SYNOPSIS | Nirmana..

LETTER

report-synopsis.htm

NATIONAL CAMPAIGN COMMITTEE FOR CENTRAL
LEGISLATION ON CONSTRUCTION LABOUR (NCC-CL)
THROUGH ITS CO-ORDINATOR,
SUBASH BHATNAGAR,
B-19, SUBHAVANA NIKETAN,
PRITAM PURA,

DELHI-34.

…PETITIONER

VERSUS

UNION OF INDIA,
MINISTRY OF LABOUR,
SHRAM SHAKTI BHAVAN,
RAFI MARG,
NEW DELHI
STATE OF MAHARASHTRA
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT, MANTRALAYA,
MUMBAI – 23.
STATE OF ORISSA
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT,
ORISSA.
STATE OF RAJASTHAN
THROUGH IT’S CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
JAIPUR RAJSATHAN.
STATE OF HIMACHAL PRADESH
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT,
SHIMLA 171002.
STATE OF UTTARANCHAL
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT, DEHRADUN,
UTTARANCHAL.
STATE OF ASSAM
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT, DISPUR,
GAUHATI, ASSAM.
STATE OF UTTAR PRADESH
THROUGH IT’S CHIEF SECRETARY,
SACHIVALAYA, LUCKNOW,
UTTAR PRADESH.
STATE OF KARNATAKA
THROUGH IT’S CHIEF SECRETARY,
VIDHAN SOUDHA, BANGALORE,
KARNATAKA.
STATE OF SIKKIM
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT,
GANGTOK, SIKKIM
STATE OF ARUNACHAL PRADESH
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT, ITANAGAR,
ARUNACHAL PRADESH.
STATE OF MEGHALAYA
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT, SHILLONG,
MEGHALAYA.
STATE OF NAGALAND
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT, KOHIMA,
NAGALAND.
STATE OF GOA
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT, PANAJI,
GOA.
STATE OF PUNJAB
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT, CHANDIGARH,
PUNJAB.
STATE OF MANIPUR
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT, IMPHAL,
MANIPUR.
STATE OF GUJARAT
THROUGH IT’S CHIEF SECRETARY,
SACHIVALAYA, GANDHINAGAR,
GUJARAT.
STATE OF JAMMU AND KASHMIR,
THROUGH IT’S CHIEF SECRETARY,
CIVIL SECRETARIAT,
JAMMU.
STATE OF MADHYA PRADESH
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT, BHOPAL,
MADHYA PRADESH
STATE OF CHHATTISGARH
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT, RAIPUR,
CHATTISGARH.
STATE OF TRIPURA
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT, AGARTALA,
TRIPURA.
STATE OF KERALA
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT, TRIVANDRUM,
KERALA.
STATE OF WEST BENGAL
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT, KOLKATTA,
WEST BENGAL.
STATE OF TAMIL NADU
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT, MADRAS,
TAMIL NADU.
STATE OF ANDHRA PRADESH
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT, HYDERABAD,
ANDHRA PRADESH.
STATE OF MIZORAM
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT, AIZWAL,
TRIPURA.
STATE OF JHARKHAND
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT, RAIPUR,
CHATTISGARH.
STATE OF HARYANA
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT, CHANDIGARH.
UNION TERRITORY OF DAMAN & DIU
THROUGH IT’S ADMINISTRATOR,
MOTI DAMAN.
GOVERNMENT OF N.C.T OF DELHI
THROUGH IT’S CHIEF SECRETARY,
NEW SECRETARIAT BUILDING,
I.P ESTATE, DELHI.
UNION TERRITORY OF DADRA, NAGAR HAVELI
THROUGH IT’S ADMINISTRATOR,
SILVASSA.
UNION TERRITORY OF ANDAMAN & NICOBAR,
THROUGH IT’S ADMINISTRATOR,
PORT BLAIR.
GOVT. OF PONDICHERRY
THROUGH IT’S ADMINISTRATOR,
PONDICHERRY.
UNION TERRITORY OF LAKSHADWEEP
THROUGH IT’S ADMINISTRATOR,
KAVARATTI.
UNION TERRITORY OF CHANDIGARH
THROUGH IT’S ADMINISTRATOR,
SECRETARIAT, CHANDIGARH.
STATE OF BIHAR,
THROUGH IT’S CHIEF SECRETARY,
SECRETARIAT,

PATNA, BIHAR.

