/associations such
as the NGOs and Employers Associations are likely to sponsor programmes
like this. The efforts to mobilize local resources for the workshop will set an
example for others to follow which will also represent the collective voice
of the society against the evil of child labour.
The resources need not be in the form of cash. The contributions in the
form of concessional printing of the workshop materials by a printing press;
sponsoring food and refreshment by the Hotel Owners Association or
training hall for the workshop being provided by NGOs either at lower
rent or free of any charges, are also to be considered as valuable resources.
Money is required to meet sundry expenses and to pay honorarium to the
resource persons.
/-
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ILO-IPEC - Karnataka Child Labour Project
a.
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1.4 Objectives of the Training Manual
Following are the objectives of the training manual:
To provide functional awareness about child labour and relevant laws to the
enforcement officers and prosecutors.
■
To sensitize them on the issues of child labour.
To make them proactive in combating child labour and enforcing laws against child
labour.
To enable them to identify the child workers in their area and rehabilitate them.
To make them take steps to avoid occurrence of child labour in their area through
effective enforcement.
To help participants understand the consequences of child labour.
To help them understand that child labour is a blot on our society and it neither helps
the family, nor the child worker or the society.
To enable them to understand that the elimination of child labour is their social and
legal obligation.
To facilitate them to make an implementable plan of action for themselves to eliminate
child labour through enforcement.
7
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
i I T-s I
0
1.5 Training Techniques / Approaches
>
Lecture
This is to be employed for introducing the subject / topic at the begin
ning of the session.
>
Asking Questions
Questions can be asked to keep the participants attentive and also to
stimulate discussions; they should never be asked in an irritating or threat
ening way.
s
>
Sub-Groups discussions
It is an active method of participatory learning; helps participants be
come involved in the discussions and provides opportunities to all the
participants.
>
Case Studies
Case studies given in the activity provide real life situations whereby the
participants understand the subject. After presenting case studies, the sa
lient features of the same should be discussed and recorded.
>
Action Plan
Action plan can be developed individually or as a group activity. Action
plan is required to make participants think about the issues and develop a
strategy for taking positive steps at their individual and collective levels to
prevent child labour.
>
Guided dialogue
This will help the participants generate new ideas regarding the content
of the training by gleaning points from the experiences of the individual
participants.
>
Brain Storming
It is a technique used to encourage the participants to generate a wide
variety of ideas. Participants must be encouraged to offer any idea how
ever divergent which comes to their mind regarding the topic.
ILO-IPEC - Karnataka Child Labour Project
1X
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1.6 Role of the Resource Persons
❖
Should be aware of the group dynamics and provide and promote equal
opportunities to all
❖
Should ensure that different ideas / opinions are respected
❖
Should facilitate discussions
❖
Should lead discussions and at the end summarize the key points
❖
Arrange for field visits / guest speakers
❖
Should be very punctual and become a role model
❖
Should respect the knowledge and background of the participants
❖
Should make suitable preparations before the commencement of the training
❖
Should encourage group discussions, dialogues, questions etc.
❖
Should try to procure handouts, basic information, publications, video films,
audio cassettes, charts, banners, posters, photographs etc.
❖
Should help the participants understand the orientation schedule
❖
Should avoid unnecessary discussions, arguments, etc.
❖
Encourage the use of songs and other activities etc.
❖
Help participants to learn from one another
❖
Try to ensure that no one dominates the session
❖
Encourage the silent participant to speak up and participate in the session
❖
Be democratic, allow participants to lead
❖
Recognize the contributions of the participants
❖
Prevent the withdrawal of participants from participation or discussion
❖
Document the training experience and report the same to appropriate
authorities
❖
Obtain feed back and record suggestions for further improvement of
the sessions in future.
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
0
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A A A A cAO AM"
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1.7 Indicative Time Table
Day ~ 1
SI
N
Topic
Materials
Time
Activities
09.30 AM
to
Material
distribution and
Information
gathering
Registration Register,
Registration Form,
File, Pen, Resource
Materials etc.
Meeting
Inauguration function
Materials
Games,
Discussion,
Lecture
Drawing Sheets,
Scissors, Black Board,
Brown Sheets,
Markers.
Presentation, Open
discussion
LCD Projector,
OHP/
Transparency, Power
point presentation,
Black Board, white
Board, Markers,
Sketch Pens, Flip
Chart etc.
Presentation,
Lecture,
Group
discussions,
Brainstorming,
report reading
Blackboard, Chalk
Lecture,
Guided
Group discussions
and report reading
Blackboard, Chalk.
Group discussion.
Brief
lecture,
Experience sharing
Blackboard, Chalk
o
1.
Registration
10.00 AM
2.
Inauguration
10.00 AM
to
10.30 AM
3.
Introduction,
Breaking
Ice
10-30 AM
to
11-30 AM
11.30 AM
to
Tea Break
11.45 AM
4.
5.
Magnitude
of
child
labour,
Causes
and
consequences of child
labour, Hazardous child
labour and worst forms
of child labour, myths
about child labour.
11.45 AM
to
Provisions of some of
the Enactments with
Child
Labour
Prohibition
12.45 PM
to
Lunch
1.45 PM to
12.45 PM
1.45 PM
2.15 PM
6.
7.
10
The
Child
Labour
(P&R) Act, 1986
2.15 PM to
Determination of Age of
the Child
4.15 PM to
Tea
5.45 PM
4.15 PM
5.45 PM
/-
1^
ILO-IPEC - Karnataka Child Labour Project
•i A A M) rW^' j
l
Day ~ 2
T opic
SI
No
8.
9.
T im e
Effective
enforcement
of
Child Labour Laws
09.30 AM
to
Tea Break
11.30 AM
to
11.45 AM
Some Case Studies
11.45 AM
to
11.30 AM
13.45 PM
Lunch
Activities
M aterials
Presentation,
Lecture, Group
discussion.
Role
Play,
Experience
sharing
Blackboard,
Chalk, Pen,
Paper, LCD
Project etc.
Group
discussion,
presentation,
debate,
Experience
sharing,
Role
pJay
Chart paper,
sketch pen etc.
Blackboard,
chalk, pen,
paper, LCD
Project etc.
13.45 PM
to
14.15 PM
10.
11.
12.
The Child Labour
(P&R) Act 1986 and
some
case
studies
repeated.
14.15 PM
to
16.15 PM
Presentation,
lecture, group
discussions,
role
play,
Experience
sharing
Action
Plan
effective
enforcement.
16.15 PM
to
Group
discussion
Blackboard,
Chalk
Function
Social contract
forms, feedback
forms.
for
17.15 PM
Evaluation
and
summing up, signing
of social contract
17.15 PM
to
T ea
17.45 PM
17.45 PM
ILO-IPEC - Karnataka Child Labour Project
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SECTION - II
Training Activities
$
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
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Duration — 30 minutes
2.1.1
Objectives
•
•
•
To obtain the name, address and contact details of the
participants.
To distribute required materials to the participants.
To introduce the participants to a "child labour’ face and a small
exhibition on child labour.
2.1.2 Materials
•
•
•
•
Registration book
Registration forms
Pen
Materials required to be given to participants (Agenda
of Programme with Time Schedule, Training Material,
Registration Form, Pen, Action Plan and Commitment
Cards, List of important contact persons details,
"Knowing Self’ questionnaire etc).
2.1.3 Process
[A]
As and when the participants come to the venue their name and
other required details should be entered in the register.
Participants should be made to feel at ease.
[B]
Participants would be greeted by two masked individuals at the door
of the training hall. On one side will be a volunteer greeting the
participants wearing the mask (sample mask is given as Annexure — II)
of a smiling face and saying, ""Good Morning.... Good Afternoon!
Would you like to be my friend?” He will offer his hand for a
handshake.
On the other side the second volunteer wearing a mask of a child
labour on his face (sample mask in the Annexure — I) will greet the
participants individually by saying "
Good morning/
Namaskara
! I am a child labourer; would you like to be my
friend? Would you help me...?’ He will offer his hand for a
14
ILO-IPEC - Karnataka Child Labour Project
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handshake. After the handshake with each participant he will tie a
heart shaped sensitivity badge (friendship band) on the wrist of each
participant. (The badge is heart shaped and has a ribbon attached
for tying — sample is given in Annexure — I). The objective of tying
the band is to remind and sensitize the participants about child labour.
[C]
The participants are guided near the training venue to see a small
exhibition on child labour. The exhibition may have various posters,
pictures, banners, paper cuttings, photographs, articles, and slogans
mounted on board. There can be exhibits related to scope,
magnitude, forms and consequences of child labour.
2.1.4 Expected Outcome
★
★
★
★
The essential details about the participants are collected.
Participants get the essential materials required for the
training and know the time table and other details of the
training.
Participants ar2.1.5 Note The volunteers at the registration
counter should be warm, courteous and helpful.
Registration is the first point of contact and bonding starts
here. All participants should be made to feel special and
exclusive. From the administrative point of view, the data
collected during registration is vital for later contact and
reference, so it should be done carefully.
With a friendship band from the child labourer the
participant will start thinking about Child Labour at a
personal level.
2.1.5 Note
The volunteers at the registration counter should be warm, courteous and helpful.
Registration is the first point of contact and bonding starts here. All participants
should be made to feel special and exclusive. From the administrative point of
view, the data collected during registration is vital for later contact and reference,
so it should be done carefully.
Participants may be encouraged to see the exhibition whenever they get time
later during the day later, e.g., tea break, lunch time etc. They should be
encouraged to discuss amongst themselves and with the resource persons
any issue which comes to their mind related to the topic.
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
2.2 Inauguration
Duration — 30 minutes
2.2.1 Objectives
■
■
■
■
To provide a good beginning to the training.
To introduce the purpose, structure, design and benefits of
the training programme.
To motivate the participants.
To sensitize the participants about the issues covered in the
programme so that they feel involved and committed before
the end of the session.
2.2.2 Process
■
■
■
■
■
■
■
Inviting the guests to the stage
Welcome — song (Song related to elimination of
child labour)
Welcome speech
Briefing about the training programme by resource
persons
Inauguration
Speech / key note address
Vote of thanks
2.2.3 Instructions
Arrangements must be well planned and properly made.
Participants should come on time.
■
Participants should not be kept waiting for the chief guest.
If the chief guest does not turn up within a reasonable time,
resource persons should start the orientation / training
1
The chief guest should be able to talk on child labour
issues
ILO-IPEC - Karnataka Child Labour Project
•a
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■
Those who are conversant with child labour issues may be
invited to be the chief guest / speaker.
■
Song must be related to child labour issues. There should
not be any scope for mistakes or lapses.
■
Inauguration should be brief and memorable.
l
2.2.4 Precaution
Ensure that this programme ends on time so that the
training starts as per schedule.
Audio cassettes about child rights and child labour
rehabilitation may be played during registration and
before starting the inaugural session.
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
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2.3 Introduction : Breaking the Ice
Duration — 60 minutes
2.3.1
Objectives
•
To enable the participants to know others.
•
To condition and prepare them to participate
wholeheartedly in the training without any reservations.
2.3.2 Process
Almost all the participants may be from the same locality,
but they may not know each other well. Hence the
icebreaking session should be essential but must be as brief
as possible. Each of the participants may be requested to
introduce themselves briefly.
2.3.3 Expected out come
■
The persons will come to the training
mode and become more
participative and receptive.
2.3.4 Sub-Activity
1.1 need this.
2. Stepping into the shoes of the child workers.
18
ILO-IPEC - Karnataka Child Labour Project
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2.3.4.11 Need This
Objective :
To focus on various emotions that surface from the word
‘Child’; to raise sensitivity towards child labour.
Materials :
Blackboard, chalk or chart paper and sketch pen, cello tape, etc.
Process :
The trainer writes the word ‘CHILD’ in block letters and draws
the picture of a child. The trainer asks the participants to look at
the picture and to visualize all that is relevant or associated with
the word ‘Child’. The trainer may ask, ‘What are the things
essential for the development and well being of a CHILD? The
trainer encourages participants to come forward with as many
relevant words as possible and writes the words on the board as
shown below:
I need this
Parents
Food
Health
Education
appreciation
Rest
Protection
Recreation
Dignity
Clothing
affection
Love
Home
Care
Reward
Security
Safety
Encouragement
Bed/Room
Culture
Skill
Trust
The trainer writes the ideas expressed by the participants.
The Trainer may ask participants, “From the above listed
words what does a child labourer receive and what is it
that s/he is deprived of?” Those things that a child labour
does not get are marked with a different colour.
At last there are only one or two things left unmarked. The trainer initiates the
discussion by asking ‘what does this imply? What will be the future of such
children who do not get the things essential for their development? And what
will be the future of the country in which 33% of the children are deprived of
developmental opportunities? We have to work for the elimination of child
labour on a war footing! There is no other alternative!
Outcome : The participants start feeling and thinking about child labour.
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
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2.3.4.2 Stepping into the shoes of the child worker
Objectives : To sensitize trainees about the life of a child worker.
Process:
•
The trainer divides the class into two groups. One group will be designated to
act as ‘Normal Child’ and another group will be designated to act as ‘Child
Labour’.
•
The trainer will call out different timings and the participants in both groups will
visualize the action they are doing at the time and act accordingly. For example:
when the trainer shouts, “6:00 am” the reaction expected from the group acting
as child labour is to actually imitate children who are labourers and who will be
getting ready to go to work in hotels or cleaning cars on the street. The same
instruction received by a normal child, will probably find the child making a fuss
to wake up so early or may be the parents may be lovingly waking up the child to
get ready to go to school.
•
The trainer calls out different timings like morning 7, morning 10, afternoon 12,
3, evening 6, night 9, midnight 12 etc. and both the groups are expected to act as
per their role (i.e. what would they be doing at the respective timing if they were
a child worker or a normal child).
•
The trainer initiates the discussion with the help of following questions:
>
What were the differences in the situations of these two types of children?
>
What are the effects of these differences?
>
Is the Child Labour deprived of any rights?
>
What have we understood?
Outcomes:
•
The participants would have experienced the situations/circumstances which
child labour faces every day, and the way they live their lives. While a normal
child is playing at 4 in the evening at school — the child labourer is actually busy
working in a factory, hotel or household as a domestic help.
•
Some of the participants may find it difficult to act as child labour. Why? Because
they really don’t know the routine of the child workers. Let us speak with few
child workers and try to understand their life.
20
ILO-IPEC - Karnataka Child Labour Project
2.4
Magnitude of child labour/ Causes and Consequences /
Hazardous child labour / Worst Forms of child labour
Duration 60 minutes
2.4.1
Objectives
To enable the participants to understand the magnitude
of child labour at all the levels including their locality.
2.4.2 Text
a)
It is estimated around 211 million children of 5-14 year of age are
engaged in economic activities in the world. This constitutes a little
less than 1 /5 of the total child population in that age group.
>
Children
jattending
school
Children engaged
in economic
Activities
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
»■ I ■*
In India, out of 203 million children in the age group of 5-14 years, 116 million are
in the school, 12.6 million are out of school and the status of 74 million is not
known.
b)
Children out
of school
c)
In Karnataka out of 10 million children in the age group of 5-14 years, 0.85
million children are out of school
Out of school
ILO-IPEC - Karnataka Child Labour Project
Child labour can be found even in educationally developed districts like Dakshina Kannada
and Udupi. Their numbers are more in northern Karnataka districts.
The following are some of the causes of child labour as enumerated by various stakeholders.
If we critically examine these causes, we may come to the conclusion that many of them are
not the real causes but only pseudo causes.
Illiteracy of parents
Poverty and perceived poverty
Lack of educational facilities
Unemployment
Exploitation
Indebtedness and delinquency of parents
Superstition and general apathy
Ill health, lack of social security
Low-wages
Bonded labour
Lack of political will
Lack of enforcement for child labour law, minimum wages law and other
labour laws
Special requirement of certain industry, nimble fingers, un-unionized
workforce, disciplined and less demanding work force
As already stated, many of these are superficial causes. There are many examples where
parents, though poorer have sent their children to school.
There are many Government Programmes which focus on livelihood through which parents
can improve their earnings, etc. If the parents have a strong will, they can definitely find
ways and means to provide childhood opportunities to their children. In many cases, parental
apathy is the root cause for child labour. They think that education is a luxury meant only
for the rich and this attitude in no way helps the individual to improve his livelihood
opportunities. As the causes of child labour is often too complex and hidden deep in the
minds of the child’s parents it would be better instead if we focus on the consequences of
child labour and motivate all the stakeholders to act together to eliminate child labour.
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
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2.4.2.1 Consequences of child labour
Consequences of child labour are very grave and disastrous. If the parents
understand the consequences of child labour properly they will themselves
find ways and means to withdraw their children from child labour and send
them to school.
The following are the consequences of child labour
a.
Illiteracy: Child will become an illiterate adult and has to depend on
others even for small things.
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ILO-IPEC - Karnataka Child Labour Project
b.
Low wages and consequent poverty: Child labour as an adult will be forced to
do unskilled jobs, which fetches him low wages, whereas the educated will do
skilled jobs and earn more. The child labour results in poverty and thus a vicious
circle of child labour, illiteracy and poverty is formed.
rny5
c.
Life will be very difficult.
s
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
i ? -t 1
d.
Stunted growth: By child labour mental and physical growth of the working
child will be affected adversely.
e.
Child labour may lead to bad habits such as drinking and smoking, etc.
□
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ILO-IPEC - Karnataka Child Labour Project
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Child labour can be exploited by anti-social elements which may lead the chil
dren to illegal activities such as theft, drug trafficking, robbery, dacoity, etc.
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Child labour may lead to the molestation of girls and force them
into prostitution.
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
h.
They may be attacked by fatal diseases
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They may lose parts of their body and become physically handicapped
ILO-IPEC - Karnataka Child Labour Project
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They may lose their lives
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They will be exploited and harassed by their own family members and others due to
their illiteracy, low skills, lack of knowledge, wisdom, stunted growth and lack of
exposure to the world. (All these may result in social conflict and criminal activity
and affect the peace of the whole village. So every citizen particularly those with
responsibilities such as GP members, SDMC members and local leaders should
participate actively in the elimination of child labour.)
1.
Child labour replaces adult labour and depresses wages. Employing child labour in
an area or an industry leads to more incidences of child labour in the said area or an
industry as competitors employ more and more child labour to compete in die market.
With more and more child labour, the capacity of adult labour to negotiate better
wages and working conditions , reduces, thus affecting the earning capacity of the
adult workers including parents. (In this way child labour affects every wage earner
and so everyone should act to eliminate child labour.)
The other consequences are:
Aches and pains
Stress symptoms
Reproductive problems
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
’ A "1 A ■i’ X
2.4.3
0
LJter
0
Methods
Demonstration
Lecture
Discussion
Group discussion
2.4.4 Meterials
Pictures / Posters
Black Board
Brown sheets
Markers
2.4.5
Process
The resource person introduces the topic with a brief lecture.
He will show the graphics to make them understand the magnitude
of child labour in the world, India and Karnataka. If possible the
resource person should collect district-wise statistics: put them in
a circular graph and show them to the participants.
■
The sub groups may be allowed to estimate child labour in their
locality and put it in a circular graph.
The resource person should draw a line with a chalk piece on the
black board and on one side write “Our dream school” and then
ask the participants to explain how their school should be. They
may suggest lots of logistic and scholastic requirements which
should be written below the “Dream School”. Continue the
discussion till they say that all the children should attend our dream
school. The resource person may prompt them to come to this
conclusion.
The resource person should with the help of the participants list
out the present condition of the village school which should be
written on the other side of the board.
9^.
ILO-IPEC - Karnataka Child Labour Project
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Our Dream School
- Good Building
- Good Toilets
Present Village School
There may be a lot of different view points. The resource person
may discuss these differences with the participants.
The resource person must take up the issue for discussion that “all
the children are not attending the school in our village”.
The participants must be allowed to discuss “Why all the children in
their locality are not attending school; what are they doing if they
are not attending school; where are they?”. (Sub group activity)
Sub groups must present their findings in the larger group
The resource person should present pictures or drawings of
consequences of child labour one by one and request for the
participant’s reactions.
The resource person should explain that whatever may be the causes,
the consequences are the same. And all the consequences are
extremely serious and disastrous, spoiling the life and future of the
children. It should be emphasized that every participant can
contribute to combating child labour in his/her own way.
The resource person may clarify the following: Who is a child; what
is child labour; what is hazardous child labour? etc. while showing
the pictures and drawings.
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5
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
2.4.6 Expected Outcome
Participants understand the magnitude of child labour at
all the levels.
Participants understand the causes and the consequences
of child labour.
2.4.7
Instruction
The resource person should prepare the circular
graphs of the magnitude of child labour or the
NCLP may prepare and supply them to the resource
persons.
NCLP may print the pictures of the causes and the
consequences as posters and give the same to the
resource persons.
32
ILO-IPEC - Karnataka Child Labour Project
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2.5
Provisions of some of the Enactments with
Child Labour Prohibition
Duration 60 minutes
2.5.1
Objectives
To give the participants an overview of various laws wherein
child labour is defined and prohibited.
To enable them to know and understand the penal
provisions, procedures and notified officers who can inspect
and build up cases.
2.5.2 Text
See chapter 15 in Section-Ill.
2.5.3
Methods
Lecture
Question-Answer
Discussion.
2.5.4 Meterials
Blackboard
Chalk
Law Books.
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
I
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2.5.5
/-
Process
★
The resource person may introduce the topic with a brief
lecture.
★
He may tabulate salient features of different enactments like
difference in defining the age of the child, penal provision,
inspecting authority, responsibilities cast on the doctors to
give age certificate etc.
★
Resource person may ask a few questions about each of the
enactments at the end of his lecture. He should ensure that
every participant gets a chance to speak and discuss.
★
If participants have more information about various
enactments prohibiting child labour they should be
encouraged to tell about the same. These points may be listed
on the blackboard.
★
At the end the resource person may recapitulate and sum up
the gist of the salient points.
2.5.6 Expected Outcome
★ Participants are acquainted with the various child labour laws
and their important features.
★ Participants understand their own role as an inspector, prosecutor
or legal practitioner in child labour elimination specifically child
labour laws enforcement.
2.5.7
Instructions
The participants may be encouraged to see and read the original
enactment and relevant rules. They should also be told where the laws
and its up-to-date amendments can be found. They should be
encouraged to ask as many questions as possible. If the resource person
is not in a position to answer some of their questions, he should try to
find the answer by interacting with the DC or trainers’ trainer.
ILO-IPEC - Karnataka Child Labour Project
0
2.6 The Child Labour (P&R) Act, 1986
Duration 120 minutes
2.6.1
Objectives
★
★
To enable the inspectors, prosecutors and other legal
practitioners to know the provisions of The Child Labour
(P&R) Act, 1986.
To make them understand their own role in the enforcement
of the provisions of The Child Labour (P&R) Act, 1986.
2.6.2 Text
See Chapter 20 in Section-Ill for the Act and Chapter 21 in
Section-Ill for the Karnataka Rules.
2.6.3 Methods
Lecture
Question-Answer
Discussion
Role play
2.6.4 Meterials
Blackboard
Chalk
Act copy
2.6.5
Process
★ The resource person may introduce the topic with a brief lecture.
★ He may tabulate salient features of the Child Labour (P&R) Act
1986 like definition of child labour, prohibited work and processes,
penal provisions, powers and responsibilities of the inspectors, role
of doctors in giving the age certificate, regulatory provisions, time
limitations, registers and forms, differences between the Central
and Karnataka State Rules etc.
35
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
2.6.6 Expected Outcomes
★
★
2.6.7
Participants have understood most of the relevant provisions
related to child labour enforcement and prosecution in the Child
Labour (P&R) Act, 1986 and Karnataka Rules.
Participants understand their own role as an inspector, prosecutor
or legal practitioner in Child Labour Elimination, particularly
through the effective enforcement of the provisions of The Child
Labour (P&R) Act, 1986,
Instructions
The participants may be encouraged to see and read the original
enactment and relevant rules. They should be told where (on the
website of the Ministry of Labour, Government of India) the laws
and its updated amendments can be found. They should be encouraged
to ask as many questions as possible.
The resource person may also ask the participants to enact a role play
of an inspecting team identifying and rescuing child labour and
drawing up a mahazar (Inspection note).
Some blank copies of mahazar (establishment inspection report) may
be circulated amongst the participants and they should be asked to
draw up a mahazar in a group in an imaginary case where prosecution
is possible.
ILO-IPEC - Karnataka Child Labour Project
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2.7 Determination of Age of the Child
Duration 90 minutes
2.7.1
Objectives
★
To enable the participants understand the criticality of the
conclusive proof of age in child labour related cases.
To enable the participants understand how they can obtain
proper age certificate and ascertain the age of the child
unambiguously for successful prosecution.
★
2.7.2 Text
See chapter 18 in Section-Ill.
2.7.3
Methods
Lecture
Question - Answer
Discussion
Role Play
2.7.4 Materials
Blackboard
Chalk
Law Books
2.7.5
Process
★
The resource person may introduce the topics with a brief lecture.
★
He may tabulate salient features of different enactments related to
child labour and their age determination, burden of proving age,
authorities giving age certificate, maintenance of register regarding
age etc.
★
The Resource person may ask a few questions from the participants
and ensure that every participant gets a chance to speak and discuss.
★
He should encourage participants to ask questions.
★
Role play may also be enacted regarding age determination
of child.
Q
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
Si
2.7.6 Expected outcome
★
★
2.7.7
Participants become conversant with all the age related aspects
of the child labour laws and their enforcement.
Participants become confident to effectively enforce child
labour laws by obtaining such certificates of age of the child
worker which cannot be controverted or contradicted.
Instructions
Some of the cases which have failed due to improper age certification
of the child should be discussed and it may be pointed out why such
cases failed in the court and how such cases can be improved and
made effective.
bi
38
ILO-IPEC - Karnataka Child Labour Project
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2.8 Effective Enforcement of Child Labour Laws
Duration 60 minutes
2.8.1
Objectives
★
★
To enable the participants know their roles and responsibilities
in effective enforcement of child labour laws.
To enable the participants effectively enforce child labour laws.
2.8.2 Text
See Chapter 16 in Section-IIL Also see Chapter 1 of Part-I.
2.8.3
Methods
Question-Answer
Discussion
Role play
Video show
Experience sharing.
2.8.4 Materials
Blackboard
Chalk
Law Books
Video (Iga-Ivaga).
2.8.5
Process
★
The resource person may introduce the topic with a brief
lecture tabulating salient aspects given in chapter 16 in SectionIll. He may point out the problems encountered in the
inspections and in pursuing the cases in the court of law.
Through the video film (Iga-Ivaga) the resource person may
induce the participants to discuss their own experiences in
child labour enforcement.
ffi
39
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
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2.8.6 Expected Outcome
★
★
2.8.7
The participants become confident about their role in
child labour enforcement.
The participants will be confident in planning and
executing enforcement impeccably without giving
opportunity for law and order problems or failure.
Instructions
Experience sharing and discussion may be encouraged so that
all the participants benefit from each other’s first hand
experiences. The problems encountered by all of them may be
tabulated and they can be encouraged to find a solution to the
same, facilitated by the contents of Chapter 16 in Section-Ill.
ILO-IPEC - Karnataka Child Labour Project
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2.9 Some Case Studies
Duration 60 minutes
2.9.1
Objectives
★
★
To learn from actual case studies and court orders why
child labour cases fail or succeed.
To take precautions in building water tight cases where
there is no scope for acquittal.
2.9.2 Text
See Chapter 17 in Section-Ill.
2.9.3
Methods
Case Studies
Group Discussion
Group Report Presentation
Plenary discussion
2.9.4 Materials
Case Study copies
Chart papers
Sketch pen
Blackboard
Chalk.
2.9.5
Process
The resource person may introduce each case and its salient
features and tell the participants why they failed or succeeded.
He can form as many groups of participants as there are
case studies and ask them to discuss the cases and make a
list of their important features. They should list out why the
case failed or succeeded and then discuss the report in the
plenary.
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Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
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2.9.6 Expected Outcome
2.9.7
★
Participants know intricacies of legal aspects, evidence
and procedures which make a case a success or a
failure.
★
Participants become confident about the legal points
and do effective enforcement.
Instructions
The participants should be encouraged before coming to the
training, to collect successful or failed cases of their own and
bring them to the training session to share with others.
Some of the cases may be referred to the editors of this manual
for incorporating them in the training manual.
ILO-IPEC - Karnataka Child Labour Project
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2.10 Repeat the session by changing Case Studies
2.10.1 Objectives
2.10.2 Text
2.10.3 Methods
2.10.4 Materials
2.10.5 Process
2.10.6 Expected Outcome
2.10.7 Instructions
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
V
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2.11 Action Plan for the Enforcement Officers,
Prosecutors and Legal Practitioners
Duration 60 minutes
2.11.1 Objectives
★
★
To drawn up an implementable action plan for the
Enforcement Officers, Prosecutors and Legal Practitioners
for the elimination of child labour.
To draw up an action plan for individual participants for the
elimination of child labour.
2.11.2 Text
In the earlier sessions the participants would understood the concept
of child labour, its causes and consequences, and how child labour
laws can be effectively enforced to combat child labour. With that
background members may introspect, brainstorm, discuss and chalk
out individual and their organizational action plans for child labour
elimination through enforcement.
2.11.3 Methods
Lecture
Small Group discussion
Action Plan preparation
2.11.4 Materials
Chart paper
Pen
Blackboard
Chalk.
44
ILO-IPEC - Karnataka Child Labour Project
' Ti f Mfes
/-
2.11.5 Process
The trainer should recapitulate briefly the gist of the earlier sessions.
A few questions may be asked on the subject and concepts. The
participants may be divided into small groups to discuss and note
down what they can individually and collectively do to eliminate
child labour in their area through effective enforcement. Each group
may present their plan in the plenary and discuss them and draw up
a common collective work plan and individual plan. Work plan
should be very specific, indicating time, resources, responsibility,
objective, methodology etc. The work plan should be
implementable. General statements like £we will work for the
elimination of child labour, we will lobby for the change in the law’
should be avoided. The plan should be specific, like:
1.
In 4 units of my area in Karnataka we will eliminate
child labour and rehabilitate the families in six
months time.
2.
20 parents in the ‘Y’ slum will be counseled and
convinced to send their children to school after
withdrawing them from work in three months time
etc.
2.11.6 Expected Outcome
A definite implementable action plan will be drawn up
for the group and for the individuals. A definite
monitoring mechanism should be devised to follow up
on the progress and periodically information may be
tabulated in a formatted table for review and
monitoring.
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
I
r
2.12 Evaluation and summing up
Duration 30 minutes
2.12.1 Evaluation
The resource person must distribute the printed evaluation forms to
the participants. A draft format is annexed here but the organizer
should prepare separately for each training appropriate forms based
on the number and type of sessions.
He should give them 5-10 mts time to evaluate.
In addition a few participants may be asked to speak on the
effectiveness and relevance of the training programme and how it
can be improved in future.
2.12.2 Summing up
Summing up should be organized with a motivational talk, after
which the participants may be required to sign a social contract for
the eradication of child labour. Format of the same is given on the
next page. At the end all the participants may read out the contract
together as an oath taking ceremony.
2.12.2.1
Evaluation Form
Participant’s Name
Designation & Address
Course Evaluation-Please Note: 4 = Excellent, 3 = Very Good,
2 = Good, 1 = Fair
46
•I
I COURSE ADMINISTRATION AND CONDUCT:
No.
Details
4
1.
Does the
objectives?
2.
Role of the Course Director
3.
How useful will this training be to
you immediately in your job?
4.
How useful is this training for the
future jobs you may handle?
5.
Was the course
appropriate?
6.
Have
you
benefited
from
interaction with fellow participants?
7.
Was the course material relevant
and related to the course?
8.
Was the coverage of Subjects
appropriate to the objectives?
course
meet
3
2
1
the
methodology
II
PLEASE GIVE YOUR DETAILED COMMENTS
AND SUGGESTIONS ON THE FOLLOWING
POINTS:____________
Areas of Concern & Comments______ Suggestions and Critical Remarks
Academy, Campus Facilities, Hostel
Mess and Infrastructure
Course Facilities, Library, Computer
Centre,
Classroom,
Audio-Visual
Equipment & Course Material
Course Faculty, Director, Group
Sessions,
Workshops,
Participant
Seminar etc
Interaction with other participants,
faculty, resource persons, library staff
and Administration
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
i I y Ti I
IV
:-V>,
r
Which three sessions did you find MOST useful in the course?
SNo.
Course Session Title
Remarks
1
2
3
IV
Which three sessions did you find LEAST useful in the course?
SNo.
Course Session Title
Remarks
1
2
3
V
Improvements in working situation after the course
SNo.
_______________ Details of Question
A
Did you get any specific idea
about improvements in your
working situation?
B
If Yes, Can you spell them out briefly?
YES / NO
Knowledge
Skills
Attitude
C
Any other comments/observations you will like to
make about the course?
ILO-IPEC - Karnataka Child Labour Project
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VI
FACILITIES : To what extent are you satisfied with the following?
(Whichever applicable)
No. ___________ Details
4
1.
Hostel
Service
2.
Residential
Accommodation
including Housekeeping
3.
Food Quality and Service
4.
Classroom facilities,
messages etc.
5.
Library Facilities
6.
Recreation Facilities
7.
Computer Facilities
8.
Administrative Help (Telephones,
tickets, medical etc.)
9.
Audio-Visual Equipment
Reception
and
Room
cleanliness,
3
2
1
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
«I 1
2.12.2.2 Social Contract
I the under signed participant of the child labour training held at
on
enter into this social
our society and the Nation on the following terms and conditions.
1.
I will continue to strive hard for the eradication of child labour till child labour
is completely eradicated from my surroundings.
2.
I will ensure that child labour shall not reappear in any form by enrolling all the
children of our area in the school and enforcing child labour laws effectively.
3.
I will discourage child labour in any form anywhere.
4.
