Common Cause and Lokniti Programme of the Centre for the Study of Developing Societies (CSDS), launched India’s first Status of Policing in India Report (SPIR 2018) at the India Habitat Centre on May 9.Read More+
CONSTRUCTION WORKERS OF CWG 2010 WAIT FOR JUSTICE
The cause of construction workers involved in various building projects related to the 2010 Commonwealth Games has been espoused by a coalition of civil society organizations including Common Cause. The saga of their flagrant exploitation and long wait to receive their legitimate dues was first brought to the notice of our readers in our issue of Jan-Mar’09.
In our issue of April–June 2010, we provided an update on the PIL filed jointly by the Peoples Union for Democratic Rights, Nirmaan Mazdoor Panchayat Sangam and Common Cause. Subsequent developments were brought to our readers’ notice in our issue of July-September, 2010. The Delhi High Court had, vide their Order dated 26.05.2010 issued directions to the Labour Department and other authorities concerned for registration of all construction workers, issuing pass book to them and ensuring that they receive the benefits due to them. The High Court had also given specific instructions in regard to the children’s education scheme, medical benefits, maternity benefits and death benefits.
The final order of the Delhi High Court, which was pronounced on 20.09.2010, does not contain any clear directions to be executed within a fixed time schedule. It is a long, rambling order couched in advisory terms. The order takes stock of the compliance by the respondents of the directions issued by the Court in a succession of interim orders and makes elaborate recommendations on measures to streamline the administration of labour laws and the implementation of labour welfare schemes. The redeeming feature of the order is that an action taken report is to be filed in six months. The matter has been listed for directions on April 29, 2013.
We reproduce below important portions of the judgment, which takes into account various suggestions put forward by the petitioners, some of the respondents and a group of students from Delhi Law University.
IN THE HIGH COURT OF DELHI WP(C) 524/2010
Peoples Union for Democratic Rights & Ors. ..... Appellants
Union of India & Ors ..... ....................Respondents Justice A.K. Sikri (Acting Chief Justice)
Justice Rajiv Sahai Endlaw:
It is a matter of common knowledge that for the CWG-2010,, which were held in October, 2010, over Rs.70000 Crores were provided only for improving the city infrastructure and sports facilities. Naturally, this necessitated construction projects which were assigned to respondents No.2, 3, 4, 11 and 12. They, in turn, gave these projects to agencies like respondent No.6 and 7. For execution of the various construction projects of massive sizes, respondents No.6 and 7 gave the construction work to various contractors/real estate developers and construction companies. When the work was at peak in mid May, 2008 to mid May, 2009, more than one lakh workers were employed in all these projects. Even at the time of filing of the petition in January, 2010, 15000 contract/daily wage workers were working in these projects. However, it was found that these workers were not given their legitimate dues . The petitioners in this petition alleged that even minimum wages were not paid to these workers.
It is pointed out in the petition that the petitioners in the case of People’s Un ion for Democratic Rights & Ors. v. Union of India & Ors., (1982) 3 SCC 235, on receiving reports of violation of workers. rights at the Commonwealth Games construction sites, investigated the work conditions at one of the construction sites, the Commonwealth Games village, near Akshardham temple and published a report in April, 2009. It was found that the provisions of the Act of 1996, Minimum Wages Act, 1948, Interstate Migrant Workmen (Regulation of Employment and Condition of Services) Act, 1979, Contract Workers (Prohibition and Regulation) Act, 1970 are widely violated.
The specific findings of the investigation were:
i. That one worker had died in an accident in December, 2008 and the workers claim that there had been several deaths which were not recorded. ii. That minimum wages were not paid to most of the workers.
iii. That double wages for overtime were not paid.
iv. That the wages were irregularly paid with considerable delays and with contractor.s often withholding part of the wages.
v. That safety equipments were often not made available to workers.
vi. That identity card was not given to the workers as required under law.
vii. That wage slips were not given to the workers in accordance with law. As a result, the workers had no proofs whatsoever that they were employed.
viii. That the provisions of the Act were not being implemented and that the workers were not being registered with the Welfare Board.
ix. That many of the workers were living in rooms, often without doors, without protection during winter, without electricity and without toilets.
x. That many of the camps where the workers were staying were not hygienically maintained and full of mosquitoes.
xi. That in the camps water was stored in pvc tanks which were not cleaned.
xii. That the workers who came from Bihar, Jharkhand, Orissa, Madhya Pradesh, Uttar Pradesh, West Bengal and Punjab were not given the benefits of the Insterstate Migrant Workers Act and were totally at the mercy of the contractors.
xiii. That workers were never given a weekly off with wages as required by the Minimum Wages Act and were required to work on all 7 days.
xiv. That the women workers were paid less than their male counterparts.
xv. That very primitive medical facility is available for the workers.
xvi. That no representative of the Principal employer is present at the time of disbursement of wages as is required under the law.
xvii. Aforesaid violations are merely a glimpse of what was happening at site though the petitioners have pointed out various other violations which were noted.
