NATIONAL CAMPAIGN COMMITTEE FOR CENTRAL LEGISLATION ON CONSTRUCTION LABOUR (NCC-CL) versus UNION OF INDIA AND ORS. on 19 March 2018

SUPREME COURT REPORTS

[2018] 9 S.C.R.

ANATIONAL CAMPAIGN COMMITTEE FOR CENTRALLEGISLATION ON CONSTRUCTION LABOUR (NCC-CL)

v.

UNION OF INDIA AND ORS.

(Writ Petition (Civil) No. 318 of 2006)

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MARCH 19, 2018

[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]

Building and Other Construction Workers (Regulation ofEmployment and Conditions of Service) Act, 1996 – Building andCOther Construction Workers’ Welfare Cess Act, 1996 –Implementation of the Acts – BOCW Act and Cess Act are sociallegislations – They were enacted keeping in mind the DirectivePrinciples of State Policy, particularly Art.39 which requires theState to direct its policy to secure the health and strength of workers,Dand Art.42 which concerns just and humane conditions of work –However, neither State Government nor Union TerritoryAdministration (UTA) were willing to fully adhere to abide by twoabove mentioned laws enacted by Parliament and even the directionsissued by the Government of India had been disregarded by theState Governments and UTAs – Specific directions issued: (i) MinistryEof Labour and Employment, the State Governments and UTAs to putin place and strengthen the registration machinery, both forregistration of establishments as well as registration of constructionworkers – (ii) Ministry, the State Governments and UTAs to establishand strengthen the machinery for collection of cess – (iii) MinistryFof Labour and Employment to frame a composite Model Scheme forbenefit of construction workers in consultation with all stakeholdersincluding NGOs actually working at the grassroots level withconstruction workers – (iv) State Governments and the WelfareBoards in every State and UTA to conduct a social audit onimplementation of the BOCW Act so that in future there is better andGmore effective and meaningful implementation of the BOCW Act –Apart from the said specific directions some general directions alsopassed so that the BOCW Act is fully implemented with responsibility– Constitution of India – Arts. 21,39 and 42.

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Issuing the directions, the Court

HELD: 1. There can be no doubt that the Building and otherConstruction Workers (Regulation of Employment andConditions of Service) Act, 1996 (BOCW) and its sisterlegislation, the Building and Other Construction Workers’Welfare Cess Act, 1996 (Cess) are social justice legislations.They were enacted keeping in mind the Directive Principles ofState Policy, particularly Article 39 of the Constitution whichrequires the State to direct its policy to secure the health andstrength of workers and Article 42 of the Constitution concerningjust and humane conditions of work. In addition, Article 21 ofthe Constitution cannot be forgotten. A life of dignity is afundamental right given to all persons and that includesconstruction workers. It is in this background that the two welfareand beneficent legislations must be understood and appreciated.[Para 63] [239-F-H]

2. The Statement of Objects and Reasons for the BOCWAct refers to 8.5 million construction workers (85 lakhs) in 1995-1996. They were the vulnerable section of society who neededthe support of the State for their safety, health and welfare. Theyhave been consistently let down by the State and even directionsgiven by this Court and by the Ministry of Labour and Employmenthas not brought about any substantive change. The task beforethe State - to effectively implement the laws enacted by Parliamentfor the benefit and welfare of a vulnerable section of society isenormous, and as the progression in the case shows, the Statemight well be unable to live up to the expectations of Parliamentunless there is a strong will to bring about a positive change.State apathy in a situation such as this virtually amounts toexploitation of the construction workers, and if the State turnsexploitative, there is little hope for vulnerable sections of society.[Para 64] [240-A-B; C-D]

Specific Directions

Specific Directions

3. First direction, therefore, is to the Ministry of Labourand Employment, the State Governments and the UTAs to put inplace and strengthen the registration machinery, both for theregistration of establishments as well as registration of A

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Aconstruction workers. This should be done within a specified time-frame to be decided by them, but at the earliest. [Para 68][241-C-D]

4. Second direction to the Ministry, the State Governmentsand UTAs in this regard is to establish and strengthen theBmachinery for the collection of cess. It is a matter of commonknowledge that there is a tremendous amount of constructionactivity going on all over the country and there is no reason whyestablishments involved in the construction activity, both formalas well as non-formal, should not pay the cess, especially whenthey are utilizing the services of the construction workers.CSimilarly, there is no reason why the construction workers of theseestablishments should be denied their entitlements and benefitsunder the BOCW Act and other laws. [Para 69] [241-D-F]

5. Third direction, therefore, is to the Ministry of Labourand Employment to frame one composite Model Scheme for theDbenefit of construction workers in consultation with allstakeholders including NGOs who are actually working at thegrassroots level with construction workers. While there is anurgency in framing such a Model Scheme, the Ministry of Labourand Employment is cautioned to make haste slowly and to prepareEa Model Scheme that is comprehensive and can easily beimplemented, is pragmatic and does not involve too muchpaperwork. [Para 71] [242-B-C]

6. Fourth direction is to the Ministry of Labour andEmployment, the State Governments and the UTAs to conduct aFsocial audit on the implementation of the BOCW Act so that infuture there is better and more effective and meaningfulimplementation of the BOCW Act. [Para 76] [243-C-D]

General Directions

7. Every State Government and UTA shall constitute a StateGAdvisory Committee, if not already constituted, and that StateAdvisory Committee shall meet regularly for conducting itsbusiness. Rule 20 of the Building and Other ConstructionWorkers’ (Regulation of Employment and Conditions of Service)Central Rules, 1998 provides that the Central AdvisoryCommittee shall meet at least once in six months. This could beH

used as a good guideline for meetings of the State AdvisoryCommittee. [Para 78] [244-B-D]

8. Every State Government and UTA shall constitute anExpert Committee and frame statutory Rules under Section 62of the BOCW Act, if such statutory Rules have not already beenframed. Setting up an Expert Committee and framing statutoryrules should be in a time bound manner. [Para 78] [244-D-E]

9. The State Governments and UTAs must appointRegistering Officers for registration of establishments andconstruction workers. This is a critical aspect of theimplementation of the BOCW Act as well as the Cess Act. [Para78] [244-E-F]

10. Every State Government and UTA should establish aWelfare Board in terms of Section 18 of the BOCW Act. It mustbe appreciated that this is not a body that can be created by anexecutive order. The law requires that the Welfare Board shallbe a body corporate having perpetual succession and a commonseal. There are therefore legal formalities to be carried out forthe constitution of a Welfare Board. [Para 78] [244-F-G]

11. Every State Government and UTA should establish aWelfare Fund for the benefit of the construction workers, withappropriate rules for utilisation of the funds. [Para 78] [244-G-H]

12. It is imperative that all construction workers should begiven identity cards and should be registered in terms of Section12 of the BOCW Act. The Ministry of Labour and Employmenthas proposed the issuance of a Universal Access Number foreach construction worker. This issue is left open to the Ministryof Labour and Employment to decide on an appropriate systemof identification and registration, provided it is effective andmeaningful. [Para 78] [245-A-C]

13. The Ministry of Labour and Employment shall activelyconsider making available to the construction workers thebenefits of The Maternity Benefit Act, 1961 and The MinimumWages Act, 1948, The Employees’ State Insurance Act, 1948,the Employees’ Provident Funds and Miscellaneous Provisions AB

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AAct, 1952, as well as (to the extent possible) the Mahatma GandhiNational Rural Employment Guarantee Act, 2005. [Para 78][245-C-D]

14. The Ministry of Labour and Employment should alsoconsider whether projects of the Government of India in theBrailways, defence and other establishments are brought withinthe purview of the BOCW Act. [Para 78] [245-D-E]

15. The Monitoring Committee which has had quite a fewmeetings so far should pro-actively ensure full compliance of theprovisions of the BOCW Act, the Cess Act and the directionsCissued by this Court. It needs to meet far more frequently, and inany case once in three months, considering that thousands ofcrores of rupees are not being gainfully utilized, and in someinstances, misutilized. [Para 78] [245-E-F]

16. The Union of India must take a decision on theDmanagement of the cess already collected. A decision will haveto be taken by the Union of India on the gainful utilization of thecess already collected so that the Welfare Boards are not unjustlyenriched – the beneficiaries having unfortunately lost out. [Para79][245-G-H]

EBuilders Association of India v. Union of India ILR(2007) 1 Del 1143; Hingir-Rampur Coal Co. Ltd. v. Stateof Orissa (1961) 2 SCR 537; Bandhua Mukti Morchav. Union of India (1984) 3 SCC 161 : [1984] 2 SCR67; Dewan Chand Builders & Contractors v. Union ofIndia (2012) 1 SCC 101 : [2011] 13 SCR 214; State ofFW.B. v. Kesoram Industries Ltd. (2004) 10 SCC 201 :[2004] 1 SCR 564; A. Prabhakara Reddy and Companyv. State of Madhya Pradesh (2016) 1 SCC 600 : [2015]9 SCR 675; National Campaign Committee for CentralLegislation on Construction Labour v. Union of IndiaG(2011) 4 SCC 653; National Campaign Committee forCentral Legislation on Construction Labour v. Unionof India (2012) 3 SCC 336; National CampaignCommittee for Central Legislation on ConstructionLabour v. Union of India, (2015) 17 SCC 166; NationalCampaign Committee for Central Legislation onHConstruction Labour v. Union of India, (2015) 17 SCC

NATIONAL CAMPAIGN COMMITTEE (NCC-CL) v.UNION OF INDIA

169; National Campaign Committee for CentralLegislation on Construction Labour v. Union of India(2015) 17 SCC 171; National Campaign Committee forCentral Legislation on Construction Labour v. Unionof India, (2015) 17 SCC 173; National CampaignCommittee for Central Legislation on ConstructionLabour v. Union of India, (2015) 17 SCC 174 – referredto.

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Case Law Reference

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)No. 318 of 2006

Under Article 32 of the Constitution of India WITH

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Contempt Petition (C) No. 52/2013 in W. P. (C) No. 318/2006.