I shall continue to support the actions initiated by the local bodies, Government
and the NGOs.
This social contract is signed on
of Sri.
50
Signature of the Trainer
Signature of the Participant (Date)
(On behalf of the
Name :
Society and the Nation)
Address (contact details) :
in the presence
ILO-IPEC - Karnataka Child Labour Project
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SECTION III
CH • 150
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___________________ .^W^dr)d
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
J111 •»' 1. SASaJ4’^^“P&M
3.1 Causes for Child Labour
3.1.1 Demand Side Causes: Demand side causes are those which are specific to the
employers of child labour, the causes why an employer employs a child and not an
adult worker.
3.1.1.1 Greed on the part of the employer to exploit un-unionized, disciplined child
workers who work for long hours in sweat shops and do works which are
repetitive and full of drudgery. Child workers do not take time off for tea or
beedis.
3.1.1.2 Children work for lower wages. Whenever work has lower productivity,
children are preferred as adults do not work.
3.1.1.3 In a few industry, myths of felt need have been floated which include, "nimble
finger’ needed for carpet industry and sericulture industry; "Girl children of
before puberty age group’, preferred for pollinating cotton by propagating
the idea that after puberty they lose divine ability for successful pollination.
3.1.1.4 Certain low cost, low productivity technology Eke the use of hand charaka in
sericulture reekng enhances the employment of children.
3.1.1.5 Enforcement of child labour laws and labour laws have direct bearing on the
demand of child labour. A single case of lack of enforcement encourages the
competitors to indulge in more and more child labour.
3.1.2 Supply Side Causes: Those causes which afflicts the famihes and forces them to
send their children for work are referred to as supply side causes.
3.1.2.1 Poverty: Poverty is a reason for child labour, but often "felt poverty’ and not
absolute poverty is the cause of child labour. If poverty was the only and
most important cause of child labour, all children from poor famihes would
have been working as child labour. Incidence of child labour is rarer than the
incidence of poverty. In any village many poorer parents manage to send
their children to school.
As the child labour disables the child from attending regular school and
vocational training, it cripples the future earning capacity of the individual;
thereby perpetuating poverty.
52
ILO-IPEC - Karnataka Child Labour Project
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3.1.2.2 Parental Delinquency: Often child labour is found in such families where parents
do not take the responsibility of raising children and sending them to school. The
parents may be extravagant in spending on rituals, festivals, recreation or sometimes
on addictions like drinking, betting etc.
3.1.2.3 School related Reasons: Often distance, direct or indirect costs, lack of infrastructure
like toilets for girls, certain procedures, unsympathetic and ineffective teachers,
uninspiring curriculum and pedagogy are some of the major causes why poor children
and their families do not see any value in education. And when children are not in
school the best alternative they find is the work place.
3.1.2.4 Attitudinal Reasons: A plethora of attitudinal reasons including illiteracy and lack
of information of the parents, ignorance on the part of parents and the society about
the ill effects and long term consequences of child labour, social apathy, lack of
political will, and acceptance of child labour as a usual way of life, and thoughts that
child labour is beneficial to learn family or traditional skills are all causes of child
labour.
3.1.2.5 Lack of social securities, enforcement of labour standards like minimum wages and
lack of unionization and promotion and protection of workers’ rights - all contribute
to child labour.
Qj
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
kI y1
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3.2
UlhL
Consequences of Child Labour
Consequences of child labour are very grave on the child, society and
the nation.
3.2.1
Child labour is violation of Human Rights and Child’s Rights.
3.2.2
It is violation of International Labour Standards. It may attract possible trade
and social sanctions.
3.2.3
Child labour replaces adult labour and causes unemployment.
3.2.4
It deprives child of education and so increases illiteracy.
3.2.5
It causes child to be unskilled worker thus reduces his/her future earning
capacities and thus causes him to remain poor.
3.2.6
Child labour along with illiteracy and poverty forms a vicious cycle, and it is
difficult to get out of such cycle.
3.2.7
Early work affects the normal physical, mental, psychological and moral
development of children.
3.2.8
The child worker has reduced physical and mental vigour. They get many
work related injuries, illnesses and sometimes meet untimely death or
permanent disability.
3.2.9
Child labour may often lead to bad habits such as drinking, smoking or drug
addiction.
3.2.10
Child labour may lead them to illegal and anti-social activities such as theft,
drug trafficking, and other crimes etc.
3.2.11
Illiteracy, low skills, low earning capacity, lack of knowledge and wisdom
forces child worker to successively more and more exploitative situations.
3.2.12
Child labour replaces adult labour and depresses wage rates and hence it
affects both wage and labour markets adversely.
3.2.13
Child labour has demonstration effect and one case un-enforced emboldens
the competitors to indulge in more and more child labour. Mass scale child
labour affects the bargaining capacity of Trade Unions.
3.2.14
Child labour and poverty may damage social peace and degrade environment.
3.2.15
Distortion in labour and wage market due to child labour
affects the cost of product and services thus affecting international
competitiveness and so attracting international interest and criticism.
54
3.3 Magnitude of child labour
3.3.1 Children engaged in economic activity
3.3.1.1
WORLD SCENARIO
It is estimated that there are about 211 million children in the age group of
5 to 14 years engaged in economic activities in the world. This accounts for
a little less than one fifth of all the children in this age group. About 73million
working children are less than 10 years old. The total economically active
child population in the age group of 5-17 is around 352 million. There are
no significant gender differences in the age group of 5-14. But in the older
age group, we can observe a widening gap, with more boys working.
INDIAN SCENARIO
3.3.1.2
Total Population: 998,056,000
Child Population: 398,306,000
Interpretation of 2001 census figures by the National Labour Institute
indicates that out of203 million children between the ages of 5 and 14,116
million are in school, 12.6 million are in full-time employment, and the
status of 74 million is unknown. Most, if not all, of the 87 million, not in
school, do housework, work on family farms, work alongside their parents
as paid agricultural labourers, work as domestic servants, or are otherwise
employed.
3.3.2 Child Labour in India / Karnataka State
1971
India
1991
2001
10753985 13640870 11285349 12666377
Karnataka (7 th 808719
largest among
35 State/UT)
Karnataka as a
% of India
1981
7.5%
11311530 976247
822615
8.65%
6.49%
8.29%
Mt
Q
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Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
SI it Tit I
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Later
3.3.3 State-wise Distribution of child labour (5-14 years) in millions
(some bigger states)
States
1981
1991
2001
Andhra
Pradesh
1.95
1.66
1.36
Bihar
1.10
0.62
0.19
1.13
0.09
1.70
0.94
0.52
0.11
0.98
0.03
1.35
1.12
0.49
0.25
0.82
0.03
1.07
1.56
0.70
0.22
0.82
0.98
1.43
0.61
13.64
1.07
0.45
0.14
0.77
0.58
I. 41
0.71
II. 29
0.76
0.38
0.18
1.26
0.42
1.93
0.86
12.59
G ujrat
H aryana
Karnataka
Kerala
M adhya
Pradesh
M aharashtra
O rissa
Punjab
Rajasthan
Tamil Nadu
Uttar Pradesh
West Bengal
India
3.3.4 Child labour in Karnataka
Girl child suffers more .... “Between the work and the daily chores, the girl
child works around the clock”
The type of work that Indian children perform is diverse. For instance, there is a
strong gender stereotype with regard to the work that male and female children do
in agriculture, in the household, and in the unorganized industry. Studies indicate
that the burden of household duties fall largely upon the female child. In rural areas
girls are responsible for looking after younger siblings, cooking, cleaning, fetching,
and carrying, which releases adults for more profitable and productive work. Evidence
suggests that girls in the unorganized sector are engaged in low-paid, or unpaid,
unskilled occupations, which do not necessarily lead to skill formation. The jobs
that boys do, on the other hand, are closely related to apprenticeship training
and skill formation. In general, the following types of child labour are found
V
in Karnataka!
A
ILO-IPEC - Karnataka Child Labour Project
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Agricultural, cattle rearing, horticulture and fisheries
Bonded Labour
Beedi making
Children working in manufacturing of Agarbatti
Rag pickers in cities
Children working in mines
Children working in Hotels, shops & roadside restaurants/dhaba,
eatery
Children on streets selling balloons, balls, Gajare (Flower
garlands), begging and acrobatics
Children in Slaughterhouse
Girl child as domestic workers
Children in Prostitution/pornography
Children in Garages and automobile repair
Commercial agriculture and plantations and food processing
Migrant workers and construction workers
Brick kiln
Sericulture and small unorganized manufacturing
3.3.5 Trends at Regional Level
Ranking of Major States by percentage of Children working
______ States
1983
1993/94
1999/00
Andhra Pradesh
Bihar
G ujrat___________
H aryana_________
K arnataka
Kerala
Madhya Pradesh
M aharashtra
O rissa___________
Punjab___________
Rajasthan________
Tamil Nadu_____
Uttar Pradesh
West Bengal
01
12
10
11
03
14
07
08
05
04
02
06
09
13
01
11
10
12
03
14
06
07
05
13
02
04
09
08
01
12
04
13
03
14
05
09
07
11
02
08
10
06
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Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
Have we, as consumers, ever stopped to wonder where the trinkets, ornaments, and decorative
pieces that we buy, the very clothes that we wear and the cup of tea that starts our day, come
from?
These are examples of consumer goods that are often the products of child labour. Many
children as young as 5 years old work tirelessly for hours, under harsh, hazardous, exploitative,
and often life threatening conditions, for extremely low wages. A large fraction of these child
labourers are working as slaves, bonded to their "jobs’, with no means of escape or freedom,
till they can repay their parents’ loans. This often means years of bondage or even a trickle
down effect of bondage, where younger siblings pick up from where the older ones left off
because they were too old, too diseased, too handicapped or dead to be useful.
3.3.6 Major types of child labour
Child Labour
Within Legal
Framework 6 - 8% of
child labour is covered.
The following Acts are
relevant:
•
•
•
•
•
•
•
___________ Outside Legal Framework
Rural areas of
Agriculture / allied
activities (70% of
child labour)
Labour Girls
The
Child
(Prohibition
and •
Collecting
Regulation) Act (1986)
fuel/ fodder
The
Factories
(1948)
Act •
The Plantation Labour •
Act (1951)
•
The Mines Act (1952)
Urban areas unorganized
sector
Fetching
water
•
Construction Labour
•
Couriers
•
Domestic workers
drinking •
Tanneries
•
Vendors
•
Helpers
shops,
garages.
Weeding
Food processing
in restaurants,
canteens
and
•
Poultry keeping
The Beedi and Cigar •
Caring for younger • Porters and rag pickers
Workers
(Conditions
siblings etc.
• Shoe-shiners
of Employment) Act
• Sweepers and waste
(1966)
Boys
•
Recyclers
The Karnataka Shops •
Ploughing/ digging
•
Sex workers
and
Commercial •
Grazing catde
•
Factories/Workshops
Establishments
Act
•
Carrying goods
(e.g.) hosiery units
(1961
• Threshing/harvesting ExampOle of
The Juvenile Justice
•
Purchase/sale
in Home Based Industries
(Care and Protection of
markets
? Beedi rolling
Children) Act (2000)
• Tool related activities ?
Papad making
etc.
? Incense making
? Embroidery, etc.
ILO-IPEC - Karnataka Child Labour Project
X MS
3.4
0
United Nations Convention on the Rights of the Child
(CRC): 1989 (India is signatory to this convention):
The Convention recognized the exceptional vulnerability of children and proclaims that
childhood is entitled to special care and assistance. It is a means of empowering children and
creating an environment in which all children are able to live securely and realize their full
potential in life. The Convention draws attention to four sets of civil, political, social,
economic and cultural rights of every child. It prescribes the following:
The Right of Survival, which includes the
right to life, the highest attainable standard of
health, nutrition, and adequate standards of liv
ing. It also includes the right from birth to a
name, the right to acquire a Nationality, and as
far as possible the right to know and be cared
for by his or her parents.
The Right to protection, which includes
freedom from all forms of exploitation,
abuse, inhuman or degrading treatment and
neglect, including the right to special protec
tion in situations of emergency and armed
conflicts.
The Right to Development, which includes
the right to education, support for early child
hood development and care, social security,
and right to leisure, recreation and cultural ac
tivities.
The Right to Participation, which in
cludes respect for the view of the child,
freedom of expression, access to appropri
ate information and freedom of thought,
conscience and religion.
59
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
t T-g« mWM
3.5 ILO and Child labour
The International Labour Organization is committed to the abolition of the worst forms of
child labour, and gradually other forms also, since its foundation in 1919. The very first child
labour convention in 1919, prohibited children under the age of 14 from working in industrial
establishments.
3.5.1
Minimum Age Convention 1973:This was the most comprehensive ILO convention on the child labour issue and called
for fixing minimum ages for admission to work or employment. This convention
demanded a National Policy designed to ensure effective and gradual abolition and
elimination of child labour. The convention laid down the basic principle, that the
minimum age for admission to employment or work should not be less than the upper
age limit of compulsory education and in any case it should not be less than 15 years.
It also provided flexibility in the minimum age for employment for countries which
are less developed in educational facilities and such countries can fix minimum age as
14 instead of 15 in the initial stage and gradually increase the same. The Convention
also suggested that the minimum age for hazardous work should be 18 and that the
minimum age should not be static; it should be progressively raised to a higher level
corresponding with the full physical, mental and spiritual development of young
persons.
3.5.2 The Worst Forms of Child Labour Convention 1999:This convention called for immediate and effective measures to secure the prohibition
and elimination of the worst forms of child labour and as a matter of urgency applied
this to all persons under the age of 18.
The Convention defined the “worst form of child labour” as all forms of slavery or
practices similar to slavery such as the sale and trafficking of children, debt bondage,
serfdom and forced or compulsory labour, forced or compulsory recruitment of
children for use in armed conflict, use of child for prostitution, production of
pornography, use in illicit activities, etc.
This Convention also defined “hazardous work” as work which exposes the children
to physical, psychological or sexual abuse, work underground, under water, at
dangerous heights, closed places, with dangerous machines/tools, work in unhealthy
atmosphere, long hours, during nights etc.
60
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ILO-IPEC - Karnataka Child Labour Project
3.5.3 International Programme on the Elimination of Child Labour (IPEC)
This is the technical co-operation programme on child labour in the world. In more
than 70 countries ILO/IPEC inspires, guides and supports national initiatives to
eliminate child labour.
The aim of IPEC is to work towards progressive elimination of child labour by
strengthening national capacities and policies to address the child labour problems
and creating a world wide movement to combat it.
Priority target groups for IPEC are:1.
Bonded child labourers.
2.
Children in hazardous working conditions and occupations.
3.
Children who are particularly vulnerable.
Support under this programme is given to organizations to develop and implement
measures which aim at preventing child labour, withdrawing children from hazardous
work; providing them with alternatives; improving their working conditions and
livelihoods.
The important activities of IPEC are:
Motivating a broad spectrum of partners to acknowledge and act against
child labour.
Carrying out the situation analysis to find out quantitative and qualitative
attributes of child labour to create awareness on the problem.
Promoting development; application of protective legislation, preventive and
rehabilitative policies and programmes etc.
IPEC is moving forward with several projects in the country; one of the flagship
projects is the Karnataka Child Labour Project.
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
„
F
3.6 Karnataka Child Labour Project
As part of the IPEC, The Karnataka Child Labour Project is the result of a multi-bilateral
Programme of Technical Cooperation between the International Labour Organization and
the Government of Italy. Started in August 2005, this three year project works towards the
elimination and rehabilitation of child labour in Chamarajnagar and Bidar districts of
Karnataka.
The Project uses a holistic approach, and works at four levels (Community, Block, District
and the State), to create a multilayered impact on child labour.
Strategy under the Project:
The strategy at the Community, Block and District level focuses on service oriented community
activities and experiences for adapting, innovating and trying out best practices; while
identifying replicable models for up scaling and mainstreaming through community action
and empowerment.
At the state level the project makes use of the experiences emerging from the project
interventions into enriching Government policies, programmes and its other efforts, through
a combination of intensive policy research, documentation, mobilization and organization
of influential stakeholders, disseminating key information, and in developing and advocating
a revised Karnataka State Child Labour Elimination Action Plan.
At the field level the project looks at both the demand as well as the supply side of the Child
labour issue. On the demand side it tries to investigate and research the causes and works
closely with the employers and workers organizations to experimentally introduce child labour
free technology and improve working conditions.
On the supply side, preventive and self sustaining efforts are being tried to address the issues
of livelihood (both parents and the older child worker), education, mindset (of all the stake
holders), social protection and social exclusion.
62
ILO-IPEC - Karnataka Child Labour Project
1 Xi a X
Components under the Project:
■ Component 1: Prevention and withdrawal of child
labour through awareness raising and education.
■ Component 2: Income generation through skills
training and self employment promotion.
■ Component 3: Self help group approach for
participatory development and self sustaining social
changes. Formation of federations to self access
benefits and empowerment through collective
bargaining.
■ Component 4: Modular based vocational training for
adolescents at risk.
■ Component 5: Upgrading local industries for better
working conditions and child labour free production.
■ Component 6: Strengthening grass root level
institutions, block level institutions, National Child
labour Project Society, and state level institutions.
■ Component 7: Community monitoring and
strengthening grass root institutional capacities for
sustainable change, (Self Help Groups, Mahila
Mandals, (forum for women) Youth Groups, School
Development Management Committee, Anganavadi
Committee, Drinking water and Sanitation
Committee, Forest Committee, Milk Society, Coop
Society, Irrigation Committee, Gram Panchayath, etc.)
■ Component 8 : Policy research, innovation and
advisory services which focus on:
Bridge School curriculum remedial teaching
& learning material
Technology related issues
Vocational education policy
Informal sector child labour issues
Child track systems.
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Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
dr* A " A A Cm) Aw “ ACw A
3.6.1
P1 Q
Outputs under the Project
•
Awareness and appropriate capacity building at the community level
will contribute to the sustainability of the interventions. To create
awareness against the scourge of child labour innovative methods
are being used. Eye catching colorful posters with anti child labour
slogans, wall paintings with similar messages, and documentary films,
have been developed. The use of puppets and street plays in schools
will be used to effectively spread awareness against children working,
and promote the fact that their being in school is essential for their
holistic growth. A compendium of street plays on the issue of child
labour is being developed so that different stakeholders can use this
as an innovative communication tool, where actions can speak louder
than words.
A community monitoring structure is being set up. Grassroots
institution members such as the School Development Management
Committees, Anganwadi Mothers’ Committees, Gram Panchayat
members, and Self Help Group members will be actively involved
in community monitoring of the progress and rehabilitation of the
rescued child worker.
This project lays stress on the Tamily approach’ which enables other
members of the working child’s family to avail of support if the
working child is targeted for withdrawal and social protection.
Support, most importantly livelihood related ones, and supplementary
income generation opportunities (training of parents and at-risk
adolescents on income generation skills and assistance for self
employment).
The project will try out employments and employability in all the
three sectors of the economy - Primary (agriculture and allied
activities), Secondary (manufacturing and processing), Tertiary
(services etc.). The project intends to conduct intensive research on
this issue to evolve an adaptable, implementable and coherent
vocational training and education policy.
Policy research is an innovative dimension under the project. There
is still lack of clarity on the inter-linkages of the various causes and
effects of child labour. The labour policy envisages that after 14 years
of age children can join the labour force; whereas the vocational
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education policy mostly concentrates at the 10 + 2 level (18+ age
group). Between 14 + to 18 years a large number of children the join
labour force without the benefit of any formal vocational skill
upgradation, which makes them extremely vulnerable to economic
exploitation and lack of decent earning, consequendy causing these
children to slide into poverty. To address the issue of child labour
on a sustainable basis there is a need to have a vocational education
policy suitable to the needs of children in the age group of 14 + to
18 years.
Developing appropriate remedial teaching learning material that can
be used as bridge school curriculum.
Developing and deploying child track system, to ensure that children
do not drop out of school, once they are rehabilitated.
Social security and child labour policy research.
Child labour eradication in informal sector through technology up
gradation and employer sensitization.
In carrying out its mandate the project will work with workers unions,
employers associations, reputed NGOs and other institutions, and
government functionaries at all levels. It is expected that:
>
>
>
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5000 children (9 to 14 yrs) will join Bridge schools (day and
residential) which will be set up for the purpose of providing rescued
children minimum level of competency to join mainstream schooling.
4000 Adolescents (14 to 18 yrs) will be provided Vocational training
so as to enhance opportunity of decent employment.
1000 Adult family members will be provided skill and assistance for
self employment.
180 SHGs (around 3600 Women) will be federated so as to collectively
work towards economic, social and political empowerment.
100 employers will be provided support services to upgrade business.
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3.1
Special provisions related to child labour and child
rights in the Constitution of India
The framers of the Indian Constitution consciously incorporated relevant provisions
in the constitution to secure compulsory universal primary education as well as
protection for children. The following provisions of the constitution have a direct
bearing on child labour:
3.7.1 Article 23: Prohibition of traffic in human beings and forced labour.
Traffic in human beings, beggary and other similar forms of forced labour
are prohibited and any contravention of this provision shall be an offence
punishable in accordance with law.
3.7.2 Article 24: Prohibition of employment of children in mines, factories;
etc. No child below the age of fourteen years shall be employed to work in
any factory or mine or engaged in any other hazardous employment.
3.7.3 Article 39 (e) and (f) : Certain principles of policy to be followed by the
state: ‘The state shall, in particular, direct its policy towards securing (e)
that the health and strength of workers, men and women and the tender
age of children are not abused and that citizens are not forced by economic
necessity to enter avocations unsuited to their age or strength, (f) that
children are given opportunities and facilities to develop in a healthy manner
and in conditions of freedom and dignity and that childhood and youth
are protected against exploitation and against moral and material
abandonment.
3.7.4 Article 21A: The state shall provide free and compulsory education to all
children of the age of 6-14 years in such manner as the state may by law
determine.
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Protective Legal provisions for the employment of
children and definition of ‘Child’ under various Acts
3.8.1 The Factories Act, 1948: No child who has not completed his
fourteenth year shall be required or allowed to work in any factory
(under Section 67). Further provides for regulation of working
condition of young persons (15 to 18 years). (Penalties and cognizance
Chapter-X Section 98, 99 and
Chapter-XI).
3.8.2 The Children (Pledging of Labour) Act 1933: This Act prohibits
making of agreements to pledge the children and the employment of
children (under the age of 15 years, Section-2) whose labour has been
pledged under such an agreement. It lays down penal provisions for
the employers as well as the parents or guardian.
3.8.3 The Plantation Labour Act, 1951: ‘Child means a person who
has not completed his fourteenth year’. As provided under Section
26 of the Act, any child shall be employed in any plantation work
without possessing the fitness certificate issued by the Medical Officer.
Penalties and cognizance: Chapter VII Section 35 & 39.
3.8.4 The Mines (Amendment) Act, 1983: No person who has not
completed 18 years of age shall be allowed to work in any mine or
part there of “ and stipulate regulatory provisions for employing
apprentices and trainees who have completed 16 years of age (under
Section 40 of the Act). Penalties and cognizance: Chapter IX Section
68,76, 79, 80,81.
3.8.5 The Merchant Shipping Act, 1958: This Act prohibits children
under 15, to be engaged to work in any capacity in any ship, except in
certain specified cases. Penalties & Cognizance: Section 436.
3.8.6 The Motor Transport Workers Act 1961: No child shall be
required or allowed to work in any capacity in any motor transport
undertakings (Section 21). “Child” means a person who has not
completed 14 years of age. Certificate of fitness issued by the Medical
Surgeon is a must, if employer wants to employ children above 14
years and below 18 years (Section 22, 23 & 24). Penalties &
Cognizance: Chapter VIII Section 30,31, 34,35.
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3.8.7 The Beedi and Cigar workers (condition of employment) Act, 1966:
This Act prohibits the employment of children who have not completed 14
years of age in any industrial premises (Section 24) and regulates the working
condition of the adolescents (above 14 and below 18 years of age). Penalties
and Cognizance: Section 33, 34,36.
3.8.8 The_Karnataka Shops and Commercial Establishment Act, 1961:
The Act prohibits employment of children who have not completed 14 years
of age under section 24. Penalty provision: Section 30(3).
3.8.9 Dangerous Machines (Regulation) Act, 1983: This Act prohibits
employment of children who have not completed 14 years of age by the user
of dangerous machines (Section 20).
3.8.10 The Bonded Labour System (Abolition) Act; 1976: Under this Act,
the bonded labour system stands abolished and sets free the bonded labour,
including child bonded labour. The released bonded labour is entitled for
relief and rehabilitation from the State Government (Section-4 of the Act).
3.8.11 The Apprentice Act, 1961: A person shall not be qualified to be engaged
as an apprentice unless he completes 14 years of age. The Act prohibits a
person below 14 years of age to be engaged as an apprentice to undergo
apprenticeship training in a designated trade (Section-3). Penalties &
Cognizance: Section 30, 31, 32 & 33.
3.8.12 The Minimum Wages Act, 1948: In Karnataka, under the rules, the
employment of children below 14 years is prohibited in the domestic works.
3.8.13 The Child labour (Prohibition and Regulation) Act 1986: “Child
means a person who has not completed 14 years of age”, under Section 3 of
this Act, no child shall be employed or permitted to work in any of the
occupation set forth in Part-A and or in any of the workshop where in of
any of the processes set forth in Part-B; except in the process of family
T
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The Juvenile Justice (Care and Protection of Children)
Act, 2000
Juvenile’ is a person who has not attained the age of eighteen years.
3.9.1
The Juvenile Justice (Care and Protection of Children)
Act 2000:
An Act to consolidate and amend the law relating to juveniles in
conflict with law and children in need of care and protection, by
providing for proper care, protection and treatment and by
adopting a child-friendly approach in the adjudication and
disposition of matters in the best interest of children and for
their ultimate rehabilitation through various institutions was
established under this enactment.
The legislation aims at making the justice system for the juvenile
or the child more appreciative of the developmental needs in
comparison to criminal justice system as applicable to adults, and
spells out the role of the State as facilitator rather than doer by
involving voluntary organizations and local authorities in the
implementation of the Act. The emphasis is a shift from
institutional care to bringing in the family and the community to
the task of care, protection, treatment, development, rehabilitation
and aftercare of juveniles in conflict with law and children in need
of care and protection.
Above all, it is an attempt to bring this legislation in conformity
with the United Nations Convention on the Rights of the Child
and is expected to be implemented largely by the States and the
Union Territories by utilizing the existing infrastructure available
under thejuvenile Justice Act, 1986.
Though the Act was passed in late 2000, many states and union
territories are yet to implement the same. At the operational level,
the juvenile justice system needs to become more accessible to a
juvenile or the child or anyone acting on their behalf, including
the police, voluntary organizations, social workers or parents and
guardians, throughout the country. The urgent need for creating
adequate infrastructure of informal system specially linked to
the family, voluntary organizations and the community cannot be
overlooked.
Most of the definitions of the expressions used in the Act
are based on the definitions in the Juvenile Justice Act 1986.
The scope of some of the definitions have been broadened
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and some new definitions have been added taking into consideration
the United Nations Conventions on the Rights of the Child (CRC)
which has been ratified by the Government of India. Sub-clause (e)
defines “child in need of care and protection” who was earlier defined
as “neglected juvenile” in the Juvenile Justice Act, 1986. The scope
of a child in need of care and protection has been broadened taking
into consideration various areas emerging from neglect of children.
Sub-clause (1) has now prescribed uniform age for juvenile or child
as a person who has not completed his eighteen years of age keeping
in conformity with article 1 of the Convention on the Rights of the
child. Sub-clause (m) defines the expression “juvenile in conflict with
law” who was earlier defined as “delinquent juvenile” in the Juvenile
Justice Act, 1986. The expression “Juvenile in conflict with law” has
been used for removing the stigma attached with the word,
“delinquent” and make the law more child-friendly. Sub-clause (n)
defines “local authority” to bring in involvement of authorities, such
as, Panchayats at the village and Zilla Parishad at die District level
and other authorities as stated in that sub-clause for proper
implementation of the proposed legislation. Sub-clause (x) defines
State Government to include Union Territories also.
3.9.2
Exploitation of juvenile or child employee (26):- Whoever
ostensibly procures a juvenile or the child for the purpose of any
hazardous employment; keeps him in bondage and withholds his
earnings or uses such earning for his own purposes shall be punishable
with imprisonment for a term which may extend to three years and
shall also be liable to fine.
3.9.3
Child Welfare Committee (29):-
(1)
The State Government may, by notification in the Official
Gazette, constitute for every district or group of districts,
specified in the notificadon, one or more Child Welfare
Committees for exercising the powers and discharging the
duties conferred on such Committees in relation to a child in
need of care and protection under this Act.
(2)
The Committee shall consist of a Chairperson; and four other
members
as the State Government may think fit to
appoint, of whom at least one shall be a woman and another,
an expert on matters concerning children.
(3)
The qualifications of the Chairperson and the members,
and the tenure for which they may be appointed shall be such
as may be prescribed.
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(4)
The appointment of any member of the Committee may be
terminated after holding inquiry, by the State Government, if
©
S/he has been found guilty of misuse of power vested
under this Act;
(H)
S/he has been convicted of an offence involving moral
turpitude, and such conviction has not been reversed
or s/he has not been granted foil pardon in respect of
such offence;
H
S/he fails to attend the proceedings of the Committee
for consecutive three months without any valid reason
or s/he fails to attend less than three-fourth of the
sittings in a year.
(5)
3.9.4
The Committee shall function as a Bench of Magistrates and
shall have the powers conferred by the Code of Criminal
Procedure, 1973 (2 of 1974) on a Metropolitan Magistrate
or, as the case may be, a Judicial Magistrate of the first class.
Comments : State governments have been empowered to constitute for
every district or group of districts one or more Child Welfare Committees
for exercising the powers and discharge the duties in relation to children
in need of care and protection under the Act. The Committee shall consist
of a Chairperson and four other members, of whom at least one shall be
a woman and another, a child expert.
3.9.5
Powers of the Committee (31):-
(1)
The Committee shall have the final authority to dispose of cases
for the care, protection, treatment, development and rehabilitation
of the children as well as to provide for their basic needs and
protection of human rights.
(2)
Where a Committee has been constituted for any area, such
Committee shall, notwithstanding anything contained in any other
law for the time being in force but save as otherwise expressly
provided in this Act, have the power to deal exclusively with all
proceedings under this Act relating to children in need of care
and protection.
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3.10 Supreme Court directions on child labour
The Supreme Court of India, in its judgment dated 10th December, 1996 in Writ
Petition (Civil) Number 465/1986, has given certain directions regarding the
manner in which children working in the hazardous occupations are to be
withdrawn from work and rehabilitated, and the manner in which the working
conditions of children working in non-hazardous occupations are to be regulated
and improved. The judgment of the Supreme Court envisages:
(a)
Simultaneous action in all the districts of the country;
(b)
Survey for identification of working children (to be completed by June
10,1997);
(c)
Withdrawal of children working in hazardous industries and ensuring
their education in appropriate institutions;
(d)
Contribution of Rs.20,000 per child to be paid by the offending
employers of children to a welfare fund to be established for this purpose;
(e)
Employment to one adult member of the family of the child so
withdrawn from work, and if that is not possible a contribution of
Rs.5,000 to the welfare fund to be made by the State Government;
(f)
Financial assistance to the families of the children so withdrawn to be
paid out of the interest earnings on the corpus of Rs. 20,000/25,000.00
deposited in the welfare fund as long as the child is actually sent to the
schools;
(g)
Regulating hours of work for children working in non-hazardous
occupations so that their working hours do not exceed six hours per day
and education for at least two hours is ensured. The entire expenditure
on education is to be borne by the concerned employer;
(h)
Planning and preparedness on the part of Central and State Government
in terms of strengthening of the existing administrative/regulatory/
enforcement frame-work (covering cost of additional manpower,
training, mobility, computerization etc.) implying additional requirement
of funds.
In a related judgment on 7th May, 1999, the Supreme Court of India in a writ
petition (Civil No. 12125/84 and 11643/85) - Bandhwa Mukthi Morcha,
etc., V/s. Union of India and others, has also given a number of directions
on the identification, release and rehabilitation of child labour. The court,
inter-aka directed the GOI to convene a meeting with the State
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Government to evolve principles/policies for progressive elimination of
employment of children below 14 years in all employment consistent with the
scheme laid down in civil writ petition No. 465/86. This direction was given
by the court in the context of employment of children in the carpet industries
in the State of Uttar Pradesh. In this case, the court issued the following
directions to the Government of Uttar Pradesh:
i)
Investigate the conditions of the employment of children.
ii)
Issue such welfare directions as are appropriate for the total
prohibition of employment of children below 14 years of age.
111)
Provide facility for education, health, sanitation, nutritious food,
etc.
The implementation of the directions of the Supreme Court is being monitored
by the Ministry of Labour and compliance of directions reported to the Court
on the basis of information received from the States/UT Governments. The
Ministry of Labour issued guidelines to state governments. Receipt of materials
from the state governments is monitored and affidavits filed before the court
from time to time.
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3.11 Hazardous child labour
An estimated 171 million children, aged between 5-17, work in dangerous,
hazardous conditions that could result in their being killed or injured (often
permanently) and/or made ill (often permanently). Work which results in
children being killed, injured or made ill as a consequence of poor safety
and health standards and working conditions/arrangements is called
hazardous child labour.
Hazardous child labour is by far the largest category of worst forms of
child labour. The aim is elimination of hazardous child labour with no
child (defined as under 18 for this purpose) undertaking hazardous work
(with very limited exemptions for young workers, aged 16-17).
An estimated 22,000 children are killed every year at work. No figures for
child accidents or ill health due to work are currently available. But every
year there are 270 million work accidents and 160 million cases of ill health
due to work. The risks arising from hazards in the workplace are much
greater for children.