3. The petitioners state that in accordance with the Act, the Rules were notified in 2002 and the Construction Workers Welfare Board set up in Delhi. In accordance with the Act, Cess collection started in 2005 and picked up pace in 2007. From the cess collections, the Welfare Fund stands at Rs.300 Crores today. The Welfare Board in Delhi is, however, dysfunctional. It has met, on an average, twice a year as opposed to the requirement of meeting once in two months. It has no full time secretary to ensure functioning of any kind. Most of the workers, representatives on the Welfare Board have no track record of commitment to labour issues. It has no staff to scale up new registrations and renew old ones. The worker registration process launched in late 2005 has covered over 20,000 workers from among the estimated 6-8 lakh workers in the city (according to construction workers. trade unions, NMPS and SEWA Delhi). Live registrations amount to approximately 10% of registered workers so far because of cumbersome procedures and the absence of publicity about benefits.
To date, only Rs.15 Lakhs, or thereabouts, have been spent on providing concrete benefits to the workers.
4. Thus, according to the petitioners, even when substantial amounts are available, they were not meaningfully spent for these workers on whose behest these funds are collected under the Act. In these circumstances, in the writ petition, following prayers have been made:
“(a) Pass a writ of mandamus or any other writ or direction setting up an Independent Commission of this Court to visit the various sites where construction work is going on in connection with the Commonwealth Games, interview the workers and make a report with respect to the grievances set out in this petition.
(b) Pass an order permitting the above Commission to co-opt such NGOs, experts and others as they deem fit.
(c) Pass an order directing the respondents to ensure compliance of the provisions of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and the rules made thereunder relating to health and safety of construction workers are duly complied with.
(d) Pass an order directing the respondents to ensure that all construction workers employed in connection with the Commonwealth Games 2010 are registered with the Welfare Board constituted under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, within two weeks from today, are provided with appropriate documentation as required under the Act and are given due benefits with retrospective effect from the dates of starting work.
(e) Pass an order directing the respondents to ensure that all the workmen employed in connection with the Commonwealth Games are given identity cards, insurance cover under Jan Shree Bima Yojana/Rashtriya Swasthya Bima Yojana, Wage slips, at least the minimum wage, double wages for overtime, a paid weekly off, proper medical facilities, workmen.s compensation in all cases of accidents, clean drinking water and toilet facilities.
(f) Pass an order directing the respondents to ensure that the quarters where the workers are staying are properly designed and maintained and have secure doors, electricity supply, adequate number of toilets which are cleaned daily, and have hygienic surroundings.
(g) Pass such other order or orders as this Hon’ble Court may deem fit in the facts and circumstances of the case.”
5. Noticing the aforesaid plight, this Court sprung into action by issuing notice on January 27, 2010. Thereafter various interim directions were given from time to time in order to provide relief to these workers.
6. A glimpse of the previous directions passed by the Court would demonstrate that adequate measures(!) have been taken and the rights which accrued to the workers engaged in the construction activity for CWG-2010 have been taken care of. It would also be important to point out that all the respondents and Government agencies did not treat this petition, going by the spirit thereof, as adversarial and during the proceedings, gave their full cooperation to ensure that the construction workers get their legitimate dues(!) 7. Though, in the aforesaid manner, the present petition has served its purpose, yet the parties were unanimous in their positive approach to ensure that such things do not recur again and, therefore, some mechanism must be in place which would ensure that the rights under the Act are secured by the construction workers and they are able to get their dues. In this behalf, not only the petitioners but even respondents came forward to give their suggestions which we highly appreciate. In so far as petitioners are concerned, they have mentioned that total construction workers who were involved in CWG-2010 were 111019. Since cost of construction was Rs.70000 Crores, the Cess which should have been collected under the aforesaid Act comes to Rs.700 Crores. However, as per the affidavits of the respondents, total Cess collected is Rs.200 Crores.
