Construction Workers Also Assist In Building The Nation, In Their Own Way: SC Issues Important Directives [Read Judgment]
There is a total lack of concern and apathy on the part of the powers that be in doing anything substantial for the benefit of construction workers. This is indeed an extremely sorry state of affairs that puts a Shakespearean tragedy to shame, the court said.
Imparting a ‘symbolic justice’ to millions of construction workers in the country, the Supreme Court has given certain directives with regard to implementation of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (the BOCW Act) and the Building and Other Construction Workers‘ Welfare Cess Act, 1996 (the Cess Act).
The court, in the beginning of the judgment, disposing of a writ petition filed in 2006 filed by the National Campaign Committee for Central Legislation on Construction Labour, observed: “Symbolic justice – there is nothing more to offer to several millions of construction workers in the unorganized sector – not social justice, not economic justice. The reason is quite simple. No State Government and no Union Territory Administration (UTA) seems willing to fully adhere to and abide by (or is perhaps even capable of fully adhering to and abiding by) two laws solemnly enacted by Parliament, namely, the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (the BOCW Act) and the Building and Other Construction Workers’ Welfare Cess Act, 1996 (the Cess Act).”
Expressing its dissatisfaction, the bench comprising Justice Madan B Lokur and Justice Deepak Gupta observed that directions given by the apex court from time to time to implement the two laws have been ‘flouted with impunity’.
The bench also said: “We have been informed that under the Cess Act, more than Rs. 37,400 crores have been collected for the benefit of construction workers, but only about Rs. 9500 crores have been utilized ostensibly for their benefit. What is being done with the remaining about Rs. 28,000 crores? Why is it that construction workers across the country are being denied the benefit of this enormous amount? These are some questions that arise in this petition – are the answers blowing in the wind?”
The bench observed that a decision will have to be taken by the Union of India on the gainful utilization of the cess already collected so that the Welfare Boards are not unjustly enriched – the beneficiaries having unfortunately lost out.
The bench also took note of the fact that, not a single state advisory committee, anywhere in the country held a single meeting during the previous 12 months. “This is a clear indication that there is a total lack of concern and apathy on the part of the powers that be in doing anything substantial for the benefit of construction workers. This is indeed an extremely sorry state of affairs that puts a Shakespearean tragedy to shame,” the bench observed.
Specific Directives to Ministry of Labour and Employment, State Governments and UTAs
- To put in place and strengthen the registration machinery, both for the registration of establishments as well as registration of construction workers.
- To establish and strengthen the machinery for the collection of cess.
- To frame one composite model scheme for the benefit of construction workers in consultation with all stakeholders, including NGOs, who are actually working at the grassroots level with construction workers. While there is an urgency in framing such a Model Scheme, we would caution the Ministry of Labour and Employment to make haste slowly and to prepare a Model Scheme that is comprehensive and can easily be implemented, is pragmatic and does not involve too much paperwork, the bench said.
- To conduct a social audit on the implementation of the BOCW Act so that in future there is better and more effective and meaningful implementation of the BOCW Act.
- Every state government and UTA shall constitute a state advisory committee, if not already constituted, and that state advisory committee shall meet regularly for conducting its business. It may be mentioned that Rule 20 of the Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Central Rules, 1998 provides that the central advisory committee shall meet at least once in six months. This could be used as a good guideline for meetings of the state advisory committee.
- Every state government and UTA shall constitute an Expert Committee and frame statutory Rules under Section 62 of the BOCW Act if such statutory Rules have not already been framed. Setting up an expert committee and framing statutory rules should be in a time-bound manner, with the exercise being completed preferably within six months and in any event by 30th September 2018.
- The state governments and UTAs must appoint registering officers for registration of establishments and construction workers. This is a critical aspect of the implementation of the BOCW Act as well as the Cess Act.
- Every state government and UTA should establish a Welfare Board in terms of Section 18 of the BOCW Act. It must be appreciated that this is not a body that can be created by an executive order. The law requires that the welfare board shall be a body corporate having perpetual succession and a common seal. There are therefore legal formalities to be carried out for the constitution of a Welfare Board
- Every state government and UTA should establish a welfare fund for the benefit of the construction workers, with appropriate rules for utilization of the funds
- It is imperative that all construction workers should be given identity cards and should be registered in terms of Section 12 of the BOCW Act. The Ministry of Labour and Employment has proposed the issuance of a Universal Access Number for each construction worker. We make no comment or observation about the efficacy or otherwise of a Universal Access Number. It was submitted by learned counsel for the petitioner that smart cards should be issued to all construction workers. We keep this issue open and leave it to decide on an appropriate system of identification and registration, provided it is effective and meaningful.
- The Ministry of Labour and Employment shall actively consider making available to the construction workers the benefits of The Maternity Benefit Act, 1961 and The Minimum Wages Act, 1948, The Employees‘ State Insurance Act, 1948, the Employees‘ Provident Funds and Miscellaneous Provisions Act, 1952, as well as (to the extent possible) the Mahatma Gandhi National Rural Employment Guarantee Act, 2005.
- The Ministry of Labour and Employment should also consider whether projects of the Government of India in the railways, defence and other establishments are brought within the purview of the BOCW Act.
- The monitoring committee which has had quite a few meetings so far should pro-actively ensure full compliance of the provisions of the BOCW Act, the Cess Act and the directions issued by this Court. It needs to meet far more frequently, and in any case once in three months, considering that thousands of crores of rupees are not being gainfully utilized, and in some instances, misutilized.
The court has posted the writ petition on 1st May to ascertain whether timelines have been fixed by the concerned authorities for compliance of the directions.Read the Judgment Here