Maninder Singh, ASG, D. K. Thakur, S.S. Shamshery, AAGs,Vivek K. Tankha, Sr. Adv. (A.C.), Colin Gonsalves, Rana Mukherjee,R. Venkataramani, Sr. Advs., Choudhary Ali Zia Kabir, Ms. JyotiMendiratta, S. Wasim A. Qadri, R. Balasubramanian, Prabhas Bajaj, H

AAkhay Amritanshu, Pranay Rajan, Ms. Kasturika Kaumudi, Ms. EktaPradhan, B.V. Balram Das, Bharat Singh, Ms. Sunita Sharma, Ms.Gunwant Dara, Zaid Ali, Raj Bahadur Yadav, Mrs. G. Dara, Ms. SreoshiChatterjee, Ms. Aarti Sharma, Ms. Anil Katiyar, Gurmeet Singh Makker,B. Krishna Prasad, Ms. Anitha Shenoy, Ms. Srishti Agnihotri, GunturPrabhakar, Ms. Prerna Singh, Debojit Borkakati, Shuvodeep Roy, M/Bs.Corporate Law Group, Anil Shrivastav, Gopal Singh, Manish Kumar,A. P. Mayee, Avnish M. Oza, Chirag Jain, Ms. Hemantika Wahi, Ms.Jesal Wahi, Ms. Puja Singh, Ms. Mamta Singh, Ms. Shodhika Sharma,Dr. Monika Gusain, Piyush Hans, Ms. Parul Sharma, Varinder KumarSharma, M. Shoeb Alam, Ms. Fauzia Shakil, Ujjwal Singh, Mojahid KarimCKhan, Anil Kumar Jha, Ms. Priyanka Tiyage, V.N. Raghupathy, ParikshitP. Angadi, G. Prakash, Jishnu M.L., Mrs. Priyanka Prakash, Mrs. BeenaPrakash, Vijay Shankar V. L., Mishra Saurabh, Mahaling Pandarge,Nishant R. Katneshwarkar, Leishangthem Roshmani Kh, Ms. MaibamBabina, Amit Kumar, Ranjan Mukherjee, Daniel Stone Lyngdoh, GaneshBapu, Shikhar Garg, P.V. Yogeswaran, Mrs. K. Enatoli Sema, EdwardDBelho, Amit Kumar Singh, K. Luikang Michael, Sibo Sankar Mishra,Karan Bharihoke, S. S. Ray, Amit Sharma, Sandeep Singh, Ankit Raj,Ms. Indira Bhakar, Ms. Ruchi Kohli, Ms. Aruna Mathur, AvneeshArputham, Ms. Anuradha Arputham, Ms. Simran Jeet (for M/s ArputhamAruna & Co.), T.R.B. Sivakumar, S. Udaya Kumar Sagar, MrityunjaiESingh, Gopal Singh, Rituraj Biswas, Abhishek, Ramjee Pandey, RajendranBalan, Jatinder Kumar Bhatia, Ashutosh Kumar Sharma, Soumitra G.Chaudhuri, Chanchal K. Ganguli, Bhupesh Narula, K.V. Jagdishvaran,Mrs. G. Indira, V.G. Pragasam, S. Prabu Ramasubramanian, S. Manuraj,Yashraj Singh Bundela, Praveen Vignesh, Rajvinder Singh, Hitesh KumarSharma, T.V. Talwar (for Kuldip Singh), Ravi Prakash Mehrotra, AshokFKumar Singh, Parijat Sinha, Anil K. Chopra, Ms. Asha Gopalan Nair,Vinay Garg, Advs. for the appearing parties.

The Judgment of the Court was delivered by MADAN B. LOKUR, J.

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1. Symbolic justice – there is nothing more to offer to severalmillions of construction workers in the unorganized sector – not socialjustice, not economic justice. The reason is quite simple. No StateGovernment and no Union Territory Administration (UTA) seems willingto fully adhere to and abide by (or is perhaps even capable of fully H

adhering to and abiding by) two laws solemnly enacted by Parliament,namely, the Building and Other Construction Workers (Regulation ofEmployment and Conditions of Service) Act, 1996 (the BOCW Act)and the Building and Other Construction Workers’ Welfare Cess Act,1996 (the Cess Act). Directions given by this Court from time to time toimplement the two laws have been flouted with impunity. What is equallytragic is that multiple directions issued even by the Government of Indiaunder Section 60 of the BOCW Act have been disregarded by StateGovernments and UTAs - and this is candidly admitted in a statementmade by the learned Additional Solicitor General in this Court and alsoby the Union of India on affidavit. Hopefully, the gravity of the situationin the constitutional and federal context, the human rights and socialjustice context will be realized by someone, somewhere and at sometime.

2. We have been informed that under the Cess Act, more thanRs. 37,400 crores have been collected for the benefit of constructionworkers, but only about Rs. 9500 crores have been utilized ostensiblyfor their benefit. What is being done with the remaining about Rs. 28,000crores? Why is it that construction workers across the country arebeing denied the benefit of this enormous amount? These are somequestions that arise in this petition – are the answers blowing in thewind?

Brief background

3. The petitioner is said to be a non-registered Committee ofregistered trade unions concerned with the rights of workers in theunorganized sector including construction workers, especially in areasof safety, occupational health and welfare measures. The petitioner saysthat it is “appalled by the attitude and ignorance” of most StateGovernments and UTAs towards implementation of the BOCW Act.According to the petitioner, the non-implementation of the BOCW Actviolates the provisions of Articles 15(3), 39(e) and (f) and also Articles45 and 47 of the Constitution, which impose a primary responsibility onthe State to ensure that all the needs of workers are met and that theirbasic rights are fully protected. The non-implementation also violatesArticle 21 of the Constitution, which provides for the right to live withdignity. It is averred that the BOCW Act and the Cess Act are based onan international convention, namely, the Safety and Health in Construction AB

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AConvention (No. 167) adopted by the International Labour Organizationin 1988 and its accompanying recommendation (No.175) which providefor a foundation of law on which safe and healthy working conditionsare built.

4. Based on its experiences and studies carried out which indicateBthe absence of any effective system for the safe and healthy workingconditions for construction workers, the petitioner preferred a writ petitionin this Court under Article 32 of the Constitution in which several prayershave been made but essentially the prayer is that the BOCW Act andthe Cess Act should be meaningfully implemented in letter and spirit.

CThe BOCW Act and the Cess Act

5. The BOCW Act and the Cess Act were both enacted in 1996.The Preamble to the BOCW Act states that it is an Act “to regulate theemployment and conditions of service of building and other constructionworkers and to provide for their safety, health and welfare measuresand for other matters connected therewith or incidental thereto.” TheDPreamble to the Cess Act states that it is an Act “to provide for the levyand collection of cess on the cost of construction incurred by employerswith a view to augmenting the resources of the Building and OtherConstruction Workers Welfare Boards constituted under the BOCWAct.”E6.The relevant paragraphs of the Statement of Objects and Reasonsfor the enactment of the BOCW Act read:

“It is estimated that about 8.5 million workers in the country areengaged in building and other construction works. Building andother construction workers are one of the most numerousFand vulnerable segments of the unorganised labour in India.The building and other construction works are characterised bytheir inherent risk to the life and limb of the workers. The work isalso characterised by its casual nature, temporary relationshipbetween employer and employee, uncertain working hours, lackGof basic amenities and inadequacy of welfare facilities. In theabsence of adequate statutory provisions, the requisite informationregarding the number and nature of accidents is also notforthcoming. In the absence of such information, it is difficult tofix responsibility or to take any corrective action.

2. Although the provisions of certain Central Acts are applicableto the building and other construction workers yet a need hasbeen felt for a comprehensive Central Legislation for regulatingtheir safety, health, welfare and other conditions of service. TheState Governments and Union Territory Administrations have beenconsulted in the matter and a majority of them have favouredsuch a legislation. Also, in a meeting of the Committee of StateLabour Ministers constituted pursuant to the decision of the 41[st]Labour Ministers’ Conference held under the Chairmanship ofthe then Union Labour Minister on the 18[th] May, 1995, a generalconsensus had emerged on the need for the proposed CentralLegislation.

3. In view of the circumstances explained above, it has beenconsidered necessary to constitute Welfare Boards in every Stateso as to provide and monitor social security schemes and welfaremeasures for the benefit of building and other constructionworkers. For the said purpose, it has been considered appropriateto bring in a comprehensive legislation by suitably amplifying theprovisions of the Building and Other Construction Workers(Regulation of Employment and Conditions of Service) Bill, 1988which was introduced in the Rajya Sabha on the 5[th] December,1988. It has also been considered necessary to levy a cess on thecost of construction incurred by the employers on the building andother construction works for ensuring sufficient funds for theWelfare Boards to undertake the social security Schemes andwelfare measures.” [Emphasis supplied].

7. The BOCW Act provides, inter alia, for the constitution ofCentral and State Advisory Committee(s) to advise the appropriateGovernment on matters concerning the administration of the BOCWAct (Sections 3 and 4); the constitution of Expert Committee(s) foradvising the appropriate Government to frame Rules under the BOCWAct (Section 5); appointment of registering officers and registration ofestablishments employing building and construction workers by makingan application to the registering officer (Sections 6 and 7); registrationof building and construction workers as beneficiaries under the BOCWAct and issuance of identity cards to them (Sections 12 and 13);constitution of State Welfare Boards with identified functions includingproviding necessary benefits and assistance to beneficiaries (Sections A

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A18 and 22); creation of a Welfare Fund for the benefit of building andconstruction workers (Section 24) and providing hours of work, welfaremeasures relating, inter alia, to safety and health and other conditionsof service of building and construction workers (Chapters VI and VII ofthe BOCW Act).

B8. Clearly, the BOCW Act is a welfare legislation intended andenacted for the benefit of the unorganized sector of building andconstruction workers. It has a strong flavour of social justice and is aserious attempt by Parliament to ensure that building and constructionworkers are not exploited because of their poverty and their children donot suffer their fate in terms of education, healthy living and whatever itCtakes to live a life of dignity. It is in this background and context that theBOCW Act was enacted by Parliament.