…RESPONDENTS

PETITION UNDER ARTICLE 32 AND ARTICLE 256 OF THE CONSTITUTION OF INDIA SEEKING THE IMPLEMENTATION OF THE BUILDING AND OTHER CONSTRUCTION WORKERS (REGULATIONS OF EMPLOYMENT AND CONDITIONS OF SERVICE) ACT, 1996 AND THE BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE CESS ACT 1996

TO,
THE HON’BLE CHIEF JUSTICE
AND HIS COMPANION JUSTICES OF THE
SUPREME COURT OF INDIA

THE PETITION OF THE
PETITIONER ABOVENAMED

MOST RESPECTFULLY SHOWETH THAT:

That the present Writ Petition is being filed in public interest under Article 32 and Article 256 of the Constitution of India seeking the implementation of the Building And Other Construction Workers (Regulations Of Employment And Conditions Of Service) Act, 1996 (in short the Act) and The Building And Other Construction Workers Welfare Cess Act 1996 (in short the Cess Act) in all the States and Union Territories in India.
That the Petitioner is non-registered committee of registered trade unions working in most of the States and has been involved in the rights of the unorganized sector including construction workers, specially in the areas of safety, occupational health and welfare measures. The Petitioner Organisation was instrumental in campaigning for the necessity of a Central Legislation for the Construction Workers. The trade unions working in the Petitioner Committee are Nirman Mazdoor Panchayat Sangam (DELHI), Bandhkam Mazdoor Sangathan (Mumbai, Maharashtra), Banhdkamgar Panchayat (Pune, Maharashtra), Jharkhand Sangrami Shramik Sabha (Jamshedpur, Jharkhand), Bandhkam Mazdoor Sangathan (Ahmedabad, Gujarat), Eastern Railway Construction Workers Union (Calcutta), Punjab Nirman Mazdoor Sangathan (Punjab), Delhi Forces (Delhi), Nirman Mazdoor Panchayat Sangam (Tamilnadu), Karnataka State Construction Workers Central Union (KSCWCU Bangalore, Kamataka), National Federation of Construction Labour (Bangalore).
The Petitioner appalled by the attitude and ignorance of most of the States and Union Territories towards implementation and regulations of employment and conditions of service of building and other construction workers which envisages safety, health, hours of work, welfare, payment of wages, registers and records, etc. of construction workers, which they are entitled to under the Building And Other Construction Workers (Regulations Of Employment And Conditions Of Service) Act, 1996 and the Constitution of India is approaching this Hon’ble Court. The non-implementation the said Act violates Article 15(3), 39 (e) and (f) and also Article 45 and 47 of the Constitution, which impose a primary responsibility on the State ensuring that all the needs of workers are met and that their basic rights are fully protected. It also violates Article 21 of the Constitution of India, which provides for the right to live with dignity.
The Main Act provides for constitution of Building & Other Construction Workers Welfare Board for providing medical facilities, pension, family pension, advance for purchase or construction of house, loan for purchase of tools, financial assistance for education, for marriage, immediate assistance in case of worker’s accident, maternity benefit, death benefit, etc. to the building and other construction workers registered as beneficiaries with the Board. The Cess Act provides for assessment, levy and collection of cess on the cost of construction incurred by the employees to augment the resources of the Building and Other Construction Workers Welfare Board. The above Acts were based on the International Convention where the ILO in 1988 adopted the Safety and Health in Construction Convention (No. 167) and its accompanying recommendation (No.175) which provide for a foundation of law on which safe and healthy working conditions are built.
That the facts leading to the present petition are as follows:
The informal sector constitutes 93% of the total employment in India. The highly labour intensive nature makes construction one of the largest sources of employment also. The estimated number of construction workers in India is 31 million, although according to the trade unions the figure is much higher and the female workers constitute 49-50% of the work force. About 40 to 50 percent of the total capital outlay in the successive five-year plan development plans of India has been on construction alone.
Construction is the second largest industry in India next only to agriculture, daily employing about 31 million workers in its different activities or associated with it. The Construction Industry is targeted to achieve an annual growth of 8% to reach 3921 billion and contribute 6.2% of the National G.D.P. Construction is primarily contracting business and comprises both building and civil works project. Construction is also a highly accident-prone industry. The rate of fatality in this industry is very high in comparison with the other industries. It is estimated that more than 10 million workers receive injuries every year throughout the world. Compared with the manufacturing sector which experiences between 60 to 80 deaths per 1000, the Construction sector witnesses about 160 to 250 deaths per 1000. There is an increasing need for adequate investment in working conditions for ensuring greatest benefit for workers, mainly in terms of job security, safety, fair conditions and skill development. There is a poor record of the industry on occupational safety and health. The reasons being that large numbers of construction workers are migratory, socially backward and illiterate with low bargaining power. Further all contracts awarded by the Central and State governments contain only a general clause pertaining to safety, where detailed safety, health and welfare clauses which are required to be mandatory incorporated are conveniently omitted. The true copy of the photographs showing the risk and dangers the workers are faced with is marked and attached as Annexure P-1.
The present petition is for the implementation of the Building and Other Construction Workers (Regulations Of Employment And Conditions Of Service) Act, 1996 and The Building And Other Construction Workers Welfare Cess Act 1996 in all the States and Union territories together with the framing of their respective rules. The above said Act applies to every establishment which employs or had employed on any day of preceding 12 months, 10 or more building workers in any building or other construction work.
Under Chapter 2 of the said Act, the Central Government and the State Governments are required to constitute Advisory Committees and Expert Committees to look into the proper administration of the Act.
The Respondents are required to appoint registering officers as per Section 6 of the said Act. Under Section 7 of the said Act it is compulsory for the employer to register establishments within a period of 60 days from the commencement of the said Act. Further under Section 11 of the said Act, all building workers in the age group of 18-60 are eligible for registration as beneficiary and are issued identity card and as such will arrangement for financial assistance and benefits under consultative board were pointed out to resolve the problem. Hence under Section 11 of the Act every registered building worker is entitled to the benefits provided by the Board from its fund under the Act.
Section 12 states that every building worker who has completed eighteen years of age, but not completed sixty years of age, and who has been engaged in any building or other construction work for not less than ninety days during the preceding twelve months shall be eligible for registration as a beneficiary under this Act. Under Section 13 of the Act the Board is required to provide every construction worker with an identity card. The fallout of non-registration was felt in the cases of construction workers in tsunami hit areas in India where their whereabouts were unknown and several casualties were not known to the contractor or the principal employer. Further non-registration of worker has its implications in training, employment statistics, accident statistics, social security and the number and categories of Construction workers present.
Under Section 15 the employer is required to maintain a register of the registered workers and under Section 16 of the said Act, the beneficiary under the act shall contribute till the age of 60 years at the rate specified by the State Government by a notification. BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE BOARD.
Under Section 18 of the said Act, it is mandatory for the State Government to constitute a State Building and Other Construction Workers Welfare Board. The prime function of the Board is to provide immediate assistance to a beneficiary in case of an accident, pay such amount for group insurance scheme of the beneficiary, financial assistance for the education of the children of the beneficiary, medical expenses for treatment of the beneficiary or dependant, maternity benefit to female beneficiary, payment of pension to beneficiaries who have completed age of 60 years, sanction loan and advances to a beneficiary for the construction of house.
Section 22 sets out the functions of the Board which is as under:
Under Section 24 of the said Act, the State Building and Other Construction Workers Welfare Board is to constitute a fund to credit any grants and loan made to the Board by the Central Government, all contribution made by the beneficiary and all some received by the board from other sources as may be decided by the Central Govt. The funds credited is to meet the expenses of the board to discharge its functions under Section 22 of the said Act, for salary and allowances of the members and employees of the board and meet expenses on objects and for purposes authorized under the said Act.