3.11.1 Hazards and risks
When discussing hazards it is important to understand the
distinction between hazard and risk. A “hazard” is anything with
the potential to do harm. A “risk” is the likelihood of potential
harm from that hazard being realized. For example, the hazard
associated with machinery might be getting trapped or entangled
by moving parts. The risk may be high if guards are not fitted and
workers are in close proximity to the machine. If the machine is
properly guarded, regularly maintained and repaired by competent
staff, then the risk will be lower.
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3.12 Children in the worst forms of child labour
The following working situations are considered as worst forms
of working situations:
1.
Trafficked children
2.
Forced and bonded labour
3.
Children involved in armed conflict
4.
Children in prostitution and pornography
5.
Children in illicit activities (drug trafficking etc)
6.
Work that disables children from attending a regular
school and work, which causes psychological, moral or
physical (contact with toxic chemicals, fire, explosives,
sharp or moving objects etc.) hazard.
[But in effect there is no work which does not obstruct a child’s
education and his normal psychological, moral and physical
well being. Hence all or any work is hazardous for children.]
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3.13 Selected Myths and Realities about child labour
The following are certain selected myths and realities about child labour
3.13.1 Poverty is the single major cause of child
labour
Poverty has many dimensions to it. Low earnings and low level
of skill, lack of assets and access to training or education are
accompanied by poor health, malnutrition, absence of shelter
and food insecurity. Poverty is a cause, but often ‘perceived’
poverty is a cause for child labour. In any village not the poorest
but often some others also send their children to work to satisfy
their greed, extravagance, and sometimes bad habits. There are
enough conscientious parents, who, even though poor send their
children to school. If poverty alone caused child labour every
child from the poor households would have been child labour.
Poverty is more widespread than the prevalence of child labour
as many poor parents take on all hardships on themselves and
send their children to school. One grave aspect is that child
labour causes low skill, low income and consequent poverty.
3.13.2 If children do not work, they and their families
will starve
Starvation persists even when all the members of the family,
including children, are working. Starvation is the result of a
combination of factors, including price policy, low income, low
purchasing power, income distribution, poor availability of
food, lack of economic and physical access to food and unequal
land and asset ownership pattern. At the macro economic level
enough research findings are there to indicate that when all the
children are removed from work, both the wage and the labour
market situations improve and the poor parents get better work
with more remuneration. Consequently, removal of children
from work does not affect their families adversely.
3.13.3 Child labour is the result of the
poor having more children
The wealth of a nation is its people. The tendency,
however, is to view them not in terms of their
potential, but their sheer numbers. But family
planning is essential to have enough resources
for children’s well being, education and health.
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3.13.4 Parents would rather send their
children to work than to school
“The withdrawal of children from the labor
market through mass enrolment by NGOs
effectively disproves the “Poverty argument”
very often used to justify continuance of child
labour”. Proper counseling will dissuade even
the most recalcitrant parents from sending
their children to work.
3.13.5 Children themselves want to work
When children express their preference to work, it is
because of their inability to conceive of an alterna
tive. Children are compelled to work by the non —
availability or lack of access to schools, an irrelevant
school curriculum and physical abuse from teachers.
The expression of the desire to work by children re
flects their lack of trust in adults to change their situ
ation. Child labour is ultimately an indictment of so
cietal apathy, effete education system and indiffer
ence to their plight.
Many a times adults invent reasons why children
should go to work and repeated reiteration of same
is internal
3.13.6 There is nothing wrong in allowing
children to work in non—hazardous
occupations
The word “hazardous” is a debatable point. The
reference is to what is hazardous to the child. In this
respect even jobs which are not inherently hazardous
become hazardous for children, if they are made to
do the job for a long period and if they are being
denied their rights to development, education, medical
care, recreation, leisure and play.
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3.13.7 Work equips the children with skills for the
future
The tasks allotted to child labour are simple and repetitive
such as labelling, filling, rolling, fetching and carrying. “Skill”
is a misnomer when applied to the backbreaking toil and
drudgery children engage in. The hard, physical labour,
exposure to the elements like dust, toxic fumes and chemical
solutions damage children’s health irrevocably, shortening
their life span and impairing their development. Research
shows that 95% of the children do not continue in the same
jobs as adolescents or adults. Worse, many of the sectors
employing child labour forcibly eject such individuals who
have crossed their age of childhood.
3.13.8 Child labour is necessary to preserve
traditional arts and crafts
Children bonded to families or who are hired labour
are never taught the actual craft. Learning of a
particular art or craft by children within their families,
as part of their socialization, should be integrated with
their education. Children should not be sacrificed at
the altar of preserving traditional art.
3.13.9 Children work faster and have nimble
fingers needed in certain types of work
especially for making knots in carpets
It is a myth that child labour is essential and the children
are capable of weaving better carpets than adults.
“There was no truth in the ‘nimble fingers’ argument,
as proven by the research”. Adults can do the job
better and faster in a more productive way.
3.13.10Industry will collapse if child labour
is not available
The industries examined included carpet, brassware,
gem polishing, and match industries. The increase in
cost, being only marginal, can be largely absorbed
by the industry or if passed on to the customer, the
increase in the sale price of the final product would
also be marginal.
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3.13.11A Global ban on child labour products will
stop the practice of employing child labour
and protect children’s rights
Child labour is essentially a domestic problem as only
approximately 8 percent of India’s child labour force is
engaged in the export sector. Linking the concerns of
human rights to trade can only serve the protectionist
interest of the developed countries. These social clauses
and blanket boycotts make no commitment to the
rehabilitation of child labour.
3.13.12Legislation prohibiting child labour is sufficient
to resolve the problem
Legislation prohibiting child labour may end up compounding
the problem by legitimizing child labour.
“Having enacted so may Acts, little attention has been given
towards enforcement, there is failure in the area of compulsory
education of children up to the age of 14 (Article 45). Several
states have made commendable effort in the direction of providing
education facilities, but none has been able to do anything to check
the phenomenon of high drop — outs”
3.13.13
Child labour cannot be abolished
The task is big, but not as to prove either unwieldy or burdensome.
This shows that what has caused the problem of child labour to persist
here is really not dearth of resources, but lack of real zeal.
“We must see the child as a human person in a holistic perspective...
The time has come to recognize the primacy of the Rights of the Child
and to take effective steps on the basis of that primacy to promote the
cause of child Development.”
3.13.14Girl children in the post - puberty stage
should not enter the cottonseed fields, as
it will pollute the crop and cause failure of
crop
Employers are concerned about profit. They have spread
this myth among the community so that they get young
children to work with no wages or low wages. In this
process they can extract more work from these young
children because of their pliability.
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3.14 List of Occupations and Processes in which Child Labour
is prohibited under the Child Labour Prohibition and
Regulation Act, 1986
3.14.1 Any occupation connected with:
1.
2.
3.
Transport of passengers, goods or mails by railway.
Cinder-picking, clearing of an ash pit or building operation
in the railway premises.
Work in a catering establishment at a railway station, involving
the movement of a vendor or any other employee of the
establishment from one platform to another or into or out
of a moving train.
4.
Work relating to the construction of a railway station or with
any other work where such work is done in close proximity
to or between the railway lines.
5.
6.
7.
8.
9.
80
A port authority within the limits of any port.
Work relating to selling of crackers and fireworks in shops
with temporary licenses.
Abattoirs/slaughter house.
Automobile workshops and garages.
Foundries.
10.
11.
12.
Mines (underground and under water) and collieries.
13.
Plastic units and fiberglass workshops.
14.
15.
Employment of children as domestic workers or servants.
Handling of toxic or inflammable substances or explosives.
Handloom and power loom industry.
Employment of children in dhabas (road side eateries),
restaurants, hotels, motels, tea shops, resorts, spas or other
recreational centers.
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3.14.2 Prohibited Process
1.
Beedi-making.
2.
Carpet weaving, including preparatory and incidental process
thereof.
3.
Cement manufacture, including bagging of cement.
4.
Cloth printing, dyeing and weaving, including process
preparatory and incidental thereto.
5.
Manufacture of matches, explosives and fireworks.
6.
Mica-cutting and splitting.
7.
Shellac manufacture.
8.
Soap manufacture.
Tanning.
9.
10.
Wool-cleaning.
11.
Building and construction industry.
12.
Manufacture of slate pencils (including packing).
Manufacture of products from agate.
13.
14.
Manufacturing processes using toxic metals and substances
such as lead, mercury, manganese, chromium, cadmium,
benzene, pesticides and asbestos.
15.
‘Hazardous processes’ as defined in Section 2 (cb) and
‘dangerous operations’ as notified in rules made under
Section 87 of the Factories Act, 1948.
16.
Printing as defined in Section 2 (k) (iv) of Factories Act,
1948.
17.
Cashew and cashew nut de-scaling and processing.
18.
Soldering processes in electronic industries.
19.
Agarbatti manufacture.
20.
Automobile repair and maintenance, including processes
incidental thereto namely welding, lathe work, dent beating
and painting.
21.
Brick kilns and roof tiles units.
Cotton ginning and processing and production of hosiery
22.
goods.
23.
Detergent manufacturing.
24.
Fabrication workshops (ferrous and non-ferrous).
Gem-cutting and polishing.
25.
26.
Handling of chromites and manganese ores.
27.
Jute textile manufacture and coir-making.
Lime kilns and manufacture of lime.
28.
Lock-making.
29.
30.
Manufacturing processes having exposure to lead such as
primary and secondary smelting, welding and cutting of leadpainted metal, constructions, welding of galvanized or zinc
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
1
silicate, polyvinyl chloride, mixing (by hand) of crystal glass mass,
sanding of lead mining, plumbing, cable making, wire patenting, lead
casting, type founding in printing shops. Store typesetting, assembling
of cars, shot-making and lead glass blowing.
31.
Manufacture of cement pipes, cement products and other related
work.
32.
Manufacturing of glass, glassware including bangles, florescent tubes,
bulbs and other similar glass products.
33.
Manufacture of dyes and dyestuff.
34.
Manufacturing or handling of pesticides and insecticides.
35.
Manufacturing or processing and handling corrosive and toxic
substances, metal cleaning and photo engraving and soldering
processes in electronic industry.
36.
Manufacturing or burning coal and coal briquettes.
37.
Manufacturing of sports goods involving exposure to synthetic
materials, chemicals and leather.
38.
Molding and processing of fiberglass & plastic.
39.
Oil expelling and refinery.
Paper-making.
40.
41.
Potteries and ceramic industry.
Polishing, molding, cutting, welding and manufacture of brass goods
42.
in all forms.
43.
Processes in agriculture where tractors, threshing and harvesting
machines are used and chaff-cutting.
44.
Saw mill (all processes).
45.
Sericulture processing.
46.
Skinning, dyeing and processes for manufacturing of leather and
leather products.
47.
Stone-breaking and stone-crushing.
48.
Tobacco-processing, including manufacturing of tobacco, tobacco
paste and handling of tobacco in any form.
49.
Tyre-making, repairing, re-treading and graphite beneficiation.
50.
Utensil-making, polishing and metal buffing.
Zari making (all processes).
51.
52.
Electroplating.
53.
Graphite powdering and incidental processing.
Grinding or glazing of metals.
54.
55. Diamond cutting and polishing.
56. Extraction of slate from mines.
57. Rag-picking and scavenging.
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Provisions of some of the Important Enactments
with Child Labour Prohibition
THE FACTORIES ACT, 1948
[Act LXIII of 1948]
[23rd September, 1948]
2.
Interpretations — In this Act, unless there is anything repugnant in the
subject or context,
“Adolescent” means a person who has completed his fifteenth year
(b)
of age but has not completed his eighteenth year
“Child” means a person who has not completed his fifteenth year
(c)
of age
“Young person” means a person who is either a child or an
(d)
adolescent
23.
Employment of young persons on dangerous machines No young person [shall be required or allowed to work] at any
(1)
machine to which this section applies, unless he has been fully
instructed as to the danger arising in connection with the machine
and the precautions to be observed and —
Has received sufficient training in work at the machine, or
(a)
Is under adequate supervision by a person who has a thorough
(b)
knowledge and experience of the machine.
(2)
Sub-section (1) shall apply to such machines as may be prescribed
by the [State] Government, being machines which in its opinion are
of such a dangerous character that young persons ought not to work
at them unless the foregoing requirements are complied with.
67.
Prohibition of employment of young children — No child who has
not completed his fourteenth year shall be required or allowed to work in
any factory.
71.
Working hours for children No child shall be employed or permitted to work, in any factory
(1)
(a)
For more than four and a half hours in any day;
(b)
During the night
Explanation — For the purpose of this sub-section “night” shall
mean of period of at least twelve consecutive hours which shall
include the interval between 10 p.m. and 6 a.m.
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Practitioners on the Elimination of Child Labour
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(2)
The period of work of all children employed in a factory shall be limited to
two shifts which shall not overlap or spread over more than five hours each;
and each child shall be employed in only one of the relays which shall not,
except with the previous permission in writing of the Chief Inspector, be
changed more frequently than once in a period of thirty days.
(3)
The provisions of Section 52 shall apply also to child workers and no
exemption from the provisions of that section may be granted in respect of
any child.
(4)
No child shall be required or allowed to work in any factory on any day on
which he has already been working in another factory.
(5)
No female child shall be required or allowed to work in any factory except
between 8 a.m. and 7 p.m.
On) r
Register of child workers The manager of every factory in which children are employed shall maintain
(1)
a register of child workers, to be available to the Inspector at all times during
working hours or when any work is being carried on in a factory, showing—
hours or when any work is being carried on in a factory, showing The name of each child worker in the factory,
(a)
The nature of his work,
(b)
The group, if any, in which he is included,
(c)
Where his group works on shifts, the relay to which he is allotted,
(d)
and
The number of his certificate of fitness granted under Section 69.
(e)
[(1-A) No child worker shall be required or allowed to work in any factory
unless his name and other particulars have been entered in the register of
child workers]
(2)
91.
The [State] Government may prescribe the form of the register of child
workers, the manner in which it shall be maintained and the period for which
it shall be preserved.
General penalty for offences — Save as is otherwise expressly provided in this
Act and subject to the provisions of Section 93, if in, or in respect of, any factory
there is any contravention of any of the provisions of this Act or of any rules
made there under or of any order in writing given there under, the occupier
and manager of the factory shall each be guilty of an offence and punishable
by with imprisonment for a term which may extend to [two years] or with fine
Tn
which may extend to [one lakh rupees] or with both, and if the
\\
contravention is continued after conviction, with a further fine which may
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extend to [one thousand rupees] for each day on which the contravention is so
continued:
[Provided that where contravention of any of the provisions of Chapter-IV or any
rule made there under or under Section 87 has resulted in an accident causing death
or serious bodily injury, the fine shall not be less than [twenty-five thousand rupees]
in the case of an accident causing death, and [five thousand rupees] in the case of an
accident causing serious bodily injury.
103.
Presumption as to employment — If a person is found in a factory at any time,
except during intervals for meals, or rest, when work is going on or the machinery is
in motion, he shall, until the contrary is proved, be deemed for the purposes of this
Act and the rules made there under to have been at that time employed in the factory.
104.
Onus as to age —
When any act or omission would, if a person were under a certain age, be an
(1)
offence punishable under this Act, and such person in the opinion of the
Courtprimafacie under such age, the burden shall be on the accused to prove
that such person is not under such age.
A declaration in writing by a certifying surgeon relating to a worker that he
(2)
has personally examined him and believes him to be under the age stated in
such declaration shall, for the purposes of this Act and the rules made there
under, be admissible as evidence of the age of that worker.
105.
Cognizance of offences —
No Court shall take cognizance of any offence under this Act except on
(1)
complaint by, or with the previous sanction in writing of, an Inspector.
No Court below that of a Presidency Magistrate or of a Magistrate of the
(2)
first class shall try any offence punishable under this Act.
106.
Limitation of prosecutions - No Court shall take cognizance of any offence
punishable under this Act unless complaint thereof is made within three months of
the date on which the alleged commission of the offence came to the knowledge of
an Inspector:
Provided that where the offence consists of disobeying a written order made by an
Inspector, complaint thereof may be made within six months of the date on which
the offence is alleged to have been committed.
106-A.
Jurisdiction of a court for entertaining proceedings, etc.,
for offence — For the purposes of conferring jurisdiction on any court in relation
to an offence under this Act or the rules made there under in connection with
1
the operation of any plant, the place where the plant is for the time being
situated shall be deemed to be the place where such offence has been
committed.
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
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THE KARNATAKA SHOPS AND COMMERCIAL ESTABLISHMENTS
ACT, 1961
2.
Definitions — In this Act, unless the context otherwise requires:
“Child” means a person who has not completed his [fourteenth year].
(c)
(g)
“Employee” means a person wholly or principally employed in or in
connection with, any establishment whether working on permanent, periodical,
contract or piece-rate wages, or on commission basis, even though he receives
no reward for his labour and includes an apprentice, any clerical or other
member of the staff of a factory or industrial establishment who falls outside
the scope of the Factories Act, 1948, but does not include a member of the
employer s family; and “employed”, shall be construed accordingly.
(i)
“Establishment” means a shop or a commercial establishment.
(k)
“Inspector” means an Inspector appointed under Section 26 and includes
die Chief Inspector and an Assistant Inspector.
(u)
“Shop” means any premises where any trade or business is carried on or
where services are rendered to customers, and includes offices, storerooms,
godowns, or warehouses, whether in the same premises or otherwise, used in
connection with such trade or business, but does not include a commercial
establishment or a shop attached to a factory where the persons employed in
the shop fall within the scope of the Factories Act, 1948.
“Young person” means a person who is not a child and who has not
completed his eighteenth year.
Prohibition of employment of children — No child shall be required or allowed
to work in any estabhshment.
Inspectors:
The State Government may by notification appoint such persons or such
1)
class of persons as it thinks fit, to be Inspectors and Assistant Inspectors for
the purposes of this Act within such local limits as it may assign to them
respectively.
The State Government may, by Notification, appoint such public officers as
2)
it thinks fit to be Additional Inspectors, for all or any of the purposes of this
Act, within such local limits as it may assign to them respectively.
3)
In any area where there are more Inspectors than one, the State
Government may, by Notification, declare the powers which such Inspectors
shall respectively exercise.
4)
The Commissioner of the Labour in Karnataka shall be the Chief
Inspector for the purposes of this Act, for the whole of the State of
Karnataka.
(z)
24.
26.
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30.
Penalties:
Whoever contravenes any of the provisions of Sections 4, 5, 6, [6-A], 7, 9,
1)
10,11,12,13,15,16,2[xx], 25 and 39, shall, on conviction, be punished with
fine, which, for a first offence, may extend to [one thousand rupees] and for
a second or any subsequent offence, may extend to [two thousand rupees].
Whoever contravenes any of the provisions of Section 8,17,29 and 34 shall,
2)
on conviction, be punished with a fine which may extend to [two hundred
and fifty rupees].
Whoever contravenes the provisions of Section 24, shall be punishable with
3)
imprisonment for a term which shall not be less than three months but which
may extend to six months or with fine which shall not be less than ten thousand
rupees, but which may extend to twenty thousand rupees or with both, for
the first offence and for the second and subsequent offences, he shall be
punishable with imprisonment of a term which shall not be less than six months
but which may extend to one year.
31.
Procedure:
No prosecution under this Act or the rules or orders made there under shall
1)
be instituted save on a complaint in writing by an Inspector.
No court inferior to that of a Magistrate of the Second Class shall try any
2)
offence punishable under this Act or any rules or orders made there under.
32.
Limitation of prosecutions: No court shall take cognizance of any offence under
this Act or any rule or order made there under, unless complaint thereof is made
within six months from the day on which the offence is alleged to have been
committed.
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Practitioners on the Elimination of Child Labour
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THE PLANTATIONS LABOUR ACT, 1951
[Central Act 59 of 1951]
2.
Definitions — In this Act, unless the context otherwise requires —
(a)
“Adolescent” means a person who has completed his [fourteenth] year
but has not completed his eighteenth year
(c)
“Child” means a person who has not completed his [fourteenth] year
25.
Night work for women and children — Except with the permission of the
State Government, no woman and child worker shall be employed in any plantation
otherwise than between the hours of 6 a.m. and 7 p.m.
Provided that nothing in this Section shall be deemed to apply to midwives and
nurses employed as such in any plantation.
26.
Non-adult workers to carry tokens — No child [x x x x x] and no adolescent
shall be required or allowed to work in any plantation unless —
A certificate of fitness granted with the reference to him under Section 27
a)
is in the custody of the employer; and
Such child or adolescent carries with him while he is at work a token giving
b)
a reference to such certificate.
35.
Contravention of provisions regarding employment of labour-Whoever,
except as otherwise permitted by or under this Act, contravenes any provision of
this Act or of any rules made there under, prohibiting, restricting or regulating the
employment of persons in a plantation, shall be punishable with imprisonment for
a term which may extend to three months, or with fine which may extend to five
hundred rupees, or with both.
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THE MINES ACT, 1952
[Act No.35 of 1952]
40.
Employment of persons below eighteen years of age —
After the commencement of the Mines (Amendment) Act, 1983, no person
1)
below eighteen years of age shall be allowed to work in any mine or part
thereof.
Notwithstanding anything contained in sub-section (1), apprentices and other
2)
trainees not below sixteen years of age, may be allowed to work, under
proper supervision, in a mine or part thereof by the manager:
Provided that in the case of trainees, other than apprentices, prior approval
of the Chief Inspector or an Inspector shall be obtained before they are
allowed to work.
Explanation — In this section and in Section 43, “apprentice” means an apprentice
as defined in clause (a) of Section 2 of the Apprentices Act, 1961 (52 of 1961).
45.
Prohibition of the presence of persons below eighteen years of age in a
mine — Subject to the provisions of sub-section (2) of Section 40, after such date as
the Central Government may, by notification in the Official Gazette, appoint in this
behalf, no person below eighteen years of age shall be allowed to be present in any
part of a mine above ground where any operation connected with or incidental to
any mining operation is being carried on.
68.
Penalty for employment of persons below eighteen years of age - If a
person below eighteen years of age is employed in a mine in contravention of Section
40, the owner, agent or manager of such mine shall be punishable with fine which
may extend to five hundred rupees.
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
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The Motor Transport Workers Act, 1961
[Central Act 27 of 1961]
2.
Definitions — In this Act, unless the context otherwise requires —
“Adolescent” means a person who has completed his [fourteenth] year
(a)
but has not completed his eighteenth year
(c)
“Child” means a person who has not completed his [fourteenth] year
14.
Hours of work for adolescents employed as motor transport workers
— No adolescent shall be employed or required to work as a motor transport
worker in any motor transport undertaking —
For more than six hours a day including rest interval of half-an-hour
(a)
Between the hours of 10 p.m. and 6 a.m.
(b)
21.
Prohibition of employment of children - No child shall be required or
allowed to work in any capacity in any Motor Transport Undertaking.
22.
Adolescents employed as motor transport workers to carry tokens No adolescent shall be required or allowed to work as a motor transport
worker in any motor transport undertaking unless —
A certificate of fitness granted with reference to him under Section 23
(a)
is in the custody of the employer; and
Such adolescent carries with him while he is at work a token giving a
(b)
reference to such certificate.
31.
Contravention of provisions regarding employment of motor
transport workers — Whoever, except as otherwise permitted by or under
this Act, contravenes any provision of this Act or of any rules made there
under, prohibiting, restricting or regulating the employment of persons in a
motor transport undertaking, shall be punishable with imprisonment for a
term which may extend to three months, or with fine which may extend to five
hundred rupees, or with both, and in the case of a continuing contravention
with an additional fine which may extend to seventy-five rupees for every day
during which such contravention continues after conviction for the first such
contravention.
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THE BEEDI AND CIGAR WORKERS (CONDITIONS OF
EMPLOYMENT) ACT, 1966
[Central Act No.32 of 1966]
2.
Definitions — In this Act, unless the context otherwise requires (b)
“Child” means a person who has not completed fourteen years of age
24.
Prohibition of employment of children - No child shall be required or
allowed to work in any industrial premises.
25.
Prohibition of employment of women or young persons during certain
hours — No woman or young person shall be required or allowed to work in any
industrial premises except between 6 a.m. and 7 p.m.
30.
Onus as to age —
When any act or omission would, if a person were under a certain age, be
(1)
an offence punishable under this Act and such person is, in the opinion of
the court, prima facie under such age, the burden shall be on the accused
to prove that such person is not under such age.
A declaration in writing by a medical officer not below the rank of a Civil
(2)
Assistant Surgeon relating to an employee that he has personally examined
him and believes him to be under the age stated in such declaration, shall,
for the purposes of this Act and the rules made there under, be admissible
as evidence of the age of that employee.
33.
General penalty for offence —
Save as otherwise expressly provided in this Act, any person who
(1)
contravenes any of the provisions of this Act or of any rule made there
under, or fails to pay wages or compensation in accordance with any order
of the appellate authority passed under clause (b) of sub-section (2) of
Section 31, shall be punishable for the first offence, with fine which may
extend to two hundred and fifty rupees and for a second or any subsequent
offence with imprisonment for a term which shall not be less than one
month or more than six months or with fine which shall not be less than
one hundred rupees or more than five hundred rupees or with both.
□
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Practitioners on the Elimination of Child Labour
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3.16 Effective Enforcement of Child Labour Laws
Lack of effective enforcement of the Child Labour and related laws is one of the
important reasons for the continuation of child labour in prohibited occupations and
processes. All India figures indicate that quantitatively very large number of inspections
are done every year to detect child labour cases but number of detected cases are much
lesser and substantive convictions still rarer. Qualitatively most of the convictions are
technical in nature, where non-maintenance of registers etc. are reasons for conviction.
In such cases penalties are minimal and the employers become bolder thinking that no
one will ever be able to prove a child labour case against him.
Child labour cases fail mostly because of the indifferent attitude of the enforcement
authorities vis-a-vis the prevailing laws and the plight of the children. Often the indifference
is attributable to the misplaced sympathy for the family poverty, and incomplete
understanding of the true causes and consequences of child labour. Sometimes such
specious reasons like lack of sufficient staff, conveyance facilities, resources and training
are assigned as alibis. Partly such poor enforcement is also due to lack of proper
monitoring and encouragement from the top.
False notions of the "poverty’ argument is a very critical reason de-motivating many
inspectors, who feel that the issue does not really require a serious enforcement and thus
they limit their activities to mere building statistics. Enforcement failures are broadly
due to three categories of reasons and bottlenecks:
Bottlenecks associated with the social environment:
(i)
If the important stakeholders and society at large are not convinced about the
bane of child labour and its debilitating consequences on the child, his family,
and society at large; there is hardly any moral and physical support of the society
for the enforcement. Any serious enforcement under such circumstances meets
with hostility from the employer, parents, and the immediate society at large. In
such circumstances neither the employers nor the parents see child labour as an
undesirable practice. Many employers do not see themselves as law breakers
when they engage child labour. Contrarily, they often believe that their act of
employing a child helps to alleviate the poverty of the child’s family and teaches
him marketable skills that will stand him in good stead in later life. They strongly
believe that the work for which they employ children, cannot be done by adults
("
nimble finger theory....’).
Attitude of parents, particularly those facing poverty or having extravagant
habits, also poses certain problems. Such parents fail to understand, for whose
benefit the enforcement is undertaken? How can elimination of child labour
benefit the child and his family?
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Community leaders, elected representatives. Government functionaries,
media representatives, and opinion makers are all very important and their
understanding of child labour issues either supports or mars enforcement.
Hence it is essential that in the area where enforcement has to be undertaken,
community mobilization and awareness raising campaigns should be
initiated. When the community is receptive and understands the purpose
of enforcement, it is the right time to proceed and any enforcement measure
is supported by one and all. Employers should be sufficiently enlightened
and warned of the ills of child labour. Parents and children should be
counseled about it.
(ii)
Bottlenecks associated with physical support system (logistics):
The problem of child labour is very widespread, and more numerous in
the informal sector in the tiny, home based units where compliance to labour
laws is minimal. Often, the employers, workers and the surrounding
community join together to prevent the inspection and sometimes even
attack the inspecting team.
Hence any inspection or enforcement activities should be done after adequate
preparations.
(iii)
Legal bottlenecks:
Generally, the children and dieir parents work together at a work site and in
case of enforcement, the employers may plead that the child came to bring
the lunch to the work site etc. To disprove this, the inspector has to collect
relevant evidence. There may not be any record to prove that child was
working, in such cases eye witnesses’ evidence will have to be taken. Even
non-maintenance of prescribed register should be made as a charge against
the employer.
Age of the child is very critical to prove child labour. A certificate of age
is very pivotal to successful prosecution. The employer must keep an age
certificate but in the absence of the same the inspector should try to obtain
the age certificate of the child from his village school or revenue office. In
the absence of such direct evidence of an age certificate, the inspector
should obtain an age certificate from an Authorized Government Doctor.
Often prosecution’s cases fail due to various reasons including:
The case not being built properly. The mahazar was incomplete and not
drawn properly. The evidences are not sufficient to prove
That the child was working in a prohibited process or occupation.
That the child was below the age of 14 years.
That the accused was the employer of the child.
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(ii)
(iii)
(iv)
(v)
(vi)
Not maintaining the case file properly with the copies of relevant
documents from the beginning.
Not attending court regularly, not briefing the APP/PP properly,
Not filing written statements/affidavits in time.
Not securing the presence of proper witnesses in time.
Not preferring appeal in time, if aggrieved by the order of the lower
court etc.
Effective Enforcement: Legal Provisions:
There are several enactments (as in the annexure) wherein child labour has been
prohibited in some form or the other. But the following three Acts are the major
enactments covering large number of children:
1.
The Child Labour (Prohibition & Regulation) Act, 1986,
2.
The Karnataka Shops & Commercial Establishments Act, 1961; and
The Factories Act, 1948.
3.
Pre-planning: Any inspection of a workplace taken up for enforcing Child
Labour Laws requires meticulous planning on following counts:
Pre-survey and collection of information on existence of child labour.
1.
Mobilizing community and awareness rising.
2.
Formation of an inspecting team with at least four members, out of which
3.
one can be a Doctor who can certify age of the child; another are an
NGO (or NCLP staff), who can take charge of the child to counsel him
and her parents and to take measures to rehabilitate him through various
interventions; third one a trained section 17 inspector as defined in the
Child Labour (P&R) Act 1986, who can draw up a proper mahazar and
inspection note which will stand the scrutiny of the court and the fourth
one either another Sec. 17 inspector or a police or revenue official to give
strength and assistance to the group in smooth discharge of their functions.
Adequate pre-thought and planning about how the rescued child will be
4.
rehabilitated, counselled and comforted.
A contingent plan to deal with a situation where the "inspection’ develops
5.
into a law and order problem. For this adequate mobility of the group
and their familiarity with local area and people is very essential. The
inspecting group should have a vehicle and preferably one of them should
have a mobile phone to contact and call others for help.
6.
It is better to take a camera/video camera so that appropriate photo/
video of the work place, owner, work activity, child’s work activities and
the process of inspection, statement of witnesses etc can be recorded for
later use.
7.
The group should be equipped with paper, pen, proforma of
drawing up the mazajar and taking statements of the accused and
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witnesses. (Use of proforma should be only to standardize the format.
The actual mahazar or the statement of the witness should be recorded on
white paper, as courts often take objection to pre-formatted mahazar and
statements.)
Inspecting Officers:
Under the CL(P&R) Act, 1986... any person or police officer or an Inspector
appointed under Section. 17 of the CL(P&R) Act, 1986, can inspect, draw up
mazajar, collect evidence and file a complaint against any employer who employs
child labour in the appropriate court. In the case of the Karnataka Shops & CE
Act, 1961, the inspectors of the Labour Department and in the case of the Factories
Act, 1948, the inspectors of the factories department can enforce and file a
complaint before the appropriate court. In most of the other enactments the
labour inspector is the appropriate authority.
Role of the Enforcement Officer:
All the authorized inspectors should go through the provisions of law
(i)
including the important court rulings Eke the judgment of the Honourable
Supreme Court in MC Mehta-Vs-State of Tamil Nadu and others in WP(C)
No.465/1986 etc. They should be clear about their roles and responsibilities.
They should plan out who among the team member will do what. They
should be clear in their mind that the Government pokey on child labour is
in favour of enforcement hence it is their bounden duty to enforce the laws
as per the spirit of the statute. His own lack of will and lack of conviction
in the ‘Child Labour’ laws should not affect the quahty of enforcement.
Regular, periodical visits by the Inspector; to all the estabHshments within
his jurisdiction for detecting employment of any child below the age of 14
years is very essential. In every detected case of employment of children,
a detailed inspection note (Mahazar, panchanama) should be drawn up
where it should be very clear:
Under which law (Act and specific Sections) the violation is
i)
identified, (quote the Act and sections)
That he is notified under the provision as inspector, (quote the
2)
notification number & date)
Who is the working child? In what activities was s/he was employed
3)
and in which establishment? What was the age of the child? How
was age ascertained and proven?
Who was the employer in the estabHshment?
4)
What documents or witnesses prove the
5)
• Age of the child,
• The fact that the child was working,
• The fact that the child was employed on the ‘X’ employers’
premises.
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Practitioners on the Elimination of Child Labour
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The fact that the child was working in a prohibited employment
or processes.
Hence what offence (provision of law) is committed by the
employer? And under what provision the employer is liable
for punishment?
Police protection may be taken, wherever necessary. The officers of the Police
Department are already instructed by the DGP vide his circular to extend police
protection to the inspecting staff whenever needed by them.
Departmental vehicle may be provided by the Deputy Commissioner to the teams
for carrying on inspections. Fuel for such vehicle may be arranged by the NCLP.
The accompanying doctor with the inspecting team may examine the child and
ascertain his age. There are circulars from the Health Commissioner and ESI
Director that their departmental doctors should fully cooperate in this endeavour.
Examine whether the employer can provide employment to the released child’s
family. Obtain an undertaking from the employer that he will never employ any
child in future.