9. Parliament simultaneously enacted the Cess Act which enablesthe State Governments and the UTAs to collect a cess from everyemployer as defined in the BOCW Act to be utilized for the benefit ofDregistered construction workers.

10. The Cess Act provides for the levy and collection of cess interms of Section 3 thereof. This Section enables the deduction of cessat source in relation to building or other construction work of a governmentor a public sector undertaking or advance collection through a localEauthority. The cess so collected shall be paid to the Welfare Boardconstituted under the BOCW Act after deducting the cost of collectionwhich shall not exceed 1% of the amount collected. Section 3 of theCess Act reads as follows:

“3. Levy and collection of cess.-––(1) There shall be leviedand collected a cess for the purposes of the Building and OtherConstruction Workers (Regulation of Employment and Conditionsof Service) Act, 1996, at such rate not exceeding two per cent butnot less than one per cent of the cost of construction incurred byan employer, as the Central Government may, by notification inthe Official Gazette, from time to time specify.

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(2) The cess levied under sub-section (1) shall be collected fromevery employer in such manner and at such time, includingdeduction at source in relation to a building or other constructionwork of a Government or of a public sector undertaking or advance collection through a local authority where an approval of suchbuilding or other construction work by such local authority isrequired, as may be prescribed.

(3) The proceeds of the cess collected under sub-section (2) shallbe paid by the local authority or the State Government collectingthe cess to the Board after deducting the cost of collection ofsuch cess not exceeding one per cent of the amount collected.

(4) Notwithstanding anything contained in sub-section (1) or sub-section (2), the cess leviable under this Act including payment ofsuch cess in advance may, subject to final assessment to be made,be collected at a uniform rate or rates as may be prescribed onthe basis of the quantum of the building or other construction workinvolved.”

11. Sections 4 and 5 of the Cess Act require every employer tofurnish a return to the concerned officer or authority and that officer orauthority is obliged to make an assessment of the amount of cess payableby the employer. The concerned officer or authority is also empoweredto specify the date within which the cess shall be paid by the employeron assessment. In the event of any delay in payment of cess, interest isliable to be paid under Section 8 of the Cess Act at 2% for every monthor part thereof. There is of course a provision for an appeal as well asan enforcement provision whereby penalty can be levied under theprovisions of the Cess Act.

12. The constitutional validity of the BOCW Act and the CessAct was challenged in the Delhi High Court by the Builders Associationof India. As regards the BOCW Act it was contended that it is bad forvagueness and as far as the Cess Act is concerned, it was contendedthat the cess is a compulsory and involuntary exaction without referenceto any special benefit for the payer of the cess and therefore the cesswas in fact a tax. It was contended that Parliament lacked legislativecompetence to impose a tax on lands and buildings which was the effectof the Cess Act.

13. In Builders Association of India v. Union of India[1] thecontentions urged were repelled by the Delhi High Court and theconstitutional validity of the BOCW Act and the Cess Act was upheld.

1 ILR (2007) 1 Del 1143

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A14. The Delhi High Court relied upon Hingir-Rampur Coal Co.Ltd. v. State of Orissa[2] in which the Constitution Bench explained thedifference between a tax, a fee and cess in the following words:

“……It is true that between a tax and a fee there is no genericdifference. Both are compulsory exactions of money by publicauthorities; but whereas a tax is imposed for public purposes andis not, and need not, be supported by any consideration of servicerendered in return, a fee is levied essentially for services renderedand as such there is an element of quid pro quo between theperson who pays the fee and the public authority which imposesit. If specific services are rendered to a specific area or to aspecific class of persons or trade or business in any local area,and as a condition precedent for the said services or in return forthem cess is levied against the said area or the said class of personsor trade or business the cess is distinguishable from a tax and isdescribed as a fee. Tax recovered by public authority invariablygoes into the consolidated fund which ultimately is utilised for allpublic purposes, whereas a cess levied by way of fee is not intendedto be, and does not become, a part of the consolidated fund. It isearmarked and set apart for the purpose of services for which itis levied. There is, however, an element of compulsion in theimposition of both tax and fee. When the Legislature decides torender a specific service to any area or to any class of persons, itis not open to the said area or to the said class of persons to pleadthat they do not want the service and therefore they should beexempted from the payment of the cess. Though there is anelement of quid pro quo between the tax payer and the publicauthority there is no option to the tax-payer in the matter ofreceiving the service determined by public authority. In regard tofees there is, and must always be, co-relation between the feecollected and the service intended to be rendered. Cases mayarise where under the guise of levying a fee Legislature mayattempt to impose a tax; and in the case of such a colourableexercise of legislative power courts would have to scrutinise thescheme of the levy very carefully and determine whether in factthere is a co-relation between the service and the levy, or whetherthe levy is either not co-related with service or is levied to such an B

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excessive extent as to be a pretence of a fee and not a fee inreality. In other words, whether or not a particular cess levied bya statute amounts to a fee or tax would always be a question offact to be determined in the circumstances of each case…..”

15. With regard to the objectives of the enactments, the DelhiHigh Court took sustenance from the decision of this Court in BandhuaMukti Morcha v. Union of India.[3] The following passage was referredto and relied upon with regard to the purpose behind Article 21, Article39, Article 41 and Article 42 of the Constitution. It was stated in BandhuaMukti Morcha:

“……It is the fundamental right of everyone in this country, assuredunder the interpretation given to Article 21 by this Court in FrancisMullin case [Francis Coralie Mullin v. Administrator, UnionTerritory of Delhi and others][4] to live with human dignity, freefrom exploitation. This right to live with human dignity enshrinedin Article 21 derives its life breath from the Directive Principlesof State Policy and particularly clauses (e) and (f) of Article 39and Articles 41 and 42 and at the least, therefore, it must includeprotection of the health and strength of workers, men and women,and of the tender age of children against abuse, opportunities andfacilities for children to develop in a healthy manner and inconditions of freedom and dignity, educational facilities, just andhumane conditions of work and maternity relief. These are theminimum requirements which must exist in order to enable a personto live with human dignity and no State — neither the CentralGovernment nor any State Government — has the right to takeany action which will deprive a person of the enjoyment of thesebasic essentials. Since the Directive Principles of State policycontained in clauses (e) and (f) of Article 39, Articles 41 and 42are not enforceable in a Court of law, it may not be possible tocompel the State through the judicial process to make provisionby statutory enactment or executive fiat for ensuring these basicessentials which go to make up a life of human dignity but wherelegislation is already enacted by the State providing these basicrequirements to the workmen and thus investing their right to livewith basic human dignity, with concrete reality and content, the 3 (1984) 3 SCC 161

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AState can certainly be obligated to ensure observance of suchlegislation for inaction on the part of the State in securingimplementation of such legislation would amount to denial of theright to live with human dignity enshrined in Article 21………..TheCentral Government is therefore bound to ensure observance ofvarious social welfare and labour laws enacted by Parliament forBthe purpose of securing to the workmen a life of basic humandignity in compliance with the Directive Principles of State Policy.”

16. In short, the Delhi High Court held that the BOCW Act wasnot vague but in keeping with the Directive Principles of State Policyand Parliament was justified in levying the cess through the Cess Act.C

17. The decision of the Delhi High Court was challenged in thisCourt and that challenge was repelled in Dewan Chand Builders &Contractors v. Union of India[5]. This Court noted the scheme of theBOCW Act in the context of Article 21 of the Constitution and observedas follows:D

“It is thus clear from the scheme of the BOCW Act that its soleaim is the welfare of building and construction workers, directlyrelatable to their constitutionally recognised right to live with basichuman dignity, enshrined in Article 21 of the Constitution of India.It envisages a network of authorities at the Central and StateElevels to ensure that the benefit of the legislation is made availableto every building and construction worker, by constituting WelfareBoards and clothing them with sufficient powers to ensureenforcement of the primary purpose of the BOCW Act. The meansof generating revenues for making effective the welfare provisionsFof the BOCW Act is through the Cess Act, which is questioned inthese appeals as unconstitutional.”

18. This Court referred to the Constitution Bench decision inHingir-Rampur Coal Co. Ltd., and another Constitution Bench decisionbeing State of W.B. v. Kesoram Industries Ltd.[6] This Court referred toGthe views expressed by Justice R.C. Lahoti (speaking for the majority inKesoram Industries) in the following words:

“146. ......The term cess is commonly employed to connote a taxwith a purpose or a tax allocated to a particular thing. However, it5 (2012) 1 SCC 101H6 (2004) 10 SCC 201

also means an assessment or levy. Depending on the context andpurpose of levy, cess may not be a tax; it may be a fee or fee aswell. It is not necessary that the services rendered from out ofthe fee collected should be directly in proportion with the amountof fee collected. It is equally not necessary that the servicesrendered by the fee collected should remain confined to the personsfrom whom the fee has been collected. Availability of indirectbenefit and a general nexus between the persons bearing theburden of levy of fee and the services rendered out of the feecollected is enough to uphold the validity of the fee charged…..”

19. The Court then came to the conclusion that there is a cleardistinction between a tax and a fee and looking to the purpose of theBOCW Act and the Cess Act, it was held that the levy of cess was afee and not a tax.

20. The interpretation of the BOCW Act and the Cess Act wasagain considered in A. Prabhakara Reddy and Company v. State ofMadhya Pradesh.[7] The emphasis in this case was on registering theconstruction workers and providing them necessary benefits. Since thelevy of cess is a fee, it was urged that urgent steps should be taken forimplementation of the two Acts. It was further observed that merelybecause there was some delay in the effective implementation of boththe statutes it could not be a ground for invalidating the levy of cess, norcould the levy of cess be said to have retrospective application. It washeld as follows:

“The fact that the task of registering the workers and providingthem the benefit may take some time, would not affect the liabilityto pay the levy as per the Cess Act. Any other interpretationwould defeat the rights of the workers whose protection is theprincipal aim or primary concern and objective of the BOCW Actas well as the Cess Act. Cess is a fee for service and hence, itscalculation, as per settled law is not to be strictly in accordancewith quid pro quo rule and does not require any mathematicalexactitude. The scheme of the BOCW Act, the Cess Act and theRules warrant that the lawfully imposable cess should be imposed,collected and put in the statutory welfare fund without delay sothat the benefits may flow to the eligible workers at the earliest.The scheme of the BOCW Act or the Cess Act does not warrant AB

C

DE

F

G

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A

Athat unless all the workers are already registered or the welfarefund is duly credited or the welfare measures are made available,no cess can be levied. In other words the service to the workersis not required to be a condition precedent for the levy of thecess. The rendering of welfare services can reasonably beundertaken only after the cess is levied, collected and credited toBthe welfare fund.