WELFARE MEASURES
Chapter VI deals with hours of work, welfare measures and other conditions of service. Under Section 28 of the said Act, the appropriate Government are required to frame rules, the number of hours of work inclusive of one or more specified intervals, provide for a day of rest, for every period of seven days and to provide payment of work on a day of rest and not less than the overtime rate as specified in under Section 29 of the said Act.
Welfare measures like providing Child-care facilities relieve working mothers on site of anxiety over the safety and welfare of their children. Welfare facilities like the above and others improve the morale and consequently improve the efficiency.
Under Section 29 of the said Act, any building worker is entitled to wages twice his ordinary rate of wages when he is required to work on any day in excess of the number of hours constituting a normal working day. The ordinary rate of wages means the basic wages + allowances but does not include any bonus.
Under Section 30 of the said Act, it is mandatory for every employer to maintain register and record giving particulars of building workers employed by him, the work performed by them, the number of hours of work which shall constitute a normal working day for them, the wages paid to them, the receipts given by them and such other particulars in such form as may be prescribed.
Under Section 32 of the said Act, every employer is to mandatorily make effective arrangement to provide and maintain a sufficient supply of wholesome drinking water. Further under Section 33 of the said Act, every place where building or other construction work is carried on, the employer is to provide sufficient latrines and urinal accommodation; such latrines should be connected to water–borne sewage system. under Section 34 of the said Act, an employer is to provide temporary living accommodation to all building workers, free of charge and within or near the work side for the period of work. Under Section 35 of the said Act, creches are to be provided by the employer in every place where there are more than 15 female building worker ordinarily employed. Such rooms are to be made available for the use of children under the age of 6 years. Under Section 36 of the said Act every employer is to provide in all places where building or other construction work is carried on first aid facilities. Further under Section 37 of the said Act, the employer is to provide and maintain a canteen for the use of workers in a place wherein not less than 250 building workers are ordinarily employed.