Prosecution should be launched against the erring employer and taken to its logical
conclusion as a successful conviction to create demonstration effect. Discuss
with the public prosecutor and with his help launch prosecution. Attend the court
regularly and inform and seek help from the Deputy Commissioner of the District
whenever you encounter any bottleneck in the process of enforcement or
prosecution.
How to conduct an effective inspection:
It is necessary for an Inspector to be objective, reasonable and follow the principles
of natural justice while conducting inspections. He should come to a conclusion
and give his findings based on sound legal evidence, instead of mere presumptions.
He should be tactful, cool and firm at the inspection place as he can hardly consult
anyone else for advice at that time. His language and demeanor should be
courteous, controlled and unprovocative. But, he should be firm without
appearing to be aggressive. He should not show any signs of weakness, fear or
ask for favours, or show favouritism.
He should keep in mind the fact that the employer would do everything possible
to frustrate the inspection. Rubbing people on the wrongside and abusive
behaviour will not give any salutary results.
Often the employers may use the practice of driving out the children from the
work spot on getting wind of the inspection. Care should be taken to prevent
and avoid such happenings. The Inspector should not be misled by the
employer, while ascertaining the age of the child.
The Inspector should collect the legal evidence like the school certificate
. I
and the medical certificate to strengthen the case. The Doctor with the
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inspecting team may ascertain the age and give a certificate of age on
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ILO-IPEC - Karnataka Child Labour Project
the spot or after further examination in the hospital. But the Doctor’s certificate as
age proof should be used for the case as a last resort if the certificate of age from
the school or revenue office is not available. The Inspector should try to visit the
village of the child and obtain his birth certificate from the school or the Revenue
office (or Municipal office) as the case be. If it is confirmed that the child’s birth is
neither registered with the Registrar of Birth & Deaths nor has the child ever gone
to school (so the date of birth is not available in the school) then only the Doctor’s
certificate of age should be relied on.
The NGO representative accompanying the inspecting team should start a dialogue
and interaction with the child employed in the establishment through counseling
and child friendly communication techniques. He may be courteous, respectful,
and affectionate to the child.
While booking cases it should also be looked into if minimum wages was being
paid and if there were any other working condition or labour laws or technical
violations.
Preparing an Inspection Report:
The Inspector should carry with him the template (See Annexure-IX in Section IV)
of the inspection report so that he does not forget recording any vital information
essential for prosecution. But he should avoid using the template as a form to fill in
the blanks to prepare an inspection report as such practices are often held as non
application of mind. Hence he should preferably use a white paper to draw up an
inspection report as per the template.
Mention the date and time of inspection; name and addresses of the establishment;
and names of some of the neighbours and neighbouring establishments. Record
the name and address (both workplace and residential) of the Employer/Agent/
Occupier. Specify the nature of the establishment and under what provision of law
the child labour is prohibited in such establishments.
The inspection report should contain the complete details of name, age, sex,
identification marks, educational qualification, caste, names of mother and father,
full residential address; advances/loans taken from the employer, if any; physical
or mental torture if any by the employers, types of hazards faced and evident on the
body and mind of the child, and all other details relevant to the case.
The report must contain the mention of the breach of specific legal provisions and
specific failures on the part of the employers. Evidence should be collected in
support of each finding. The Inspector should be unbiased and desist from
implicating anyone falsely. The report should not be prepared mechanically, but
only after serious application of mind.
The Inspector should take down statements, admissions or confessions
C
exhaustively from all concerned (like the accused employer, the parents,
y Ks neighbours, independent witnesses, child etc.) and obtain their signature with
date and time on the spot.
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
The Inspector must give the inspection report and showcause notice to the offending
employers (or his agent) on the spot and obtain their signature on the original
copy of the notice and inspection as a token of acknowledgement for having
received the notice. This will be direct evidence in the court of law.
In addition issue a show cause notice (See Annexure-VII in Section IV) to the
occupier of the hazardous occupations/processes for the payments of
compensation amount of Rs.20,000/- (This amount can be recovered by the
revenue department as an arrear of Land Revenue after due notice is given to the
employers, and if inspite of such notice he has failed to show cause and give an
acceptable reason or failed to deposit the said amount in the name of the designated
fund. For this a case may have to be filed before the Deputy Commissioner Revenue
with all evidences. The DC may authorize a Tahsildar to proceed after a demand
notice is issued and a show cause demand notice is not satisfactorily replied. After
the due process the Tahsildar may proceed further to recover the due amount as
an arrear of land revenue) as directed by the Supreme Court, to the corpus Fund
for employing the child below the age of 14 years. This is a civil liability for the
violation of the fundamental rights and the offending employers are bound to
compensate the child in addition to facing criminal charges. If the case is under
the Karnataka Shops and Commercial Establishments Act, 1961, a show cause
notice may be given in the format as shown in the Annexure-VIII in Section IV.
Procedure for the Prosecution:
Under section. 16 of the Child Labour (P&R) Act, 1986, any person or police
officer or Inspector can file a complaint in a jurisdictional criminal court against
the employers engaging child labour. However, the Inspectors appointed under
the Section. 17 of the CLPR Act, 1986 are the main persons who carry out these
inspections. They should follow the procedures carefully to obtain as many
convictions as possible. In all the cases of violations detected, whether substantive
or technical in nature, a prosecution should be launched in time without fail, not
later than six months from the commission of an offence. A complaint filed after
six months of commission of an offence should be accompanied by a supporting
strong reason and evidence to satisfy the court why the complaint could not be
filed within the prescribed period.
The inspecting officer should thoroughly brief the APP/PP about the case. The
complaint should be supported by the necessary documentary evidences that are
collected at the time of inspection and later and are in possession of the inspecting
officer. If the complaint is filed by an Inspector in his representative capacity, the
same has to be stated in the complaint.
The complaint (See the format in Annexure-VI in Section-IV) must recite
the facts of the case in the order in which they have occurred till the
commission of an offence and then after. The complaint must be signed
by the Inspector and he must enclose the list of witnesses whom he intends
ILO-IPEC - Karnataka Child Labour Project
to call for tendering evidence before the court, and the list of documents which he
intends to rely on to substantiate the case. At the time of the trial the Inspector
should be present and as far as possible bring the witnesses and furnish the original
records/documents in support of his case.
Action to be taken after the final verdict is delivered:
In cases of successful conviction, wide publicity should be given to create awareness
about the case and to ensure a demonstration effect on the other offending
employers.
Review the cases thoroughly where the case has failed and ascertain reasons for
such failure so that it does not happen again, and also learn how cases can be
presented better. In cases where there has been miscarriage of justice and there is
sufficient evidence and reasons to appeal against such an order, the Inspector must
discuss the same with the PP and prepare to appeal against the same in the
appropriate court of law.
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Practitioners on the Elimination of Child Labour
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3.17 Some Case Studies
3.17.1
IN THE COURT OF THE CIVIL JUDGEJR.DN &
ADDL.JMFC
AT RAMANAGARAM
DATED THIS THE 24™ DAY OF MAY 2003
PRESENT: SMT. RAJESHWARIN. HEGDE, B.COM, L.L.B.(SPL)
C.J JR.DN. & ADDL.JMFC, RAMANAGARAM.
C.C.147/98
Complainant :
Accused
State of Karnataka at the instance of Sr. R.N.
Rathod, Inspector of Factories, Bangalore
Division 6, Bangalore (An Inspector appointed
Under section 8(1) of the Factories Act 1948)
(Reptd. By the A.P.P)
Sri. Javeed,
Occupier, Silk Filature,
House No.3715, K.E.B. Mtr.No.AEH 954,
Mehaboob Nagar Main Road, Ramanagaram.
(Reptd. By Sri. M.K. Adv)
JUDGEMENT
This is a complaint filed by the Inspector of Factories under the Factories Act against the
accused.
2.
100
Brief facts of the complainant’s case is that:
The accused who was the occupier of the Silk Filature running the factory situated
at House No.3715 at Mehaboob Nagar Main Road, Ramanagaram which is filed
U/s.2m(l) of the Factories Act. The complainant Sri. R.N. Rathod, Inspector of
Factories, Sri. Thyagarajan, Deputy Chief Inspector of Factories II and Dr.
Surendra V.H.H. Medical Inspector of Factories visited the factory on 28.11.1997
and during the course of inspection they found that the factory was working,
manufacturing process of Silk Yarn from Cocoons and reeling of the same was
found being carried on with the aid of electrical power of 2.5 hp. Further it was
noticed that 15 workers were found engaged to carryout the said manufacturing
activity. As the manufacturing of silk yarn with the aid of electrical power
and by employing more than 10 workers, the premises constitutes a factory
as defined U/s.2m(l) of the Factories Act. During the course of inspection,
the complainant noticed that the accused person being the occupier of
ILO-IPEC - Karnataka Child Labour Project
the factory has committed following offences contravening the provisions of the
factories Act and rules made there under.
There were 15 workers found working to carryout the manufacturing activity
a)
with the aid of electrical power. Though the said premises constitutes a
factory, the occupier was found not registered under factories act and
obtained licence in respect of the above said premises, thus by using the said
premises as a factory unless a licence has been obtained in respect of said
premises and thereby contravened the provision of Rule 4(2) of the
Karnataka Factories Rules r/w.sec.6 of the Factories Act.
Further though the premises constitutes a factory an application for obtaining
b)
the previous permission for the site on which the factory is to be situated
and for layout of machinery or of process is not submitted to the Chief
machinery or of process is not submitted to the Chief Inspector of Factories
and thereby contravened the provisions of Rule 3(1) of the Karnataka
Factories Rules r/w.sec.6 of the Factories Act.
c)
Further during the inspection it is noticed that four children by name
(l)Shivaraju (2)Azoo (3)Asha (4)Mashsagir who are below the age of 14
years were working and by allowing or employing the said workers under
the age of 14 years to work in the factory, the accused has contravened the
provisions of Sec.67 of the Factories Act.
3.
4.
5.
6.
7.
As the accused has contravened the provisions of the Factories Act as aforesaid,
the accused is punishable U/s.92 of the Factories Act and hence the complaint is
filed.
After filing of the complaint, cognizance of the offence taken by this court and
summons issued to the accused. The accused appeared before the court and copies
of the complaint along with documents furnished to him. He is represented by the
counsel of his choice.
Plea of the accused is recorded and read over to the accused. The accused pleaded
not guilty and claimed to be tried.
At the time of recording of the plea of the accused, this court by oversight has not
included the contravention of provisions of Sec.67 of the Factories Act. However
in the evidence the said aspect was elicited from the witnesses and the defence counsel
has also cross examined to that effect. Therefore, the provision of Sec.67 is now
inserted and as the evidence has already come, in my opinion it is not necessary to
give any further opportunity to the prosecution of the accused.
The prosecution in order to bring home the guilt of the accused in all examined 2
witnesses as PW.l and PW.2 and got marked the documents Ex.Pl to P4.
8. After completion of the prosecution evidence the statement of the accused
V
as contemplated U/s.313 Cr.P.C. is recorded and the accused called upon to
lead defence evidence. The accused did not choose to lead defence evidence.
'
9.
Heard the arguments.
10. The following points do arise for my consideration:
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11.
12.
13.
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Point No.l : Whether the complainant proves that the accused not obtaining the
licence has contravened the provisions of 4(2) of the Karnataka Factories Rules r/
w.sec.6 of the Factories Act not obtaining previous permission for the site on which
the factory is to be situated and for layout of machinery has contravened the
provisions of Rules3(l) of Karnataka Factories Rules r/w.sec.6 of the Factories
Act and thereby committed the above offence which is punishable U/s.92 of the
Factories Act?
2 : Whether the complainant whether proves that the accused engaged child workers
who were not completed 14th year of age and hence contravened the provisions of
Sec.67 of the Factories Act?
3 : What order?
My answer to the above said points are as under:
Point No.l & 2 : Affirmative
3 : As per the order for the following:
REASONS
Point No. 1: It is the case of the complainant that on 28.11.97 the complainant
herein who is examined as PW1 and Sri. Thyagarajan who is Deputy Chief Inspector
of factories and Dr. Surendra visited the premises bearing No.3715 situated at
Mehaboobnagar main road, Ramanagaram in which the accused is the occupier. It
is the further case of the complainant that during the course of inspection, they
noticed that the factory was found working manufacturing process of silk yarn from
cocoons and same was found with the aid of electrical power of 2.5 H.P It was also
noticed that 15 workers were found engaged to carry out the manufacturing activity
and as per and as there were 10 workers, which constitute a factory as defined U/
s.2M(l) of the Factories Act, and as the factory was working with the electric power,
the complainant asked the occupier of the building who is the accused herein whether
he got registered the factory and obtained licence from the concerned department.
It was found that the factory was not registered and no licence obtained. Therefore,
the complainant contended that the occupier of the building has contravened the
provisions of Rules 4(2) of the Karnataka Factories Act r/w.sec.6 of the Factories
Act and Rule 3(1) of the Factories Act.
The prosecution in order to bring home the guilt of the accused has examined the
complainant as PW1. In his evidence he has reiterated the complaint averments.
He was cross examined by the defence counsel. During the course of cross
examination the learned counsel appearing for the accused tried to elicit from PW1
that the accused is not at all running silk filature in the separate accommodation
but the silk filature factory is located in his house only. The said suggestion is
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denied by the PW.l. The learned counsel appearing for the accused has
further put number of questions to the PW.l stating that in order to run
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filature factory, one has to obtain KEB connection, permission from
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purchasing center of cocoons, permission from silk exchange in order to sell the
goods, licence from Sericulture Department, permission from Municipal
Corporation etc. The PW1 has answered that he does not know whether the person
who is running the factory has to obtain the above said permission in order to run
the filature factory. Though the PW1 has answered that he does not know that the
person has to obtain the above said licence to run the factory. As per the cross
examination done by the learned counsel or the accused, it shows that the accused is
running silk filature factory whether it is in his house or separate accommodation.
The PW.l in his evidence has stated that he has issued show cause notice to the
accused asking for explanation but the accused has not given any reply for the said
show cause notice. Said show cause notice is produced by the prosecution, which is
marked as Ex.P2 in this case. In the Ex.P2 there is one LTM. According to the
complainant the said LTM is of the accused. During the course of cross examination
it is suggested to PW1 that the LTM of the accused is not identified by anybody. It
is further suggested to the PW1 that at the time of inspection the occupier of the
building who is the accused herein was not at all present. The said suggestion is
denied by PW1. Though the L.T.M. of the accused is not identified by any person,
it cannot be said that the accused was not at all present during the inspection. If this
witness do not go for inspection to the factory, what is the enemity by this witness
against the accused so as to file false case against the accused. The learned counsel
appearing for the accused himself put suggestion to PW1 stating that in the year
1998 there were about 5000 filature factory running in Ramanagaram. If that is so,
why the complainant has chosen to file the case against this accused only. The accused
except the denial that he is not running the filature as contended by the complainant,
has not tried to convince the court that he has not contravened the provisions of
Factories Act and he has taken permission and licence from the concerned
department. Therefore, I am of the opinion that the accused has contravened the
Provisions of Rule 4(2) and Rule 3(1) of the Karnataka Factories Act. Accordingly,
I answer Point No.l in the affirmative.
14.
Point No. 2: It is the further case of the complainant that during the course of
inspection of the factory, they found that there were four workers under the age of
14 years to work in the factory. The prosecution in order to prove the same has
examined PW.l and PW2. PW1 being the complainant in his evidence has stated
that when they have inspected the factory, there were four child labours by name
Shivaraju aged about 12 years, Azoo aged about 13 years, Asha aged about 12
years, Mashsagir aged about 13 years. He further stated that the said child labours
were examined by the Doctor and on clinical examination the Doctor has opined
that they are under the age of 14 years. PW1 was cross examined by the defence
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counsel. During the course of cross examination the question put to him that
whether he has taken the statement from the parents of the child labours
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and whether any of the parents of the child labours had come and stated
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Practitioners on the Elimination of Child Labour
i.l if Ti IMlh
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about the children. The PW1 has stated that they have not taken any statement by
the parents of the child labours. It is very pertinent to note that normally the
parents of the child labours will not give any statements about their children as they
are not having so much courage to say about their employer. Most of the parents
would be poor and they will send their children for work so as to eke out their
livelihood. Under such circumstances, it is very difficult for the complainant to
take up any statement from the parents of the child labours and one cannot expected
to do like so.
15.
The prosecution further examined PW2 Doctor. In his evidence he has stated that
on 28.11.97 he has accompanied with Rathod the PW1 herein for inspection of the
factory belongs to the accused and during the inspection they found that four
workers who were less than 14 years of age are working. He further stated that on
his examination the said four workers were looking very young and did not require
any assistance to assess the age. He further deposed that according to their own
statement of the child labours and on his clinical assessment he has come to the
conclusion that there were four child labours. He issued certificate in form No.4
and the said certificates are marked as Ex.P3 and P4. I have gone through Ex.P3
and P4 the names of the child labours are mentioned. The learned counsel appearing
for the defence has put suggestion to the PW.2 stating that the Ex.P3 and P4 are
concocted document because there are number of correction made in Ex.P3 and
P4 with regard to the address of the accused and age of the child labours. It is true
that there is correction in the Ex.P3. Because there is correction in the name of the
accused, it cannot be said that Ex.P3 and P4 are concocted document. The
complainant has also written the names of the said four child labours. If they were
not found working in the factory, it is very difficult to mention their names and
father’s name also in the complaint and in Ex.P3 and P4. More over, it is not the
case of the accused that these PW.l and PW.2 are having enemity against him and
hence they filed the false complaint against the accused. When there is no enemity
shown by the accused. I can’t understand what made the complainant to file the
false complaint against this accused. The learned counsel for the accused further
put suggestion to the PW.l and PW.2 stating that for the purpose of statistics they
filed the false case against the accused. If that is so, the complainant can file any
number of complaints against all the owners or occupier of the factory. Why this
complainant chose to file the complaint against this accused only. From the evidence
of PW.l and PW2 and the documents i.e. Ex.P2, P3 and P4,1 am of the opinion
that the prosecution was able to prove that the accused has contravened the
provisions of Sec.68 of the Factories Act. Accordingly, I answer point No.2
in the affirmative.
16.
Point No. 3: In view of my above said discussions, I proceed to
pass the following:
Sb;
ORDER
The accused is convicted for the offence punishable U/s.92 of the Factories Act
for having contravened the provisions of Rule 4(2) of the Karnataka Factories
Rules r/w.sec.6 of the Factories Act and provisions of Rule 3(1) of the Karnataka
Factories Rules r/w.sec.6 of the Factories Act and also the accused has contravened
the provisions of Sec.67 of the Factories Act.
And the accused is sentenced to pay fine of Rs.2,500/- for the contravention of the
Provisions of Rule 4(2) of the Karnataka Factories Rules r/wsec.6 of the Factories
Act. Failing which he shall undergo simple imprisonment for a period of One
month and further the accused shall pay fine of Rs.2,500/- for the contravention of
the provisions of Rule 3(1) of the Karnataka Factories Rule r/w.sec.6 of the
Factories Act. In default he shall undergo simple imprisonment for a period of
One month.
Further the accused shall undergo simple imprisonment of a period of 1 year and
also shall pay fine of Rs.3,000/- for contravention of provisions of 67 of Factories
Act. In default of payment of fine amount the accused shall further undergo simple
imprisonment for a period of 6 months.
In all the accused shall pay fine of Rs.8,000/- and shall undergo simple imprisonment
for a period of One year.
Sentence in default of payment of fine shall run consecutive.
1.
2.
ANNEXURE
Witnesses examined for the prosecution:
PW1 Ravindranath N. Rathod
PW2 Dr. Surendra
Documents marked for the prosecution:
Ex.Pl Complaint
Pl (a) Signature of CW1
P2 Inspection Report
P2(a) Signature of CW1
P3 & 4 Fitness Certificates
P3(a) & (b) Signature of CW3
P4(a) & (b) Signature of CW3
P4(c) Signature of Shivaraju
Sd/-24/05/2003
C.J.JR.DN.&ADDL.JMFC.RAMANAGARAM
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Practitioners on the Elimination of Child Labour
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3.17.2 IN THE COURT OF THE CHIEF
MAGISTRATE BANGALORE CITY
Present
METROPOLITAN
Sri M.S. Hegde Nagre, M.A., LL.B (Spl.)
Chief Metropolitan Magistrate,
Bangalore City.
SI. No. of the case
Date of commission of offence
Name of the complainant
Represented by
Name of the accused
A.1&2 are represented by
The offence complained
Date of order
CC.516/2001
Prior to 02.10.01
State By : JC Nagar PS.
State By : Sr. APP
1) Iladevi, W/o
Venkatesh, Aged 40
years.
2) Venkagesh, S/o.
Thippanna, Aged 42 years.
Both are residing at:
No.39, 5th Cross,
Nandidurga Layout,
J.C Nagar, Bangalore.
R.M.D.R, Advocate
341,342,323, 324 R/W
Sec.34 IPC and u/s.6 of
The Children (pledging of
Labour) Act 1933.
03.01.2003
JUDGEMENT UNDER SEC. 355 OF CR.P.C
This chargesheet came to be filed by the Police Inspector, SHO of J.C. Nagar PS,
Bangalore, against the accused persons, for the offences punishable under Secs.341, 342,
323, 324 R/W Sec.34 IPC and Sec.6 of The Children (Pledging of Labour) Act 1933.
2.
gg
The main allegations leveled against the accused, in the chargesheet, are:
That, prior to 2/10/01, the accused nos.l&2 both, with common intention, have
wrongfully restrained CW.2 Shashikala, aged about 12 years, as child labour at
their house situated at No.39, 5th Main, Nandidurga Layout, within the limits of
J.C.Nagar P.S., Bangalore, and that, they have wrongfully confined her, in
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the said house knowing fully well that she was minor in age and that, they
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have voluntarily caused hurt to CW2 by assaulting her with hands and
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her and that, they have caused bleeding injuries and that, the both
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A. 1 &2 having reason to believe, with common intention, have made to
pledge the labour of CW2 and obtained domestic work from her, as
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child labour, and that thereby the accused were chargesheeted for the aforestated
offences.
3.
The both accused, on appearance, have engaged their advocate and were released
on bail, and after filing the chargesheet, copies were furnished and after hearing the
accused, charges under Secs.341, 342, 323, 324, R/w Sec.34 IPC and under Sec.6
of The Children (Pledging of Labour) Act 1933, were framed, read over and
explained to the accused, and the accused both, pleaded not guilty and claimed to
be tried. Hence, the case was posted for trial.
4.
During trial, the prosecution has examined in all 10 witnesses and got marked 4
documents and the presence of the remaining witnesses could not be secured even
though coercive steps were taken and hence, the side of the prosecution was ordered
to be closed, by rejecting the request of learned Sr.APP. The incriminating
circumstances arising in the evidence of prosecution witnesses were read over and
explained to the accused and their statements, as required U/s.313 of Cr.P.C, were
recorded. The defence was total denial. But the accused have chosen to lead defence
evidence in support of their stand. Accordingly, one Hema W/o Ramu, Maid
Servant, has been examined as DW.l and the accused no.2 has been examined as
DW2 and in all 12 documents, at Exs.Dl to DI2 were exhibited and closed the
side.
5.
Heard the arguments on both the sides and posted the case for Judgment.
6.
On the basis of the above materials, the following points arise for determination.
I.
Whether the prosecution proves beyond all reasonable doubt, that, prior
to 2/10/01, the accused nos.l&2 both, with common intention, have
wrongfully restrained the CW.2 Shashikala, aged about 12 years, as a child
labour, at their house situated at No.39,5th Mian, Nandidurga Layout, within
the limits of J.C.Nagar PS, and thereby, they both have committed an offence
punishable under Sec.341 R/w.S.34 IPC?
Whether the prosecution further proves that, on the above said date, time
and place, the A.1&2, with common intention, have wrongfully confined
the CW.2, in the said house, as a child labour, knowing in folly well that she
was minor in age and thereby, the accused have committed an offence
punishable under Sec.342 R/w. Sec.34 IPC?
Whether the prosecution further proves that, on the above said date, time
and place, the A.1&2, with common intention, have voluntarily caused hurt
to CW2 by assaulting her with hands and thereby, they have committed an
offence punishable under Sec.323 R/w.S.34 IPC?
IV
Whether the prosecution further proves that, on the above said date,
time and place, the A.1&2, with common intention, have caused bleeding
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VI
VII
7.
injuries to CW2 by biting her and thereby, the both accused have committed
an offence punishable under Sec.324 R/w Sec.34 IPC?
Whether the prosecution further proves that, on the above said date, time
and place, the A.1&2, having reason to believe, with common intention,
have made to pledge the labour of CW.2 and obtained domestic work
from her, as child labour, and thereby, the accused have committed an
offence punishable under Sec.6 of The Children (Pledging of Labour)
Act 1933?
Whether the petitioner Lalitha proves that, she is entitled to the custody
of the child, as prayed in her Applications filed under Sec.97 Cr. PC?
What Order?
For the reasons to be recorded herebelow, I answer the above points, as under:
Point No.I
NEGATIVE
Point No.II
NEGATIVE
NEGATIVE
Point No.Ill
Point No.IV
NEGATIVE
NEGATIVE
Point No.V
Point No. VI
AFFIRMATIVE
Point No. VII
As per final Order below.
REASONS
Point Nos.I to V:
8.
In order to avoid repetition and for better appreciation of evidence, I club the
above points, for common discussion.
9.
The witnesses examined for the prosecution, in this case, are:
CW1 Anncela, the complainant, as PW. 1;
CW.3 Yeshoda, WPC 8251, as PW2;
CW4 Umesh, the driver of the vehicle, as PW3;
CW8 Dr. Chandra R. Nayak, who examined the child CW2 Shashikala, as PW.4;
CW2 Shashikala, the victim child, as PW.5;
CW.5 Lalitha, the mother of the said child PW5, as PW6;
Additional witness Meena Kumari, WPC, as PW7;
CW7 r. Prakash Rao, panch to the spot mahazar Ex.P2, as PW8;
&
CW9 Byranna .G, HC.639, who brought the accused and produced before
fk
the IO, as PW9; and
CW.ll M. Nagaraj, Police Inspector, the IO.
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Out of them, the PWs.l&2 on the one hand and PWs.l, 3, 5 & 7 on the other, are
material witnesses, besides the evidence of PW5, according to the stand taken by
the prosecution.
10.
According to PW1, she is a Social Worker in Makkala Sahaya Vani situated in the
office of the Police Commissioner, Bangalore, and her duties are to attend to the
children in crisis. Further, she has stated that on 2/10/01, when she was in the
office of Makkala Sahaya Vani, at about 9.30 AM, she received an anonymous phone
call through toll free line and came to know that, a child was put to labour, in the
house of the accused, as per the details furnished in the said phone message. So, she
waited for half an hour and had discussed with her coordinators in the mean time.
But subsequently, since she did not receive any phone call from the same informant,
through toll free line, she went to the house of the accused, along with WPC Meena
Kumari (PW7) by a vehicle driven by Umesh (PW3), as the said vehicle was donated
to Makkala Sahaya Vani and maintained by the Bangalore Police and further, she
was stated that she found A.l, she stated that, it is the correct address and then, the
PW1 introduced herself with A.l and also, about the purpose of their visit, based
on the information received, for having employed the minor child for domestic
work and being ill-treated, but the A.l has stated that, no such child was employed
there. But by that time, that Shashikala (PW5) was just inside the house and was
sweeping the front floor. So, the PW1 and Meena Kumari (PW7) went inside the
house. Then, the A.l just went inside the house and talked to the said girl child. But
they could not hear the same clearly. Then, A.l brought the said girl child from the
room. Then, the PW1 has enquired with the girl child (PW7) and on observing the
said girl, her hands were shivering and there was tears in her eyes and she was wearing
a short frock and there were some other injury marks on her stomach and thighs
and burnt marks on her fore arms. Then, the PW1 has explained the motto of the
Makkala Sahaya Vani to protect the children, for the welfare of such children and to
take care of them, in case, she accompanies with them, and when the A.l was asked
about he said injuries found on the person of the said girl child (PW5) the A.l has
stated that she suffered such injuries due to allergy and when the same was enquired
with the girl child, the A. 1 interfered and stated that it was due to allergy. Then, they
requested the A.l to be just away from the girl child, as they intended to talk to the
child. When the A.l was just away from the said girl child, they talked to the said
girl child, which was audible to A.l, and after taking the said girl child to their
confidence, PW.l could gather some information, as the girl child stated that the
said injuries on the shoulders, were due to the bite and on account of pushing down
her to the ground, her face was swollen, and then, they explained the girl child
?
that, if she comes with them, they would call her mother and also, they are
Jk
ready to give necessary scope for her studying, for which the girl child has
agreed and then, they furnished the address of Makkala Sahaya Vani to A. 1,
J
along with contracting phone number and stated that, they would take the
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said girl child to Makkala Sahaya Vani, as the said girl child was so willing. But, the
A.l though refused to accompany them, she stated that, she would come to the said
office, and permitted them to take the child with them. Therefore, they took the girl
child to Makkala Sahaya Vani, in the same vehicle, and reached the office around
12.20 PM on the same day, and after serving the food to the said girl child, at about
3 or 3.30 PM, herself and WPC Yeshoda (PW2) have taken the girl child to J.C.Nagar
PS, by the same vehicle, driven by Umesh (PW.3) and then, she filed the complaint
before the police and then, the said girl child was taken to Bowring Hospital for
treatment, with the assistance of police. Further, she has stated that she filed the
complaint as per Ex.Pl, at about 5.30 PM, after returning to the Police Station from
the hospital and the police have then visited the spot and prepared spot mahazar, as
per Ex.P2. Of course, the PW.7 has stated that, she accompanied with PW1 to the
house of the accused, and also, for having brought the girl child (PW.5) to Makkala
Sahaya Vani, from the house of the accused. But we find material discrepancies in
the evidence of PWs.l&7, as PW7 has stated that, on introduction by PW1 with
A.l, she has requested them to come inside the house. But according to PW1, they
themselves, went inside the house, on seeing that the said girl child (PW5) was sweeping
the floor, and this PW7 has not sated about the burn injuries found on the both
hands of the girl child, when they saw her for the first time, in the house of the
accused and according to PW7, the left side eye of the child PW.5 was swollen and
further, on furnishing the address to A.l, while bringing the PW5 to the Makkala
Sahaya Vani, they asked the A.l to visit Makkala Sahaya Vani, as they were taking the
PW.5 to the office, based on the complaint, and further, she has stated that the
statement of PW5 was recorded in the office. But this initial statement of PW5, said
to have been recorded in Makkala Sahaya Vani, is not forthcoming the case. But the
statement only made available, was recorded by the IO, on 2/10/01. On perusal of
the evidence of PW3, we find so many other discrepancies in his evidence, as he has
not stated about the injuries found on the person of PW5 and his evidence is only to
be restricted for having taken the PWs.l&7 to the house of the accused, in the vehicle,
and for having brought PWs.l&7, along with PW5, to Makkala Sahaya Vani and
thereafter, for having taken the PWs.l, 2&5 to J.C. Nagar PS or hospital, and for
having brought back them, to Makkala Sahaya Vani, as he was serving as driver of
the said vehicle. But the discrepancies in the evidence of PWs.l&2 are also material,
for having taken the child to the Police Station and to the hospital and again taking
her to the Police Station and brought back her to Makkala Sahaya Vani. The PWs.l,
2&7 have been thoroughly cross-examined by the defenece side and it is elicited that
the said phone call was entered in the register concerned, maintained in Makkala
Sahaya Vani, but the same was not furnished to the police, and the reason given by
these wimesses, for the same, that the IO has not enquired with them, about the
said register, during the course of investigation. As can be seen from the
evidence of PWs.l, 2&7, certain injuries on the person of PW5 was afresh.
But this aspect is totally silent in the evidence of PW4, as she has stated that
M
on 2/10/01, at about 4.30 PM, she examined one Shashikala (PW5) aged
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about 12 years, who was brought by Makkala Sahaya Vani Police, with the history of
injuries suffered due to the assault by the employer, and on examining her, she found
in all 15 injury marks and issued Wound Certificate as per Ex.P3. But surprisingly,
on showing the CW2 (PW5) to him, during the course of her evidence, she was not
in a position to identify her, as the same child who was examined on that day, as her
evidence reads as under:
c<
Now I see the CW2 present before the
court. But I cannot identify her without referring the
hospital records, since I have not brought the same
today.................. ”
During the course of cross-examination, this PW4 has admitted that, she cannot say
the exact age of the injuries mentioned in Ex.P3 and also, the injury nos.4, 5 & 10
could have been caused, if the portion of the finger of the injured, fixed, while
closing the door by injured herself, and certain injuries also could have been caused
to such children, while playing, and injury nos. 13 & 14 could have been caused by
viral infection. Further, she has admitted that she has not taken any family history
from the said child, about her past illness or accident, etc., if any caused to her. So,
the evidence of PW4 coupled with her certificate Ex.P3, will not help the case, as
expected for the prosecution, from PW4.
11.
The remaining material evidence would be of the victim girl PW5 and she has stated
that the caste of herself and that of accused are one and same. However, according
to her, her mother (PW6) was working on daily wages, under one Engineer by name
Romeo and that Romeo came to their house, on one day, and asked her mother to
send her, to him, to look after a child at Nandidurga, and also, that Romeo asked
this child about her willingness, for which she agreed. Then, he has taken her to the
Kanakapura Bus Stand, where he introduced her to the A.2 and asked her to
accompany with A.2. Since then, she was staying in the house of the accused, and
according to PW5, she was ill-treated by accused no.l and she was made to wash the
clothes and to do household work and wash the cooking vessels and to clean up the
house and also, to cook the food and her mother was visiting the house of the
accused, oftenly, to see her. She has also stated about the arrival of the persons
from Makkala Sahaya Vani to the house of the accused, on the date of Gandhi
Jayanthi and also, the conversation held between them and the A.l and also, the
enquiry held with her, by the said persons from Makkala Sahaya Vani, and also, she
has disclosed about the ill-treatment given by the A.l to her, and at that time,
according to this PW5, the A.2 was reading a paper and the mother of A.2, who
was there did not agree to send her to Makkala Sahaya Vani persons, by saying
V
that, she was not able to cope up with the work. But the presence of the
mother of A.2, in the house of the accused, at the relevant time, was not
17
stated by PWs.l, 3 & 7. This witness has also stated that, after taking her to
l1\
Makkala Sahaya Vani, she was served with food and some photos were
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Practitioners on the Elimination of Child Labour
taken and her statement was recorded. But that photos taken and statement said to
have been recorded by Makkala Sahaya Vani persons are not furnished in this case.