We also find no merit in other submission advanced on behalf ofthe appellants that there is a legal impediment in charging levy onthe cost of construction incurred by the employer from a particularperiod on account of constitution of the Board from a particularCdate or for any other reason. This argument is fallacious. Suchbeneficial measures for the welfare of the workers are applicableeven to the construction activity which may have commencedbefore coming into force of the BOCW Act and the Cess Act, ifthey are subsequently covered by the provisions of these Acts.DThere can be no legal obstacle in ignoring the construction costincurred before the cess became leviable by distinguishing it fromthe cost of construction incurred later, from a date when the Boardis available to render service to the building and other constructionworkers. The levy of cess in these facts and circumstances cannotbe faulted for any reason. The demand of cess in the given factsEcannot amount to retrospective application of the Cess Act. Hencethe appeals must fail.”

C

D

21. Notwithstanding the law being absolutely clear andconstitutionally valid, it was not being implemented in accordance withthe intent of Parliament. Therefore, there was a need for the petitionerFto move this Court and for this Court to take up the issues raised asmatters relating to social justice and human rights.

Positive directions issued by the Court

22. Bearing in mind the welfare and beneficial intent behind theGBOCW Act and the Cess Act and for their effective and meaningfulimplementation, this Court has issued a series of directions since May2008. This Court was compelled do so since even twelve years after theenactment of the BOCW Act, the basic statutory mandates had notbeen carried out by the State Governments and UTAs. It is not necessaryto advert to all the directions, even though each one of them is significant.HA few of them, referred to infra, are enough to indicate the progression of the case. Later, we will also refer to various affidavits filed by theUnion of India to indicate its helplessness in effectively implementingthe BOCW Act and the Cess Act despite several statutory directionsissued by it.

23. When the case was taken up for consideration by this Courton 12[th] May, 2008 it was informed by the petitioner that even after adecade of the enactment of the BOCW Act, the minimum and basicrequirements of its provisions had not been implemented or consideredby almost every State Government and UTA. It was submitted thatSection 4 of the BOCW Act requires a Committee to be constitutedcalled the State Building and Other Construction Workers AdvisoryCommittee. The purpose of this State Advisory Committee is to advisethe State Government on matters relating to the administration of theBOCW Act. It was submitted that perhaps no State Government hadyet constituted the State Advisory Committee under Section 4 of theBOCW Act which reads:

“4. State Advisory Committee.—(1) The State Governmentshall constitute a committee to be called the State Building andOther Construction Workers’ Advisory Committee (hereinafterreferred to as the State Advisory Committee) to advise the StateGovernment on such matters arising out of the administration ofthis Act as may be referred to it.

(2) The State Advisory Committee shall consist of—

(a) a Chairperson to be appointed by the State Government; (b) two members of the State Legislature to be elected fromthe State Legislature—members;

(c) a member to be nominated by the Central Government; (d) the Chief Inspector—member, ex officio;

(e) such number of other members, not exceeding eleven, butnot less than seven, as the State Government may nominate torepresent the employers, building workers, associations ofarchitects, engineers, accident insurance institutions and anyother interests which, in the opinion of the State Government,ought to be represented on the State Advisory Committee.

(3) The number of persons to be appointed as members fromeach of the categories specified in clause (e) of sub-section (2), A

B

C

D

E

F

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Athe term of office and other conditions of service of, the procedureto be followed in the discharge of their functions by, and the mannerof filling vacancies among, the members of State AdvisoryCommittee shall be such as may be prescribed:

Provided that the number of members nominated to represent theBbuilding workers shall not be less than the number of membersnominated to represent the employers.”

24. Similarly, it was submitted that State Governments had notframed statutory rules in terms of Section 62 of the BOCW Act. Thesignificance of the Rules is that they are required to provide, inter alia,Cregistration of an establishment, registration of a beneficiary (constructionworker), the benefits that a beneficiary is entitled to under Section 14 ofthe BOCW Act and so on. Consequently, in the absence of any statutoryrules having been framed by any State Government, it would be well-nigh impossible for a construction worker to obtain the benefits due tohim or her under the provisions of the BOCW Act.D

25. For the purposes of framing statutory Rules, Section 5 of theBOCW Act postulates the State Government constituting one or moreExpert Committee consisting of persons specially qualified in building orother construction work for advising the State Government in draftingthe rules.E26. Based on the submissions made, the Court called for factualinformation from the State Governments to be provided within eightweeks.

27. When the case was taken up for consideration on 5[th] December,2008 it transpired that only some States had provided the requiredFinformation, but more significantly, it came to notice that cess was beingcollected by the State Governments under the Cess Act but the benefitsof that collection were not being passed on to the construction workers.

28. Accordingly, on 13[th] January, 2009 the Court turned its attentionto yet another very important and significant aspect of the BOCW Act,Gthat is, the appointment of registering officers, registration ofestablishments and the registration of building workers who are the realbeneficiaries of the provisions of the BOCW Act. Section 6 of the BOCWAct requires the appropriate government to appoint gazetted officers asregistering officers for the purposes of the BOCW Act. What is moreHimportant is Section 7 of the BOCW Act, which requires the registration of establishments. The necessity of such registration is that it facilitatesthe implementation of other laws that could be beneficial to constructionworkers, such as the provisions of the Maternity Benefits Act, 1961 andthe provisions of the Minimum Wages Act, 1948. In the absence of theregistration of establishments involved in construction activities, it wouldbe extremely difficult for the authorities under the BOCW Act toimplement the provisions of labour laws.

29. What is equally important is the registration of building workerswho are the real beneficiaries of the provisions of the BOCW Act. Thisis provided for in Section 11 and Section 12 of the BOCW Act. It doesnot require much imagination to appreciate that unless a constructionworker is registered under the provisions of the BOCW Act and isemployed by a registered establishment, that construction worker willnot be entitled to any benefits that may accrue under the provisions ofthe BOCW Act or any other law that can benefit a construction worker.This is really the crux of the implementation issue arising in the presentcase and unfortunately, little attention was paid to it by any StateGovernment or any UTA. All that we have been told is that there aremore than 4.5 crore building and construction workers in the countryand earlier about 2.15 crore had been registered and as of now about2.8 crore have been registered. How these figures have been arrived atis anybody’s guess. In any event, the registration of building andconstruction workers is well below the required number and is also aguesstimate.

30. Yet another significant aspect of the implementation of theBOCW Act that was neglected and brought to the notice of this Courtrelated to the constitution of the State Building and Other ConstructionWorkers’ Welfare Board under the provisions of Section 18 of the BOCWAct. The Welfare Board is not an administrative body, but is a bodycorporate, having perpetual succession and a common seal and whichmay sue and be sued. The Welfare Board has a range of functions toperform and these are detailed in Section 22 of the BOCW Act. Thesefunctions include providing assistance to a beneficiary in case of anaccident, providing pension to beneficiaries, sanctioning loans, providingfinancial assistance for the education of children of beneficiaries and soon. In other words, a large amount of benefits that a construction workeris entitled to come within the purview of the functions of the WelfareBoard. Section 22 of the BOCW Act reads as follows:

AB

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E

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A“22. Functions of the Boards.—(1) The Board may —

(a) provide immediate assistance to a beneficiary in case ofaccident; (b) make payment of pension to the beneficiaries who havecompleted the age of sixty years; B

(c) sanction loans and advances to a beneficiary forconstruction of a house not exceeding such amount and on suchterms and conditions as may be prescribed; (d) pay such amount in connection with premia for GroupInsurance Scheme of the beneficiaries as it may deem fit; C

(e) give such financial assistance for the education of childrenof the beneficiaries as may be prescribed; (f) meet such medical expenses for treatment of major ailmentsof a beneficiary or, such dependant, as may be prescribed; (g) make payment of maternity benefit to the femalebeneficiaries; and D

(h) make provision and improvement of such other welfaremeasures and facilities as may be prescribed.

(2) The Board may grant loan or subsidy to a local authority or anemployer in aid of any scheme approved by the State Governmentfor the purpose connected with the welfare of building workers inany establishment.

E

(3) The Board may pay annually grants-in-aid to a local authorityor to an employer who provides to the satisfaction of the Boardwelfare measures and facilities of the standard specified by theBoard for the benefit of the building workers and the membersof’ their family, so, however, that the amount payable as grants-in-aid to any local authority or employer shall not exceed—

F

(a) the amount spent in providing welfare measures andfacilities as determined by the State Government or any personspecified by it in this behalf, or G

(b) such amount as may be prescribed,

whichever is less:

Provided that no grants-in-aid shall be payable in respect of anysuch welfare measures and facilities where the amount spent H

thereon determined as aforesaid is less than the amount prescribedin this behalf.”

31. One of the more important functions of the Welfare Board isto constitute a fund called the Building and Other Construction Workers’Welfare Fund. This is provided for in Section 24 of the BOCW Act. Asthe name suggests, the Welfare Fund is intended to utilize the fundsreceived by it, not for the benefit of the Welfare Board, but for thebenefit of the construction workers. As far as the expenses of the WelfareBoard are concerned, Section 24(3) of the BOCW Act provides that itshall not exceed 5% of its total expenses during a financial year meaningthereby that at least 95% of the fund is to be utilized for the benefit ofconstruction workers. Therefore, there are certain financial limitationsplaced on the Welfare Board with regard to the utilization of the WelfareFund, which is constituted for the benefit of the construction workers.What has been brought to our notice is that huge amounts are availablewith the Welfare Boards, but have not been utilized for the benefit of thebuilding and construction workers. This is not only a tragedy, but a travestyof justice, but we will advert to this a little later.

