Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 – Building and Other Construction Workers’ Welfare Cess Act, 1996 – Implementation of the Acts – BOCW Act and Cess Act are social legislations – They were enacted keeping in mind the Directive Principles of State Policy, particularly Art.39 which requires the State to direct its policy to secure the health and strength of workers, and Art.42 which concerns just and humane conditions of work – However, neither State Government nor Union Territory Administration (UTA) were willing to fully adhere to abide by two above mentioned laws enacted by Parliament and even the directions issued by the Government of India had been disregarded by the State Governments and UTAs – Specific directions issued: (i) Ministry of Labour and Employment, the State Governments and UTAs to put in place and strengthen the registration machinery, both for registration of establishments as well as registration of construction workers – (ii) Ministry, the State Governments and UTAs to establish and strengthen the machinery for collection of cess – (iii) Ministry of Labour and Employment to frame a composite Model Scheme for benefit of construction workers in consultation with all stakeholders including NGOs actually working at the grassroots level with construction workers – (iv) State Governments and the Welfare Boards in every State and UTA to conduct a social audit on implementation of the BOCW Act so that in future there is better and more effective and meaningful implementation of the BOCW Act – Apart from the said specific directions some general directions also passed so that the BOCW Act is fully implemented with responsibility – Constitution of India – Arts. 21,39 and 42. Issuing the directions, the Court
HELD: 1. There can be no doubt that the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (BOCW) and its sister legislation, the Building and Other Construction Workers’ Welfare Cess Act, 1996 (Cess) are social justice legislations. They were enacted keeping in mind the Directive Principles of State Policy, particularly Article 39 of the Constitution which requires the State to direct its policy to secure the health and strength of workers and Article 42 of the Constitution concerning just and humane conditions of work. In addition, Article 21 of the Constitution cannot be forgotten. A life of dignity is a fundamental right given to all persons and that includes construction workers. It is in this background that the two welfare and beneficent legislations must be understood and appreciated. [Para 63] [239-F-H]
2. The Statement of Objects and Reasons for the BOCW Act refers to 8.5 million construction workers (85 lakhs) in 19951996. They were the vulnerable section of society who needed the support of the State for their safety, health and welfare. They have been consistently let down by the State and even directions given by this Court and by the Ministry of Labour and Employment has not brought about any substantive change. The task before the State - to effectively implement the laws enacted by Parliament for the benefit and welfare of a vulnerable section of society is enormous, and as the progression in the case shows, the State might well be unable to live up to the expectations of Parliament unless there is a strong will to bring about a positive change. State apathy in a situation such as this virtually amounts to exploitation of the construction workers, and if the State turns exploitative, there is little hope for vulnerable sections of society. [Para 64] [240-A-B; C-D]
Specific Directions
3. First direction, therefore, is to the Ministry of Labour and Employment, the State Governments and the UTAs to put in place and strengthen the registration machinery, both for the registration of establishments as well as registration of construction workers. This should be done within a specified timeframe to be decided by them, but at the earliest. [Para 68] [241-C-D]
4. Second direction to the Ministry, the State Governments and UTAs in this regard is to establish and strengthen the machinery for the collection of cess. It is a matter of common knowledge that there is a tremendous amount of construction activity going on all over the country and there is no reason why establishments involved in the construction activity, both formal as well as non-formal, should not pay the cess, especially when they are utilizing the services of the construction workers. Similarly, there is no reason why the construction workers of these establishments should be denied their entitlements and benefits under the BOCW Act and other laws. [Para 69] [241-D-F]
5. Third direction, therefore, is to the Ministry of Labour and Employment 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, the Ministry of Labour and Employment is cautioned 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. [Para 71] [242-B-C]
6. Fourth direction is to the Ministry of Labour and Employment, the State Governments and the UTAs 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. [Para 76] [243-C-D] General Directions
7. 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. 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. [Para 78] [244-B-D]
8. 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. [Para 78] [244-D-E]
9. 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. [Para 78] [244-E-F]
10. 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. [Para 78] [244-F-G]
11. Every State Government and UTA should establish a Welfare Fund for the benefit of the construction workers, with appropriate rules for utilisation of the funds. [Para 78] [244-G-H]
12. 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. This issue is left open to the Ministry of Labour and Employment to decide on an appropriate system of identification and registration, provided it is effective and meaningful. [Para 78] [245-A-C]
13. 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. [Para 78] [245-C-D]
14. 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. [Para 78] [245-D-E]
15. 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. [Para 78] [245-E-F]
16. The Union of India must take a decision on the management of the cess already collected. 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. [Para79] [245-G-H]
Builders Association of India v. Union of India ILR (2007) 1 Del 1143; Hingir-Rampur Coal Co. Ltd. v. State of Orissa (1961) 2 SCR 537; Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161 : [1984] 2 SCR 67; Dewan Chand Builders & Contractors v. Union of India (2012) 1 SCC 101 : [2011] 13 SCR 214; State of W.B. v. Kesoram Industries Ltd. (2004) 10 SCC 201 : [2004] 1 SCR 564; A. Prabhakara Reddy and Company v. State of Madhya Pradesh (2016) 1 SCC 600 : [2015]
9 SCR 675; National Campaign Committee for Central Legislation on Construction Labour v. Union of India (2011) 4 SCC 653; National Campaign Committee for Central Legislation on Construction Labour v. Union of India (2012) 3 SCC 336; National Campaign Committee for Central Legislation on Construction Labour v. Union of India, (2015) 17 SCC 166; National Campaign Committee for Central Legislation on Construction Labour v. Union of India, (2015) 17 SCC (2015) 17 SCC 171; National Campaign Committee for Central Legislation on Construction Labour v. Union of India, (2015) 17 SCC 173; National Campaign Committee for Central Legislation on Construction Labour v. Union of India, (2015) 17 SCC 174 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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