But on the other, the defence side, during the course of the evidence of DW2, has
produced the records relating to the enquiry held by the Enquiry Officer in the
Department Enquiry initiated against the accused, wherein the Ex.D7 is the record
of conversation had with Kum. Shashikala (i.e. PW5) by Enquiry Officer and it
discloses as under:
“
No marks of injury were visible on the exposed
part of the said girls hands/arms. However, faint remnants
of scars could be made out. It was noticed that mehandi
was applied on the finger nails of the said girl and she
informed that the same had been applied by mistress Ila
Devi..............”
Moreover, to rely on the sole testimony of the child witness, is stated to be notoriously
dangerous, unless immediately available and unless received, before any possibility
of coaching is eliminated, as referred in the book by Sarkar on Evidence, 12th Edition
at page 1144, under Sec. 118 of the Indian Evidence Act. On this Ene, if the evidence
of PW5 is viewed, at the time of giving her statement before the IO, she was totally
under the control of Makkala Sahaya Vani and thereafter, with APSA, till her evidence
before this court, was recorded as PW5. So, in view of the material contradictions,
in the evidence of material witnesses, would play material role in disbelieving the
entire case.
12.
I
112
The another material witness PW.6, who was mother of PW5, has turned hostile on
material aspects and according to her, about 3 years ago, she sustained fracture on
her right fore arm. So, she left PW.5 at the residence of the accused and she used to
visit the house of the accused, at least twice in a month, and further, she has stated
that the PW.5 was looked after by the accused, with love and affection, during her
stay in the house. Then, when she went to the house of PW5, on 30th date, about one
year ago, from the date of her evidence dated 18/10/02, PW5 was fine. Then on 4th
day of the subsequent month, she came to know that PW5 was taken from the house
of the accused by Makkala Sahaya Vani. So, she rushed to Makkala Sahaya Vani
Centre, but authorities concerned, have not shown the PW5 and did not allow her to
see her. Then, after the lapse of 2-3 months, in pursuance of the order of the court,
the said authorities have allowed her to see PW.5. On seeing the PW5, she found 23 injury marks on her hands, and on enquiry with her, about the said marks, she
expressed her ignorance and this PW6 stick up to her such version, even during the
course of her cross-examination by the learned Sr. APP, after treating her as hostile
and she has denied her statement said to have been recorded by the IO, as per
Ex.p4. During the course of chief-examination itself, the PW6 has admitted
P
that the accused are distant relatives and during the cross-examination, it was
F7
elicited that the accused were looking after die PW5 with love and affection,
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as their own child and one Hema was the maid servant working in the said house of
the accused and she was doing all the household work in the house of the accused.
But PW5, during the period of her stay in the house of the accused used to play with
the children of the accused as well as the children of the neighborers and in the
nearby park and she used to play in the slide situated in the park, which was damaged
and she suffered injuries while playing in the said garden, as well as, on the terrace of
the house of the accused. It is the firm stand taken by the defence that PW5 had
suffered with chicken pox and due to which, certain old scars remained on her body.
So, basing on the evidence of PW6 also, the evidence of PW5 looses its weight,
which results in disbelieving the case of the prosecution.
13.
The PW8 is only the panch to the spot mahazar Ex.p2, but he does not speak anything
about the incident or the identity of the PW5 or injuries found on her person.
Therefore, in the case on hand, the evidence of PW.8 is not so material.
14.
The PW9 has only apprehended the accused on 4/10/01, at the instruction issued
by the IO and he produced them before the IO and as such, his evidence is not worth
for scrutiny.
15.
The PW10, being the IO in part, has stated that he has taken the records from CW10
H. Gangaiah ASI, for further investigation and then, he arrested the both accused on
one Romeo and released them on bail and then, he recorded the statement of PW.6
and PW7 and after obtaining the Wound Certificate Ex.p3 from PW.4, he filed the
chargesheet against the accused. But this PW10 has not assigned any reason for
leaving that Romeo in the chargesheet, as one of the accused, and also, in the entire
investigation and no reason is assigned for non including the PW6 as accused & in
the case.
16.
Now, coming to the technical defects in the case, of course, the minor technicality
will not take away the case of the prosecution, under any circumstance. As I have
gone through the entire oral and documentary evidence placed before me, by the
prosecution, as well as the defence side, I find material defects in the case, which also
contribute to create serious doubt in the story of the prosecution. Out of them the
notable are as under:
a)
The PW.l though claimed to be Social Worker, she has stated that she was
getting remuneration from Makkala Sahaya Vani, during the relevant time.
So, in such event, she cannot be considered as Social Worker, but she becomes
the employee of Makkala Sahaya Vani;
b) The PW1 claims to be representing Makkala Sahaya Vani for filing the
complaint as per Ex.pl. But Makkala Sahaya Vani was not a registered Body
as on the date of the incident, as PW1 herself admits, which reads as under:
cc
Makkala Sahaya Va
the Bangalore City Police will work for Makkala Sahaya Vani
At the
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Practitioners on the Elimination of Child Labour
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c)
d)
e)
p- r)
time of registering this case, it was not a registered Body, but now it is
registered Body......... ”
So, the PW1 could not explain the authority under which she proceeded to
the house of the accused and got the custody of the child PW5 in her favour;
There is no allegation in the entire case, that the PW6, the mother of the girl
child PW5, was giving step motherly treatment to PW.5, as she was not a
step mother, but natural mother of PW.5. Under such circumstances, the
PW.l or other persons accompanied with her, to the house of the accused,
who taken the custody of PW5 it would be proper on their part to take the
PW5 to her natural mother PW6 and in case, the PW6 refused to look after
the PW5 or to receive her or to take care of the PW5, then only they could
take further steps, as provided under law. But since the PW.l or any other
authorities of Makkala Sahaya Vani did not take any suitable steps in this
regard, but the PW1 straight away taken the PW.l to Makkala Sahaya Vani,
even without giving any acknowledgement in writing, to the then custodian
of the PW.5, or obtaining their consent in writing, it amounts to a glaring
error on the part of PW1;
It is peculiar to note that, PW1 with PW7 & PW3, went to the house of
accused, as it has come in the evidence, without informing the local police
having jurisdiction over the area, or not even seeking assistance of the said
police and even while taking the PW5 from the house of the accused, to
Makkala Sahaya Vani, it would be proper on the part of PW.l to take the
PW5 to the local police and only after intimation, she could proceed ahead.
But failing to do so, is also another error committed by PW1, on behalf of
Makkala Sahaya Vani, when it was admittedly, not a registered Body then;
Even after intimation to the then IO, by way of complaint Ex.pl, by PW.l,
and also, producing the PW.5 before the police, it would be proper on the
part of the then IO CW.10 H. Gangaiah, ASI, to make an arrangement to
produce the PW5 before the competent jurisdictional Magistrate, for further
needful orders. But unfortunately, as is born out from the records, the PW6,
being the petitioner, appears to have moved Application u/s.97 Cr.P.C, on
13/2/02, as per Ex.D3, and another Application dtd 30/3/02, marked at
Ex.Dl, coupled with Affidavits Ex.D2 and Ex.D4, claiming the custody of
the child, i.e., restoring the custody of the child, and only at the enquiry
stage, on the said petition, it is brought to the notice of the court concerned,
that the said child was in APSA “//VAAa aAA/^E”, as she was handed over
to APSA by Makkala Sahaya Vani. Therefore, in this connection also, even
a semblance of procedure laid down under Juvenile Justice Act 1986 or the
new Act, Juvenile Justice (Care & Protection of Children) Act 2000, was
followed, in this regard. Therefore, the entire process followed by Makkala
Sahaya Vani, as well as the subsequent process followed by APSA both, are
on wrong footing;
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17.
It was the case built up that, Romeo was the mediator in bringing the PW5
from the custody of PW6 and to hand her over to A.2. If that was the case,
certainly the IO would challan the chargesheet against that Romeo, as well as
against the PW6. When it was not so done, a strong presumption arises that
Romeo and PW6 have not done anything, contravening under law, which
leads to de-link the entire case of the prosecution;
So, all these technical defects, clearly show that the prosecution has failed to
set up the case against the accused, in an appropriate manner and that, thereby,
it could not prove it, against the accused, as expected of the same.
Now coming to the defence side evidence, the DW.l Smt. Hema was the maid
servant working in the house of the accused and DW2 is the accused no.2 and
DW1, has categorically stated throughout, that, she was working as maid servant in
the house of the accused, since the last 8 years and she used to visit the house of the
accused, daily at about 8 AM and do all household works till 5.30 PM and she has
given the details of household work also, and the prosecution, though suggested to
DW1 that she was not working as maid servant, the same was denied by her, on the
one hand, and supported by PW6, on the other, during the course of her evidence.
In such event, the evidence of DW1 is proved by the defence side. Over and above,
the accused no.2 on oath, has also stated that DW1 was the maid servant in his
house and she does all household works and assists the A.l in cooking the food,
etc., and as such, there was no chance or necessity for the accused, to engage PW5
to do the household works, during the relevant period. Apart from that, the defence
has also produced the Enquiry Report Ex.Dll, which shows that there was
Department Enquiry, initiated against the present accused, wherein other materials
such as, the Case Presentation Ex.D9, by one Vimala, dtd 1/10/01, and Notice as
per Ex.DlO and the statement of the witness Mr. Mathew Philip, marked at Ex.D6,
and the Record of Conversation with Kum. Shashikala (PW5) at Ex.D7, and Note
at Ex.D8 and the denial portion marked in the statement of PW6 marked at Ex.p4,
and the denial portion in the statement of PW7 marked at Ex.D5, also play material
role in discarding the evidence placed by the prosecution, and the result in the
Department Enquiry was only in favour of the accused, who are delinquents in the
said Enquiry proceedings, wherein the Enquiry Authority was pleased to mention
as under:
cc
The said NGOs seem to function on
the assumption that they are a law unto
themselves, the Executive and Judiciary of the
land be dammed.......... ”
The firm stand taken by the defence that the case has been registered only
because the accused have declined to fulfil the unlawful demand on the part
of Makkala Sahaya Vani or other NGOs who made protest in front of the
house of the accused, as well as in front of their office. The said demand of
lakhs of rupees was also, though suggested to other witnesses, which are
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not admitted, the PW7 has admitted to certain extent, as her evidence reads as
under:
cc
There is no rule to register the case i
concerned Police Station regarding the message
received by Makkala Sahaya Vani, but usually one or
two cases will be booked against the concerned, in
the jurisdictional Police Station. The remaining cases
will be amicably settled in Makkala Sahaya Vani itself.
The Makkala Sahaya Vani will insist the concerned, to
deposit the amount for the welfare of the child, during
the course of amicable settlement and also, to bear
the education cost of the child and if the concerned
agrees for the same, then the matter will be settled
amicably
”
It is also brought on record, during the course of Department Enquiry, as can be
seen from the Report Ex.DI 2, as it reads as under:
cc
The said report makes it clear that while
of all kind were made by Makkala Sahaya Vani and
assorted organizations, no charges were brought against
the alleged offender. Apparently, the gangster style
extortion ploy of demanding payment of monies within
3 days seems to have worked. And that seems to have
been the end of the matter, apart from Makkala Sahaya
Vani taking it upon itself to advise the husband of the
alleged offender therein to take her for extensive
counseling. And yet another NGO is reportedly
nourished by the interest earned on the compensation
amount. Whither justice? Justice, underworld
style
”
But in this connection also, that APSA, though continued to be the interim custodian
of the said girl child PW5, it has not produced any iota of evidence or scrap of
paper in these proceedings to show that the PW5 is prosecuting her studies, except
her own bald version, which is also considerable lapse on the part of the prosecution.
Of course, it was much argued by Sri. R.M.D.R, learned advocate for the accused,
that one Vimala, on behalf of the KSFC, has prepared the Case Presentation in the
matter, dtd 1/10/01 itself, as per Ex.D9, alleging the same offence. But
according to the case, it was 2/10/01, and as such, according to him, the
Va
entire case is a concocted one. But in this connection, I could not agree with
the arguments submitted by the learned advocate for the accused, because,
, i
though it was mentioned at the face page of Ex.D9, as Case Presentation
JA
was dtd as 1/10/01, registered by Makkala Sahaya Vani in respect of
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Shashikala aged 10 years, against the accused persons, while signing by Vimala, it
was mentioned atop of Ex.D9, may be only typographical error. However, in
pursuance of the other material grounds, stated above, which were urged by both
sides, in support of their respective stand and also the doubtful circumstances, as
pointed out supra, under the foregoing paras, I have no hesitation to hold that the
prosecution has failed to prove the offences under charges, against the accused,
beyond all reasonable doubt, and hence I answer the Point Nos.I to V in the
NEGATIVE.
18.
19.
Point No.VI:
As seen from the cause sheet, and the evidence on record the girl child PW5 is in the
custody of APSA, who stated to be educating the PW.5, but there is no material
placed before the court, in this case, to substantiate that PW5 is actually attending
the school, for prosecuting her studies. It is a well versed principle that welfare of
the child is paramount consideration in all cases, relating to minors, irrespective of
sex. Under such circumstances, when the natural mother PW6 has claimed the
custody of the child, the same cannot be denied at this stage, since the trial in the
case, is also at the verge of conclusion. Therefore, I am of the considered view that
the PW.6, being natural mother of PW5 Shashikala, she alone, is entitled to be the
custodian of the said child PW5, but not others. Hence, I conclude this point, by
answering in AFFIRMATIVE.
Point No. VII:
In pursuance of the findings in the following paras, I proceed to pass the following:
ORDER
The accused nos.l&2 are hereby ACQUITTED under Sec.248(l) Cr.P.C, of the
offences charged under Secs.341, 342, 323, 324 R/w. Sec. 34IPC and Sec.6 of The
Children (Pledging of Labour) Act 1933. The bail bonds executed by these accused
nos.l&2 stand cancelled.
The PWl/Makkala Sahaya Vani/APSA, whoever be the custodian of the said girl
child PW5, shall handover the said child to the custody of her natural mother PW6.
Lalitha, under proper acknowledgment, forthwith, and the PW6 is directed to take
all best possible care as a prudent natural mother, to educate her child PW.5, and
accordingly, the petitions filed by the petitioner PW6 u/s.97 Cr. PC. (Ex. D1&3)
are disposed off. (Typed to my dictation by the stenographer, corrected by me and
then pronounced by me in the open court on 03.02.03.
(M.S. HEGDE NAGRE)
CHIEF METROPOLITAN MAGISTRATE,
BANGALORE CITY
H7
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
if Ti f Mfe*:
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ANNEXURE
Witnesses examined on behalf of the prosecution:PW1
Ancilla
21/08/02
PW2
M.C. Yeshoda
21/08/02
PW3
Umesh
21/08/02
PW4
Dr. Chandra R. Nayak
23/09/02
PW5
23/09/02
Shashikala
PW6
18/10/02
Lalitha
04/11/02
PW7
Meena Kumari
Prakash Rao
04/11/02
PW8
Documents marked on behalf of the prosecution:Ex.pl
Complaint
Ex.pl (a)
Signature of PW.l
Ex.p2
Spot Mahazar
Ex.p2(a)
Signature of PW8
Wound
Certificate
Ex.p3
Ex.p3(a)
Signature of PW4
Statement of PW6
Ex.p4
Witnesses examined on the defence side:
DW1
Hema
DW2
Venkatesh
Documents marked on the defence side:
Ex.Dl&3
Applications of PW6
Ex.D2&4
Affidavits
Denial portion in statement of PW7
Ex.D5
Ex.D6
Statement of witness in DE
Denial portion in statement of PW5
Ex.D7
Note
Ex.D8
Case Presentation
Ex.D9
Ex.DlO
Notice
Ex.Dll
Acknowledgement
Ex.D12
Department Enquiry
Material objects produced
NIL
(M.S. HEGDE NAGRE)
CHIEF METROPOLITAN MAGISTRATE,
BANGALORE CITY.
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I
1.4
3.17.3 IN THE COURT OF THE M.M. TRAFFIC COURT - III,
BANGALORE
DATED THIS THE 29th NOVEMBER 2001
PRESENT
SRI. MARUTHIBAGADE, B.COM, LL.B. (SPL) M.M.
TR.C-III; BANGALORE
CC No. : 1975/2001.
COMPLAINANT
STATE BY SR. LABOUR INSPECTOR
24th Circle, J. C. Road,
Bangalore.
ACCUSED
C. Chandran, S/o. Kunniraman,
Prop: Minerva Bakery, R/at.No.475,
New BEL Road, Devasandra,
R/at.No.92, Nanjappa Layout, Vidhyaranyapur,
Bangalore.
JUDGMENT
1.
The Sr. Labour Inspector of 24th Circle, has filed a private complaint against the
accused for the offences under Sec.24 of the Karnataka State Shops and Commercial
Establishment Act 1961 and punishable U/s.30 of the said Act.
2.
The Brief facts : The prosecution case is that on 24.11.2000, at about 12.45 PM
the Sr. Labour Inspector of 24th Circle, has visited the shop of accused at Minerva
bakery, No.475, New BEL Road, Devasandra, Bangalore and found the accused
has appointed a child labour named Sri. T. Velan aged 13 years in his shop as Helper
and there by violated the provisions of the section.24 of the Karnataka State Shops
and Commercial Establishment Act 1961 and punishable U/s.30 of the said Act.
3.
After the appearance of the accused, the copies of the prosecution papers have
been supplied to him. Plea has been recorded. Accused pleaded not guilty and
claimed to be tried.
4.
In order to prove the guilt of the accused, the prosecution is examined only 2
witnesses and got marked the documents at Ex.P-1 to P-6(a) and closed the side.
Thereafter the statement of the accused under Sec.313B of Cr.P.C. stand
h
recorded. Accused denied the allegations in to and entered no defence.
3
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
5.
Heard the arguments.
6.
Points for consideration:
1.
Whether the prosecution proves that the accused in question has engaged a
child labour aged 13 years by name T. Velan in his bakery and there by
violated the provisions of Sec.24 of the Karnataka State Shops and
Commercial Establishment Act, 1961?
2.
Whether the prosecution further proves that the said child labour is of 13
years old or below the age of 14 years?
What order?
3.
7.
My findings for the above points are as follows:
Point No.l
In Affirmative
Point No.2
In Affirmative
Point No.3
As per final orders for the following
REASONS
POINT NO.l: The Complainant PW1 has lodged this complaint before the court
stating that he is the Senior Labour Inspector and on 24.11.2000, at 2.45PM he had
inspected the Minerva Beckery situated at New BEL Road and found there were 4
adult persons and one minor boy was working in the bakery. The age of the minor
boy was of 13 years and his name is Master. Velan. At the time of Inspection
Abilash the elder son of accused and some other person by name Sri. Sinod, who
appears to be the second S/o accused were present at the premises. During enquiry
they revealed that the owner of the beckery is their Father and his name is C.
Chandran. Thereafter PW1 has recorded the statement of the child labour and
drawn inspection report. Accused having failed to submit any age proof of the
child labour within the given period, he sought the approval from the Asst. Labour
Commissioner for the prosecution and thereafter filed a complaint before the court.
8.
In order to prove the guilt of the accused, the complainant himself has examined as
PW-1 and got examined the elder son of accused Master Abilash as PW2 and got
the documents marked at Ex.P.l to P.6.a. and closed the side. During the course
of arguments the learned prosecutor has submitted that after enquiry the accused
has been asked to PW2 to submit the age proof certificate within a period of 3
days. But he has failed to comply with the request. Thereafter on 12.12.2000 a show
cause notice was also issued to the accused to produce the age proof certificate as
per Ex.P.4. But he failed to produce any age proof certificate. As per rule.22 of
the Karnataka State Shop and Commercial Establishment Rules 1961
V
hereinafter shortly called as rules, it is mandatory on the part of the accused
to produce the age proof certificate showing that the age of child labour is
above 14 years. As such failing in this behalf there is much material for the
court to draw an inference that the child labour was aged below 14 years.
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9.
During the cross-examination of PW1 the defence has clearly admitted that the child
labour is their relative. Thus they are well within the knowledge about the age of the
child labour. As such they ought to have produced any document. PW2 son of the
accused has clearly admitted the inspection and engagement of the boy. But they
only denied about age. They have also admitted that the Velan is their relative. In
such circumstances the prosecution has clearly proved this case beyond all reasonable
doubt. Hence the prosecution prayed for the conviction of the accused.
10.
On the other hand, the defence counsel has submitted his strong objection to the
written arguments submitted by PW1. It is the duty of the PW1 to bring prima-facie
case to the court and show the court that the child labour was aged about 13 years
and they have not produced any documents to show his age. In the absence of the
documents the court cannot form an opinion to accept as PW.l is not an expert.
Rule.22 does not bind the accused to produce any age proof certificate. There are
no any independent eye witnesses to the case. The case is the out come of some
ulterior motive. As such the prosecution failed to prove its case beyond all reasonable
doubt. There by prayed for the acquittal of the accused.
11.
I see that there is no worth in the arguments narrated by the defence counsel rather
there is much force in the arguments of prosecution. PW1 the Labour Inspector has
clearly deposed as from 18.10.2000, he is working as Sr. Labour Inspector in 24th
Circle and on 24.11.2000 at about 2.45 PM he has inspected the Establishment and
at that time PW-2 and his younger brother Sri. Sinod were present. During enquiry
he learnt that the accused is the owner of the establishment. Amongst 5 labourers he
found one child labour aged 13 years by name Velan. There by he has recorded the
statement of Master Velan in Ex.P-2 i.e., Annexure-I and obtained the signature of
child labour and delivered the copy of Ex.P-1 to PW-2 and obtained his signature.
Thereafter he has also deposed that he has drawn the Inspection report as per Ex.P3 and issued the copy to PW-2 and asked him to produce the age proof certificate.
But he failed to comply with the requirements. Ultimately the PW.l had issued a
showcause notice on 12.12.2000 to the accused through post to produce any
documents to prove the age of child labour. But he has failed to do so. Thereafter
he sought permission from the higher authority and filed the complaint. This is the
sum and substance of the deposition of PW-1. During his cross-examination the
defence counsel admitted that Mr. Velan is the relative of the accused. PW-2 the son
of the accused has clearly admitted the inspection made by PW-1 and also admitted
that the child labour is son of his sister. If this aspect is taken into consideration it
y
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is crystal clear that there was an inspection by PW-1 and he found a boy by name
Velan is working as labour and helper in the beckery. So there is no any dispute
regarding the engagement or working of the Mr. Velan in the premises. As
such in view of the admission by defence counsel in cross-examination of
PW-1 and admission by PW-2 regarding the engagement of Velan in their
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
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beckery as helper, I am of the opinion that there is no hesitation for me to say that
the complainant successfully proved the engagement of Mr. Velan in the bekery. As
such the point No.l is answered accordingly.
POINT NO.2 : In view of the findings given by me to point No.l in affirmative,
now the only question remains for the consideration of court regarding the age of
child labour. The question can be styled in the following form whether the complaint
successfully proved the age of the child labour as 13 years old. PW-1 in his evidence
has deposed that when he has Inspected the establishment in question he found one
Master Velan is working as helper and during enquiry he learnt that his age is 13
years. After enquiry PW.l through Ex.P-3 i.e. Inspection Notes asked PW-2 the S/o
accused who was present in the premises to produce the age proof certificate stating
that the age of Velan was more than 14 years and he will not fall within the preview
of Sec.24 of the Karnataka State shops and commercial Establishment Act 1961
shortly called as Act. But neither the accused nor PW-2 has produced any kind of
certificate showing the age of child labour as he is above the age of 14 years. Failing
in this behalf the complainant has issued a showcause notice to the accused under the
certificate of posting as per Ex.P-4. Wherein it has been clearly required to showcause
why the necessary action shall not be taken against the accused for the violation of
provision of Sec.24 of the Act, within a period of 3 days. But the accused failed to
produce the age proof certificate within a period of 3 days. Even the defence counsel
did not contend that he had produced any kind of documentary evidence to prove
the age of Velan. The copy of the postal receipts is marked as Ex.P-5, which clearly
shows that a letter has been issued to the accused, which has not been strongly disputed
by defence counsel. In such circumstances, it is crystal clear that PW-1 the complainant
has clearly discharged its initial burden as contemplated under Rule.22 of the Act.
12.
Rule.22 of the Act is clearly laid down that the Inspector may require the employer
to produce a certificate in respect of age from a Registered medical practioner in
respect of any employee such certificate shall be under form No.J. If this proviso is
taken into considerate on, it is crystal clear that the burden of disproof lies on the
shoulder of the accused. In this case PW-2 has clearly deposed that/the Velan child
labour is the S/o the sister of accused. Hence it is well within the knowledge of the
accused that the child labour is of a particular age. Apart from this Ex.P-2, column
No.9 has clearly discloses that the child labour is studied up to 6th standard in a
Tamilnadu School. In such circumstances, I am of the opinion that the particular age
of the child labour was known to the accused. Then the question arises what prevented
him to produce any kind of certificate i.e., Medical certificate either in form J or
School certificate from the school where in the child labour had studied. For a
moment I do not dispute the submission of the defence counsel that it is the
K duty of the prosecution to establish the case while discharging its initial burden.
The present case is the outcome of a Socio-legislature, as such Rule.22 is
SI
enacted to prevent the harassment by the Inspector or authority. There
ILO-IPEC - Karnataka Child Labour Project
could be no case if any age proof is produced. Non-production of age proof
itself creates doubt against the accused. If the child labour studied in Karnataka
then it could be said that the prosecution is failed to discharge its initial burden in
obtaining the same from School records. But the School in which the child labour
studied is in Tamilnadu State. As such the Labour Inspector is unable to approach
the School authority. In such circumstances, it is the bounded duty of the accused
to produce the School certificates or age proof certificates in Form No.J and get
absolved from prosecution and Criminal liability. But inspite of issuance of
showcause notice, though under certificate of posting and also inspite of service of
Notice through Ex.P-3 Inspection Notes, to PW-2 the son of accused, the accused
failed to produce any kind of certificate. The preposition of standard of evidence
and presumption of law can be different in case there was a complete denial of
engagement of child labour and its relation with the accused. But in this case accused
has clearly admitted the relationship of the child labour and engagement of him in
bakery for the helping work thus it is mandatory on his part to discharge the burden
cast under rule.22. Issuance of show cause notice is complete compliance of
provision of Rule.22 by the Inspector PW1. As such I am of the opinion that there
are no reason to discard the evidence of PW-1. Of course the statement obtained
during the investigation by the I.O. is not admissible under the evidence act. But
this preposition of law is applicable only to the police. The Labour Inspector is not
a police. As such the particulars recorded in Ex.P-2 & 3 are clearly admissible in
the eyes of law. Even the format of Ex.P-2 & 3 are prescribed by law or Act. As
such it cannot be said that these documents are inadmissible in the eye of law. In
such circumstances, I am of the opinion that prosecution had discharged its initial
burden and shifted the burden to disproof upon the shoulders of accused. But the
accused failed to discharge its burden. Thus he invites the risk of penal liability.
What prevented the accused to enter into witness box and produce any kind of
Medical report or School certificate or Birth certificate to show that the child labour
was above the age of 14 years. But he did not do so, rather PW-2 has clearly deposed
that they have engaged Velan and he is their relative. Looking into the over all facts
and circumstances of the case and evidence of PW-1 and admission by PW-2 and
non-discharging of burden by accused casted under rule.22,1 am of the opinion
that the prosecution case can be accepted. Nothing has been brought on record by
the defence that the complainant had some ill will against the accused. The principle
that can made applicable to the police witness while appreciating their evidence
cannot be made applicable while appreciating the evidence of Labour Inspectors,
PW-2 has clearly admitted the Inspection by PW-1. Hence therein left no room for
doubt regarding the Inspection. As regards the submission of defence counsel
that no independent neighbouring witnesses have been examined is concerned,
I am of the opinion that there is no any worth in this submission. Because no
TV neighbouring person having good relation likes to strain their relation with
J
the accused by entering into witness box and deposing against accused, after
|\
all they are commercial minded people. As such no independent eye
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
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witnesses can be expected in such cases. Sec.27 of the act does not insist any
independent eye witnesses. Sec.27(a) empowers the Inspector to enter into the witness
box at all reasonable times with assistance if any being persons in the service of State
Government as he deems fit in place which he has reason to believe is an establishment.
If this proviso is taken into consideration it is crystal clear that no independent eye
witness is necessary. However if the Inspector wants he can take the Assistance of
State Government. But in this case the complainant alone is inspecting the premises,
when PW-2 admitted the Inspection by PW-1 the complainant there needs no
corroboration or any official witness as a wimess to the Inspection. It is not mandatory
on the part of the complainant Inspector to take assistance of any other Government
servant at all times. But it is only an obligatory upon his part to taken the assistance
of any other Government servant if he feels necessary. As such in this case the
evidence of PW-1 is sufficient to believe inview of the support by PW-2, who is son
of accused. Thus I am of the opinion that there are hardly any reasons to discard the
evidence of PW-1 regarding age of child labour as he is below 14 years of age. This
aspect also strengthen as accused failed to discharge his burden cast by Rule.22 of
the Act. As such there is no hesitation for me to say that the complainant successfully
establishes the age of child labour as he was 13 years old on the date of Inspection.
Hence the point is answered in affirmative. Thus by answering the Points No.l & 2,
I am of the opinion that accused has committed the offences punishable U/s.24 of
the Act R/w.sec.30 of the Karnataka State Shops and Commercial Establishment
Act 1961. Thus the accused found guilty.
(Dictated to the stenographer, transcribed and typed by her, corrected and then
pronounced by me in open court on this the 29th day of Nov.2001)
(MARUTHI BAGADE)
M.N.Tr. c-III: Bangalore
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ORDERS REGARDING SENTENCE:
Sec. 30(3) of the Karnataka State Shops and Commercial Establishment Act 1961, prescribes
the minimum imprisonment of 3 months or minimum fine of Rs. 10,000/-. In my opinion
the imposing of fine will mete out the very purpose of the Act. Inview of the Bar laid down
U/s.29(2) of the Criminal Procedure Code 1963, this court cannot impose the fine more
than 5,000/- rupees. Sec.29(2) prescribes the maximum fine amount of Rs.5,000/- that can
be imposed by this court. But Sec.30 of the Act prescribed Rs. 10,000/- fine amount the
supreme court of India in a number of cases laid down that no JMFC or Metropolitan
Magistrate courts can impose fine exceeding rupees 5,000/-. In the absence of over riding
effect of sec.29(2) of Cr.P.C. in particular Act. The act in question contains no provision of
over riding section 29(2) of the Cr.P.C. Hence, I am of the opinion that this court cannot
impose a fine more than Rs.5,000/- at the same time it cannot impose a fine below Rs. 10,000/
- as sec.30 of the Act prescribed a minimum fine of Rs.5,000/-. In such circumstances, the
remedy left open for the court is to adopt the provision laid down under Sec.325(l) of
Cr.P.C. Sec.325(l) of clearly laid down that whenever a Magistrate is of opinion after hearing
the evidence for prosecution and accused, that the accused is guilty and that ought to receive
punishment of any different kind or more severe than that it when such Magistrate is
empowered to inflict. He may record the opinion and submit his proceedings and forward
the accused to the Chief Judicial Magistrate to whom he is subordinate. Thus it is crystal
clear that this court shall have to submit the proceedings to the Chief Metropolitan Magistrate
for the inflicting of fine amount laid down U/s.30 of the Act. In Bangalore City the functions
of Chief Judicial Magistrates are to be exercised by the Chief Metropolitan Magistrates.
Hence the Proceedings is to be submitted to the Chief Metropolitan Magistrate. As such I
pass the following:
ORDER
Submit the entire proceedings before the Hon’ble Chief Metropolitan Magistrate, Bangalore
City for necessary further actions in this behalf with a brief note.
Accused shall appear before the C.M.M. Bangalore City at 11 AM on 1.12.2001.
(MARUTHIBAGADE)
M.N.Tt.C-III, B’lore
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
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ANNEXURE
List of witnesses examined & Documents marked for Prosecution:
PW-1
PW-2
N. Chandrashekar.
Abhilash.
Ex.P-1
Ex.P-l.a.
Ex.P-2
Ex.P-2.a.
Ex.P-2.b.
Ex.P-2.c.
Ex.P-2.d.
Ex.P-3
Ex.P-3.a.
Ex.P-3.b.
Ex.P-4
Ex.P-4.a.
Ex.P-5
Ex.P-6
Ex.P-6.a.
Complaint
Sign
Annexure-I
Sign of child labour
Sign of PW-2
Sign of PW-1
Sign of Raju
Inspection report
Sign of PW-1
Sign of PW-2
Showcause Notice
Sign of PW-1
Postal Receipt
Permission of Asst. Labour Commissioner
Sign of Asst. L. Com.
No witnesses examined & No documents marked for Accused.
M.N.Tr.C-III: B’lore
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3.17.4 IN THE COURT OF ADDL. CIVIL JUDGE (JR.DN) & JMFC,
TIPTUR
Present
Sri. Chandrashekhar .U., B.Sc., LL.B.,
Addl. Civil Judge (Jr. Dn) & JMFC.
Date
This the 5th Day of March 2001.
C.C. No.411/2000
Complainant
State represented by Labour Inspector,
Tiptur Circle,
Tiptur.
(By A.P.P.)
