By:- Rishi Saraf
|In the Supreme Court of India|
|Citation||WRIT PETITION (CIVIL) NO. 318 OF 2006 along with CONMT. PET. (C) No. 52/2013 in W.P. (C) No. 318/2006|
|Petitioner||National Campaign Committee for Central Legislation on Construction Labour (NCC-CL)|
|Respondent||Union of India & Ors.|
|Date of judgment||19 march 2021|
|Bench||Madan B. Lokur, J|
|Issues||Can delay in the effective implementation of both the statutes be a ground for invalidating the levy of cess? Whether both the statues implemented as per the intention of the parliament? Is cess, in fact, a tax? Whether beneficial measures for the welfare of construction workers covered under the BOCW Act and Cess Act? Does BOCW Act and Cess Act effective?|
|Relevant provisions||Articles 15(3), 21, 32, 39(e) and (f) and also Articles 45 and 47 of the Constitution, section 3,4,6,7,12,18,22,24,60and 62 of the BOCW Act, sections 3,4,7 of the Cess Act|
It was observed by the Court that from time to time various petitions have been filed regarding the rights of workers in the unorganized sector including construction workers, especially in areas of safety, occupational health and welfare measures, and series of directions were issued pertaining to the matter regarding non-compliance with the BOCW and Cess Act and the need for its effective implementation but neither any state government nor any union territory administration took steps to implement the laws made by the legislation for the benefit of laborers and construction workers; thereby infringing the laborers’ right to social and economic justice.
In the present case, again the need for implementation of welfare schemes for workers arose with reference to BOCW act and Cess act. The present case analysis aims to scrutinize the background, facts, issues raised, and arguments on both sides and highlights concepts made in the case.
Workers are an essential part of any country’s economy and the growth and development of a nation depend on workers largely. It should be the duty of the government to protect and work for the welfare of workers ensuring that their rights are not violated. In India, although there have been various laws made for the welfare of workers due to lack of implementation, they hardly made any change, and workers continue to suffer.
The present case is with regards to implementation of workers welfare schemes where a petition had been filed under article 32 of the Indian Constitution.
Article 32(2) – “The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part”
FACTS OF THE CASE
The Petitioner is an organization working for workers right filed a writ petition under Article 32 in which several prayers have been made but essentially the prayer was that the BOCW Act and the Cess Act should be meaningfully implemented in letter and spirit. On the other hand, the submissions of the learned Additional Solicitor General appearing on behalf of the Union of India were to the effect that all efforts are being made to ensure that there is full and effective compliance with the provisions of the BOCW Act and that the Monitoring Committee is supervising these efforts so that all necessary entitlements and benefits are passed on to the construction workers.
- Can delay in the effective implementation of both the statutes be a ground for invalidating the levy of cess?
- Whether beneficial measures for the welfare of construction workers covered under the BOCW Act and Cess Act?
- Is cess, in fact, a tax?
- Whether both the statutes implemented as per the intention of the parliament?
- Does BOCW Act and Cess Act effective?
The BOCW Act and Cess Act were both enacted in 1996. They both provide certain obligations to the governments and other stakeholders.
The BOCW Act whose full form is Building and Other Constructions Workers (Regulation of Employment and Conditions of Service), to regulate the employment and conditions of service of building and other construction workers and to provide for their safety, health, and welfare measures and for other matters connected therewith or incidental thereto.
Important provisions of the act –
- Section 3 & 4 – Constitution of Central and State Advisory Committee(s) to advise the appropriate Government on matters concerning the administration of the BOCW Act
- Section 5 – constitution of Expert Committee(s)
- Section 6&7– appointment of registering officers and registration of establishments employing building and construction workers by making an application to the registering officer
- Section 12&13– registration of building and construction workers as beneficiaries under the BOCW Act and issuance of identity cards to them
- Section 18 & 22-constitution of State Welfare Boards
- Section 24 -Creation of a Welfare Fund
The Cess Act was enacted to provide for the levy and collection of Cess on the cost of construction incurred by employers with a view to augmenting the resources of the Building and Other Construction Workers Welfare Boards constituted under the BOCW Act.