Notwithstanding the same, total Cess amount which is available with the Board, i.e. general plus CWG-2010 Cess, is Rs.780 Crores. Total workers (CWG-2010 plus others) registered as per the Labour Department are 65356. However, it is not mentioned as to what welfare benefits are given to these workers. ………………………………………………………………………………………………………………… 8. The petitioners have also given various suggestions for amendment in Rules and registrations of the establishments during construction work in order to streamline the system, which is as under:
|266. Membership.- Every building workers who has completed eighteen years of age but has not completed sixty years of age and who is not a member in any other welfare fund established under any law for the time being in force andwho has completed ninety days of service as a building worker in the year immediately preceding shall be eligible for membership in the Fund. (2) A Certificate to prove age as specified below, shall also be submitted along with the application:- (i) School records. (ii) Certificate from the Registrar of Births and Deaths. (iii) In the absence of the above certificates, a certificate from a Medical Officer not below the rank of an Assistant Surgeon in Government Service. (3) Certificate from the employer or contractor that the applicant is a construction worker shall be produced alongwith the application for registration. In case such a certificate is not available, a certificate issued by the registered construction workers unions or a certificate issued by Assistant Labour Commissioner of the concerned area or by the Executive Officer of the Panchayat may also be considered. (4) Every building worker eligible to become a beneficiary to the Fund shall submit an application in Form No.XXVII to the Secretary or to an officer authorised by him in this behalf. Every such application shall be accompanied by the documents mentioned in this rule and a registration fee of twenty five rupees.||Rule 266: regarding Membership should be reframed making it mandatory for the principal employer to make all the employees of the principal employer, the contractor and sub contractors members of the Welfare Board automatically on commencement of work and to ensure that such membership is renewed automatically. Remarks: The rule lays down a cumbersome procedure where the burden is on the worker to fulfill the formalities of becoming a member. The rule requires firstly a worker to produce a proof of age, secondly certificate of employment certified by the mployer or contractor. This rocedure should be simplified and a twofold approach may be adopted wherein a worker can avail the membership himself and primarily it shall be the responsibility of the employer or contractor to fulfill the formalities|
9. Learned counsel for the DDA referred to the definition of ‘employer’ and ‘establishment’ and on that basis submitted that the aim of the Act is to treat the entity which is directly responsible for the construction activity to be an ‘employer’ and the Government/department/authority/legal authority would be treated as ‘employer’ only when the building or construction work is carried out directly without any contractor. According to the learned counsel, this was the position accepted by the Supreme Court in Dewan Chand Builders and Contractors v. Union of India & Ors., (2012) 1 SCC 101 wherein, after analyzing the Act, the Court held as under:
“The BOCW Act and the Cess Act break new ground in that, the liability to pay Cess falls not only on the owner of a building or establishment, but under Section 2(i)(iii) of the BOCW
Act ‘in relation to a building or other construction work carried on by or through a contractor, or by the employment of building workers supplied by a contractor, the contractor.’
The extension of the liability on to the contractor is with a view to ensure that, if for any reason it is not possible to collect Cess from the owner of the building at a stage subsequent to the completion of the construction, it can be recovered from the contractor. The Cess Act and the Cess Rules ensure that the Cess is collected at source from the bills of the contractors to whom payments are made by the owner. In short, the burden of Cess is passed on from the owner to the contractor.” (emphasis supplied)
11. Therefore, his submission was that there is no concept of ‘principal employer’ under this Act and thus, the entire responsibility was that of the contractor. In this view, the suggestions of the DDA, as given, are as under:
(i) The Act in Section 12 sets out the eligibility of building workers for being registered and requires an application to be made for such registration.
(ii) It is clear that registration of building workers as beneficiary is not mandatory. It is optional at the instance of the building workers.
(iii) As per Section 14, a building worker to continue as beneficiary has to, inter alia, be engaged in building or other construction work for much less 90 days in a year. Moreover, as per Section 16, a building worker who has been registered as a beneficiary is required to contribute to the fund as may be prescribed.
(iv) If the beneficiary has not paid his contribution under Section 16 for a period of one year, he ceases to be a beneficiary.
(v) The process of registration and maintaining the registration is affected by various factors, inter alia, including the following:
a. Majority of the workers are out of Delhi;
b. Majority of the workers are illiterate;
c. Generally there is no permanent address of such workers; they move from construction site to construction site within Delhi or outside Delhi depending on availability of work;
d. Building/construction work by its nature is temporary and the nature of relationship between an ‘employer’ and a ‘building worker’ is also temporary.