Accused
Dhamodhara, Major,
Proprietor, Mahalingeshwara
Auto Works, B.H. Road,
Tiptur.
(By Sri. G. Nandakumar, Advocate)
JUDGMENT
The complainant being the Labour Inspector of Tiptur Circle, has filed this complaint
against the accused under section. 16 of the Child Labour (Prohibition & Regulation)
Act, 1986 r/w Section.200 of Cr.P.C., for the contravention of section.3 and 12 of
the Act and punishable under section. 14 of the said Act.
2.
The complainant has stated that he is the Labour Inspector of Tiptur Circle, Tiptur,
with effect from 10.06.1991 and appointed as "Inspector’ under Section. 17 of the
Child Labour (Prohibition and Regulation) Act, 1986 r/w Notification No.SWL 28
LPW 91, dated 03.08.91, for enforcement of the said Act and Karnataka Rules there
under. The complainant has further stated that the accused is the "Occupier’ within
the meaning of definition of Section.2(vi) of the said Act, having repair of automobiles
i.e., automobile engineering. The complainant has further stated that he along with
the Labour Officer, Tumkur and the Labour Inspector, Kungial, visited and inspected
the establishment of the accused on 03.03.2000 at 12.35 p.m., and found that two
child workers were working in the establishment and their particulars are recorded
in the Notes of Inspection-cum-show cause Notice dated 03.03.2000. He has
further stated that during inspection, the accused found to have violated the
/K. Section.3 of the Act by employing two child workers and Section. 12 by not
displaying notice containing the extract of the said Act. Accordingly, the
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complainant has prayed for the taking action against the accused in
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accordance with Law.
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3.
Since it was a complaint by the Public Servant, this court took cognizance of the
offence and issued process to the accused. In response to the summons the accused
appeared before the court and he was enlarged on bail. There afterwards, the
accusation was read over to him by explaining the contravention of provision of
Section.3 and 12 of the Child Labour (Prohibition & Regulation) Act, 1986, and
that it is punishable under Section. 14 of the said Act, for which he pleaded not guilty
and claimed to be tried. Accordingly, the prosecution proceeded to lead evidence
and after closure of the prosecution evidence, a statement as required under
Section.313 of Cr.P.C. was read over to the accused by explaining the incriminating
evidence found against him, for which he denied it as false and submitted no defence
evidence.
4.
In this case, after the inspection by the complainant, he prepared an Inspection Reportcum-Show cause notice in the spot itself, and obtained the signature of the child
labours and also other labours. A copy of the said notice was served on the owner
of the Establishment. The owner of the Establishment has not submitted any
explanation to the show cause notice. Accordingly, he filed this complaint before
the court.
5.
Inorder to bring home the guilt of the accused, the prosecution in all examined two
witnesses and got marked Ex.P.l and 2. The accused has not chosen to adduce
evidence on his behalf. Accordingly, arguments were heard. The points that arise for
my consideration are:
1.
2.
3.
4.
6.
\128i
Whether the prosecution proves that the complainant visited the establishment
of the accused on 03.03.2000, at 12.35 p.m., along with the witness No.2 and
3?
Whether the prosecution proves that during the inspection, the accused found
to have violated the section.3 of the Act of employing two child labours and
also section. 12 by not displaying the notice containing the extract of section.3
and 14 of the Act?
Whether the prosecution proves beyond reasonable doubts that the
employment of the child labours by the accused and contravention of the
Section.3 and 12 of the Act is an offence punishable under Section. 14 of the
Child Labour (Prohibition & Regulation) Act, 1986?
What Order?
My answer to the above points are in
1.
In the Affirmative.
2.
In the Affirmative.
3.
In the Affirmative.
As per final order for the following:
4.
It
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Reasons
7.
Point No.l to 3:
For the Sake of convenience, I would like to deal them together. Inorder to prove
this point, the prosecution mainly relies on the evidence of PWs.l and 2. Both of
them are official witnesses and performed their inspection, while discharging of the
official duty. It is the case of the prosecution that the accused being the Owner and
Occupier of the Mahalingeshwara Auto Works, B.H. Road, Tiptur, employed two
child labours in his establishment. The complainant has stated that on 03.03.2000, at
about 12.35 p.m., he along with witnesses No.2 and 3, inspected the establishment of
the accused and found that the accused has employed two child labours in
contravention of Section.3 and 12 of the Act. There afterwards, the complainant
prepared an Inspection Report as required under relevant provision of the Act and
Karnataka Rules thereunder. The complainant has been examined as PW1 and the
Labour Inspector, Tumkur District, has been examined as PW.2 before the Court.
The PW1 has categorically stated that on 03.03.2000, at 12.35 p.m., he along with
PW2 visited the establishment of the accused and found the violation of Section.3
and 12 of the Act. Immediately, he prepared an Inspection Report and obtained the
signature of the child labours on it. According to the prosecution, at the time of
visit, one Rasool S/o Babu and one Rafee S/o Ameer were present. Both are aged
about 12 years and working as Helpers in the said establishment. Both the child
labours have disclosed that they are working in the said establishment since sometime
as helpers. Accordingly, after the completion of the Inspection Report as required
under the relevant provision of Karnataka Rules, he served the copy of the same on
the person, who was present at the time of inspection. One Amzad S/o Khasim Sab
was present and he has signed to said Inspection Report. The Inspection report has
been marked as Ex.P.l and the complaint lodged before the Court has been marked
as Ex.P2. At this juncture, the learned counsel for the accused argued that in the
case, there is no corroboration by the evidence of independent mahazar witnesses or
eye witnesses. Infact, the complainant ought to have taken some of the independent
eye witnesses to the establishment of the accused and in their presence, conducted
the inspection. On the other hand, though there were persons present at the time of
inspection, he has not obtained their signatures to the Ex.P. 1. Inspection Report and
cite them are witnesses. The arguments canvassed by the learned counsel for the
accused may not hold good for the reasons that the PW1 and 2 are the Public servants
and they have discharged their duty as the Public Servants. As per Section. 114 of
the Indian Evidence Act, Court may presume that all the judicial and official acts are
regularly performed. The learned counsel for the accused cited a decision reported
in KCCR 19999(1) 448(D.B), wherein their Lordships have held in para No.7 that
“Section.4 of the Code of Criminal Procedure provides Trial of
offences under the Indian Penal Code and other laws:
yT).
(1) All offences under the Indian Penal Code (45 of 1860) shall be
p
investigated inquired into, tried, and otherwise dealt with according
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to the provisions here in afterward contained.
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(2) All offences under any other law shall be
investigated, inquired into tried, and otherwise dealt
with according to the same provisions, but subject
to any other laws for the time being in force
regulating section of place of investigating &
regulating into trying or otherwise dealing with such
offences.
All offences under any special statute otherwise
expressly provided are required to be investigated
inquired into, tried and otherwise dealt with
according to the procedure prescribed under the
Code of Criminal Procedure. The provisions of
the Section are plenary, which provide that if any
person accused of an offence created under a special
statute is decided to be prosecuted, the recourse,
to the Criminal Procedure Code and the procedure
prescribed there in shall be applicable unless
specifically excluded or otherwise provided.
Section.27 of the Act has not in any way taken away
or barred the jurisdiction of the ordinary Criminal
Courts”
8.
When we closely peruse the dictum of the above decision, it is very
clear that though the authorities are empowered to take action against
the accused, they have to follow the procedure contemplated under
Section.4 of the Cr.P.C., I do concede the gist of the case. I do not
know how the dictum of the above case is applicable to the present
case in hand. In this case, the complainant is empowered to inspect
any establishment and prepare the Inspection Report and if he finds
that the owner of the such establishment has violated or contravened
any of the provisions, he has to issue show cause notice calling upon
his explanation. After doing so, if the owner or occupier of the
establishment fails to give any explanation, then, the complainant is
empowered to initiated a proceeding before the court of law under
Section. 16 of the Act. The Section. 16 of the Act reads as
“Procedure relating to offences:1.
Any person, police officer or Inspector may
file a complaint of the commission of an offence
under this Act in any Court of competent
jurisdiction.
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2.
3.
I
Every certificate as to the age of child which has been granted
by a prescribed medical authority shall for the purposes of the
Act, be conclusive evidence as to the age of the child to whom it
relates.
No court inferior to that of a Metropolitan Magistrate of a
Magistrate of the first class shall try any offence under this Act.”
In this case, when the complainant found the accused contravened the section.3 and
12 of the Act, he filed a complaint before the court as per Section. 16 and 200 of
Cr.P.C.
The complainant has not taken a direct action against the accused for the violation
of the Section.3 and 12 of the Act, on the other hand, he has filed a complaint
before the Court and got issued the process to the accused and adduced evidence
on their behalf and shown to the court that the accused has violated the Section.3
and 12 of the Act. Therefore, the dictum of the above case is not applicable to the
present case as the complainant has followed the due procedure of law as
contemplated under Cr.P.C.
9.
The another grievance of the accused is that at the time of inspection and preparing
inspection report, he should have taken some independent witnesses. Without taking
the signature of independent witnesses and citing them as witnesses in this case, the
evidence of PWs.l and 2 cannot be relied on at all. At this juncture the learned
A.P.P. argued that PWs.l and 2 are official witnesses and the presumption is there
that all official acts are regularly performed. In support of her contention, she
cited a decision reported in FIR 1973, Supreme Court, page No.2723, wherein his
lordship has held in para No.2 that
“Concurrent findings of fact conclude the case against the petitioner so
far as his possession of unlicenced cartridges on the date and the time
and place given in the charge are concerned. The fact that the two
witnesses called from amongst the members of the public, namely,
Raghunathasingh (PW1) and gambhirsingh Tomer (PW2) has turned
hostile was considered by the High Court and the Courts below. They
had held that the two prosecution witnesses who had turned hostile could
not be relied upon. Their evidence could not destroy the prosecution
case or make it doubtful. The prosecution case is fully supported by
Mahadevsingh (PW5) and Umashankar (PW6) who are police officers.
The mere fact that they are police officers was not enough to discard
their evidence; no reason was shown for their hostility to the appellant”.
So, it is very clear from the above decision that though the witnesses are the
official witnesses, their evidence cannot be disbelieved just because, there is
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Practitioners on the Elimination of Child Labour
no corroboration by the independent mahazar witnesses. Under Section.27 and 161
of Cr.P.C., it is not necessary to take the signatures of the independent witnesses on
any report prepared by the officer under the Act. The corroboration is only the
Rules of Prudence and not the Rule of Law. At this juncture. I would recollect the
decision reported in 2000(1) Crimes 176, wherein their Lordships have held in para
No.17 that
“Recovery of the nicker is evidence by the seizure memo Ext.PW-10/
G. It was signed by PW.10 — Sharda besides its author PW.17
Investigating Officer. The Division Bench of the High Court declined
to place any weight on the said circumstance purely on the ground that
no other independent witness has signed the memo but, it was signed
only by “highly interested persons”. The observation of the Division
Bench in that regard is extracted below:
It need hardly be said that in order to lend assurance that the
investigation has been proceedings in fair and honest manner, it would
be necessary for the Investigating Officer to take independent witnesses
to the discovery under Section of the Indian Evidence Act; and without
taking independent wimesses and taking highly interested persons and
the police officers as the witnesses to the discovery would render the
discovery at least not free from doubt”.
Para No.18:
“In this context we may point out that there is no requirement either
under Section.27 of the Evidence Act or under Section. 161 of the Code
of Criminal procedure to obtain signature of independent witnesses
on the record in which statement of an accused is written. The legal
obligation to call independent and respectable inhabitants of the locality
to attend and witness the exercise made by police is cast on the police
officer when searches are made under Chapter-VII of the Code.
Section. 100(s) of the Code requires that such search shall be made in
their presence and a list of all things seized in the course of such search
and of the places in which they are respectively, found, shall be prepared
by such officer of other person” and signed by such witnesses”. It
must be remembered that search is made to find out a thing or document
which the searching officer has no prior idea where the thing or
documents is kept. He prowls either on reasonable suspicion or on
some guess work that it would possibly be ferreted out in such prowling.
It is a stark reality that during searches the team which conducts search
would have to meddle with lots of other articles and documents also
and in such process many such articles or documents are likely to be
displaced or even strewn helter-sketer. The legislative idea of
insisting that no such searches to be made in the absence of two
independent inhabitants of the locality is to ensure the safety of
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all such articles meddled with and to protect the rights of the persons
entided there to, but recovery of an object pursuant to the information
supplied by an accused in custody is different from the searching
endeavour envisaged in Chapter-VII of the Code. This Court has
indicated the difference between the two processes in the Transport
Commissioner, Andhra Pradesh, Hyderabad & Anr. V.S. Sardar Ali &
Ors. Following observations of Chinappa Reddy J, can be used to
support the said legsl proposition.
“Section. 100 of the Criminal Procedure Code to which reference was
made by the Counsel deals with searches and not seizures. In the very
nature of things when property is seized and not recovered during
search, it is not to comply with the provisions of Sub-section (4) and
(5) of Section. 100 of the Criminal Procedure Code. In the case of a
seizure (under the Motor Vehicles act), there is no provisions for
preparing a list of the things seized in the course of the seizure for the
obvious reasons that all those things are seized not separately but as
part of the vehicle itself”.
Para No.19:
Hence it is a fallacious impression that when recovery is effected
pursuant to any statement made by the accused the document prepared
by the Investigating officer contemporaneous with such recovery must
necessarily be attested by independent witnesses. Of course if any such
statement leads to recovery of any article is open to the Investigating
Officer to take the signature of any person present at that time on the
documents prepared in such recovery But if no witnesses were present
or if no person had agreed to affix his signature on the document, it is
difficult to lay down, as a proposition of law, that the documents
prepared by the police officer must be treated as tainted and the
recovery evidence unrealiable. The Court has to consider the evidence
of the Investigating Officer who deposed to the statement based on
the fact of recollected rom the accused on its own worth”.
So, it is very clear from the above decision that at the time of inspection of spot
mahazar, the presence of two respectable persons of the locality is not necessary.
Likewise, in this case, also there is no necessity of presence of any respectable persons
of the locality just to corroborate the inspection and report of the complainant.
This is an inspection as contemplated under Rule.9 of Child Labour (Prohibition
and Regulation) (Karnataka) Rules 1998. The presence of two respectable habitant
of the locality is necessary only in case of search conducted by the police official
under Section. 100 of Cr.P.C. Their Lordships have categorically held under
Section. 100 (4) of Cr.P.C., that the police officer has to conduct a search in the
by
presence of two respectable habitants of the locality. The purpose behind
I
the said provisions of the Act is very clearly been stated by their Lordships
a
in the above decision. Therefore, the arguments of the accused that the
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
S' I 1
complainant has not cited any independent witnesses etc., holds no water at all. In
this case, the accused has not suggested to PWs.l and 2 regarding the motive behind
the filing of the complaint against him. There is no denial on the part of the accused
that the complainant has no authority to inspect his establishment and that he is not
the owner of the said establishment. Of course, the accused has put a definite
suggestion that he has not employed any child labours in his establishment as stated
by the complainant. But, the said suggestion itself is not sufficient to disbelieve the
evidence of the PWs.l and 2, they have categorically stated regarding their inspection
and also regarding the employment of the child labour by the accused and
contravention of the relevant provision. When we peruse the cross examination part
of PWs.l and 2, the accused has not suggested that he is not the owner of the
establishment and that the persons, who were present at the time of inspection were
not at all labourers. A duty cast on the owner or occupier of the establishment that
he has to display the age certificate of his labours as required under Rule.4 of the
Child Labour (Prohibition & Regulation) (Karnataka) Rules 1998. The Rules.4 reads
as
“Certificate of Age:”
1.
Every adolescent in employment in any of the occupations specified
in part “A” of the schedule or in any workshop, wherein any of the
processes specified in part “B” of the schedule is carried on, shall
produce a certificate of age from the “Medical Authority” whenever
required to do so by an Inspector.
2.
Every employer shall also maintain similar certificate of age in
respect of all young persons in employment in any other occupation
or work shop or establishment where a child is allowed to work and
where his or her conditions of work is regulated as per Part-Ill of
the Act and shall be produced whenever required by the Inspector.
3.
4.
5.
Explanation :
So, it is duty of the employer to display the medical certificate as to the age of the
every young person employed in the establishment. The processes stated in PartB of the schedule disclose that automobile repairs and maintenance including
processes incidental there to namely, welding, lathe work, dent bending, and
painting comes within the perview of establishment stated under tire part-B
of the schedule. In this case also, the establishment owned by the accused
carrying on the business of automobile requires etc., and maintenance.
ILO-IPEC - Karnataka Child Labour Project
10.
So, the arguments canvassed by the learned counsel for the accused that the evidence
of PWs.l and 2 cannot believed is the strange one for the reason stated in the above
said paras. The accused has not suggested any ill will or motive in filing the complaint
against him. Since the complaint has been filed by the public servant, we have to
presume that the every act performed by them were regularly performed. The
another argument of the learned counsel for the accused is that the child labours
have not been cited as witnesses and examined before the court. I am of the view
that the evidence of child labours is not necessary, as, even if they are examined
before the court, nothing affects the credibility of the evidence of PWsl and 2. So,
in this case, the prosecution has established that the PW1 and 2 inspected the
establishment of the accused on 3.3.2000, at 12.35 p.m., and found that the accused
has violated the Section.3 and 12 of the Act and that they prepared inspection report
at Ex.P.l. When the prosecution establishes that the accused has violated the
provision of Section.3 and 12 of the Act, certainly, I have to hold that the accused
has committed an offence punishable under Section. 14 of the Act and the prosecution
has proved the guilt of the accused beyond reasonable doubts. However, this is the
Social Welfare Legislation, has been brought, keeping in mind, about the welfare of
the child, who are made to suffer in a process or establishment without proper
education, health, care and caution. Under the circumstances, I answer point No.l
to 3 in the Affirmative.
11.
Point No.4:
For the reasons stated in the aforesaid paras, and discussion made by me, I proceed
to pass the following
Order
By acting under Section.255 (2) of Cr.P.C., the accused is convicted and sentenced
to undergo simple imprisonment for six months for the offence punishable under
Section -14 (1) of the Child Labour (Prohibition and Regulation) Act 1986 and one
month for the offence punishable under Section. 14 (3)(c) of the above said Act.
Both the sentences shall run concurrently.
The Bail bond executed by the accused and surety bond executed by his surety
stand cancelled.
(Judgment dictated by me to the stenographer transcribed and typed by her,
corrected, signed and then pronounced by me in the open court on 5.3.2001)
Sd/(Chandrashekar U.)
Addl. Civil Judge (Jr. Dn.) &JMFC.,
Tiptur.
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Practitioners on the Elimination of Child Labour
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Appendix
LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION:
PW1
Rajagopal.
PW2
Mohammed Yasoof.
2.
LIST OF EXHIBITS MARKED ON BEHALF OF PROSECUTION:
Ex.Pl
Inspection Report.
Ex.P.2
Complaint dtd:31.3.2000
3.
LIST OF WITNESSES EXAMINED AND EXHIBITS MARKED ON
BEHALF OF DEFENCE NIL
Sd/(Chandrashekar U.)
Addl. Civil Judge (Jr. Dn.) &JMFC.,
Tiptur.
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Brief history of Child Labour cases acquitted and the grounds
thereof in the jurisdiction of Senior Labour Inspector, IVth
Circle, Bangalore.
SI.
No.
1.
2.
3.
Name
and Under Sec. before C.C.No.
Grounds on which
address of the MMTC
I
acquitted
accused person Mayohall,
Bangalore________
Sri. Ravichandra Sec.24 of K.S. & C.C.No. 18242/ Line of argument was
Reddy,
M/s. C.E.
Act. 2000 (No. of that the accused person
Amruth
Sagar (Inspection dt.12-5- hearings 18)
was not the employer of
Hotel, 2000 by team filed
Veg.
the establishment and
No.20, Thippa on 17-06-1000.
the person who was
Mudaliar Road, Master
Manje
present at the time of
Shivajinagar,
Gowda)
inspection
Sri.
Bangalore — 560 13 years
Sadashiva gave wrong
051.
information that the
accused
was
the
employer.
Acquitted
under 255 (1) of Cr.P.C.
on 13-12-2000._______
Sri. Mohiuddin Before MMTC — I, C.C.No. 18243/ Acquitted on 26-11Kutty,
Mayo
Hall, 2000
No. 2001 under Sec.255(1)
Employer, Arifa Bangalore-1. Sec.24 hearings : 15
of Cr.P.C.
Hotel No.3(68 & of K.S.&.C.E. Act
Grounds:
69) New Market inspection
26-51)
Want
of
Road,
2000 by team filed
Medical Certificate.
Shivajinagar,
on 27-6-2000 (Child
2)
Want
of
Bangalore.
Manikantan — 13
Independent
years)
Witnesses.
Sri.
Nayeem, MMTC -1
C.C.No.21597/ Acquitted on
same
Employer, M/s. Inspection date : 29- 2000
grounds.
New Taj Auto 1 -2000 by team.
No. of hearings
Centre, No. 149, (Master Arif — 11 : 27
H.K.P.
Road, years)
Shivajinagar,
Bangalore.
137
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Practitioners on the Elimination of Child Labour
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3.18 Determination of Age of the Child
In any child labour related enforcement and cases the age of the child is very critical to
substantiate the fact that it (offence) constitutes child labour. In India for most of the
laws the prescribed age for work is only after 14 years of birth. Children below the age
of 14 years have been prohibited to do any hazardous work in occupations and processes
listed in the schedule of the Child Labour (Prohibition and Regulation) Act 1986. In the
Karnataka Shop and Commercial Establishment Act also children below 14 years of age
are prohibited from working in the shops and commercial establishments in the notified
areas. Please see the relevant chapter, where various statutes define child labour.
In all cases of enforcement the team should pay special attention to ascertain the age of
the child workers. The NGO representative in the team must befriend the child and build
a rapport with him. The representative must explain to the child about his rescue and
rehabilitation and should put in extra efforts to ascertain from the child his actual age. In
the course of discussion with the child he should try to ascertain if the child had earlier
studied in any school and find out the exact address of the school if possible. He should
also try to find out if the child was issued an age certificate from the revenue office in the
village (or a Municipal Office in the Urban Area). If the child had an age certificate or if
he had gone earlier to any school and the said school and the village of the child is nearby,
one of the team members should be sent there to obtain the birth certificate of the child
either from the school or the revenue office (Municipal Office). The birth certificate is the
most reliable document to establish the age of the child. In case the school or the child’s
village is far away or in some other state, appropriate correspondence may be made
through the Deputy Commissioner (or Labour Officer) with the School Teacher, Village
Accountant, Municipal Officer, or the Collector of that District to obtain such a certificate.
When the birth certificate is not available from any source, then as per the Child Labour
(P&R) Act 1986 assistance of an authorized doctor may be obtained to ascertain the
child’s age. The authorized government doctors of Health Department or ESI have been
instructed by their respective department heads to grant such certificates expeditiously
on priority basis. In the cases when proper cooperation of the doctor is not forth coming,
each case should be brought to the notice of the Deputy Commissioner, who in turn may
direct such a doctor to give the necessary certificate or refer the case to the Government
to take appropriate action against the doctor.
The doctor ascertains the age based on examining the various growth parameters
of the child based on a physical examination. Sometimes he may have to do
an X-ray or other clinical tests to ascertain these. In all such cases if some
expenditure has to be borne initially, the same can be provided by the
NCLP or the Hospital Development Fund or any other fund at the
disposal of the DC or CEO, ZP. But the same can be recovered later
Me
138
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from the employer as per the law. The doctor’s certificate sometimes gives only a certain
level of probable age. In such cases if there is a doubt as to whether the child is below 14
years or not, the said certificate should not be relied as a proof of age. In such cases actual
age certificate is essential from the school record or the records of the village Registrar of
Births and Deaths (or a Municipal authority as the case may be).
In the Child Labour (Prohibition and Regulation) Act, 1986 Section 10 states, ‘Dispute as
to age — If any question arises between an inspector and the occupier as to the age of any
child who is employed or is permitted to work by him in an establishment, the question
shall, in the absence of a certificate as to the age of such child granted by the prescribed
medical authority, be referred by the Inspector for decision to the prescribed medical
authority.
The employer under section 11 is bound to maintain a register of working children wherein
he should clearly indicate the age of the child. Failure to do so also attracts nominal penalty.
The Child Labour (P&R) Karnataka Rules, 1997 Section 4 gives in detail the procedure
regarding the ‘Certificate of Age’.
1.
Every adolescent in employment in any of the occupations specified in part “A” of
the Schedule or in any workshop, wherein any of the processes specified in part “B”
of the Schedule is carried on, shall produce a certificate of age from the “Medical
Authority” whenever required to do so by an Inspector.
2.
Every employer shall also maintain similar certificate of age in respect of all young
persons in employment in any other occupation or workshop or establishment where
a child is allowed to work and where his or her conditions of work is regulated as
per Part-Ill of the Act and shall be produced whenever required by the Inspector.
3.
The certificate of age referred to in sub-rule (1) shall be, in Form-B.
4.
The charges payable to the Medical Authority for the issue of certificate of age
under sub-rule (1) shall be the same as specified by the State Government for the
Medical Boards, in this behalf.
5.
The charges payable to a Medical Authority shall be borne by the employer of the
young persons whose age is under question.
Explanation: For the purpose of this rule, “Medical Authority” means a
Government Medical Officer not below the rank of an Assistant Surgeon of
a District Hospital or a Medical Officer of equivalent rank employed in any
other Government Hospital or Employees’ State Insurance Hospitals or
Dispensaries.
/-
J
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Practitioners on the Elimination of Child Labour
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Form B
(Certificate of Age)
[See Rule 17(2)]
Certificate No
I hereby certify that I have personally examined (name)
Son/Daughter of
residing at
and that he/she has complete
and his/her age, as nearly as can be ascertained from any examination, is
years (completed).
His/her descriptive marks are
Thumb impression/signature of child
Place
Date
Medical Authority
Designation
Hence it is clear that ultimately for obtaining a Child’s Age from a medical practitioner, the
cost can be recovered from the employer. But to expedite the case it is essential that initially
the cost may be paid from the NCLP.
In case of Karnataka Shops & Commercial Establishment Rules, 1963, Section 22 prescribe:
Ascertainment of age by the Inspector: An Inspector may require an employer to produce a
certificate of age from a registered medical practitioner in respect of any employee such
certificate shall be in form ‘J’.
Form J
[See R^/e 22]
Form of Certificate
I hereby certify that I have personally examined (name)
son/daughter of
Residing at
and that he/she has completed his/her
twelfth/seventeenth year.
Description marks are
Thumb impression or signature
Practitioner
Medical
But in all such cases for the purpose of effective and reliable prosecution the
Inspector must first try to collect and use age certificate from the school or the
registrar of births and deaths (in urban area Municipal Authorities and Rural
areas the Village Accountant). As a last resort in cases where these are not
available Doctor’s Certificate may be used.
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3.19 Understanding and Communicating with the
Vulnerable Child
Communication is a two way process, it includes:
•
An effort to understand the thoughts and feelings of others.
•
Reciprocating/responding in a way that is helpful to the recipient.
The above process indicates that to communicate well, one needs to have:
•
Listening and observation skills.
•
Skills to express your own idea and feeling in a way that it is clearly understood by the
target audience.
When face someone who is under stress, who is upset, and is looking for support to overcome
the hard situation, especially children in difficult circumstances, we have to carefully plan as
to how we can communicate and respond in the best possible way.
This chapter deals briefly as to how an adult, teacher or social worker should communicate
with children in need and how to encourage such children to communicate and express their
own feelings and predicament.
3.19.1 Communication and Children
At the Residential Bridge Centre, the age group of children varies from 8yrs plus to
14 yrs, coming from various socio-cultural and economic backgrounds. The RBC will
have children of both the genders and also from various religious and caste groups.
The life of the child is mostly centered around the family and the community. The
physical, emotional and mental development of a child depends upon the attention
and care s/he receives from the immediate family and the community. The development
of language, ability to express his/her thoughts, views, and feelings depend largely
upon the support and interaction with their parents, siblings, neighbours and
community members.
In majority of the communities, the children soon build a network of relationships
with individuals of both the genders of varied ages. Apart from interacting and
talking with the immediate family, they also communicate with the varied members
of the society.
3.19.2
The Value of Communication
Communicating with others forms the basis for relationships. Communication
can be through verbal, written or nonverbal expressions. Sharing enables to
overcome many difficulties. Some of the important aspects of communication
are:
0
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
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Moral support and someone to confide in
There are thousands of children who are in difficult circumstances who need moral
and physical support. Children who are on the streets, who are working, children
from broken families etc., need the support and advice of an adult to overcome the
situation. An adult who is interacting with such children needs to build the confidence
level of the child who is in distress. Many children are subjected to sexual, mental and
physical abuse; torture and exploitation. These children need someone in whom they
can confide so that their pain and anguish can be reduced to a certain extent.
The social worker/adult can enable the child to share his/her feelings through drawings,
story telling, games, performing arts, group interaction, or one to one discussion.
The social worker/adult can share their own experiences to enable children to speak
without any fear and inhibition.
Positive appreciation
Coming to terms with trauma and trying to overcome those traumatic experiences, is
most important for the child. The persons working with such children need to keep in
mind the following points to enable the children to overcome the traumatic experiences.
•
Distance or separate them from the painful feelings;
•
Give a different viewpoint on what has happened to them, and show numerous
case studies showing that others have also faced similar problems;
•
Along with the child and with a group of children try to resolve the child’s
current problems;
•
Promote positive thinking and positive appreciation;
•
Many of the traumatic experiences of children can be resolved through group
work and with the support of children who had similar experiences. Moreover,
many a time the interaction within their own group helps children to overcome
the negative experiences very quickly and this process also helps in building a
positive bond of friendship within the group.
3.19.3 The importance of different kinds of Communication
Children express themselves through play, drawings, modeling, music, singing, talking,
crying, being in solitude, dancing and writing. Talking helps them to regain confidence,
and also helps them in dealing with difficulties. Children in difficult circumstances
need opportunities to live a normal life.
It is very important for the persons working with children to be aware of the following
guidelines, in order to help children to communicate effectively and enable them to
overcome their difficulties:
>
It is essential to have eye contact and observe the facial expressions of
the child
Should pay attention to what the other person is trying to express
Be a good listener
Be aware of non-verbal communication
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Try to communicate in the language the other person is speaking and use
local colloquial language if possible
Always ensure that dialogue with the children will enable the child to ask
questions. Never have close ended questions as they will not serve any
purpose
Ensure that the young person with whom you are speaking has understood
you
Getting to know each other
Every child that comes to an Education Bridge Center or any institutional set-up
comes with experiences that are unpleasant. Employed and exploited, from broken
families with painful existence, mired in destitution and delinquency, the child who
enters an institutional set-up, for a short or long term, does not like the system and
most of the time there is anger and loneliness. Hence, it is important to know the
children and their needs well. For this there is a need to have some guidelines, which
will help the teachers or social workers. They are:
•
There should be no hurry to collect details about the child
•
Relationship should be built slowly with trust and understanding the child
should have confidence in the functionaries. It would be possible only by
showing warmth and interest in the child
•
Focus should be to respond to the feelings, rather than only facts
•
Be creative and use imagination to understand what the child has been through
and what his/her feelings are
•
While communicating with the child ask direct questions rather than distorted
questions. Ease the environment by sharing stories, jokes, and ensure the
dialogue is lively and participative
It is also important to know the feelings of the children and their states of mind.
Most of them have undergone harsh or stressful experiences. When they communicate
their experiences they usually use a different medium to do so, such as talking, showing
good or bad behaviour, attitude towards self and others. The teachers, social workers
or others need to be very observant to notice their actions, expressions, and use of
key words that help to reveal the child’s inner feelings that s/he wants to share.
3.19.4 Hindrance in Communication
A child having a happy childhood is able to express his/her feelings uninhibitedly
and through various means. It is important to consider the following points that
hinder the process of sharing thoughts among children who have had painful
<
experiences:
/fv
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Lack of trust by the child and lack of encouragement and negative
attitude of the adult who is handling the child.
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It can be impaired by other feelings, such as distrust, sadness, guilt or anger.
During the first or second meeting the child may not tell the truth. Try to
understand, why this might be and accept it as a way of expressing certain
feelings. Give space for the child to build trust and confidence in the teacher
or social worker.
One of the best ways to improve the skills of communication with the children is to
seek the support of your colleagues and request them to observe you while you are
with the children and ask them to suggest ways to improve your interaction and
communication with the children.
3.19.5 Specific and Realistic Advice
Providing support and advice includes physical comfort and acceptance of feelings.
The teacher or social worker needs to accept that feelings of revenge and anger are
common, which arises from suffering, humiliation and guilt. Encourage constructive
expression of these feelings.
At the same time, assurance should be helpful and realistic, because the assurance
and advice interferes with the child’s attempts to cope. Hence, when giving advice,
keep in mind the following:
■
Take sufficient time to understand the problem of the disturbed child
■
Possible solutions should be worked together or in a group, which reinforces
the child to have trust on more number of persons and the advice should be
specific, practical and realistic
■
The social worker or teacher should be positive and build confidence in the
child and explain the steps to be taken in the future
3.19.6 Talking with the physically challenged children
The physically challenged children have the same needs as other children including
the feelings of inferiority and pain. The need of the physically challenged children
are love and an opportunity to express themselves; they too seek education and
would like take responsibility for self.
It is necessary to integrate them with the mainstream, for which certain hurdles have
to be overcome and many traits encouraged:
Discrimination and isolation;
Building their self-esteem, valuing their various abilities;
Creating opportunities for expression and access to available resources
equally.
3.19.7 Working with Groups
In counselling, different methods are adopted to enable the child to
overcome trauma, group work is one of them. Most of the time the
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child is in the company of friends, where the feelings are shared and they are able to
find solutions to their problems on their own.
