“Construction workers do not assist only in building infrastructure, but they also assist in building the nation, in their own small way.”
After it was brought to the notice of the bench of Madan B. Lokur and Deepak Gupta, JJ that under the Building and Other Construction Workers‘ Welfare Cess Act, 1996, 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, the Bench issued various directions after stating:
“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).”
The Court, hence, asked 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 at the earliest.
- establish and strengthen the machinery for the collection of cess.
- 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. The scheme should include within it, inter alia, issues and concerns of education, health, social security, old age and disability pension and other benefits that are necessary for living a life of dignity as postulated by the Constitution of India.
- 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.
The Court also issued certain general directions for the implementation of the BOCW Act:
- Every State Government and UTA shall constitute a State Advisory Committee, if not already constituted.
- 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.
- The State Governments and UTAs must appoint Registering Officers for registration of establishments and construction workers.
- 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.
- 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.
- 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 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.
The Court asked the Union of India to take a decision on the management of the cess already collected. Noticing that the benefits and entitlements that have accrued to the construction workers cannot be passed on to them due to the passage of time, with the whereabouts of some of them not known. Accordingly, 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. [National Campaign Committee for Central Legislation on Construction Labour v. Union of India, 2018 SCC OnLine SC 236, decided on 19.03.2018]