(vi) Therefore, the Act casts responsibility for seeking and maintaining the registration as a beneficiary on the building worker. That being the legislative intent, the Courts would refrain from casting any responsibility on the ‘employer’ which is contrary to the specific provisions of the Act whether in the manner as petitioner seeks in this writ petition or otherwise. This is possible only after the legislature amends the Act.
12. As pointed out above, Government of NCT of Delhi has also given the following suggestions:
(i) Registration of construction workers: At present, under Section 12 of the Act, registration of construction workers is done after he has completed 90 days of work in the preceding one year. This limitation of 90 days work experience is acting as a impediment in registration process as large number of construction workers either do not qualify or contractors do not allow them to complete 90 days of work because they feel that their records and number of workers employed by them should not come on Government records for various reasons. Therefore, it is proposed that this condition be done away with by amending the main Act. Action is required by Government of India in this respect.
(ii) Self Certification by worker for registration: There is no procedure presently for certification of employment in respect of self employed construction workers due to which they face problem in certification of their employment. Due to this reason, large number of self employed construction workers are left out and deprived of various benefits of the schemes of the Board. It is proposed that necessary amendment be made in the Act by incorporating self-certification of profession/ employment by construction worker himself. Action is required by Government of India in this respect.
(iii) Validity of registration: At present, registration of construction worker is valid for one year only, which is required to be renewed every year. However, the experience shows that most of the construction workers do not deposit their subscription on time due to migratory nature of work, which leads to expiry of their membership with the Board and as a result deprives them from claiming various benefits from the Board. Therefore, it is suggested that registration may be valid for a period of 5 years with one time superscription. Necessary amendments be made in the Act and action is required by Government of India in this respect.
(iv) Probability of membership with other construction boards: Presently, there is no coordination/synchronization between various State Construction Boards which means workercontributing his subscription in one State Board is not valid in other State Boards and on transfer or migration, he cannot avail benefits of other State Boards unless he becomes member/ beneficiary of that State Board. It is, therefore, proposed that registration of construction workers should have portability on the lines of RSBY scheme. Necessary amendments need to be made in the Act including issuance of smart/biometric card. Action is required by Government of India in this respect.
(v) Registration of workers to be made mandatory: Presently, as per Section 12 of the Act, the registration of worker with the Construction Board is voluntary in nature which means it is up to the worker to become member of the Board or not. Due to this reason, large number of workers do not opt to become member of Construction Board due to various reasons including lack of awareness regarding various welfare benefits which he would be entitled after registration with the Board. It is proposed to make the registration of workers mandatory on the lines of EPF and ESI Act for which necessary amendment is required to be made in the Act by Government of India.
(vi) Incorporating a separate clause in agreement of the contractor: In order to ensure registration of construction workers with the Construction Board, a separate clause to be incorporated in agreement between the Principal employer and the contractor, thereby casting responsibility on the contractors to ensure registration of construction workers with the Board right at the time of their employment. The onus of compliance to be strictly supervised by the Principal Employers. In case of default/breach of this clause, penalty to be imposed on Principal Employer as well as on the contractor. For this, necessary amendment be made in the Act and action is required on the part of Government of India.
(vii) Enhancing registration of construction workers: In order to give boost to registration of construction workers employed either directly by Government/PSU agencies or through various contractors as the case may be, officers of appropriate level of the Government/PSU may also be authorized to register construction workers working for them. This will help the workers to get them registered at their working place itself. Intimation in this regard be supplied to construction board through need based IT formatting/software.
(viii) Enhancement of various welfare schemes of the Board (Petitioner’s proposal): Financial entitlement prescribed under Delhi Rules, 2002 were found to be very low/minimal and accordingly Expert Committee was constituted by Delhi Government to examine and propose suitable enhancements of various welfare schemes. The Committee submitted its report for enhancement and accordingly the Government accepted the same and 10 numbers of schemes have been enhanced and the same have been gazette notified on 10.02.2012. This action of enhancement of various welfare schemes addresses the proposal/suggestions given by the petitioner side.