Group work should enable the child to:
■
Share his or her feelings and ideas;
■
Develop mutual bonding to provide moral support to each other;
■
Accept differences in people;
■
Taking responsibility for each other and for the behaviour of the group.
Group work increases trust in others and confidence in self. The adults have an
important facilitating role to play in ensuring that the group members do not slide
back into a negative loop.
3.19.8 Talking with Family
Family is an important primary unit of society; which nurtures and cares for the child’s
overall development. The child’s well-being is largely dependent on the family. There
can be no alternative to a family. All other arrangements are only temporary.
It becomes difficult for parents to care for children when normal life has been disrupted
by man-made conflicts or natural disasters; social vices, political conflict or adverse
economic situations. Tension makes adults irritable, impatient, angry and guilty, due
to which they are unable to hold the family together and its consequences for the
child is disastrous.
Communicating with parents or other family members is equally challenging and
requires similar skills as those for talking with children. Maturity is essential to
understand the situation of the family and relationships within the family.
Some of the points to understand the family of the children are:
■
Families have varying beliefs, priorities and ways of doing things. To share
any facts or feelings will take a longer period if the worker is not warm and
courteous.
■
Often families prefer to talk with someone from the same community whom
they can trust; alternatively, they prefer an outsider (who can be trusted) as
this seems more private and criticism about not conforming to the community
norms can also be avoided. This outsider can be a teacher or a social worker.
The dialogue with the family can vary depending upon the situation, it is vital
for the social worker or a teacher to be aware of various pressures that the family
may be undergoing. In our context socio-economic situations forces many
parents to send the children to work and conduct their early marriage.
Interaction and dialogue needs to be centered on the family, its health, work,
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Practitioners on the Elimination of Child Labour
¥
relationship, conflict with the neighbours, education of the children, and other socio
economic aspects.
For interacting with the family and to gain the confidence of the family, the social
worker or teachers need to have good communication skills, be well behaved; acquire
good counseling skills and should be a role model. The person should also be firm
while dealing with the problems of the family and children in distress.
3.19.9 Organizing support for yourself and your staff
While working with children or in the field, the motivation level does not remain
constant due to factors such as emotional status, physical well being, family situations,
work environment and the situation of the people with whom you work. Most
often, being engrossed in our work, we are unable to think about self and neither
are we aware as to what kind of support we need to handle our work environment.
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0
Most often we become physically and emotionally burnt out or lose interest in our
work and become less effective. As we are emotionally burnt out, a series of physical
complaints and illness become common and we keep off from work.
In order to overcome stress and emotional burn out, one needs to learn to relax
and enjoy the work. The work should not be carried out due to compulsion, which
will only create unnecessary problems for the children with whom we are working.
What can be done to be more effective in our work with children?
Our state of mind
Each one of us should know that an individual cannot do everything or resolve all
problems. We should find other people with whom we can share some of the
responsibility. Though it is essential that there is continuity in the care of the children,
we should create avenues for the children to approach other colleagues also.
Skill development and Relaxation
Even though we know the work is incomplete, our own need is very important for
being effective. Monotonous work will only harm our quahty of output. Hence,
there is a need for a person to relax or take a short break to do personal work, and
go on exposure visits to some other work areas with family. This will renew
commitment and energy levels to overcome lethargy and monotonous work routine.
The situation of children and the problems faced by them are unique and peculiar
and to handle them one needs to upgrade knowledge and skills regularly.
Attending training is also a form of relaxation and along with that it enhances
the person’s resolve to be more effective. Hence, inputs should be
continuous.
o
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Monitoring and feed back: Regular Staff Meeting
Monitoring meetings help in avoiding tension in the workplace and in the team.
Stress and tension at workplace is another reason for burn out. Staff meetings give
persons the space to address problems with self and within the team. More
importandy, everybody is aware of the work progress and there is continuity even if
any staff leaves the team. It provides emotional support.
Feedback from the team members, from children and from the community has to
be a regular process. The feed back becomes vital for continuation or change in
course if necessary with the various stakeholders. Feedback acts as a check and
balance to make us effective in our work with the children and their families.
3.19.10 Spokesperson - Conclusion
The importance of caring and showing interest in children’s wellbeing cannot be
emphasized enough. Children need a sympathetic adult to listen to them. If we
remember our childhood, we will feel thankful that there were many adults (parents,
elder brother or sister, uncle and aunts, neighbours), who helped us by listening and
by giving helpful advice. However, there are large numbers of children who are in
difficult circumstances, on the streets, in the institutions, and need a person who
could be their advocate, friend, philosopher and guide, a “spokesperson” for moral
support and to protect their interests, who can counsel them to deal with memories
of any traumatic experiences, and who can guide them to regain their self confidence
and childhood joyousness.
It is very important to remember that:
■
Continuous updating of skills and knowledge will increase the effectiveness
of work with children and their families.
■
Remember that the children do have positive strengths and good qualities.
■
Be positive in your attitude and reinforce their positive aspects.
■
Value their viewpoints and suggestions; do not assume you know everything
about the children.
■
Show warmth, interest and create trust in the child.
For a child in difficult circumstances, the presence of a good and caring adult can
build confidence, self-esteem and a sense of worth, to face the world with hope
for a dignified life.
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
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3.20 The Child Labour (Prohibition and
Regulation) Act, 1986 and Rules
THE CHILD LABOUR (PROHIBITION AND REGUALTION) ACT,
1986 AND RULES
(Act No. 61 of 1986)
[23rd December, 1986]
Be it enacted by Parliament in the Thirty-seventh Year of the Republic of India as follows:
Comments
Social and beneficial legislation — Social legislation is designed to protect the interest of a
class of society who, because of their economic conditions, deserves such protection. With a
view to pass the test of reasonable classification there must exist intelligible differentia between
persons or thing grouped together from those who have been left out and there must by a
reasonable nexus with the object to be achieved by the legislation.
The Court must strive to so interpret the statute as to protect and advance the object and
purpose of enactment. Any narrow or technical interpretation of the provisions would defeat
the legislative policy. The Court must, therefore, keep the legislative policy in mind in applying
the provisions of the Act to the facts of the case.
1.
PARTI
Preliminary
Short title, extent and commencement — (1) This Act may be called the Child
Labour (Prohibition and Regulation) Act, 1986.
It extends to the whole of India.
(2)
The provisions of this Act, other then Part III, shall come into force at once,
(3)
and Part III shall come into force on such date as the Central Government
may, by notification in the official Gazette, appoint, and different dates may
be appointed for different States and for different classes of establishments.
Comment
May and shall — Where the Legislature uses two words “may” and “shall” in two
different parts of the same provision, prima facie it would appear that the Legislature
manifested its intension to make one part directory and another mandatory. But that
by itself is not decisive. The power of the Court still to ascertain the real intension of
the Legislature by carefully examining the scope of statute to find out whether the
provision is directory or mandatory remains unimpaired even where both the
words are used in the same provision.
In interpreting the provisions the exercise undertaken by the Court is to
make explicit the intention of the Legislative which enacted the legislation.
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It is not for the Court to reframe the legislation for the very good reason that the
powers to “legislate” have not been conferred on the Court.
In order to sustain the presumption of constitutionality of a legislative measure, the
Court can take into consideration matters of common knowledge, matters of common
report, the history of the times and also assume every state of facts which can be
conceived existing at the time of the legislation.
2.
Definitions — In this Act, unless the context otherwise requires,
(n)
(m)
H
(v)
(vi)
(vii)
(viii)
(ix)
(*)
c Appropriate Government” means, in relation to an establishment under the
control of the Central Government or a railway administration or a major
port or a mine or oilfield, the Central Government, and in all other cases, the
State Government;
“Child” means a person who has not completed his fourteenth year of age;
“Day” means a period of twenty-four hours beginning at midnight;
“Establishment” includes a shop, commercial establishment, work-shop, farm,
residential hotel, restaurant, eating-house, theatre or other place of public
amusement or entertainment;
“Family” in relation to an occupier, means the individual, the wife or husband,
as the case may be, of such individual, and their children, brother or sister of
such individual;
“Occupier”, in relation to an establishment or a workshop, means the person
who has the ultimate control over the affairs of the establishment or workshop;
“Port authority” means any authority administering a port;
“Prescribed” means prescribed by rules made under Sec. 18;
“Week” means a period of seven days beginning at midnight on Saturday
night or such other night as may be approved in writing for a particular area
by the Inspector;
“Workshop” means any premises (including the precincts thereof) wherein
any industrial process in carried on, but does not include any premises to
which the provisions of Sec. 67 of the Factories Act, 1948 (63 of 1948), for
the time being, apply.
Comments
This section defines the various words and expressions occurring in the Act.
Interpretation of section — The Court can merely interpret the section; it cannot
re-write, re-cast or re-design the section.
Ambiguous expression — Courts must find out the literal meaning of the
m
expression in the task of construction. In doing so if the expressions are
ambiguous, then the construction that fulfils the objects of the legislation
must provide the key to the meaning. Courts must not make mockery of
s
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Practitioners on the Elimination of Child Labour
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legislation and should take a constructive approach to fulfill the purpose and for that
purpose, if necessary, iron out the creases.
PART II
Prohibition of Employment of Children in certain
Occupations and Processes
3.
Prohibition of employment of children in certain occupations and processes
— No child shall be employed or permitted to work in any of the occupations set
forth in Part A of the Schedule or in any workshop wherein any of the processes set
forth in Part B of the Schedule is carried on :
Provided that nothing in this section shall apply to any workshop wherein any process
is carried on by the occupier with the aid of his family or to any school established
by or receiving assistance or recognition from, Government.
Comment
This section imposes prohibition on employment of children in the occupation and
processes specified in the Schedule.
Proviso — A proviso is intended to limit the enacted provision so as to except
something which would have otherwise been within it or in some measure to modify
the enacting clause. Sometimes proviso may be embedded in the main provision
and becomes an integral part of it so as to amount to a substantive provision itself.
4.
Power to amend the Schedule - The Central Government, after giving by
notification in the official Gazette, not less than three months’ notice of its intention
so to do, may, by like notification, add any occupation or process to the Schedule
and thereupon the Schedule shall be deemed to have been amended accordingly.
Comment
This section empowers the Central Government to amend the Schedule so as to include
therein any occupation or process considered necessary.
Construction of a section — it is en elementary rule that construction of a section is to be
made of all parts together. It is not permissible to omit any part of it. For, the principle
that the statute must be read as a whole is equally applicable to different part of the same
section.
5.
Child Labour Technical Advisory Committee — (1) The Central
Government may, by notification is in official Gazette, constitute an advisory
committee to be called the Child Labour Technical Advisory Committee
(hereinafter in this section referred to as the Committee) to advise the
■
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Central Government for the purpose of addition of occupations and processes to
the Schedule.
(2)
(3)
(4)
(5)
The Committee shall consist of a Chairman and such other members not
exceeding ten, as may be appointed by the Central Government.
The Committee shall meet as often as it may consider necessary and shall
have power to regulate its own procedure.
The Committee may, if it deems it necessary so to do, constitute one or more
sub-committees and may appoint to any such sub-committee, whether
generally or for the consideration of any particular matter, any person who is
not a member of the Committee.
The term of office of, the manner of filling causal vacancies in the office of,
and the allowances, if any, payable to, the Chairman and other members of
the Committee, and the conditions and restrictions subject to which the
Committee may appoint any person who is not a member of the Committee
as a member of any of its sub-committees shall be such as may be prescribed.
Comment
This section empowers the Central Government to constitute the Child Labour Technical
Advisory Committee for giving advice in the matter of inclusion of any occupation and
process in the Schedule.
PART III
Regulation of Conditions of Work of Children
6.
Application of Part — The provisions of this Part shall apply to an establishment or
a class of establishments in which none of the occupations or processes referred to
in Sec. 3 is carried on.
Comment
This section lays down that provisions of this Part shall apply to an establishment in
which none of the prohibited occupations or processes is carried on.
7.
Hours and period of work - (1) No child shall be required or permitted to work in
any establishment in excess of such number of hours as may be prescribed for such
establishment or class of establishments.
(2)
The period of work on each day shall be so fixed that no period shall exceed
three hours and that no child shall work for more than three hours before he
has had an interval for rest for at least one hour.
(3)
The period of work of a child shall be so arranged that inclusive of
his interval for rest, under sub-section(2), it shall not be spread over more
than six hours, including the time spent in waiting for work on any day.
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Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
(3)
(4)
(5)
No child shall be permitted or required to work between 7 p.m. and 8 a.m.
No child shall be permitted or required to work overtime.
No child shall be permitted or required to work in any establishment on any
day on which he has already been working in another establishment.
Comment
This section prescribes working hours for a child labour.
Provision if mandatory or directory—The surest test for determination as to whether the
provisions is mandatory or directory is to see as to whether the sanction is provided therein.
8.
Weekly holidays — Every child employed in an establishment shall be allowed in
each week, a holiday or one whole day, which day shall be specified by the occupier
in a notice permanently exhibited in a conspicuous place in the establishment and the
day so specified shall not be altered by the occupier more than once in three months.
Comment
This section lays down that a weekly holiday should be allowed to every child labour.
9.
Notice to Inspector — (1) Every occupier in relation to an establishment in which a
child was employed or permitted to work immediately before the date of
commencement of this Act in relation to such establishment shall, within a period of
thirty days from such commencement, send to the Inspector within whose local limits
the establishment is situated, a written notice containing the following particulars,
namely:
The name and situation of the establishment;
(a)
The name of the person in actual management of the establishment;
(b)
The address to which communications relating to the establishment
should be sent; and,
The nature of the occupation or process carried on in the
(d)
establishment.
(0
(2)
Every occupier, in relation to an establishment, who employs, or permits to
work, any child after the date of commencement of this Act in relation to
such establishment, shall, within a period of thirty days from the date of such
employment, send to the Inspector within whose local limits the establishment
is situated, a written notice containing the following particulars as are
mentioned in sub-section (1).
'Explanation — For the purposes of sub-sections (1) and (2), “date of
commencement of this Act, in relation to an establishment” means the date
of brining into force of this Act in relation to such establishment.
0
(3)
Nothing in Secs. 7,Band 9 shall apply to any establishment wherein any process
is carried on by the occupier with the aid of his family or to any schools
established by, or receiving assistance or recognition from, Government.
Comment
This section makes provision for furnishing of information regarding employment of a
child labour to Inspector.
Explanation —It is now well settled that an explanation added to a statutory provision is not
a substantive provision in any sense of the term but as the plain meaning of the word itself
shows it is merely meant to explain or clarify certain ambiguities which may have crept in the
statutory provision.
10.
Disputes as to age — If any question arises between an Inspector and an occupier as
to the age of any child who is employed or is permitted to work by him in an
establishment, the question shall, in the absence of a certificate as to the age of such
child granted by the prescribed authority be referred by the Inspector for decision
to the prescribed medical authority.
Comment
This section makes provision for setdement of disputes as to age of any child labour.
11.
Maintenance of register— There shall be maintained by every occupier in respect
of children employed or permitted to work in any establishment, a register to be
available for inspection by an Inspector at all times during working hours or when
work is being carried on in any such establishment showing —
The name and date of birth of every child so employed or permitted to
work;
Hours and periods of work of any such child and the intervals of rest to
(b)
which he is entitled;
The nature of work of any such child; and
(c)
Such other particulars as may be prescribed
(d)
Comment
This section makes provision for maintenance of register in respect of child labour.
12.
Display of notice containing abstract of Secs. 3 and 14 - Every railway
administration, every port authority and every occupier shall cause to be displayed
y in a conspicuous and accessible place at every station on its railway or within the
'h
limits of a port or at the place of work, as the case may be, a notice in the local
language and in the English language containing an abstract of Secs. 3 and 14.
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Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
Comment
This section makes provision for display of notice in a conspicuous place at every railway
station or port or place of work regarding prohibition of employment of child labour,
penalties, etc., in the local languages and in the English language.
13.
Health and safety — (1) The appropriate Government may, by notification in the
official Gazette, make rules for the health and safety of the children employed or
permitted to work in any establishment or class of establishments.
(2)
Without prejudice to the generality of the foregoing provisions, the said
rules may provide for all or any of the following matters, namely:
Cleanliness in the place of work and its freedom for nuisance;
(a)
Disposal of wastes and effluents;
(b)
Ventilation and temperature;
(0
Dust and fume;
(d)
Artificial humidification;
(e)
Lighting;
(f)
Drinking water;
(g)
Latrine and urinals;
(h)
Spittoons;
(i)
Fencing of machinery;
Work at or near machinery in motion;
(k)
Employment of children on dangerous machines;
(l)
(m)
Instructions, training and supervision in relation to employment of
children on dangerous machines;
Device for cutting off power;
(n)
Self-acting machinery;
(o)
Easing of new machinery;
(P)
Floor, stairs and means of access;
(q)
Pits, sumps, openings in floors, etc.;
(r)
Excessive weight;
(s)
Protection of eyes;
(t)
Explosive or inflammable dust, gas, etc.;
(u)
Precautions in case of fire;
(v)
Maintenance of buildings; and
(w)
(X)
Safety of buildings and machinery.
Comments
This section lays down that the Government is required to make rules for the
health and safety of the child labour.
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PART IV
Miscellaneous
14.
Penalties — (1) Whoever employs any child or permits any child to work in
contravention of the provisions of Sec. 3 shall be punishable with imprisonment for
a term which shall not be less than three months but which may extend to one year or
with fine which shall not be less than ten thousand rupees but which may extend to
twenty thousand rupees or with both.
(2)
Whoever, having been convicted of an offence under Sec. 3, commits a like
offence afterwards, he shall be punishable with imprisonment for a term which
shall not be less than six months but which may extend to two years.
Whoever —
Fails to give notice as required by Sec. 9, or
(a)
Fails to maintain a register as required by Sec. 11 or makes any false
(b)
entry in any such register; or
(c)
Fails to display a notice containing an abstract of Sec. 3 and this section
as required by Sec. 12; or
Fails to comply with or contravenes any other provisions of this Act
(d)
or the rules made thereunder;
shall be punishable with simple imprisonment which may extend to one month or
with fine which may extend to ten thousand rupees or with both
(3)
Comments
This section makes provision for penalty for contravention of the provisions of the Act.
Penalty - Mens tea — Essential — Penalty proceedings are quasi criminal proceedings,
Before penalty can be imposed it has to be ensured that means rea has been established.
Penal provision — Object of—The law in its wisdom seeks to punish the guilty who commits
the sin, and not his son, who is innocent.
15.
Modified application of certain laws in relation to penalties - (1) Where any
person is found guilty and convicted of contravention of any of the provisions
mentioned in sub-section(2), he shall be liable to penalties as provided in sub-sections
(1) and (2) of Sec. 14 of this Act and not under the Acts in which those provisions
.
are contained.
The provisions referred to in sub-section (1) are the provisions
(2)
mentioned below:
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Practitioners on the Elimination of Child Labour
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(a)
(b)
(c)
(d)
Section 67 of the Factories Act, 1948 (63 of 1948);
Section 40 of the Mines Act, 1952 (35 of 1952);
Section 109 of the Merchant Shipping Act, 1958 (44 of 1958); and
Section 21 of the Motor Transport Workers Act, 1961 (27 of 1961).
Comment
This section makes provision of penalties under the Act even when any person is found
guilty and convicted of contravention of any of the provisions of Sec. 67 of the Factories
Act, 1948, Sec. 40 of the Mines Act, 1952, Section 109 of the Merchant Shipping Act,
1958 and Sec. 21 of the Motor Transport Workers Act, 1961.
16.
Procedure relating to offences — (1) Any person, police officer or Inspector may
file a complaint of the commission of an offence under this Act in any Court of
competent jurisdiction.
(2)
Every certificate as to the age of a child which has been granted by a
prescribed medical authority shall, for the purposes of this Act, be conclusive
evidence as to the age of the child to whom it relates.
(3)
No court inferior to that of a Metropolitan Magistrate or a Magistrate of
the first class shall try any offence under this Act.
Comment
This section lays down that any person, police officer or Inspector can make a complaint
regarding commission of offences. It also lays down the procedure for disposal of such a
complaint.
Court Duty of — The Court should meticulously consider all facts and circumstances of
the case. The Court is not bound to grant specific performance merely because it is lawful
to do so. The motive behind the litigation should also enter into the judicial verdict. The
Court should take care to see that it is used as an instrument of oppression to have an
unfair advantage to plaintiff.
17.
Appointment of Inspectors - The appropriate Government may appoint
inspectors for the purposes of securing compliance with the provisions of this Act
and any inspector so appointed shall be deemed to be a public servant within the
meaning of the Indian Penal Code (45 Of 1860).
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Comment
This section empowers the appropriate Government to appoint inspectors for securing
compliance of the provisions of the Act. Such Inspector is deemed to be a public servant
with in the meaning f the Indian Penal Code (45 of 1860).
Public servant — Every public officer is a trustee and in respect of the office he holds and
the salary and other benefits which he draws, he is obliged to render appropriate service to
the State. If an officer does not behave as required of him under the law he is certainly liable
to be punished in accordance with law.
18.
Power to make rules - (1) The appropriate Government may, by notification in the
official Gazette and subject to the condition of previous publication, make rules for
carrying into effect the provisions of this Act.
(2)
(a)
(b)
(c)
(d)
In particular and without prejudice to the generality of the foregoing power,
such rules may provide for all or any of the following matters, namely:
The term of the office of, the manner of filling casual vacancies of, and the
allowances payable to, the Chairman and members of the Child Labour
Technical Advisory Committee and the conditions and restrictions subject to
which a non-member may be appointed to a sub-committee under sub-section
(5) of Sec.5;
Number of hours for which a child may be required or permitted to work
under sub-section (1) of Sec. 7;
Grant to certificates of age in respect of young persons in employment or
seeking employment, the medical authorities which may issue such certificate,
the form of such certificate, the charges which may be made there under and
the manner in which such certificate may be issued;
Provided that no charge shall be made for the issue of any such certificate of
the application is accompanied by evidence of age deemed satisfactory by
the authority concerned;
The other particulars which a register maintained under Sec. 11 should contain.
Comment
This section empowers the appropriate Government to make rule for carrying out the
provisions of the Act.
Rules for effectuating the purpose of the Act - The general power of farming rules for
effectuating the purposes of the Act, would plainly authorize and sanctify the
framing of such a rule.
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
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19.
Sb;
Rules and notifications to be laid before Parliament or State legislature (1)
Every rules made under this Act by the Central Government and every
notification issued under Sec. 4, shall be laid, as soon as may be after it is
made or issued, before each House of Parliament, while it is in session for a
total period of thirty days which may be comprised in one session or in two
or more successive sessions, and if, before the expiry of the session
immediately following the session or the successive session aforesaid, both
Houses agree in making any modification in the rule or notification or both
Houses agree that the rule or notification should not be made or issued, the
rule or notification shall thereafter have effect only in such modified form
or be of no effect, as the case may be; so, however, that any such modification
or annulment shall be without prejudice to the validity of anything previously
done under that rule or notification.
(2)
Every rule made by a State Government under this Act shall be laid as soon
as may be after it is made, before the Legislature of that State.
Comment
Under this section the rules and notifications are to be laid before Parliament of State
Legislature for approval.
20.
Certain other provisions of law not barred — Subject to the provisions contained
in Sec. 15, the provisions of this Act and the rules made there under shall be in
addition to, and not in derogation of, the provisions of the Factories Act, 1948 (63
of 1948), the Plantations Labour Act, 1951 (69 of 1951) and the Mines Act, 1952
(35 of 1952).
Comment
This section lays down that the provision of this Act shall be in addition to and not in
derogation of, the provisions of the Factories Act, 1948, the Plantations Labour Act,
1951 and the Mines Act, 1952.
21.
Power to remove difficulties — (1) If any difficulty arises in giving effect of the
provisions of this Act, the Central Government may, by order published in the
official Gazette, make such provisions not inconsistent with the provisions of this
Act as appear to it to be necessary or expedient for removal of the difficulty:
Provided that no such order shall be made after the expiry of a period of three
years from the date on which this Act receives the assent of the President.
Every order made under this section shall, as soon as may be after it
(2)
is made, before the Houses of Parliament.
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Comment
Under the provisions of this section the Central Government is empowered to remove
difficulties which arise in giving effect to the provisions of this Act.
22.
Repeal and savings - (1) The Employment of Children Act, 1938 (26 of 1938) is
hereby repealed.
(2)
Notwithstanding such repeal, anything done or any action taken or purported
to have been done or taken under the Act so repealed shall, in so far as it is
not inconsistent with the provisions of this Act, be deemed to have been
done or taken under the corresponding provisions of this Act.
Comment
The Employment of Children Act, 1938 (26 of 1938) has been repealed by this section.
Implied repeal — It is well settled that when a competent authority makes a new law which
is totally inconsistent with the earlier law and that the two cannot stand together any longer
it must be construed that the earlier law had been repealed by necessary implication by the
latter law
23.
Amendment of Act 11 of 1948 — In Sec. 2 of the Minimum Wages Act, 1948 —
(i)
for Cl. (a), the following clauses shall be substituted, namely:
“(a)
'Adolescent’ means a persons who has completed his fourteenth year
of age but has not completed his eighteenth year;
(aa)
Adult’ means a person who has completed his eighteenth year
of age;”:
after Cl.(b), the following clause shall be inserted, namely :
(ii)
“(bb) 'Child’ means a person who had not completed his fourteenth
year of age;”.
Comment
Under this section Sec. 2 of the Minimum Wages Act, 1948 has been amended so as to
define the terms “adolescent”, “adult” and “child”.
24.
Amendment of Act 69 of 1951 — In the Plantations Labour Act, 1951
in Sec.2 in Cis.(a) and (c), for the word “fifteenth”, the word “fourteenth” shall
(a)
be substituted;
Sec. 24 shall be omitted;
(b)
(c) in Sec. 26, in the opening portion, the words “who has completed his twelfth
year” shall be omitted.
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
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Comment
Under this section, sec. 2 of the Plantations Labour Act, 1951, has been amended so far as
it relates to the employment of child labour
25.
Amendment of Act 44 of 1958 — In the Merchant Shipping Act, 1958, in Sec. 109,
for the word “fifteen”, the word “fourteen” shall be substituted.
Comment
Under this section Sec. 109 of the Merchant Shipping Act, 1958, has been amended so far as
it relates to the employment of child labour.
26.
Amendment of Act 27 of 1961 — In the Motor Transport Workers Act, 1961 in
Sec.2, in Cis.(a), and (c), for the word “fifteenth”, the word “fourteenth” shall be
substituted.
Comment
Under this section, Sec.2 of the Motor Transport Workers Act, 1961, has been amended so
far as it relates to the employment of child labour.
THE CHILD LABOUR (PROHIBITION AND REGULATION) RULES, 1988
G.S.R. 847(E), dated 10th August, 1988 - In exercise of the powers conferred by sub
section (1) of Sec. 18 of the said Act, the Central Government, hereby makes the following
rules, namely:
Comment
Rule-making power — The general power of framing rules for effectuating the purposes
of the Act, would plainly authorize and sanctify the framing of such a rule.
1.
Short title and commencement — (1) These rules may be called the Child Labour
(Prohibition and Regulation) Rules, 1988.
(2)
They shall come into force on the date of their publication in the official
Gazette.
Comment
These rules have been farmed by the Central Government in the exercise of the powers
conferred by Sec. 18 (1) of the Child Labour (Prohibition and Regulation) Rules,
1986.
Rules — Whether validly farmed — The question whether rules are validly
framed to carry out the purposes of the Act can be determined on the
analysis of the provisions of the Act.
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2.
Definitions - In these rules, unless the context otherwise requires -
(a)
(b)
(c)
(d)
(e)
(f)
(g)
“Act” means the Child Labour (Prohibition and Regulation) Rules, 1986 (61
Of 1986);
“Committee” means the Child Labour Technical Advisory Committee
constituted under sub-section (1) of Sec. 5 of the Act;
“Chairman” means the Chairman of the Committee appointed under sub
section (2) of Sec. 5 of the Act;
“Form” means a Form appended to these rules;
“Register” means the register required to be maintained under Sec. 11 of the
Act;
“Schedule” means the schedule appended to the Act;
“Section” means a section of the Act.
Comments
This rule defines the various expressions occurring in the Rules.
Interpretation by a court - The Court can merely interpret the section; it cannot re-write,
re-cast or re-design the section.
Otherwise — What amounts to — The words “otherwise” is not to be construed ejusdem
generic with the word “circulars, advertisement”.
3.
Term of office of the members of the Committee - (1) The term of office of
the members of the Committee shall be one year from the date on which their
appointment is notified in the official Gazette;
Provided that the Central Government may extend the term of office of the member
of the Committee for a maximum period of two years;
Provided further that the member shall, notwithstanding the expiration of his term,
continue to hold office until his successor enters upon his office.
(2)
The members appointed under sub-rule (1) shall be eligible for re
appointment.
Comment
“Shall” cannot be interpreted as “May”
Proviso — In AbdulJabar Butt v. State of Jammu and Kashmir, it was held that a
proviso must be considered with relation to the principal matter to which it
stands as a proviso.
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4.
cAO
Secretary to the Committee - The Central Government may appoint an officer
not below the rank of an Under-Secretary to the Government of India as Secretary
of the Committee.
Comment
This rule empowers the Central Government to appoint an officer not below the rank of
an Under-Secretary to the Government of India as the Secretary to the Child Labour
Technical Advisory Committee.
5.
Allowances to non-official members — The non-official members and Chairman
of the Committee shall be paid such fees and allowances as may be admissible to
the officers of the Central Government drawing a pay of rupees four thousand and
five hundred or above.
6.
Resignation — (I) A member may resign his office by writing under his hand
addressed to the Chairman.
The Chairman may resign his office by writing under his hand
(2)
addressed to the Central Government.
(3)
7.
The resignation referred to in sub-rule (1) and sub-rule (2) shall take
effect from the date of its acceptance or on the expiry of thirty days
from the date of receipt of such resignation, whichever is earlier, by
the Chairman or the Central Government, as the case may be.
Removal of Chairman or member of the Committee — The Central
Government may remove the Chairman or any member of the Committee at any
time before the expiry of the term of office after giving him a reasonable
opportunity of showing cause against the proposed removal.
Comment
This rule lays down procedure for removal of Chairman or member of the Committee by
the Central Government.
8.
Cessation of membership — if a member —
(a)
Is absent without leave of the Chairman for three or more consecutive
meetings of the Committee; or
Is declared to be of unsound mind by a competent court; or
(b)
Is or has been convicted of any offence which, in the opinion of the
(c)
Central Government, involves moral turpitude; or
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ILO-IPEC - Karnataka Child Labour Project
(d)
Is, or at any time, has been adjudicated insolvent or has suspended his debts
or has compounded with his creditors, shall cease to be a member of the
Committee.
Comment
This rule deals with the matter relating to cessation of membership.
9.
Filling up of casual vacancies - in case a member resigns his office under rule 6 or
ceases to be a member under rule 8, the casual vacancy thus caused shall be filled up
by the Central Government and the member so appointed shall hold office for the
unexpired portion of the term of his predecessor.
Comment
This rule empower the Central Government to fill up casual vacancies and it lays down that
the member so appointed shall hold office for the unexpired portion of the term of his
predecessor.
10.
Time and place of meetings - The Committee shall meet at such times and places
as the Chairman may fix in this behalf.
11.
Notice of meetings — The Secretary to the Committee shall give at least seven days
notice to every member of the Committee of the time and place fixed for each
meeting along with the list of business to be transacted at the said meeting.
12.
Presiding at meetings — The Chairman shall preside at every meeting of the
Committee at which he is present; if, however, the Chairman is unable to attend a
meeting, any member elected by the members present among themselves shall preside
at the meeting.
Comment
“Shall” - It is well-known principle that in the interpretation of statutes that where the
situation and the context warrants it, the word “shall” used in a section or rule of a statute
has to be construed as “may”.
13.
Quorum - No business shall be transacted at a meeting of the Committee
unless atleast three members of the Committee other than the Chairman and
the Secretary are present:
Provided that at any meeting in which less than three of the total members
are present, the Chairman may adjourn the meeting to a date as he deems fit
and inform the members present and notify other members that the business
of the scheduled meeting shall be disposed of at the adjourned meeting
irrespective of the quorum and it shall be lawful to dispose of the business
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at such adjourned meeting irrespective of the member of members attending
the meeting.
Comment
Scope of proviso — The scope of a proviso is well settled. In Ra^n
Commissioner of Sales Tax, it was held :
Sons Lid. K Asstt.
“It is a cardinal rule of interpretation that a proviso to a particular provision of statute only
embraces the field which is covered by the main provision. It carves out an exception to the
main provision to which it has been enacted as a proviso and to no other.”
14.
Decision by majority - All questions considered at a meeting of the Committee
shall be decided by a majority of votes of the members present and voting and in the
event of equality of votes, the Chairman, or in the absence of Chairman, the member
presiding at the meeting, as the case may be, shall have a second or casting cote.
Comment
This rule lays down that the matters considered by the Committee in its meeting should be
decided by a majority vote of the members present. The rule further lays down that the
Chairman or in his absence the member presiding at the meeting shall have a casting vote.
15.
Sub-Committees - The Committee may constitute one or more Sub-Committees,
whether consisting only of members of the Committee or partly of members of the
Committee and pardy of other persons as it thinks fit, for such purposes, as it may
decide and any Sub-Committee so constituted shall discharge such functions as may
be delegated to it by the Committee.
16.
Register to be maintained under Sec. 11 of the Act. — (1) Every occupier of an
establishment shall maintain a register in respect of children employed or permitted
to work, in Form A.
(2)
The register shall be maintained on a yearly basis but shall be retained by the
employer for a period of three years after the date of the last entry made
therein.
Comment
Under this rule every occupier of an establishment is required to maintain an yearly register
showing the children employed or permitted to work and to retain such registers
for a period of three years.
17.
Certificate of age. - (1) All young persons in employment in any of
the occupations set-forth in Part A of the Schedule or in any workshop
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wherein any of the processes set forth in Part B of the Schedule is carried on, shall
produce a certificate of age from the appropriate medical authority, whenever
required to do so by an Inspector.