32. Realizing the significance and the importance of the provisionsregarding the appointment of registering officers, registration ofestablishments and construction workers and setting up of the WelfareBoards (none of which had apparently been complied with) the Courtgave the following direction on 13[th] January, 2009:

“We direct the Chief Secretary of the respective States andSecretary (Labour) of each States and the Union Territories totake timely steps as per the provisions of the [BOCW] Act, if notalready done. We would like to have the appraisal report in thefirst week of May as to what steps have been taken in this regard.If any of the State Government has not done anything pursuant tothe Act, urgent steps are to be taken so that the benefits of thislegislation shall not go waste. Otherwise the unorganized workersof the construction sector will be denied the benefit of the Act.”

33. Thereafter, on 18[th] January, 2010 the Court passed a set ofdirections so that the provisions of the BOCW Act could be effectivelyimplemented.[8] The directions passed by this Court are as follows:

AB

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A“1. Welfare Boards have to be constituted by each State withadequate full time staff within three months.

2. Welfare Boards will have to meet at least once in two monthsor as specified in the rules, to discharge their statutory functions.

3. Awareness should be built up, about the registration of buildingworkers and about the benefits available under the Act. Thereshould be effective use of media, AIR and Doordarshan, forawareness programmes regarding the Act, the benefits availablethere under and procedures for availing the benefits.

B

4. Each State Government shall appoint Registering Officers andCset up centres in each district to receive and register theapplications and issue receipts for the applications.

5. Registered trade unions, Legal Service Authorities and NGOsare to be encouraged to assist the workers to submit applicationsfor registration and for seeking benefits.

D

6. All contracts with Governments shall require registration ofworkers under the Act and extension of benefits to such workersunder the Act.

7. Steps to be taken to collect the cess under the Cess Actcontinuously.E

8. The benefits under the Act have to be extended to the registeredworkers within a stipulated time frame, preferably within sixmonths.

9. The Member Secretary of the Welfare Boards and the LabourFSecretary shall be responsible for due implementation of theprovisions of the Act. The Labour Ministry of each State shallcarry out special drives to implement the provisions of the Act.

10. The CAG should audit the entire implementation of the Actand use of the funds.

G

11. All Boards shall submit a comprehensive reports as requiredunder the Act and Rules to the respective Government.”

34. Notwithstanding these specific and some general directions,the State Governments and UTAs apparently failed to take adequatesteps to push ahead the implementation of the BOCW Act. What isH

equally tragic is that on 25[th] April, 2011 when the case was taken up forconsideration, the learned Additional Solicitor General appearing on behalfof the Union of India stated before this Court that though directions hadbeen issued by the Central Government from time to time under theprovisions of the BOCW Act, implementation of the directions had nottaken place at the ground level for the reason that such directions werenot enforceable with penal consequences! Therefore, the CentralGovernment had decided to take steps to amend the BOCW Act and ifnecessary to enact statutory Rules in that regard. For this purpose, thelearned Additional Solicitor General sought three months time for theUnion of India to take necessary steps.

35. Not only did the Union of India not take any effective steps toamend the BOCW Act but even the State Governments and UTAscontinued the unashamed and unabashed flouting of the directions issuedby this Court as well as by the Central Government. In a sense, it seemsto have been decided by the powers that be that the BOCW Act oughtnot to be implemented faithfully. Faced with this situation, this Court hadno option but to initiate proceedings for contempt of Court. An opportunitywas given to all concerned to file a reply. Some State Governments fileda reply, while others did not.

36. At this stage, it may be mentioned that it was noticed by thisCourt that the amounts collected by the State Governments and theUTAs under the provisions of the Cess Act had not been subjected toany audit by the Comptroller and Auditor General (CAG). It was alsonoticed that large funds were lying with the Welfare Boards, but had notbeen disbursed. The possibility of these amounts being diverted for otherheads of expenditure could not be ruled out by this Court.

37. Therefore, taking all factors into consideration the followinggeneral directions were issued by the Court on 7[th] February, 2012[9] :

“(a) All the State Welfare Boards shall be subjected to audit bythe CAG within two months from today. All the States, UnionTerritories and the State Boards to initiate the process and ensureits completion under the provisions of Section 27 of the Act.

(b) Every Welfare Board shall, without fail, hold its meetings atleast once in two months and submit its Minutes, as well as the

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A

action taken and progress reports in regard to the framing andimplementation of the schemes and disbursement of funds to theeligible applicants, to the Secretary (Labour) of that Governmentquarterly.

(c) The funds available with the Welfare Boards which have notBbeen disbursed or are not likely to be disbursed within a shortperiod should be properly invested with the nationalized banksonly. Funds available with the Welfare Boards shall not be utilizedby the State for any other head of expenditure of the StateGovernment, etc.

(d) Union of India has filed an affidavit. It is stated in the affidavitCthat they have taken various steps, including steps for amendmentof the Act and the Rules framed thereunder. Union of India isdirected to expedite this process. We also direct the Union ofIndia to discharge its various statutory functions under the Actwith particular reference to Sections 24 to 27. It shall also issueDappropriate directions under Section 60 of the Act to all the StateGovernments to fully implement the provisions of the Act as wellas the Cess Act.”

38. Quite clearly, this Court was more concerned with theimplementation of the BOCW Act and the Cess Act and not with coercingthe governmental functionaries to perform their duties and responsibilities.EAccordingly, with appropriate directions having been issued, this Courtdid not feel the necessity of proceeding further with the contemptproceedings, which were then disposed of.

39. More than a year later, this Court again took up the matter on12[th] December, 2014 with the expectation that some positive steps hadFbeen taken in the meanwhile. However, the hopes were belied and so adirection was given to the Secretary in the Ministry of Labour andEmployment of the Government of India to convene a meeting of all theSecretaries in the corresponding Ministries of the State Governmentsand UTAs on or before 16[th] January, 2015 and to discuss with them theGmodalities for effective implementation of the BOCW Act and the CessAct and arrive at a consensus since these statutes involved the livingconditions of construction workers and collection of huge amounts fortheir benefit.[10]

10 National Campaign Committee for Central Legislation on Construction Labour v. Union of India, (2015) 17 SCC 166H

NATIONAL CAMPAIGN COMMITTEE (NCC-CL) v.UNION OF INDIA [MADAN B. LOKUR, J.]

40. Pursuant to the directions given on 12[th] December, 2014 ameeting was held as proposed and the Union of India filed an affidavit inthis regard. In the order dated 13[th] February, 2015 it was noticed thatthe affidavit disclosed certain shocking figures relating to the collectionand utilization of the cess. By way of illustration, the figures relating tothe States of Maharashtra and Rajasthan were noted. The tabularstatement prepared and incorporated in the order dated 13[th] February,2015 is given below:

Year Cess collected in crores Expenditure incurred in crores for 17 schemes 2011-12 Rs.425.97No figure supplied 2012-13 Rs.777.69Rs.3.99 2013-14 Rs.788.60Rs.53.34

(State of Maharashtra)

A

B

C

D

E

Year Cess collected in crores Expenditure incurred in crores for various schemes 2011-12 Rs.154.01 No figure supplied F2012-13 Rs.173.83 Rs.11.95 2013-14 Rs.251.95 Rs.25.93 G(State of Rajasthan)

G

41. It was noted that the unfortunate situation reflected in theabove two tabular statements, that is, non-utilization of the large amountscollected, was repeated in State after State. It was further noted that: (i)There was no clear indication whether the CAG had audited the receipts H

Aand expenditure; (ii) There were a multiplicity of schemes in operation,apparently for the benefit of construction workers. However, it was notclear whether the schemes were being monitored by one authority or bya different authority for each scheme. The learned Additional SolicitorGeneral was requested to inform the status in this regard; (iii) Given theexisting situation, the Union of India was expected to take necessaryBsteps and to issue appropriate directions under Section 60 of the BOCWAct.[11]

42. When the matter was next taken up on 31[st] July, 2015 thelearned Amicus Curiae highlighted the shocking state of affairs that wehad noticed on 13[th] February, 2015. He pointed out the tragic state ofCaffairs, not only with reference to Rajasthan, but also with reference toHaryana, Uttar Pradesh and the National Capital Territory of Delhi. Itwas also brought to notice that the total amounts collected under theprovisions of the Cess Act was between about Rs.25,000 and Rs.30,000crores. Based on the submissions made by the learned Amicus weDrequired Haryana, Rajasthan, Uttar Pradesh and Delhi to file affidavitswith regard to the collection and utilization of the amounts under theCess Act and proposals for utilization of the amounts.[12]

43. Unfortunately, the affidavits filed did not take the matter ofutilization of funds any further, in the sense that the State GovernmentsEand UTAs had no clue on how to spend the cess that had been collected;on the contrary, it appeared that the cess collected was being used forpurposes other than for the benefit of construction workers, such as foradvertisements etc. Faced with this situation, we had no option but torequest the Secretary in the Ministry of Labour and Employment of theGovernment of India to be present in Court along with a possible actionFplan concerning the utilization of the collected cess.

44. When the Secretary in the Ministry of Labour and Employmentappeared in Court on 11[th] September, 2015 he informed us of certainpositive steps contemplated by the Government of India. We noted threesuch steps: (i) Introducing a Universal Access Number to be provided toGevery construction worker so that if he or she migrates from one Stateto another, the benefit of registration does not get lost, nor does that

12 National Campaign Committee for Central Legislation on Construction Labour v. Union of India, (2015) 17 SCC 171H

construction worker need to get registered in the other State; (ii)Registration of construction workers - we were informed that thoughthere were more than 4 crores construction workers, only about 1.5crores had been registered with the concerned authorities. It was expectedthat the remaining construction workers would be registered before theend of the financial year that is by 31[st] March, 2016; (iii) Ensuring thatbenefits of Government schemes are passed on to construction workers,such as scholarships, skill development programs etc.[13]

45. It is worth mentioning that the introduction of a UniversalAccess Number is not something new or novel, inasmuch as Section 13of the BOCW Act requires every beneficiary of the statute to be providedwith an identity card with a photograph duly affixed thereon. Similarly,Section 15 of the BOCW Act obliges every employer to maintain aregister showing the details of employment of beneficiaries in a buildingor other construction work. Obviously, the register would contain theidentity of the beneficiary based only on the identity card issued underSection 13 of the BOCW Act. The provisions of Section 13 and Section15 of the BOCW Act read as follows:

“13. Identity cards.––(1) The Board shall give to everybeneficiary an identity card with his photograph duly affixed thereonand with enough space for entering the details of the building orother construction work done by him.