(ix) Enhancement of limit of administrative expenditure – 5%: Presently as per Section 24(3) of the Act, no Board can spend more than 5% of its total expenses during the financial year on administrative expenses. This limitation of expenditure on administrative issues is acting as a problem for establishment and providing adequate infrastructure in terms of equipment, machinery or manpower. Due to this problem, Delhi Construction Board has not been in a position to strengthen the establishment and provide adequate infrastructure and manpower for smooth functioning of the board. Experience shows that same and similar problems are being faced by other State Boards. It is proposed to enhance this limit to 20% from existing 5% for which necessary amendment is required in the Act and action is required to be initiated by Government of India.
(x) Exemption of Income Tax on Cess Funds: At present, there is no clarity on the issue of applicability of income tax liability on cess funds. The Act of 1996, the Welfare Cess Act, 1996 and Cess Rules, 1998 have no provision in this respect. Cess funds of Delhi Building and Other Construction Workers Welfare Board have been subjected to income tax liabilities by Commissioner Income Tax Delhi and an amount of Rs.60 Crores have been recovered by way of bank attachment from Cess funds of the Board. The Board has filed an appeal against this recovery in the Court of Income Tax Appellate Tribunal and the issue is being contested by the Board. The Board has also filed an application under Section 10(46) of the Income Tax Act, 1961 before CBDT requesting for total exemption of income tax on cess funds of the Board. This issue has drained out an amount of Rs.60 crores from cess funds and has imposed upon the Board unwarranted litigation which consumes lot of time, manpower and money to be paid to lawyers defending interest of the Board. It is therefore proposed to make necessary amendments in the Act as well as Cess Act and Rules granting total exemption of income tax on cess funds including filing of income tax returns to income tax authorities.
13. The Central Government through its counsel has also given issue-wise suggestions which are as under:
A. Non-payment of minimum wage A.1 Apart from the enforcement procedure pertaining to inspection and prosecution, the issue of non-payment of minimum wage can be redressed by making payment of wage through the Bank. This would ensure that there is a record of the amount paid. A.2 The payment deposited in any bank would be accessible through an ATM of the bank. A.3 The registration card of the worker or even a certificate from a registered trade union could facilitate the opening of a bank account. A.4 The banks to provide the facility of zero balance accounts and cost free ATM. A.5 The problem in this method is that under the existing framework of the law, the payment has to be made in currency or coin. A.6 Some employees are making payment only through bank. A.7 The penalties provided under the statute are now unrealistic as the quantum of punishment and fine that has been fixed by the statutes was fixed many years ago and has with the rise in inflation and increase of cost has become miniscule and needs an upward revision. A.8 The settlement of claim case and prosecution in some instances take a substantial time and in the meantime the worker changes the place of work or residence and as such does not get the benefit of the claim or is not available for availing the benefit. A.9 Directions could be issued to the authorities to dispose of claim cases and prosecutions under labour laws within a stipulated period. A.10 Illiteracy of the workers coupled with unscrupulousness of the employers is the most important factor contributing to the ignorance of the workers about the minimum rates of wages fixed by the Government. This ignorance in turn induces them to accept whatever wages are paid. It is, therefore, necessary that the Government (Central as well as State) devises and adopts a policy to give wide publicity to the minimum rates of wages through print and electronic media at regular intervals and also through other means.
A.11 Government should therefore, make it mandatory to outrightly reject tenders quoting prices where the component of wages and other allied benefits based on wages such as provident fund, Employees State Insurance, bonus, gratuity, etc. are calculated at less than the minimum rates of wages. A.12 The mobility of workers from one project/site to another has fast increased. The workers who were seen at one place a few days back are not noticed there today. It becomes difficult to trace them once they have left the site. Unfortunately, no registers/records maintainable by the employer under the Minimum Wages Act, 1948 or the rules framed thereunder require the local and/or permanent addresses of the workers to be recorded thereby making it difficult at times for any amount to be remitted to them in compliance with an inspector.s/court.s/authority.s order. The local as well as permanent addresses of the employees should be required to be recorded by the employer through an amendment of the Act/Rules.
B. Benefit of Cess
B.1 The Cess collected under the Act is not to be disbursed to the workers as is the misconception of the petitioners. B.2 The Cess is collected to create a corpus for the implementation of the various schemes to be formulated by the State Government. No cash disbursement is to take place to the workers.
B.3 The problem in grant of benefit is that as per the scheme as formulated by the Government, the worker has to first complete the mandatory period of 90 days to be eligible for registration.
B.4 The act of registration is voluntary and is not mandatory.
B.5 The worker has to make initial and regular contributions and has to keep the registration alive to avail the benefits.