(2)
The certificate of age referred to in sub-rule (1) shall be issued in Form ‘B’.
(3)
The charges payable to the medical authority for the issue of such certificate
shall be the same as prescribed by the State Government or the Central
Government, as the case may be for their respective Medical Boards.
(4)
The charges payable to the medical authority shall be borne by the employer
of the young person whose age is under question.
"Explanation - For the purposes of sub-rule (1), the appropriate “Medical authority”
shall be Government medical doctor not below the rank of an Assistant Surgeon of
a District or a regular doctor or equivalent rank employed in Employees’ State
Insurance dispensaries of hospitals.
Comment
~Explanation - It is not well setded that an explanation added to a statutory provision
is not a substantive provision in any sense of the term but as the plain meaning of
the word itself shows it is merely meant to explain and clarify certain ambiguities
which may have crept in the statutory provision.
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FORM A
[See Rule 16(1)]
Year
Name and Address of employer
Place of work
Nature of work being done by the establishment
Name of
Child
SI.
No.
2
1
Nature of
Work on
which em
ployed
7
Father’s
Name
Date of
Birth
3
4
Permanent
Address
Date of
joining the
establishment
5
6
Daily hours
of work
Intervals
of rest
Wage
paid
Remarks
8
9
10
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ILO-IPEC - Karnataka Child Labour Project
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FORM B
(Certificate of Age)
[See Rule 17 (2)]
Certificate No
I
hereby
(name
certify
that
I
have
personally
examined
)
Son/daughter
of
residing
at
and that he/she has completed his/her
fourteenth year and his/her age, as nearly as can be ascertained from my examination
is
years (Completed).
His/Her
Are
descriptive
marks
Thumb-impression/signature of child
Place
Date.
Medical Authority
Designation
Supplement
The Child Labour (Prohibition and Regulation) Act, 1986
S.0.333(E), dated 26th may, 1933 — in exercise of the powers conferred by
sub-section(3) of Sec. 1 of the Child Labour (Prohibition and Regulation) Act,
1986 (61 of 1986), the Central Government hereby appoints the 26th day of
May, 1993 as the date of which the provisions of Part III of the said Act shall
come into force in respect of all classes of establishments, throughout the
territory of India, in which none of the occupations and processes referred
to in Sec. 3 of the said Act is carried on.
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Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
(See Sec. 3)
PART A
Occupations
Any occupation concerned with: -
Transport of passengers, goods or mails by railways;
Cinder picking, clearing of an ash pit or building operation in the railway
premises;
Work in a catering establishment at a railway station, involving the
(3)
movement of a vendor or any other employee of the establishment from
the one platform to another or in to or out of a moving train;
Work relating to the construction of a railway station or with any other
(4)
work where such work is done in close proximity to or between the railway
lines;
A port authority within the limits of any port;
(5)
* (6) Work relating to selling of crackers and fireworks in shops with temporary
licenses;
# (7) Abattoirs/Slaughter House;
$ (8) Automobile workshops and garages;
Foundries;
(9)
(10) Handling of toxic or inflammable substances or explosives;
(11) Handloom and power loom industry;
(12) Mines (underground and underwater) and collieries;
(13) Plastic units and fiberglass workshops;
(1)
(2)
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PART B
Processes
Beedi-making.
Carpet-weaving.
Cement manufacture, including bagging of cement.
Cloth printing, dyeing and weaving.
Manufacture of matches, explosives and fire-works.
Mica-cutting and splitting.
(6)
Shellac manufacture.
(7)
Soap manufacture.
(8)
Tanning.
(9)
Wool-cleaning.
(10)
Building and construction industry.
(11)
* (12)
Manufacture of slate pencils (including packing).
* (13)
Manufacture of products from agate.
* (14) Manufacturing processes using toxic metals and substances such as
lead, mercury, manganese, chromium, cadmium, benzene, pesticides
and asbestos.
#(15) “Hazardous processes” as defined in Sec. 2 (cb) and ‘dangerous
operation’ as notice in rules made under section 87 of the Factories
Act, 1948 (63 of 1948)
# (16) Printing as defined in Section 2(k) (iv) of the Factories Act, 1948 (63
of 1948)
# (17) Cashew and cashewnut descaling and processing.
# (18) Soldering processes in electronic industries.
$(19) Aggarbatti’manufacturing.
(20) Automobile repairs and maintenance including processes incidental
thereto namely, welding, lathe work, dent beating and painting.
Brick kilns and Roof tiles units.
(21)
Cotton ginning and processing and production of hosiery goods.
(22)
Detergent manufacturing.
(23)
Fabrication
workshops (ferrous and non ferrous)
(24)
Gem cutting and polishing.
(25)
(26) Handling of chromite and manganese ores.
(27) Jute textile manufacture and coir making.
(28) Lime Kilns and Manufacture of Lime.
(29) Lock Making.
(30) Manufacturing processes having exposure to lead such as primary
and secondary smelting, welding and cutting of lead-painted metal
constructions, welding of galvanized orzinc silicate, polyvinyl chloride,
mixing (by hand) of crystal glass mass, sanding or scraping of lead
(1)
(2)
(3)
(4)
(5)
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paint, burning of lead in enameling workshops, lead mining,
plumbing, cable making, wiring patenting, lead casting, type founding
in printing shops. Store type setting, assembkng of cars, shot making
and lead glass blowing.
(31) Manufacture of cement pipes, cement products and other related
work.
(32) Manufacture of glass, glass ware including bangles, florescent tubes,
bulbs and other similar glass products.
(33) Manufacture of dyes and dye stuff.
(34) Manufacturing or handling of pesticides and insecticides.
(35) Manufacturing or processing and handling of corrosive and toxic
substances, metal cleaning and photo engraving and soldering
processes in electronic industry.
(36) Manufacturing of burning coal and coal briquettes.
(37) Manufacturing of sports goods involving exposure to synthetic
materials, chemicals and leather.
(38) Moulding and processing of fiberglass and plastic.
(39) Oil expelling and refinery.
(40) Paper making.
(41) Potteries and ceramic industry.
(42) Polishing, moulding, cutting, welding and manufacturing of brass
goods in all forms.
(43) Processes in agriculture where tractors, threshing and harvesting
machines are used and chaff cutting.
(44) Saw mill — all processes.
(45) Sericulture processing.
(46) Skinning, dyeing and processes for manufacturing of leather and
leather products.
(47) Stone breaking and stone crushing.
(48) Tobacco processing including manufacturing of tobacco, tobacco
paste and handling of tobacco in any form.
(49) Tyre making, repairing, re-treading and graphite benefication.
(50) Utensils making, polishing and metal buffing.
(51) ‘Zari’ making (all processes)’.
@ (52) Electroplating;
(53) Graphite powdering and incidental processing;
(54)
Grinding or glazing of metals;
(55) Diamond cutting and polishing;
(56)
Extraction of slate from mines;
(57)
Rag picking and scavenging.
ILO-IPEC - Karnataka Child Labour Project
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a.
b.
c.
*
#
$
For item (2), the following item shall be substituted,
namely:- “(2) Carpet weaving including preparatory and
incidental process thereof”;
For item(4), the following item shall be substituted, namely:“(4) Cloth printing, dyeing and weaving including processes
preparatory and incidental thereto”:
For item (11) the following shall be substituted, namely:“(11) Building and Construction Industry including
processing and polishing of granite stones”.
Ins. by Notification No. S. O. 404(E) dated the 5th June
1989 published in the Gazette of India, Extraordinary.
Ins. by Notification No. S. O. 263 (E) dated 29th March,
1994 published in the Gazette of India, Extraordinary.
Ins. Sr. No. 8-13 in Part A and Sr. No. 19-51 in Part B by
Notification No. S. O. 36 (E) dated 27th January 1999
published in the Gazette of India, Extraordinary.
@ Ins.Sr. No. 52 - 57 part B by Notification No. S.O. 397 (E) dated the 10th
May 2001 published in the Gazette of India, Extraordinary.
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3.21 The Child Labour (Prohibition and Regulation)
(Karnataka) Rules, 1997
Notification
Whereas, the draft of the Child Labour (Prohibition and Regulation) (Karnataka) Rules,
1997, was published as required by sub-section (1) of Section. 18 of the Child Labour
(Regulation and Prohibition) Act, 1986 (Central Act 61 of 1986) in Notification No.LD
30 LBW 96, dated 14th October, 1997, in Part IV, Section 2C(1) of the Karnataka Gazette
(Extraordinary) dated 5th May, 1998 inviting objections and suggestions from all persons
likely to be affected thereby within thirty days from the date of its publication in the
Official Gazette.
Whereas, the said Gazette was made available to the public on 5,h May, 1998:
And whereas, no objections and suggestions have been received by the State Government
in respect of the said draft rules;
Now, therefore in exercise of the powers conferred by Section 13 and Section 18 of the
Child Labour (Prohibition and Regulation) Act, 1986 (Central Act 61 of 1986) the
Government of Karnataka hereby makes the following rules, namely:Title and commencement:
1.
These rules may be called the Child Labour (Prohibition and
(1)
Regulation) (Karnataka) Rules, 1998.
They shall come into force on the date of their publication in the Official
(2)
Gazette.
Definitions: In these rules, unless the context otherwise requires 2.
“Act” means the Child Labour (Prohibition and Regulation) Act, 1986
(a)
3.
172
(Central Act 61 of 1986);
“Form” means a form appended to these rules;
(b)
“Register” means a register required to be maintained under Section 11.
(c)
“Schedule” means the Schedule under Section 3 of the Act;
(d)
(e)
“Section” means a Section of the Act.
Register to be maintained under Section 11 of the Act Every occupier of an establishment shall maintain a register in Form-A
(1)
in respect of children employed or permitted to work.
The register shall be maintained on a yearly basis, but shall be retained by
(2)
the employer for a period of ten years after the date of the last entry
made therein.
4. Certificate of Age —
(1)
Every adolescent in employment in any of the occupations
specified in part£ A” of the Schedule or in any workshop, wherein any of
the processes specified in part “B” of the Schedule is carried on, shall
produce a certificate of age from the “Medical Authority” whenever
required to do so by an Inspector.
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ILO-IPEC - Karnataka Child Labour Project
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(2)
(3)
(4)
(5)
1
0
Every employer shall also maintain similar certificate of age in respect of all
young persons in employment in any other occupation or workshop or
establishment where a child is allowed to work and where his or her conditions
of work is regulated as per Part-Ill of the Act and shall be produced
whenever required by the Inspector.
The certificate of age referred to in sub-rule (1) shall be in Form-B.
The charges payable to the Medical Authority for the issue of certificate of
age under sub-rule (1) shall be the same as specified by the State Government
for the Medical Boards, in this behalf.
The charges payable to a Medical Authority shall be borne by the employer
of the young persons whose age is under question.
Explanation - For the purpose of this rule, “Medical Authority” means a
Government Medical Officer not below the rank of an Assistant Surgeon of a
District Hospital or a Medical Officer of equivalent rank employed in any other
Government Hospital or Employees’ State Insurance Hospitals or Dispensaries.
5.
Hours and work of a child - No child shall be required or allowed to work in an
establishment for more than twenty hours in any week and for more than five hours
in a day.
6.
Health and Safety of the children in the establishment (a)
No child shall be required or permitted to work in any of the vicinity of
toxic or hazardous substance or in premises where the occupations and
processes listed in Part A or B of the Schedule is carried out.
No child shall be required or permitted to work in conditions which expose
(b)
him or her to intense heat.
Every child employed in an establishment shall be provided with adequate
(C)
protective clothing, headgear, mask, gloves and spectacles as the nature of
work may require.
Every establishment which requires or permits children to remain in the
(d)
premises during non-working hours shall be provided with adequate rest
room facilities to such children.
Every room, building or place where as a child is required to work shall be
(e)
provided with proper ventilation and lighting.
Every establishment employing children shall have properly equipped first
(0
aid box.
Every establishment employing children shall provide latrine and urinal
(g)
accommodation;
(1)
Which shall be accessible to the children at all times while they are in
the premises;
Which shall be adequately lighted and ventilated;
(ii)
(iii) Which shall not be a place communicating with any work room except
through an intervening open space or ventilated open passage;
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K a it a
(iv)
(h)
(j)
(k)
(1)
(m)
(n)
(o)
Which shall be maintained in a clean and sanitary condition at all
times;
The employer in any establishment employing children shall ensure that
every child employed is;
Properly immunized and vaccinated;
© Subject to medical checkup periodically atleast once in a year and a
medical fitness certificate in Form-C obtained.
In every establishment, all the inside walls of the rooms and all the ceilings
or tops of such rooms whether such walls ceiling or tops be plastered or
not and all the passage and staircases shall be lime washed atleast once in a
each year dating from the period when last lime washed. All beams,
roatters, doors, window frames and other wood work, with the exception
on floors shall be either lime washed or colour washed atleast once a year
dating from the period when last lime washed; or colour washed or shall
be painted or varnished once in seven years dating from the period when
last painted or varnished and shall be kept in a clean state.
No rubbish, filth or debris shall be allowed to accumulate or to remain on
any premises in an establishment for more than twelve hours and shall be
disposed of in such manner as approved by the Inspector.
The compound surrounding of every establishment shall be maintained in
a clean and sanitary condition.
The latrines, passages, stairs, hoists, establishment grounds, in so far as the
entrance of the said places is not closed, shall, during working hours, be
provided with such lighting as well ensure safety of movement of passage
through them.
Every building of an establishment containing more than one storey, shall
be provided with at least two sets of star stairs or steps permanently fixed
either inside or outside the building, so as to afford direct and unimpeded
access from every part of the building to the ground level. Such stairs shall
be provided with a suitable and sufficient handrail or other convenient
support In an establishment employing less than forty persons, the Inspector
may accept in lieu of a second set of stairs or steps such other means of
escapes in case of fire as can reasonably be required in the circumstances
of each case.
Every window or door giving access to an external stair case shall be so
arranged as to open immediately from inside.
No persons shall smoke or use a naked light or cause or permit any such
lights to be used, in the immediate vicinity of any inflammable material in
any establishment.
(p)
In every establishment effective arrangement shall be made to
provide drinking water at suitable points conveniently situated so as to
give access for all children employed therein.
' n y®
ILO-IPEC - Karnataka Child Labour Project
# I MS?
7.
Work on or near machinery in motion —
(1)
No child shall be allowed in any establishment to clean, lubricate or adjust
any part of the machinery while that part is in motion or to work between
moving parts or between fixed and moving parts of any machinery which
is in motion.
(2)
No child shall work on any machine declared to be dangerous unless he
has been fully instructed as to the dangerous arising in connection with
the machine and the precautions to be observed and has received sufficient
training in work at the machine or is under adequate supervision under a
person who was through knowledge and experience of the machine.
8.
Prohibition of employment of child near cotton openers - No child shall be
employed in any part of a factory for pressing cotton in which a cotton opener is
at work.
9.
Duties of Inspectors — The Inspector shall make such enquiry as appear to him
to be necessary for the purpose of satisfying himself that the provisions of the
Act and rule and any order passed by the Government under the Act, are compiled
with.
In particular he shall satisfy himself;
That the registers, records and notice required to be maintained or
©
displayed under the Act or rules are properly maintained or displayed by
the concerned;
That the intervals of rest and holidays required to be granted or observed
©
under the Act are granted and observed and the limits of hours of work
and spread over laid down under the Act are not exceeded;
(iii)
That the provisions or these rules relating to cleanliness, sanitation, lighting
and precaution against fire are properly observed;
10.
Repeal and savings - The Child Welfare (Prohibition and Regulation)
(Karnataka) Rules, 1995 are hereby repealed;
Provided that such repeal shall not be affect The previous operations of the said rules or anything duly done or suffered
(a)
thereunder; or
Any right, privilege, liability or obligation acquired occurred or incurred
(b)
under the said rules; or
Any penalty forfeiture or punishment incurred in respect of any offence
(c)
committed against the said rules; or
(d) Any investigation legal proceedings or remedy in respect of such right,
privilege, obligation, liability, forfeiture or punishment as aforesaid, and
such investigation legal proceedings or remedy may instituted, continued
or enforced an any such penalty, forfeiture or punishment may be imposed
as if the said rule has not been repealed.
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
A
FORM “A”
(See Rule 3(1))
Year
Name & Address of Employer
Place of work
Nature of work being done by the Establishment
Name of
Child
SI.
No.
2
1
Nature of
Work on
which employed
7
Father’s
Name
Date of
Birth
Permanent
Address
Date of
joining the
establishment
3
4
5
6
Daily hours
of work
Intervals
of rest
Wage
paid
Remarks
8
9
10
11
ILO-IPEC - Karnataka Child Labour Project
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FORM “B”
CERTIFICATE OF AGE
(See Rule 4(3))
Certificate No.
I hereby certify that I have personally (name)
Son/Daughter of
and that he/she has
Residing at
completed his/her fourteenth year and his/her age, as nearly as can be ascertained from
my examination, is
years (completed).
His/her descriptive marks are
Thus - impression/signature of child
Place:
Date:
Medical Authority
Designation
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
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FORM UC”
MEDICAL FITNESS CERTIFICATE
(See Rule 6(h)(ii))
Proforma
Bio - Data
Name
Age
Sex
Address
Home
Place of work
Present illness
(Chronological order with Duration)
1.
2.
3.
History of present illness
(Origin, Duration and Progress)
Past HistorySimilar illness
Childhood illness
Infectious diseases
Past Injuries, accidents
Operation & Hospital Stay
Personal History
Appt.
Diet
Bowel
Micturition
Sleep
Substance Abuse
ILO-IPEC - Karnataka Child Labour Project
*
■if B’ A MS
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Family History
Menstrual History
Menarche
Date of last Menses
Amount of flow
Central Physical Examination
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Built
Height
Weight
Body proportion
Nutrition
(specify deficiencies)
Cynmosis
Icterus
Pallor
Lymphadenopathy
Oedema
Skin, Hair and Nails
Vertebral column
Joints
Temperature
Pulse
Blood Pressure
Systems Examinations
Respiratory System
Cardio Vascular System
Abdomen
Central Nervous System
Probable Diagnosis
Investigations
Diagnosis
Treatment &Advice
Date ofNext Visit
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
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ILO-IPEC - Karnataka Child Labour Project
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SECTION IV
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
4.1 Annexure - I
Friendship Band
lam sensitive
labour.
Instruction to use masks
182
>
The masks are life size masks
>
Before using the mask, cut out the portion of nose and eyes
>
Thread holes are given in the masks
>
The masks fit in on any bodies face
ILO-IPEC - Karnataka Child Labour Project
The Mask of Child Labour
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
The Mask of the Happy Child
x mw;
*
ILO-IPEC - Karnataka Child Labour Project
4.3 Annexure - III
Acronyms
SDMC
School Development Management Committee
CBO
Community Based Organizations
ILO
International Labour Organization
IPEC
International Programme for the Elimination of
Child Labour
KCLP
Karnataka Child Labour Project
CRC
Convention on the Rights of the Child
PRI
Panchayat Raj Institutions
GP
Gram Panchayath
ZP
Zilla Panchayath
TP
Taluka Panchayath
OHP
Over Head Projector
UT
Union Territory
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
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4.4 Annexure - IV
WHO ARE
A Model Power Point Presentation
(This can be converted into a flip chart in rural
areas on full size chart paper)
ILOSays:
Persons below the age of 18 years, who constantly shoulder
responsibility of adults by working under exploitative
conditions for low wages and unable to realize its normal
physical and mental development
CHILD LABOUR
★
★
★
WHO ARE WE?
★
Children who are deprived of bright future for want of
education and training.
WHY ARE WE WORKING?
★
Children who arc kept away from the family physically and
emotionally.
WHAT IS OUR FUTURE?
2
Children are Prohibited to work in
WHO ARE WE
★57 Processes and
* Government of Karnataka, Action Plan for the elimination
of Child Labour 2(X)7 : Any child out of school is a potential
child labour.
★ The Child Labour (Prohibition and Regulation) Act 1986,
India : A person who has not completed 14 years of age and
is working in hazardous occupation and processes specified
in the Act
★15 Occupations
But they still work in
Primary Sector: Agriculture, livestock, sericulture etc.
Secondary Sector : Manufacturing Brick, Bidi, Agarbathi,
Handicrafts, Handloom, Small Factory, Household manufacturing.
Tertiary Sector : Domestic, Vending, Waste Uecycling, Prostitution,
Construction.
Rights and Realities
Some People classify the work as Hazardous
and non hazardous. Is it appropriated
★ Under Child Rights Conventions of UN
Children have rights.
According to children and their friends :
★ But Child Labourer in reality is unable to enjoy
any of his/her rights.
Every work is hazardous to a child, as it interferes
with its education and normal development.
5
\186
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ILO-IPEC - Karnataka Child Labour Project
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Rights and Realities
5
Rights andRealities
Rights
Rights
Realities
★/Ml diildrcn have a right to
education
★Neither the employer nor
★/Ml children have a rigfit to
life
★Gild 1 abour always gets
fee employer’s harsh words.
the parents sec fee need to
educate die child labour.
Rights and Realities
Realities
★ All diildrcn hax'e a ri^it to
express themsdves
★ If the child lalxiir corrplains
about bird work his mister
scolds him for being diecky.
★ All diildrcn have a right to
leisure and play
★ Gild labour lias all work and
no play, l b cannot even rest
w 1 icn he works in the garages
and establishments.
Rights andRealities
Rights
Realities
Rights
Realities
★ All children have a right to live
with their parents.
★ 'the child labourer longs to
enjoy his parents’ wannth &
love.
★ /Ml diildren hwe a right to be
protected from work tl vat
threatens his/her healtli,
education and dewdepment
★'Hiediild labcirer is injured,
mumed, killed and stunted for
★ All diildrcn have a right to be
protectcd from abuse &
negject.
★ 'Ihe child labour has to work
inspte of being unwdl and
suffer iThj-sical, mental and
sexual abuse by the enpkyer.
★ All children have a right to be
protected from abuse &
neglect.
★ Sometimes the child labourer is
beaten up black and blue by the
master for the smallest of
mistakes.
life
9
10
Child Labourer is not the only sufferer
Trapped in the Vicious Cycle
★ His family suffers as child labour begets
uneducated, unskilled poor individuals.
★ The Society and the Nation suffers as the child
Labour perpetuates illiteracy, poverty and
exploitation Poverty affects social harmony, rule
of law and environment
Illiterale, LHtvvarcncss
alxxit in^tortance
oTedticauai
Adults hiving low
[rodoctivity, skills
and earning
Quid lidxxu
★ It affects wage rate, employment market
ii
12
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
41 f
“ A
But VChy They Work
Investing in the Child
Benefits
Cost
DemandSide
Supply Side
- Irrproxing quality’ of Education - Better educated, heal thy skilled
and positive minded, peace
and Health.
lovirg and constructhe dozens.
- P(xxinplciTmtationofla\v
- Ibvertj'
- I limination of child labour
programmes
- Cheap source of disciplined
labour
- Indebtedness
- Opportunity cost
- L ick of proper edncioc xi
- Mgptian, calamity
- lackofU.'antaTfTlovnmt,
social security.
700% return on hrvesbnent
13
- Social apathy and rrindset
14
But Child Labour can be Eliminated
If
Ant You
You and I come together
And
Put up a determined concerted
Effort.
15
16
ILO-IPEC - Karnataka Child Labour Project
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4.5 Annexure - V
■■■■■■■
‘Child Labour’ Free Karnataka: A Vision
State Vision
> Child Labour Free State
(All Children out of School as
potential Child Labour)
-
State Mission
Deciding a State
Policy on Child
Labour and its
implementation
Evaluation
-
All Children in School
(Universal
Primary
Education for All)
Skill
and
Decent
Employment for All
Freedom from poverty and
want for All
Containing minimum of following
elements:
★
Objective regarding Child
Labour Elimination
★
Nature of context of the
problem
★
Identification of the target
group
★
Programmes and intervention
on Demand side as well as
Supply side
★
The process of elimination of
each type of child labour
Institutional mechanisms to plan,
execute, monitor, document and
evaluate
Enforcement and release of child
worker
Community mobilization,
awareness and participation
Capacity building and
consultations with the
stakeholders
Convergence of developmental
efforts for livelihood
improvement of the target family
Education, health, skill, decent
employment of the target group.
Preventing action, counselling
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
i; I if Ti’ f
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4.6 Annexure - VI
F?-' W
General Format of a Complaint
In the Court of the
Complaint Case No.
Police Station limits:
Offence under Section
Date of offence
ACCUSED:
ShriDesignation
COMPLAINANT:
State of Karnataka
Represented by the
Senior Labour Inspector / Labour Inspector / Inspector notified under Section 17 of the
Child Labour (Prohibition & Regulation) Act, 1986 / Karnataka S&CE Act.
COMPLAINT
Under the Child Labour (Prohibition & Regulation) Act, 1986 and Karnataka
Rules, 1998./Karnataka shops and commercial establishments act 1961
{Contravention of Section
of the
Act punishable under Section
of the said Act}.
1.
2.
3.
190
The Complainant is the Senior Labour Inspector / Labour Inspector / Inspector
notified under, section 17 of the Child Labour(Prohibition & Regulation) Act,
1986, vide Notification No
dated
I
KS&CE Act, 1961;
The Accused person(s), namely,
(designation)
is/are ‘Occupier’ within the meaning of the word as defined in Section
of
the
Act,
having
an
establishment
at
The Complainant inspected the above said establishment of the said Accused on
At
am/pm and found that he/they has/have
employed child labour, numbering
, and contravened
Section
ILO-IPEC - Karnataka Child Labour Project
AcwA r w
Name of child labour
Age proof
Age
(i)
(H)
(iii)
4.
5.
6.
(iv)
The Accused is/are, therefore, punishable under Section
of the
Act.
Wherefore, the Complainant prays that the matter may be enquired into and dealt with
according to law.
Following are the witnesses who would be relied on:
®
©
7.
(iii)
Following are the documents which are relied on :
Age proof document
(a)
(i)
(b)
©
Spot inspection mahazar
Show cause notice
Replies of the accused to the show cause notice
Statement of witnesses or child, parents etc. if any.
Any other relevant document
(in)
(iv)
(v)
(vi)
(c)
Senior Labour Inspector / Labour Inspector
Place :
Dated :
Note: Strike out whichever is not applicable. This form may be suitably modified as required
while filing the complaint by the Inspector. Feed the form to the office computer and
filling the necessary details printout may be made. Blank printed forms should never
be used, as the other side may take it as non-application of mind etc. as defense.
i\
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
Ic
4.7 Annexure
VII
FORMAT OF A SHOW CAUSE NOTICE:
Under the Child Labour (Prohibition & Regulation) Act, 1986
Whereas your establishment, viz., M/s
dealing
in
Occupation/processes, which is
included in Part-A/B of Schedule to the above said Act, has been inspected by the undersigned
on
at
a.m./p.m.
And whereas during the course of inspection, it is noticed that you have employed the children
aged below 14 years for the works carried out in your establishment and the following children
were found working in
processes / occupation at the time of
inspection:
SI.
No. Name of the child
Age
Age proof
1.
2.
3.
4.
And thus, you have contravened Section 3 of the Child Labour (Prohibition and Regulation)
Act, 1986, punishable under Section 14 of the said Act;
You are aware that as per the provisions of the Child Labour (P&R) Act, 1986, employment
of children below the age of 14 years have been prohibited in hazardous occupations/
processes and employment of child labour in contravention of the provision of the said Act
is an offence punishable under Section 14 of the above said Act.
Following the directives of this Hon’ble Supreme Court in W.P. No.465/1986 dt.10.12.96
between M.C. Mehta & others Vs State of Tamil Nadu others, you are hereby directed to
disengage the said child labour immediately and deposit a sum of Rs.20,000/-, per child,
totaling Rs
in the District Child Labour Rehabilitation-cumWelfare Fund with the DC of
District. Failing which it shall be
X,
recovered as per law and procedure by the revenue authorities.
\192
/
ILO-IPEC - Karnataka Child Labour Project
0
Wherefore, you are hereby lawfully directed to show cause as to why you should not be
prosecuted before the competent Court of Law for the said contraventions and appropriate
amounts recovered from you for the violation of directives of the Hon’ble Supreme Court
of India, within THREE days from today.
Documents Enclosed
1.
2.
3.
4.
5.
SENIOR LABOUR INSPECTOR/LABOUR INSPECTOR
To,
M/s
* Note:
Enclose with this notice copies of the spot inspection mahazar, age proof
evidence, statements etc. recorded at the time of the inspection.
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
■■f TI Wbfel
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4.8 Annexure - VIII
FORMAT OF A SHOW CAUSE NOTICE
Under Section 24 of the Karnataka Shops & Commercial Establishments Act, 1961
Whereas your establishment, viz., M/s
dealing in
occupation/processes, was inspected by the undersigned
on
at
a.m./p.m.
And whereas during the course of inspection, it is noticed that you have employed children
aged below 14 years for the works carried out in your establishment and the following children
were found working at the time of inspection:
SI.
No. Name of the child
e
Nature of
work
Age
proof
1.
2.
3.
4.
As per Section 24 of the provisions of the above said Act, employment of children below
the age of 14 years, have been prohibited and employment of child labour in contravention
of the provision of the said Act is an offence punishable under Section 30(3) of the said Act.
I am satisfied that you have employed the above said child labour in contravention of Section
24 of the said Act.
Wherefore, you are hereby lawfully directed to show cause as to why you should not be
prosecuted before the competent Court of Law for the said contraventions within THREE
days from today.
Documents Enclosed
1.
2.
3.
4.
5.
SENIOR LABOUR INSPECTOR/LABOUR INSPECTOR
To,
M/s
Note:
Enclosed with this notice, copies of the spot inspection mahazar,
age proof evidence, statements etc. recorded at the time of the inspection.
*
4.9 Annexure - C
IX
For training purposes: A Model Format for Spot Inspection Report
(Spot Mahazar)
Spot Mahazar
Proceeding of the Labour
, notified as Inspector under Section-17 of the Child
Labour (Prohibition and Regulation) Act 1986 vide notification
dated
Name and Designation of the
Inspector
Contact details
Date and Time of Inspection :
:
Members of the Inspecting Team______
1.
Name, designation, contact details
2.
Independent Witness________
1
Name, contact details etc.
2
3.
Name and Address of the premises where child was working:_____________
Name
What Sector/Process/Industry
Address
Hazardous notified under the Child Labour
(Prohibition and Regulation) Act 1986
Yes/No
(or prohibited under any other law?)
Contact details, Phone etc.
(Both Work Place and Residential :
Registration details under Municipal or
Labour or any other Enactment
’f
Hand Book for the orientation of the Enforcement Officers, Prosecutors and Legal
Practitioners on the Elimination of Child Labour
Details of some of the neighbours
1.
Name, Address, Contact details
3.
Name, Address, Contact details
2.
Name, Address, Contact details
4.
Name, Address, Contact details
Name of the Child
Child-1
Contact details of Parents /
Guardian
T
Work details
Wage (per
day/month)
Age_
Age Proof — School Certificate
Medical Examination /
Advance taken
2.
Child-2
Contact details of Parents /
Guardian
Age-------Age Proof
3.
Child-3
Contact details of Parents /
Guardian
Age-------Age Proof
In the proceeding describe the date and time of the inspection, description of premises,
type of business and nature of work of the child, and contact details of the employer.
Describe some of the nearby premises, if possible take the statements of some of the adjacent
owners, workers etc (each statement may be recorded separately on a sheet of paper and
signature of the deponent may be obtained; each of them can be marked as an annexure
separately and included as part of the mahazar).
Describe the persons who went as members of the inspection team and who did what.
Describe the name (each of them separately), address, age of children found
working in the premises. Describe which hazardous and prohibited sector
A
they were working in and under which enactment. If they had any injury,
occupational health or safety problems record the details. If they have any
196
ILO-IPEC - Karnataka Child Labour Project
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0
other problem or abuse from the employer record the same. If there are violations of any
other labour rights like working condition, hour of work, wage payment, payment of social
securities etc. the facts may be recorded.
What was the age of the children found (each separately) in the premises and how will the age
be ascertained and proved. Mention what evidence exists about the age or if any further
investigation is needed for the same. If for a child or adolescent the age certificate as required
by law is not being maintained by the employer the same fact may be mentioned. If any other
technical violations like maintenance of any certificate, register or declaration has to be there
and is not maintained as per law, it should be mentioned clearly in the mahazar.
If there are independent witnesses, or if employer/owner gives a statement, or child/or
other workers give a statement each person’s statement may be recorded on a separate sheet
of paper. Take their signature, attest all such documents, other members of the team can
also do so and they should be marked as Annexure (giving separate numbers to each) and
these Annexure details should be mentioned in the proceeding.
Make out clearly what offences are committed by the employer employing children; whether
or not maintaining registers etc. Mention under which section of which Act the violation
takes place. Describe substance of evidence whether oral or documentary, which confirms
the commission of offence.
Mention details of other document or materials collected on the spot which may be material
to substantiate the case. (If products are there, samples may be collected, photo may be
taken of the process, a video can be taken and the same may be described and marked in the
proceeding).
Mention any other relevant material which can be critical to substantiate the case.
End the mahazar giving opening and closing time of inspection and date etc. Give details of
number of pages and annexures (all annexures must be mentioned separately with description
and number of pages........ )
Signature of (if possible)
Other members of the team
Signature
Labour (Designation/Address and other
contact details
Child workers/witnesses
Employer/Neigbhour
Other workers may put their
signature with date, time and
place details on the mahazar
jx
j-c I
/Mn
[Give a copy of this mahazar with a show cause notice to the employer on
the spot and obtain his Signature. If show cause notice can not be given
as evidence on child’s age proof has to be collected from other sources
then also a copy of the spot mahazar should be given to the employer
and his acknowledgement taken].
8
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Position: 349 (9 views)