(2) Every employer shall enter in the identity card the detailsof the building or other construction work done by the beneficiaryand authenticate the same and return it to the beneficiary.

(3) A beneficiary who has been issued an identity card underthis Act shall produce the same whenever demanded by any officerof Government or the Board, any inspector or any other authorityfor inspection.

15. Register of beneficiaries.––Every employer shallmaintain a register in such form as may be prescribed showingthe details of employment of beneficiaries employed in the buildingor other construction work undertaken by him and the same maybe inspected without any prior notice by the Secretary of the Boardor any other officer duly authorised by the Board in this behalf.”

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A46. The matter was once again taken up for consideration on 16[th]October, 2015 when learned counsel for the parties were heard and theaffidavit filed by the Secretary in the Ministry of Labour and Employmentwas considered.[14] During the course of discussions, it came out thatthere were five key areas on which the Central Government needed toconcentrate for the time being. These five key areas were identified asBfollows:

“(i) To ensure maximum coverage of the building and otherconstruction workers;

(ii) To ensure distribution of benefits and implementation of theCSchemes that are in existence for the benefit of the buildingand other construction workers;

(iii) To lay greater emphasis on education and provide educationalfacilities to the children of the building and other constructionworkers; D

(iv) To provide health benefits and insurance of the building andother construction workers and their families;

(v) To activate the State Advisory Boards which, as per theaffidavit, have not even met in the last several years.”

47. Thereafter, it appears that in spite of directions given by thisECourt and the Government of India, hardly any progress was made tobenefit the construction workers. Consequently, this Court was compelledto take the assistance of a senior officer from the office of the CAG todetermine the amount collected as cess for the benefit of constructionworkers and ascertain where the amount was actually being spent.F

48. The affidavits filed by the office of the CAG indicated thatthe amount collected as cess for the benefit of construction workerswas in the region of about Rs.27,000 crores and about Rs.29,000 crores.The affidavits also indicated that some State Governments had not evenbothered to transfer the amount to the State Welfare Board. Overall, theGaffidavits gave a clear picture of a shocking state of affairs inasmuch assome Welfare Boards had expenditure out of the collected cess forpayment of entry tax/value added tax, purchase of washing machinesfor construction workers and purchase of laptops for construction 14 National Campaign Committee for Central Legislation on Construction Labour v.H Union of India, (2015) 17 SCC 174

workers. This Court found that rather astonishing since it appeared thatthere was no rationale in providing washing machines and laptops toconstruction workers who were by and large poor and uneducated aswell as migrant labour. Be that as it may, it also came to notice that hugeamounts were being spent for administrative purposes thereby exceedingthe 5% limit provided for in Section 24(3) of the BOCW Act. As far asthe beneficiaries were concerned, hardly 10% of the collected amountof cess was utilized for their benefit, even including the expenditure onwashing machines and laptops.

49. On 10[th] November, 2017 when the case was again taken upfor consideration, the Secretary in the Ministry of Labour and Employmentinformed us that there had been an increase in the number of registeredconstruction workers in the country from about 2.15 crores to about 2.8crores. We were also informed that the collection of cess in the countryhad increased and had exceeded Rs.37,000 crores as on 30[th] June, 2017.The overall expenditure had also increased from about Rs.5371 croresto about Rs.9491 crores again as on 30[th] June, 2017. We were alsoinformed that schemes had been prepared for the benefit of constructionworkers and a national online portal was under construction which couldbe used by NGOs, perhaps to monitor the implementation of the statutesthat we are concerned with. In other words, the impression sought to begiven to us was that the Government of India was now getting its acttogether, collecting data and applying its resources for the benefit ofconstruction workers, Affidavits filed by the Union of India

50. The Union of India through the Ministry of Labour andEmployment has filed about a dozen affidavits from time to time. It isnot necessary to detail the contents of each affidavit, except with respectto a few salient issues directly concerning the interests of constructionworkers which are mentioned below.

(a) Directions issued by the Union of India under Section60 of the BOCW Act: The Union of India has issued variousdirections to the State Governments and the UTAs with regardto implementation of the BOCW Act and the Cess Act. Thesedirections were issued under Section 60 of the BOCW Act on:

(i) 27[th] September, 2010

(ii) 12[th] July, 2013 (statutory order)

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A(iii) 27[th] February, 2014

(iv) 4[th] March, 2014

(v) 16[th] October, 2014

(vi) 9[th] September, 2015

B(vii) 23[rd] September, 2015

(viii) 8[th] October, 2015 and

(ix) 7[th] June, 2016

51. It is stated by the Union of India in an affidavit of 11[th]CSeptember, 2015 that directions issued in the past have not yielded thedesired outcome which is reflected in the accumulation of huge amountsof cess with the Welfare Boards resulting in inadequate provisions forsafety, health and other conditions of service of construction workers.This complaint is reiterated in a later paragraph of the affidavit. However,we may note that subsequently, in an affidavit dated 26[th] February, 2016Dthe Union of India indicated in a tabular form, the status of compliancewith some directions issued; nevertheless, non-compliance remained therule while compliance the exception. The crux of the matter is to ensurethe passing on of the benefits to the unorganized sector of constructionworkers, but this has not been achieved by any State Government orEUTA.

(b) Schemes framed by State Governments and UTAs: While fulldetails of schemes for the benefit of construction workers are notavailable on record, we are surprised to find from the affidavit filed bythe Union of India on 13[th] February, 2015 the number of schemes framedFby the State Governments. For example, it is stated that in Haryana,there are 22 schemes; in Himachal Pradesh, there are 17 schemes; inJharkhand, there are various schemes; in Maharashtra, there are 17schemes; in Meghalaya, there are 14 schemes; in the NCT of Delhi,there are 18 schemes and in Rajasthan and Tamil Nadu, there are variousschemes. It is quite clear, therefore, that the State Governments andGUTAs are only interested in announcing one scheme after another withoutgiving any thought to the formulation of these schemes, monitoring theirefficacy and supervising their implementation. The implementation ofthese schemes appears to be only on paper.

(c) Other benefits: The affidavits of the Union of India advert to someHstatutory benefits. For example, it is stated that a large number of construction workers would be entitled to the benefit of the MahatmaGandhi National Rural Employment Guarantee Scheme, since most ofthe works undertaken through the scheme, barring a few relating toforestry, horticulture, etc. fall within the meaning of ‘building or otherconstruction work’ as defined in Section 2(1)(d) of the BOCW Act.Similarly, every establishment, falling within the purview of Section 1(4)of the BOCW Act, employing more than 20 workers would be coveredby the provisions of the Employees’ Provident Funds and MiscellaneousProvisions Act, 1952. Finally, any establishment covered by the provisionsof Section 1(5) of the Employees’ State Insurance Act, 1948, andemploying 10 or more workers is obliged to provide health benefits andother benefits under the said Act to the workers. It is submitted on affidavitby the Union of India that: if any establishment employs 20 or morebuilding construction workers, it not only falls within the purview of theBOCW Act, but also falls within the purview of the Employees’ ProvidentFunds and Miscellaneous Provisions Act, 1952 (in covered areas); anyestablishment, employing 10 or more building construction workers mayfall within the purview of the Employees’ State Insurance Act, 1948 (incovered areas), and within the purview of the Employees’ ProvidentFunds and Miscellaneous Provisions Act, 1952 and also within the purviewof the BOCW Act.

52. In other words, a large number of benefits are available tobuilding and construction workers but an effort is needed to ensure thatall the concerned authorities sit together for the benefit of these buildingand construction workers, on whose account thousands of crores ofrupees are being collected under the Cess Act.

53. It is disclosed by the Union of India in its affidavit dated 9[th]October, 2015 that not a single State Advisory Committee, anywhere inthe country held a single meeting during the previous 12 months. This isa clear indication that there is a total lack of concern and apathy on thepart of the powers that be in doing anything substantial for the benefit ofconstruction workers. This is indeed an extremely sorry state of affairsthat puts a Shakespearean tragedy to shame. The members of the StateAdvisory Committee must appreciate that they have a huge responsibility,which they must discharge or give up their position, and make way forsomebody else to take over the responsibility.

(d) Sobering features: Two sobering features come out of theaffidavits filed by the Union of India. They are: (i) There is a AB

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Amove to provide a Universal Access Number with portabilityto construction workers. However, this would require somelegislative changes and a huge campaign and effort by theUnion of India, the State Governments and Union TerritoryAdministrations. It is not clear whether any one of them hasthe will or desire to ensure that through the provision of aBUniversal Access Number, the construction workers will begiven the benefits that they are legitimately entitled to; (ii) Thesecond sobering feature is disclosed in the affidavit of 26[th]February, 2016 where the Union of India has provided a tabularstatement showing that several States have complied withCsome directions issued by the Union of India under Section 60of the BOCW Act. Although this is heartening, full complianceof the provisions of the various statutes enacted for the benefitof construction workers is still far away.

(e) A positive development that has taken place is theDannouncement by NALSA of the Legal Services to the Workersin the Unorganised Sector Scheme, 2015. The efficacy of thisScheme and its implementation has not yet been evaluated,but given the track record of NALSA, we are fairly confidentthat it is taking necessary steps in the right direction.

E(f) Monitoring Committee: On 10[th] November, 2017 it wasstated before us by the Secretary in the Ministry of Labour &Employment that a Monitoring Committee had been set upsometime in 2015 (actually vide order dated 9[th] September,2015) for effective implementation of the BOCW Act. TheMonitoring Committee consists of the Labour Secretary of eachFState/Union Territory and the first meeting of the MonitoringCommittee was held in November 2015. Thereafter, sevenmeetings have been held by the Monitoring Committee.

