National Campaign
Committee for Central Legislation on Construction Labour Vs Union of India
& Ors.
O R D E R
By this common order,
we shall deal with IA No.6 in WP No.318 of 2006 and Contempt Petition Nos.41
and 42 of 2011. In this petition under Article 32 of the Constitution of India
the petitioner inter alia prayed for issuance of a writ of mandamus or any other
appropriate writ or direction directing the respondents to forthwith implement the
Building and Other Construction Workers (Regulations of Employment and Conditions
of Service) Act, 1996 (hereinafter referred to as `the Act') and The Building and
Other Construction Workers' Welfare Cess Act, 1996 (hereinafter referred to as
`the Cess Act') in their entirety and, in particular, to establish the Welfare
Boards, collect cess, complete the registration and grant benefits to the beneficiaries
with immediate effect as per the provisions of the respective Acts. Further, it
is also prayed that the rules and regulations relating to the health, safety
and welfare of the workers, particularly the workers in relation to building and
construction activity, should be framed and safety equipments including safety
harness and safety nets should be provided to them at the place of work.
The petitioner has impleaded
the Union of India and all the 36 States/Union Territories as party-respondents
to the present petition. This Court, vide its order dated 28th July, 2006
issued notice to all the respondents. Some of the States and the Union of India
had filed their replies and after hearing the learned counsel appearing for the
parties, the Court passed various directions as recorded in different orders of
the Court from time to time and the respondents were required to comply with these
directions. Vide order dated 12th May, 2008, a direction was issued by this Court
to the Secretary of the Labour Department of each State requiring them to submit
a detailed status report within eight weeks as to what steps have been taken by
them to 3implement the provisions of the aforesaid two Acts. Some of the States
had submitted their reports and it was evident from the content of those reports/affidavits
that the provisions of both the Acts have not been substantially complied with.
This resulted in
passing of detailed order by this Court dated 13th January, 2009. In this order
the Court noticed that under Section 6 of the Act, the appropriate Government has
to appoint Registration Officers and under Section 7 of the Act every employer was
to register their establishment with the said Officer. Reference was also made
to the obligation on the part of the State to constitute the State Welfare
Boards under the provisions of Section 18 the Act. After noticing that the
petitioner had filed a chart indicating the steps taken by various Governments,
it was evident that many of the Governments had not even taken steps as per provisions
of the Act. The Court, thus, directed as under: -
"We direct the
Chief Secretary of the respective States and Secretary (Labour) of each States
and the Union Territories to take timely steps as per the provisions of the
Act, if not already done. We would like to have the appraisal report in the
first week of May as to what steps have been taken in this regard. If any of
the State Government has not done anything pursuant to the Act, urgent steps
are to be taken so that the benefits of this legislation shall not go waste. Otherwise
the unorganized workers of the construction sector will be denied the benefit
of the Act.
"The Court thereafter
passed various orders and directions requiring respective States to implement the
provisions of the Act. Vide order dated 18th January, 2010, the Court noticed
the object of the Act as well 4as made reference to various provisions of the Act
and issued directions. These directions relate to the constitution of the State
Welfare Boards by the respective States, holding of meetings by the said Boards
at regular intervals to discharge their statutory duties, creating awareness about
the benefits of the Act amongst the beneficiaries through media, appointment of
Registering Officers and setting up centres in each district for that purpose.
This Court further directed
that all contracts with Government shall require registration of workers under the
Act to give benefits of the Act to the registered persons, the CAG to conduct
audit of the entire implementation of the Act and use of the allocated funds and
finally the Boards to prepare detailed reports in regard to the implementation.
Despite passing of these clear orders by the Court, the provisions of the Act
have not been implemented in their entirety. Further, noticing the persisting
default, the Court passed an order dated 10th September, 2010 referring to
various provisions of the Act as well as the fact that the Central Government has
not even issued any directions under Section 60 of the Act, despite the Court's
order dated 18th January, 2010.
Noticing the incidences
in that regard the Court directed the Central Government to issue appropriate directions
to the States as well as furnish the status report of Central Advisory Committee
as to what steps had been taken by them with regard to implementation of the provisions
of the respective Acts. On subsequent dates, the 5petitioner submitted that the
directions of the Court as well as the provisions of the Act were not being implemented
by various States. The Court, thus, granted liberty to the petitioner, vide its
order dated 22nd November, 2010, to take out contempt motion State-wise.
The petitioner filed IA
No. 6 of 2011 on 5th January, 2011 primarily praying for filing of additional
documents. In the documents annexed to this application there were charts
giving details of the States which had not constituted the Welfare Boards, information
about constitution of the Cess Collecting Authority, number of workers
registered with each State and the Schemes framed and implemented. From the
charts, it was obvious that most of the States had defaulted in complying with
the provisions of the Act and some of them, in fact, had not even constituted the
State Welfare Boards despite the writ petition being pending in this Court
since the year 2006 and the Court having issued various directions in that regard.
The petitioner then filed
Contempt Petition Nos. 42 of 2011 and 43 of 2011. In Contempt Petition No. 42 of
2011, the petitioner has averred that Respondent Nos.2 to 10 have failed to
take even the preliminary steps to constitute the Welfare Boards under Section
18 of the Act and that the Central Government has neither issued any directions
nor taken any steps in that behalf. The defaulters, in this regard, are stated
to be the Union Territories of Lakshadweep, Government of the State of 6Meghalaya,
Government of the State of Nagaland and the Union of India.