B.6 To avail the benefit the worker has to make the application to the board and if the worker is found eligible then the benefit can be granted.
B.7 The period of 90 days could be waived for the purposes of registration. However, for availing the benefits, the period of 90 days could be insisted upon.
B.8 It could be made mandatory for the employer/contractor to ensure registration. Like in cases of registration of births, the onus is on the hospitals to ensure registration. The onus could be placed on the contractors/principal employer to compile the data and register the workers within a stipulated period of the commencement of work.
B.9 The Labour unions could help in taking up the task of registration of workers.
C. Mobility of Workers
C.1 The Cess collected and the registration of workers is with the State authorities.
C.2 The workers at times come from other States and work in Delhi like during the Commonwealth projects. The Cess is collected by the State Government and given to the Board constituted under the Delhi Act.
C.3 The mobility of the workers and their registration would imply that the benefits under the schemes are available to the workers from other States even if they migrate and go to other States. This may have a problem as the other States may not agree to provide benefits to the workers who have not worked in their State unless there is reciprocity and sharing of the Cess.
[The High Court also took note of other deficiencies in the implementation of statutory regulations like non– payment of bonus, inadequacy of safety equipments and unhygienic working conditions and exhorted parties concerned for compliance of labor laws with directions for stricter enforcement.]
17. It is clear from the above that we have to address the following aspects on which suggestions were solicited and given by the petitioner and the authorities as noticed above: i. Registration of Workers. ii. Minimum Wages to workers. iii. Living Conditions and Safety measures. iv. Financial assistance for education of children. v. Maternity and pensionary benefits. vi. Issues relating to collection of CESS, definition of „employer. 18. After taking into consideration suggestions made by all the parties before us and taking note of above, we are of the opinion that matter needs thorough consideration by the concerned authorities, for carrying out necessary amendments in the provisions of the Act and the Rules and also the Executive is required to take certain positive steps for effective implementation of the laws to enable these construction workers to receive the benefit, which accrue to them under the Act and the Rules, in real terms. We accordingly issue certain suggestions hereinbelow insofar as they relate to amendment in the Act and Rules etc. along with certain other necessary directions:
1. REGISTRATION OF WORKERS: This aspect in the present matter has caused immense grievance and is one of the vital aspects which need urgent attention.
a. The requirement u/s 12 of the BOCW Act i.e. 90 days. work in previous year is acting as a hindrance in the registration process. The court feels that this requirement shall be done away with, to the extent of registration. Amendment to be made by the government to the extent of doing away with this provision. This will help in keeping a check on employers who dismiss the employees before they complete 90 days.
b. The registration is not mandatory, it should be made mandatory and onus shall be put on employer and the contractor to get the workers registered as soon as they commence work. To make such workers a member of welfare board automatically.
c. Proper identity cards should be issued to the workers currently engaged in any establishment.
d. Moreover the registration of workers should be quantified in database which shall be made available electronically so as to facilitate the process in case of migrant workers. A Centralized Government authority may be set up to supervise the entire process and this process to be carried out within three months from now.
e. Cumbersome procedure under Rule 266 of Delhi BOCW Rules to be done away with. Amendment of rule 266 is required. Burden to be put on employer to get the worker registered.
f. The validity of registration as of now is just one year. This limit needs to be enhanced up to a minimum of five years on payment
g. Lack of coordination between state boards of different states is another major set-back; therefore a uniform system shall be initiated, wherein the workers who are registered with one state board are given membership for state boards all over India for a minimum period of 5 years. Violation may be prevented by issuing smart card to workers for their unique identification. Necessary provisions need to be included in the Act.
h. Requirement as per Section 16 of the BOCW Act and Rule 267 of BOCW Rules, 2002; the cancellation registration due to non-payment of fee and fine for same need to be removed.
i. Under Section 15 the requirement of maintaining monthly record of workers and registering them in the end f month if not registered to be adhered to.
j. Section 12(b) of Inter-state Migrant workers Act, the requirement of issuance of pass-book by contractor to worker should be implemented, so as to entitle the worker to avail benefits as the pass-book serves as a record of 90 days work.
k. Muster roll as per Section 30 to be maintained properly, defaulting principal employer/employer/ contractor shall be fined as the case may be.
l. Registration process to be facilitated by allowing government officers and PSUs to register workers on a single electronic database so as to help in avoiding duplicity as well as aiding the daily-wage labourers in registering themselves. Directions shall be issued in this respect by appropriate government. m. No provision for self-certification by workers, amendment to be made in this regard.
n. Permanent and local addresses to be recorded by employer or contractor as the case may be which is to be supervised by the principal employer in case of workers from outside Delhi.
o. In case contractor fails to register the employee and principal employer fails to supervise the conduct of contractor, penalty shall be levied for the same on both.
p. Awareness programmes shall be initiated for facilitating the process and spreading awareness about advantages of registration. Camps for the same should be held once in every three months.