54. Much earlier, through an affidavit dated 15[th] January, 2016 itwas stated by the Secretary in the Ministry of Labour & EmploymentGthat the Monitoring Committee was actually set up by an order dated 9[th]September, 2015 with the Secretary in the Ministry of Labour &Employment, as the Chairman, the Additional Secretary as the ViceChairman and the Joint Secretary and Director General (Labour Welfare)as the Member Secretary. A representative of the Chief LabourHCommissioner (Central) was a Member and the Director/DS, DG (LW)

was the Member Convenor. In view of the ambiguity, the compositionof the Monitoring Committee is not quite clear nor is it clear whether thecomposition of the Monitoring Committee has been expanded orreworked.

55. Be that as it may, the Terms and Reference of the MonitoringCommittee are as follows:

“(a) The Committee will hold a meeting once in three months andinteract with the State/UTs governments through videoconferencing or in person.

(b) The Committee will furnish its Report of every meeting toSecretary (L & E) for information and suggesting furthermeasures to be taken to improve utilization of Cess funds.

(c) Suggest issue of directions from time to time under Section60 of BOCW Act, 1996, if felt necessary.”

56. The last meeting of the Monitoring Committee (8[th] meeting)was held on 12[th] December, 2017. This meeting was held subsequent tothe order dated 10[th] November, 2017 passed by this Court and on thebasis of the statement made by the Secretary in the Ministry of Labour& Employment that she would call a meeting of the MonitoringCommittee consisting of the Labour Secretaries of all the States andUnion Territories within one month.

57. It is important to note that the Monitoring Committee is orderedto meet once in every three months and we hope that this order issuedby the Government of India would be honoured and respected. In anyevent it is significant that at least now the Union of India has woken upto its statutory responsibilities and duties.

Collection and utilization of the cess

58. Statistical information regarding the collection and utilizationof cess suggests nothing but a complete mess. The figures on our recordare available from three sources:

1. The 28[th] Report of the Standing Committee on Labour (2016-17) of the 16[th] Lok Sabha prepared in August 2017.

2. Affidavit of the CAG dated 6[th] October, 2017. However, thisinformation is incomplete and the actual figures would be higher thanreflected in the affidavit. It must be stated here that it is surprising that A

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3. Information provided in Court by the Secretary, Ministry ofLabour and Employment on 10[th] November, 2017.

59. The collection and utilization mess can be appreciated fromBthe tabular statement below:

Cess collected Amount spent Cess Amount Cess Amount as per the as per the collected as transferred collected as spent as per report of the report of the per the to the per the the statement Standing Standing affidavit of Welfare statement of of the CCommittee as Committee as the CAG Board as the Secretary, on 31.03.2017 on 31.03.2017 dated per the Secretary, Ministry of (Provisional) (Provisional) 06.10.2017 affidavit of Ministry of Labour and (in crores of (in crores of (in crores the CAG Labour and Employment rupees) rupees of rupees dated Employment as on 6.10.2017 as on 30.6.2017 D(in crores 30.6.2017 (in crores of rupees (in crores of rupees of rupees 32632.96 7516.52 37060.90 37255.45 37482 9491 (not necessarily Eutilized)[15]

60. The detailed figures as on 31[st] March, 2017 relating to eachState and UTA are given in Annexure I to this judgment. It may bementioned here that the National Legal Services Authority (NALSA)has stated in an affidavit filed on 14[th ]December, 2016 that its estimate isFthat the amount of cess that ought to have been collected is in the regionof about Rs. 70,000 crores!

61. Perhaps only the Standing Committee has the accurate figuresbut, as mentioned above, it is quite shocking that even the CAG does nothave all the figures and whatever figures are available, may not be reliable.GIt must be appreciated that the CAG is a constitutional authority underArticle 148 of the Constitution charged with the duty and adequatelyempowered by Article 149 of the Constitution in relation to the accountsof the Union and the States. If this constitutional body does not have the H

15 There is an obvious discrepancy

ount nt as per statement he etary, istry of our and ployment n .2017crores upees required and accurate information, there is undoubtedly a financial messin this area and this chaos has been existing since 1996. The only victimsof this extremely unfortunate state of affairs and official apathy areconstruction workers who suffer from multiple vulnerabilities.

62. What makes the situation even worse is that many of theconstruction workers are believed to be women and at least some ofthem have small children to look after. That even they are victims ofofficial apathy truly reflects a very sad state of affairs, and the lossalready caused to them and other construction workers cannot beremedied. The reason for this is that it is not known which constructionworker is entitled to get how much in terms of money or what benefitand under which scheme. Some of these construction workers from the1990s and even later, may perhaps have unfortunately passed away ormight be untraceable or old enough to deserve a pension. The questiontherefore is: What should be done with the thousands of crores thathave been collected for the benefit of construction workers but cannotbe utilized for their benefit? Can the State Governments and the UTAsor the Welfare Boards unjustly benefit and fill their coffers at the expenseof unknown and helpless construction workers, some of whom are womenand some having small children? These are questions for which we havenot been provided any answers at all - it is entirely for the Governmentof India and Parliament to decide how to legally appropriate thesethousands of crores of rupees and then utilize the amounts for the benefitof construction workers, at least for the future, assuming nothing can bedone for the past. It is a mammoth task for which the powers that bemust brace themselves, if they are serious in assisting people with multiplevulnerabilities.

Discussion and directions

63. There can be no doubt that the BOCW Act and its sisterlegislation, the Cess Act are social justice legislations. They were enactedkeeping in mind the Directive Principles of State Policy, particularly Article39 of the Constitution which requires the State to direct its policy tosecure the health and strength of workers and Article 42 of the Constitutionconcerning just and humane conditions of work. In addition, Article 21of the Constitution cannot be forgotten. A life of dignity is a fundamentalright given to allpersons and that includes construction workers. It is inthis background that the two welfare and beneficent legislations must beunderstood and appreciated.

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A64. The Statement of Objects and Reasons for the BOCW Actrefers to 8.5 million construction workers (85 lakhs) in 1995-1996. Theywere the vulnerable section of society who needed the support of theState for their safety, health and welfare. They have been consistentlylet down by the State and even directions given by this Court and by theMinistry of Labour and Employment has not brought about any substantiveBchange. Governance is not about mouthing platitudes, or framing goodlooking schemes, but about action and it is quite clear to us that insofaras the rights of construction workers are concerned, that vulnerablesection of society has been badly let down by the governance structure.To make matters worse for them, the number of construction workersChas increased 5-fold over the last 20 years, as estimated by the Ministryof Labour and Employment. The task before the State - to effectivelyimplement the laws enacted by Parliament for the benefit and welfareof a vulnerable section of society is enormous, and as the progression inthe case shows, the State might well be unable to live up to theexpectations of Parliament unless there is a strong will to bring about aDpositive change. State apathy in a situation such as this virtually amountsto exploitation of the construction workers, and if the State turnsexploitative, there is little hope for vulnerable sections of society.65. In this background and on the available facts and figures,submissions were made by learned counsel for the parties.E

66. Learned counsel for the petitioner’s principal submissions wereto the effect that the BOCW Act should be faithfully implemented andthe amounts collected for the benefit of construction workers should beutilized for their benefit and not for any other purpose, including purchaseof items like washing machines and laptops which obviously cannot beFused by construction workers. On the other hand, the submissions of thelearned Additional Solicitor General appearing on behalf of the Union ofIndia were to the effect that all efforts are being made to ensure thatthere is full and effective compliance with the provisions of the BOCWAct and that the Monitoring Committee is supervising these efforts soGthat all necessary entitlements and benefits are passed on to theconstruction workers.

67. It will be seen from the figures on record that the quantum ofcess collected in one quarter from 31[st] March, 2017 till 30[th] June, 2017 isin the region of about Rs. 5000 crores. (The difference between theHfigure given by the Secretary in the Ministry of Labour and Employment and the Standing Committee). This is a huge amount and would workout to about Rs. 20,000 crores annual collection. The figures presentedto us by the CAG or even the Standing Committee do not reflect such ahuge collection. Obviously, there is something terribly rotten with thecollection and accounting mechanism and it is quite clear that the exerciseof registration, both of the establishments and of the construction workersis not being carried out satisfactorily. This is an area that has to be veryseriously looked into by all the State Governments and the UTAs as wellas by the Ministry of Labour and Employment. Unless there is effectiveand full compliance of the provisions regarding collection of cess, severalestablishments will remain outside the net and thousands of beneficiarieswill be denied what is constitutionally and statutorily due to them.

68. Our first direction, therefore, is to the Ministry of Labour andEmployment, the State Governments and the UTAs to put in place andstrengthen the registration machinery, both for the registration ofestablishments as well as registration of construction workers. This shouldbe done within a specified time-frame to be decided by them, but at theearliest.

69. Our second direction to the Ministry, the State Governmentsand UTAs in this regard is to establish and strengthen the machinery forthe collection of cess. It is a matter of common knowledge that there isa tremendous amount of construction activity going on all over the countryand there is no reason why establishments involved in the constructionactivity, both formal as well as non-formal, should not pay the cess,especially when they are utilizing the services of the construction workers.Similarly, there is no reason why the construction workers of theseestablishments should be denied their entitlements and benefits underthe BOCW Act and other laws. As noted above, huge amounts areinvolved and we will not be surprised if the quarterly collection of Rs.5000 crores is perhaps the minimum - the cess collected could be much,much more, if the registration machinery and the collection machineryare strengthened and work to their potential.

70. As we have seen above, State Governments and UTAs haveframed a large number of schemes allegedly for the benefit of constructionworkers. The multiplicity of schemes brings to mind the adage that toomany cooks spoil the broth. Keeping a track of these schemes is byitself an enormous task, perhaps resulting in administrative issues andred tape. It would be worthwhile if a model scheme is framed by the A

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AMinistry of Labour and Employment, which appears to be best equippedto do so, taking the best practices (so to speak) of the existing schemes.This model scheme can then be made available to all concerned, that is,the State Governments, the UTAs and the Welfare Boards with theflexibility of making appropriate modifications wherever necessary.B71. Our third direction, therefore, is to the Ministry of Labour andEmployment to frame one composite Model Scheme for the benefit ofconstruction workers in consultation with all stakeholders including NGOswho are actually working at the grassroots level with constructionworkers. While there is an urgency in framing such a Model Scheme,we would caution the Ministry of Labour and Employment to make hasteCslowly and to prepare a Model Scheme that is comprehensive and caneasily be implemented, is pragmatic and does not involve too muchpaperwork.