The Labour Secretary
of the respective States and the Director General of Inspection of the
Government of India have been impleaded as respondents in this petition. Contempt
Petition No. 43 of 2011 has been filed primarily on the ground that the
respondents in that petition had willfully disobeyed the orders of this Court,
particularly the order dated 18th January, 2010 and they have not implemented
the provisions of the Act. The Registering Officers have not been appointed and
the workers are not being registered, resulting in non-implementation of the
schemes for grant of benefits and the facilities to such workers. Defaulters in
this regard are the States of Maharashtra, Goa, Himachal Pradesh, Rajasthan, Uttarakhand,
Uttar Pradesh, Manipur and the Union Territories of Daman & Diu, Dadra
& Nagar Haveli, Chandigarh, Andaman & Nicobar Island.
Their Labour Secretaries,
Chief Inspector of Inspection and Administrators have been impleaded as respondents
in this petition along with the Director General of Inspection, Government of
India. Having referred to the facts on record and the orders of this Court passed
from time to time, we may now refer to some of the provisions of both the
statutes which impose a statutory obligation upon the respondents to carry out their
functions and duties in accordance with those provisions and the directions issued
by this Court. Every 7State is required to constitute a State Welfare Board in
accordance with the provisions of Section 18 of the Act which Board, upon its constitution,
is required to discharge its functions under Section 22 of the Act.
Some of the defined functions
are to provide immediate assistance to the beneficiaries, sanction loans, give
financial assistance for education of children and even make payment of
maternity benefits to the female beneficiaries. The appropriate Government is further
required to appoint Registering officers in terms of Section 6 of the Act and
the establishments are required to be registered with that officer as per the provisions
of Section 7. The beneficiaries/workers are to be registered with the officer authorized
by the Board in that behalf in accordance with the provisions of Section 12 of the
Act. The beneficiaries are required to make their respective contributions in terms
of Section 16 of the Act. The consequences of default both of the beneficiary and
the establishment are provided under the statute itself and accordingly appropriate
steps are to be taken by the Registering Authority and the appropriate Government,
as the case may be.
There shall be levy and
collection of cess at the rate of and in the manner specified under Section 3
of the Cess Act and every employer has to furnish returns in accordance with
Section 4 of that Act. After its assessment in accordance with law, the cess is
to be paid and collected. The default in payment thereof bears the penal 8consequences
as well as interest has to be paid on delayed payment of cess. Offences committed
by the company and other defaulters are punishable under the provisions of the
Cess Act.From the various status reports and the affidavits filed on behalf of
the respondents, it is clear that the appropriate Governments have, admittedly,
not complied with their statutory duties and functions. All the application/petitions,
subject matter of the present order, are supported by affidavit filed by the co-ordinator
of the petitioner organization.
Number of States, particularly
Union Territory of Lakshadweep and States of Meghalaya and Nagaland have not
even constituted the Welfare Boards in terms of Section 18 of the Act. The State
of Uttar Pradesh has completed the formality of constituting a Board but it is
a one man Board instead of having a minimum of three or more members as
required under Section 18 of the Act. The charts submitted by the petitioner further
show that no worker has been registered by the States of Assam, Mizoram, Sikkim
and Jammu and Kashmir. The appropriate Governments and Registering Authorities,
wherever constituted, particularly the respondent State Governments in these
application/petitions have failed to either collect the requisite cess amount
or have collected the same inadequately and in any case have failed to
distribute the benefits and facilities to the beneficiaries.
In this manner and for
a considerable period, the respondents in these application/petitions have, on
the one hand disobeyed the orders of this 9Court particularly orders dated 18.01.2010,
13.08.2010 and 10.09.2010, while on the other they have failed to perform their
statutory obligations under the provisions of the Act despite directions of this
Court. Default on the part of these respondents, thus, has persisted over a long
period and the Court is left with no alternative except to pass appropriate
directions/orders in accordance with law on these two contempt petitions.
In the Circumstances
afore-referred, we hereby issue notice to show cause why proceedings under the Contempt
of Courts Act, 1971 be not initiated against all the respondents in Contempt Petition
Nos.42 and 43 of 2011. Further we are also compelled to direct the following officers
of the respective/appropriate Governments to be present in the Court on the next
date of hearing :
1.
The
Labour Secretary, Ministry of Labour, Sharam Shakti Bhavan, Rafi Marg, New
Delhi.
2.
The
Labour Secretary Lakshadweep, U.T. of Lakshadweep, Karvarthi - 682 555.
3.
The
Labour Secretary, Meghalaya, Government of Meghalaya, Department of Labour. Rilang
Building, Shillong - 793 001.
4.
The
Labour Secretary, Nagaland, Government of Nagaland, Department of Labour. Civil
Secretariat, Kohima - 797 001.
5.
Director
General of Inspection, Government of India, Mansingh Road, New Delhi - 110 011.
With the above
orders, we direct these application/petitions to be listed after four weeks. Notice
to all the respondents returnable on the same date.
..........................................CJI.
.
.............................................J.
[K.S. Panicker Radhakrishnan]
....
.........................................J. [Swatanter Kumar]
New
Delhi,
March
15, 2011
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