1. MINIMUM WAGES: Minimum wages are those which are to be paid to the worker in every industry or establishment. These are different from fair or living wages. These aid the worker in at least affording the basic necessities for sustenance.
a. Payment shall be made via banks, instead of cash or other forms of currency. This will help in keeping a check on flow of black-money in the market as well as will prove as a record for payment of the wage. Amendment needed.
b. The registration card given to worker or a certificate from a registered trade union shall operate as a proof of address for opening bank account.
c. The banks shall provide zero balance accounts and ATM facility free of cost.
d. Claims pending in respect of minimum wages need to be disposed of in a stipulated period of three months and compensation for not tendering the amount earlier should also be paid. Directions sought.
e. The penalties for non-payment of minimum wages need to be revised and duly amended as due to passage of time they have now become miniscule and inappropriate due to inflation and other factors. The penalty needs to be increased to such a level, which acts as a deterrent and provides the workers with a decent level of sustenance.
f. Minimum wage rate needs to be publicised in media or other sources regularly, as the illiterate section of labourers lack awareness about the same. g. If any establishment floats a tender and where the minimum wage rate is less than the one which is to be amended or even the current one, then tender shall be rejected with penalty. h. Section28 (1) (a) provides for payment of overtime if person made to work on day of rest. This provision to be duly complied with. i. Wage slips to be issued to the workers.
2. ISSUES RELATING TO CESS: Issues relating to collection, disbursement and use of cess are listed hereunder. This heading also addresses the issues relating to enhancement of related monetary schemes.
a. Cess to be deposited with the Delhi Building and other Construction workers Welfare Board.
b. Affidavit to be filed by competent authority, i.e. Vice Chairman of Respondent No. 4, Director General of Respondent No.6, Chairman of Respondent No.7, Commissioner of Respondent No.8, Managing Director of Respondent No.11 and Managing Director of Respondent No.12 stating the exact amount collected as cess.
c. Benefit may not be paid to every worker. It may be paid to the workers who have a record of working for 90 days. in previous year. But such a requirement can only be imposed if pass-book is issued to the worker, if not issued then cess to be distributed in form of schemes for the workers.
d. The issue of mobility of workers may also be addressed under this heading. The workers who come from outside Delhi may have a problem in claiming cess because no provision for centralised disbursement of cess by all state boards to the workers registered with the state board other than them. Amendment required in respect of membership to all state boards and also the sharing of cess with workers from outside the state by all state boards. No discrimination is permitted.
e. As of now, cess may be paid in form of schemes or other suitable methods to be devised by the appropriate authority for disbursement of the same shall be carried out within three months.
f. Provision to be laid down, exempting the cess from Income Tax Rules and Act. Cess rules shall also be amended to this effect. The petition filed for recovery of amount paid as tax on cess, may be allowed if viable.
g. The limit to spend only 5% as per section 24(3) for administrative processes during a financial year should be enhanced to 20% so as to facilitate the authority in dealing with rising expenses. A report shall be filed before the competent authority or the Court stating the objectives as to why the enhancement is needed.
h. The report for enhancement of 2002 rules has been submitted but no proof of its implementation. A proof shall be given of the enhancement for the rules and the implementation of same Benefit cannot be shown on paper alone.
3. LIVING CONDITIONS AND SAFETY MEASURES:
a. Safety equipment of international standard viz. hard hats, gloves, shoes, etc. shall be provided to all the workers by the contractor and the principle employer shall monitor the same and submit a compliance report with the appropriate authority. Necessary directions to be issued by Government. All necessary equipments to be provided to the workers free of cost.
b. Responsibility on the principle employer for ensuring strict compliance to the measures prescribed in the Act and otherwise. If non-compliance noted, then the registration of establishment may be cancelled or the Principle Employer be fined or both.
c. If Contractor fails to adhere to the rules and conditions laid down, then an amount as fine shall be deducted from his bill that is submitted to the principle employer.