72. In preparing the Model Scheme, we expect the Ministry ofLabour and Employment to include within it, inter alia, issues andDconcerns of education, health, social security, old age and disability pensionand other benefits that are necessary for living a life of dignity as postulatedby the Constitution of India. We also expect the Model Scheme to beframed and publicized within a specified time-frame to be decided bythe Ministry of Labour and Employment, preferably within six months,but in any event on or before 30[th] September, 2018.E73. The CAG in its affidavit of 2[nd] May, 2017 has stated that itcarries out three kinds of audits: Financial Audit, Compliance Audit andPerformance Audit. It is explained in the affidavit that:

“……In Financial Audit, audit ensures whether the financialstatements are properly prepared or complete in all respect andFare presented with adequate disclosure. In compliance Audit, auditchecks whether the provisions of the Constitution, applicable laws,rules and regulations and various orders and instructions are beingcomplied with or not. In Performance Audit, audit checks as towhat extent the activity, programme or organization operatesGeconomically, efficiently and effectively.”

74. Unfortunately, as the variance in the figures shows, there isan absence of an effective audit in at least one of the three categories ofaudits, if not in all three. It is not for us to give any direction to the CAGon how to perform its functions, being a constitutional authority, but weHare of opinion that it is necessary for the CAG to take stock of issues and problems pertaining to the implementation of the BOCW Act and toensure that effective and meaningful audits are carried out, keeping inmind the huge amounts involved.

75. On the issue of audits, it would be worthwhile and relevant forthe State Governments and the Welfare Boards in every State and UTAto conduct a social audit. The CAG has prepared detailed guidelines forconducting a social audit in respect of some other schemes (for example,the Report of the Working Group on Developing Social Audit Standardswith reference to the Mahatma Gandhi National Rural EmploymentGuarantee Act, 2005) and these guidelines can be adapted mutatismutandis for carrying out a social audit in respect of the implementationof the BOCW Act.

76. Our fourth direction is to the Ministry of Labour andEmployment, the State Governments and the UTAs to conduct a socialaudit on the implementation of the BOCW Act so that in future there isbetter and more effective and meaningful implementation of the BOCWAct. If a mistake has occurred, and we have no doubt that hundreds ofmistakes have occurred in the implementation of the BOCW Act, it ismore appropriate to admit the mistake for a better future rather than tojustify it or continue to repeat the mistake. This is more so in the case ofthe BOCW Act where crores of men, women and children are involvedon a day-to-day basis and Parliament has thought it appropriate to legislatefor their benefit. The sanctity of laws enacted by Parliament must beacknowledged - laws are enacted for being adhered to and not for beingflouted. The rule of law must be respected and along with it the humanrights and dignity of building and construction workers must also berespected and acknowledged, to avoid a complete breakdown of theBOCW Act compounded by serious violations of Part III of theConstitution guaranteeing fundamental rights.

77. We are pained to record that the Union of India through theMinistry of Labour and Employment has acknowledged that directionsissued under Section 60 of the BOCW Act are disregarded by the StateGovernments and the UTAs, in the sense that they are not acted upon orare acted upon whenever it is convenient to the State Government orthe UTA. This is rather disturbing and it is not necessary for us to sayanything more on the subject. We leave it to the Union of India to discussand decide on the modalities and methodologies for ensuring that directionsissued under laws enacted by Parliament are given due respect by the A

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General directions

78. Apart from the specific directions that we have been constrainedBto pass, it is necessary to pass some general directions so that the BOCWAct is fully implemented with responsibility.

1. Every State Government and UTA shall constitute a StateAdvisory Committee, if not already constituted, and that StateAdvisory Committee shall meet regularly for conducting itsCbusiness. It may be mentioned that Rule 20 of the Buildingand Other Construction Workers’ (Regulation of Employmentand Conditions of Service) Central Rules, 1998 provides thatthe Central Advisory Committee shall meet at least once insix months. This could be used as a good guideline for meetingsof the State Advisory Committee.

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2. Every State Government and UTA shall constitute an ExpertCommittee and frame statutory Rules under Section 62 of theBOCW Act, if such statutory Rules have not already beenframed. Setting up an Expert Committee and framing statutoryrules should be in a time bound manner, with the exerciseEbeing completed preferably within six months and in any eventby 30[th] September, 2018.

3. The State Governments and UTAs must appoint RegisteringOfficers for registration of establishments and constructionworkers. This is a critical aspect of the implementation of theBOCW Act as well as the Cess Act.F

4. Every State Government and UTA should establish a WelfareBoard in terms of Section 18 of the BOCW Act. It must beappreciated that this is not a body that can be created by anexecutive order. The law requires that the Welfare Boardshall be a body corporate having perpetual succession and aGcommon seal. There are therefore legal formalities to becarried out for the constitution of a Welfare Board.

5. Every State Government and UTA should establish a WelfareFund for the benefit of the construction workers, withappropriate rules for utilisation of the funds.

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6. It is imperative that all construction workers should be givenAidentity cards and should be registered in terms of Section 12of the BOCW Act. The Ministry of Labour and Employmenthas proposed the issuance of a Universal Access Number foreach construction worker. We make no comment orobservation about the efficacy or otherwise of a UniversalBAccess Number. It was submitted by learned counsel for thepetitioner that smart cards should be issued to all constructionworkers. We keep this issue open and leave it to the Ministryof Labour and Employment to decide on an appropriate systemof identification and registration, provided it is effective andmeaningful.C

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7. The Ministry of Labour and Employment shall actively considermaking available to the construction workers the benefits ofThe Maternity Benefit Act, 1961 and The Minimum WagesAct, 1948, The Employees’ State Insurance Act, 1948, theEmployees’ Provident Funds and Miscellaneous ProvisionsAct, 1952, as well as (to the extent possible) the MahatmaGandhi National Rural Employment Guarantee Act, 2005.

8. The Ministry of Labour and Employment should also considerwhether projects of the Government of India in the railways,defence and other establishments are brought within thepurview of the BOCW Act.

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9. The Monitoring Committee which has had quite a few meetingsso far should pro-actively ensure full compliance of theprovisions of the BOCW Act, the Cess Act and the directionsissued by this Court. It needs to meet far more frequently, andin any case once in three months, considering that thousandsof crores of rupees are not being gainfully utilized, and in someinstances, misutilized.

79. The Union of India must take a decision on the managementof the cess already collected. It appears to us that the benefits andentitlements that have accrued to the construction workers (millions ofwhom have not been identified) cannot be passed on to them due to thepassage of time, with the whereabouts of some of them not known.Accordingly, a decision will have to be taken by the Union of India onthe gainful utilization of the cess already collected so that the WelfareBoards are not unjustly enriched – the beneficiaries having unfortunatelylost out.

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80. It must be appreciated that construction workers do not assistonly in building infrastructure, but they also assist in building the nation,in their own small way. Once that realization dawns upon those requiredto implement the BOCW Act and the Cess Act, perhaps due respectwill be shown to Article 21 of the Constitution and to Parliamentarystatutes.

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81. List the Writ Petition for directions on 1[st] May, 2018 only toascertain whether timelines have been fixed by the concerned authoritiesfor compliance of the directions.

82. The Contempt Petition stands disposed of.

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ANNEXURE IStanding Committee ReportCAG ReportAmount of Amount Amount of Amount of Cess spent (Rs. Cess Cess collected in Crore) as collected transferred (Rs. in on (Rs. In (Rs. In DSr. Name of the Crore) as on 31.03.2017 Crore) from Crore) to the No.States/UTs 31.03.2017 [Provisional]1996 till Building and [Provisional]31.03.2017Other Construction Workers Welfare Board EAndhra 1 Pradesh1153.61205.46667.50667.53Arunachal 2 Pradesh 65.36 51.60 98.31 20.00 3 Assam512.2412.57530.46611.82F4 Bihar921.9275.23NA972.935 Chhattisgarh699.61514.14755.80NA6 Goa 85.68 0.83 94.78 95.78 7 Gujarat1564.6435.001524.36863.04G8 Haryana1847.05172.071847.051847.05Himachal 9 Pradesh335.3944.49353.25360.62Jammu & 10 Kashmir566.00221.00625.99653.03

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NATIONAL CAMPAIGN COMMITTEE (NCC-CL) v.UNION OF INDIA [MADAN B. LOKUR, J.]

A11 Jharkhand 291.28 143.46 330.95 NA 12 Karnataka3861.00240.004106.434106.0313 Kerala1474.731455.881483.81439.4714 Madhya Pradesh1575.62552.04207.10NAB15 Maharashtra5074.16255.505074.165074.1616 Manipur 21.00 10.99 63.61 NA 17 Meghalaya94.831.0999.8499.8418 Mizoram40.3721.9549.6449.64C19 Nagaland20.063.341.651.6520 Odisha1100.00361.001118.351118.3521 Punjab921.55391.61973.78973.7822 Rajasthan1600.00620.001069.191266.52D23 Sikkim64.6720.6876.0076.0024 Tamil Nadu1706.00600.001870.601870.6025 Telangana 443.12 98.69 667.53 667.53 26 Tripura129.2812.36140.18140.18EUttar 27 Pradesh2943.80598.90220.78184.2528 Uttarakhand170.4131.21189.39186.5830 Delhi 1930.00 174.71 1793.67 1846.68 A & N 31 Islands46.423.91NANAF32 Chandigarh96.093.72NANADadra & 33 Nagar Haveli 3.08 0.00 NA NA Daman & 34 Diu37.170.54NANAG35 Lakshwadeep5.660.006.156.1536 Punducherry82.0451.1396.4496.44Total32632.967516.5226136.7526008.83

Ankit Gyan

Directions issued.

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