National Campaign Committee for Central Legislation on Construction Labour vs Union of India

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

CONTEMPT PETITION NOS.42 & 43 of 2011

IN

WRIT PETITION (CIVIL) NO.318 OF 2006

National Campaign Committee for Central

Legislation on Construction Labour ... Petitioner

Versus

Union of India & Ors. ... Respondents

WITH

I.A. NO.6 OF 2011

IN

WRIT PETITION NO.318 OF 2006

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

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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

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implement 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

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as made reference to various provisions of the Act and issued 11

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

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petitioner 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

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Meghalaya, 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

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State 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

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consequences 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

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Court 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,

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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