d. Adequate living conditions i.e. decent housing, lighting, water supply, ventilation etc. shall be provided to the worker, as laid down in the Act. e. Protection from epidemics and acts of nature like malaria, dengue, rain etc. respectively shall be accorded to the workers.
f. Proper drainage system at the place where workers are provided accommodation.
g. MCD officers and officers of the Labour Department shall regularly visit the site and file status reports.
h. Section 36 of the Act provides for first-aid facilities, compliance sought.
i. Rule 34-38 of BOCW Rules, 1989 provide for check on excessive noise at workplace; adequate fire protection from hazards; emergency action plans in case of fire, explosion etc. and the limit for lifting and carrying of excessive weights. Such provisions shall be strictly adhered to.
j. Workers employed in construction of flyovers widening or repair of roads or any other public utility construction to be provided with adequate accommodation with all basic facilities.
5. FINANCIAL ASSISTANCE FOR EDUCATION OF CHILDREN: Education is right guaranteed under the constitution and the same cannot be denied by any one, may it be an individual or an institution.
a. The education scheme has to be appropriately implemented so that a child of a worker gets necessary education.
b. The petitioner has the liberty to have the assistance of senior persons from field of academics to assist the workers in filing forms to avail this benefit.
c. All education applications which are pending (if any) need to be looked into immediately and appropriate action shall be taken. The required action to be carried out within four months.
d. Financial benefit to be provided on the basis of revised 2002 rules and not at the old rate. Noncompliance shall attract penalty.
e. Section 22(1) (e) provides for financial assistance for education of children of the beneficiaries. The financial assistance for education to be increased 3 times if the revised rate not sufficient.
f. Respondent No.8 to advance appropriate amount to Director of Education, MCD and to ensure that registration and scholarship forms are circulated, verified and duly deposited within three months by all the children of the workers engaged in MCD, NDMC or otherwise.
g. Respondent No.9 to disburse appropriate amount for the applications which have been verified.
6. MATERNITY BENEFITS AND PROVISIONS FOR PENSION AND BONUS: Maternity benefit to female workers shall be provided along with pensions to retired persons and also the provision of bonus is laid down.
a. Bonus shall be declared at the end of the year and shall be remitted on permanent or local address as the case may be or deposited with the bank.
b. The provision which states that bonus is payable only till 8 months after end of accounting year in which the person was employed needs to be re-considered and revised or amended as the employer may abscond or the employee may go missing after the expiry of such period or even during it.
c. Additional bonus @ 8.33% of the wages payable per month, the bonus to be paid on monthly basis on pro-rata basis, so that bonus is received even for the period of employment. Amendment required in related rules.
d. Medical applications which are still pending (if any) shall be disposed of after following proper procedure at the earliest.
e. Pregnant workers shall be provided with necessary facilities and also should be allowed paid leaves.
f. Section 35 provides for Creches for children below the age of six years which shall have adequate accommodation; properly lighted and ventilated; proper sanitation. Provisions to be complied with.
g. Pension shall be payable to the workers who have retired due to attaining old age or if any age is prescribed or if involuntary retirement is the case due to any injury during the course of employment. Section 22(1)(b) of the BOCW Act provides for payment of pension to the beneficiaries who have completed the age of sixty years.
h. Section 22(1)(g) provides for payment of maternity benefit to female beneficiaries. Amount shall be determined by state Government or appropriate authority.
7. REGARDING ADMINISTRATION AND FUTURE MONITORING
a. Since discrepancies have been reported in the functioning of the Board under the Act, a fully operational Board shall be set up with one full time secretary and the required regular and full time staff to implement the provisions of the Act and the Rules.
b. All registered Trade Unions, registered NGOs and Civil Society groups dealing with human rights are allowed to visit constriction sites and interview the workers and file reports with the Labour Secretaries of respondents No.1 and 2 who, on receiving such reports, shall take appropriate action in accordance with the law.
c. The Board thus constituted shall meet at least four to six times in one accounting year.
19. The writ petition is disposed of in the aforesaid manner. However, we expect that on the aforesaid suggestions and directions, authorities shall be activated and action taken report shall be filed within six months. The matter is listed for directions for this purpose on 29th April, 2013. ACTING CHIEF JUSTICE RAJIV SAHAI ENDLAW, J SEPTEMBER 20, 2012
Editorial Comment : It would be observed that the above order does not in any way answer our prayers to the court to ensure that all the legitimate dues of the workers involved in CWG2010 are paid to them. Thus their long wait for justice continues indefinitely.