In the Supreme Court of India WRIT PETITION (CIVIL) NO. 318 OF 2006 Petitioner National Campaign Committee For Central Legislation On Construction Labour Respondent Union of India Date of Judgement 19th March 2018 Bench Justice Madan B. Lokur
Introduction:
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. To make a composite framework leading to the policy or scheme for the welfare of construction workers was directed by the Supreme Court because of this case.
Statues & provisions involved:
- Article 15(3), Article 21, Article 32, Article 39(e), Article 39(f) of the Indian Constitution, 1950
- Section 11, Section 12, Section 13, Section 18, Section 22, Section 24 of Building and Other Construction Workers Act, 1996 (hereinafter referred to as BOCW Act)
- Section 4, Section 5, Section 8 of Building and Other Construction Workers Cess Act, 1996
Facts:
The petitioner is said to be a non-enlisted Committee of enrolled worker’s organizations worried about the rights of laborers in the chaotic division including development laborers, particularly in regions of health, basically towards safety, security and other welfare measures. The claimant says that – appalled by the demeanor and ignorance of most State Governments and Union Territories towards the execution of the BOCW Act.
As indicated by the claimant, the non-execution of the BOCW Act disregards the arrangements of Articles 15(3), 39(e) and (f) and Articles 45 and 47 of the Constitution, which force an essential duty on the State to guarantee that all the requirements of laborers are met and that their fundamental rights are completely ensured. The non-usage additionally disregards Article 21 of the Constitution, which accommodates the option to live with dignity. It is affirmed that the BOCW Act and the Cess Act depend on a global show, to be specific, the Safety and Health in Construction Convention (No. 167) received by the International Labor Organization in 1988 and it’s going with the suggestion (No.175) which accommodate an establishment of law on which protected and solid working conditions are assembled.
In light of its encounters and concentrates completed which show the nonappearance of any powerful framework for the sheltered and solid working conditions for development laborers, the petitioner preferential a writ petition as per Article 32 of the Constitution in which a few prayers have been made yet basically the petition is that the BOCW Act and the Cess Act ought to be definitively executed in letter and soul.
Issues:
a. Can delay in the effective implementation of both the statutes be a ground for invalidating the levy of cess?
b. Is cess, in fact, a tax?
c. Whether both the statues implemented as per the intention of the parliament?
d. Whether beneficial measures for the welfare of construction workers covered under the BOCW Act and Cess Act?
Contensions:
Simply because there was some postponement in the successful usage of both the statues, it couldn’t be a ground for discrediting the toll of cess, nor could the duty of cess be said to have demonstration application. The term ‘cess’ is generally utilized to hint a tax with a reason or a tax dispensed to a specific thing. Be that as it may, it additionally implies a levy or an assessment.
This option to live with human dignity envisaged in Article 21 determines its life breath from the Directive Principles of State Policy and especially provisos (e) and (f) of Article 39 and Articles 41 and 42 and in any event, along these lines, it must incorporate assurance of the wellbeing and quality of laborers, people, and of the crucial tender time of children against misuse, openings and offices for kids to create in a solid way and states of opportunity and nobility, instructive offices, just and altruistic states of work and maternity alleviation.
It is obvious of the BOCW Act that its sole point is the welfare of construction laborers, legitimately relatable to their naturally perceived option to live with essential human respect, enshrined in Article 21 of the Constitution of India.
It conceives a system of specialists at the Central and State levels to guarantee that the advantage of the enactment is made accessible to each construction laborer, by establishing Welfare Boards and dressing them with adequate forces to guarantee the requirement of the main role of the BOCW Act. The methods for producing incomes for making compelling the welfare arrangements of the BOCW Act are through the Cess Act.
Judgment:
Ratio Decidendi:
- The court laid down several directions for the proper implementation of the said statues and provisions. The court also suggested the Ministry of Labor and Employment come up with a model scheme for the faithful implementation of the constitutional and statutory provisions.
- It is basic that all development laborers ought to be given character cards and ought to be enlisted regarding Section 12 of the BOCW Act. The Ministry of Labor and Employment has proposed the issuance of a Universal Access Number for every development specialist.
- The court offers no remark or perception about the adequacy or in any case of a Universal Access Number. It was presented by learned direction for the petitioners that keen cards ought to be given to all development laborers. The courts kept this issue open and leave it to the Ministry of Labor and Employment to choose a proper arrangement of distinguishing proof and enrollment if it is successful and important.
- The Union of India must choose the administration of the cess effectively gathered. It appears to us that the advantages and privileges that have accumulated to the development laborers (a huge number of whom have not been recognized) can’t be given to them because of the progression of time, with the whereabouts of some of them not known. As needs are, a choice should be taken by the Union of India on the profitable usage of the cess effectively gathered with the goal that the Welfare Boards are not unjustifiably advanced – the recipients having tragically missed out. When those acknowledgments first light upon those required executing the BOCW Act and the Cess Act, maybe due regard will be appeared to Article 21 of the Constitution and to Parliamentary resolutions.
Obiter Dicta:
- The assignment of enrolling the laborers and giving them the advantage may take some time would not influence the risk to pay the levy according to the Cess Act. Some other understanding would overcome the privileges of the laborers whose assurance is the chief point or essential concern and goal of the BOCW Act just as the Cess Act.
- The arrangement of the BOCW Act, the Cess Act and the Rules warrant that the legitimately imposable cess ought to be forced gathered and put in the statutory welfare support immediately with the goal that the advantages may stream to the qualified laborers at the earliest.
- The arrangement of the BOCW Act or the Cess Act doesn’t warrant that except if all the laborers are as of now enlisted or the welfare support is appropriately credited or the welfare measures are made accessible, no cess can be collected. As it were, the support of the laborers isn’t required to be a condition point of reference for the duty of the cess. The rendering of welfare administrations can sensibly be embraced simply after the cess is demanded, gathered and credited to the welfare fund.
Conclusion:
It involves regular information that there is a colossal measure of construction development activity going on everywhere throughout the nation and there is no motivation behind why foundations or establishment associated with the construction activities, both formal just as non-formal, ought not to pay the Cess, particularly when they are using the administrations of the development laborers. So also, there is no motivation behind why the development laborers of these foundations ought to be denied their privileges and advantages under the BOCW Act and different laws. When that acknowledgment day breaks upon those required executing the BOCW Act and the Cess Act, maybe due regard will be shown towards Article 21 of the Constitution to Parliamentary statutes.
“The views of the authors are personal“