Important provisions of the act –
- Section 3 deals with levy and collection of cess
- Section 4 & 5 – says that every employer to furnish a return to the concerned officer or authority and that officer or authority is obliged to make an assessment of the amount of cess payable by the employer.
ARGUMENTS OF THE PETITIONERS
It was contended by the petitioner that both BOCW Act and Cess Act were made for the welfare and protection of workers but had been continuously neglected by the state and union territories governments and due to which Articles 15(3), 39(e) and (f) and also Articles 45 and 47 of the Constitution violated which provided obligation for the state to protect the basic rights of workers.
It was also argued that non-implementation also violates Article 21 of the Constitution, which provides for the right to live with dignity and also violates international convention namely the Safety and Health in Construction Convention (No. 167) adopted by the International Labour Organization in 1988 and its accompanying recommendation (No.175) which provide for a foundation of law on which safe and healthy working conditions are built.
The petitioner argued that there was a gross failure by the governments and still construction workers do not have universal access number, no registration and also no benefits under various schemes reached to them.
It was argued by the petitioner that a lot of funds being collected in the name of cess for the welfare of workers but remain unused. Also, under these two acts, there are certain obligation for the states like to create welfare fund, advisory committee which had not been fulfilled by most of the states.
ARGUMENTS BY THE RESPONDENTS
The respondents were central and state governments, union territories, and ministry of labor and CAG, who were asked to submit affidavits where it was clearly observed by the court that all of them failed to implement BOCW and Cess act and the intention and purpose for which it was made actually never fulfilled despite repeated directions by the court.
Ministry of Labour and Employment informed to the court that certain positive steps contemplated by the Government of India.
- Introduction of a Universal Access Number to be provided to every construction worker so that if he or she migrates from one State to another, the benefit of registration does not get lost, nor does that construction worker need to get registered in the other State;
- Registration of construction workers – there were more than 4 crores construction workers, only about 1.5 crores had been registered with the concerned authorities. It was expected that the remaining construction workers would be registered before the end of the financial year that is by 31st March, 2016;
- Ensuring that benefits of Government schemes are passed on to construction workers, such as scholarships, skill development programs etc.
The Apex Court showed its concern on the continuous non-compliance by the states and union territories pertaining to workers right and the failure of the intent of the BOWC and Cess Act.
The Apex court cited Hingir-Rampur Coal Co. Ltd. v. State of Orissa, In Builders Association of India v. Union of India, Bandhua Mukti Morcha v. Union of India , Dewan Chand Builders & Contractors v. Union of India State of W.B. v. Kesoram Industries Ltd judgments where BOCW Act and Cess Acts were upheld and are welfare measured which are obligations of states through various fundamental rights and directive principles, also it was declared that levy of cess was a fee and not a tax. The Court noticed that despite repeated directions since 2008 through various judgments and hearings, the governments were negligent and workers continued to suffer.
Again the Apex Court issued directions and this time with a warning of contempt proceedings against the government-
Direction given by the court is –
Strengthen the registration machinery, both for the registration of establishments as well as registration of construction workers – establish and strengthen the machinery for the collection of cess.
There are various schemes running at different the level which do more harm and then good as they often conflict each other and also, their implementation becomes difficult, therefore, Instead of so many welfare schemes for workers, the Apex Court ordered the Central Government to have a model scheme before 30th September 2018
Ministry of Labor 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.
Apart from the specific directions, some general directions were also issued, these are – Every State Government and UTA shall constitute a State Advisory Committee and Expert The committee, appoint Registering Officers for registration of establishments and construction workers, establish a Welfare Board, Welfare Fund, construction workers should be given identity cards and should be registered, utilize Cess collected for benefits of workers.
BOWC Act and Cess Act were made to protect the rights of the workers and are also an obligation of government under the constitution. It should be noted that India’s economy largely runs by an unorganized sector and therefore their role is crucial for the country’s development. There is a need to ensure that workers being part of the informal sector are being protected as they are vulnerable to various types of exploitation. Governments should consider the issue as important and should comply with the directions given by the Apex Court.
After this landmark judgment and strict directions given by the honorable court, Workers in the unorganized sector especially daily wage workers would get some protection and relief and would able to enjoy welfares schemes.