SAFETY AND HEALTH MEASURES
Under Section 38 of the said Act, every establishment wherein 500 or more building workers are ordinarily employed, the employer is to constitute a Safety Committee. In all such establishment the employer is to appoint a Safety Officer. Under Section 39 of the Act the employer is required to give immediate notice to the authorities of accidents taking place.
Under Section 40 the Respondents are required to make rules for the health and safety of workers. Under Section 41 of the said Act, the Central Government is to frame model rules in respect of all or any of the matters specified under Section 40. The salient features of the rules are set out later in this petition. Under Section 40 of the said Act, the State Government by notification is to make rules regarding the measures to be taken for the safety and health of building workers. The State Governments have to follow these rules made by the Central Government until frame their own rules on matters specified under Section 40 of the said Act.

INSPECTING STAFF
23. Under chapter VIII of the Act inspecting staff is to be appointed. Under Section 42 of the said Act, the Central government is to appoint a Director General of inspector who is responsible for laying down the standards of inspection and is to exercise the power of an Inspector throughout India. Further the State government is to appoint by notification the Chief inspector of inspection of building and construction who shall be responsible for effectively carrying out the provisions of this Act in the State and shall also exercise the powers of the Inspector throughout the State. Further the appropriate government is to appoint Inspectors. The Inspector gets his powers under Section 43 of the said Act for entering into any premises where the building and construction work is going on, examine any person, enquiring any information under the Act, seize or take copies of the registers, record of wages, notices or portions.

SPECIAL PROVISIONS
Under Section 44 of the said Act, the employer is responsible for providing constant and adequate supervision of any building or other construction work in his establishment to ensure compliance with all the provisions of this Act. Under Section 45 an employer shall be responsible for payment of wages to each building worker employed by him on such dates prescribed.
Under Section 46 of the said Act an employer is to send to the Inspector a written notice containing the name and situation of the place where the work is proposed, the name and address of the person who is undertaking the Building or other Construction work, nature of the work involved and the facilities being provided, arrangement for the storage of explosives if any to be used in the work, number of workers likely to be employed during the various stages of the work, the name and designation of the persons who will be in over all charge of the work at the site, the approximate duration of the work. Chapter X of the Act deals with penalties and procedures.

THE BUILDING AND OTHER CONSTRUCTION WORKERS (REGULATION OF EMPLOYMENT AND CONDITIONS OF SERVICE) CENTRAL RULES, 1998.
Under Rule 5 it is a duty of the employer to erect scaffolds and to undertake operations in accordance with the STANDARD SAFE OPERATING PRACTICES. Adequate care has to be taken that structures, processes and materials are not dangerous and hazardous. The Board is responsible to ensure that the rules are obeyed.
Part 3 of the Rules deals with safety and health inter alia dealing with excessive noise, fire protection, emergency action plans, fencing of motors, carrying excessive weights, the framing of an health and safety policy, dangerous environment, falling hazards, fumes etc. corrosive substances, eye and head protection, electrical hazardous and so on. Under rule 39 it is imperative that every establishment employing fifty or more building workers have to prepare a written policy in respect of safety and health of Building workers and submit the same for approval from the Chief Inspector of Inspections of Building and constructions containing the health, safety and environmental protection, organizational arrangements to carry out the policy, responsibility of principal employer, contractor, sub contractor, transporter and other agencies, techniques and methods of assessment of risk to safety, health and environmental and remedial measures, arrangements for training of building workers, trainers and supervisor, etc.
In particular, whenever it is possible that a worker may fall from a height the employer is required to place a safety net and provide the workman with a safety belt and other devises for his protection.
Under chapter XXIV of the Rules medical examination of workers is to take place, occupational health centres are to be established and ambulance rooms are to be maintained, and ambulance vans and stretchers should exist on site, medical services such as first aid and emergency treatment must be available.
Chapter XXVIII of the Rules deals with the welfare of building workers covering toilets, canteens and so on. BUILDING OR OTHER CONSTRUCTION WORKERS WELFARE CESS ACT 1996
The purpose and object of the Building or Other Construction Workers Welfare Cess Act 1996 is to provide for the levy and collection of a Cess on the cost of construction incurred by the employer with a view to augmenting the resources of the Building or Other Construction Workers Welfare Boards constituted under the said Act.
Under Section 3 of the Cess Act, there shall be levied and collected a cess at a rate not exceeding 2% but not less than 1% of the cost of construction incurred by an employer through a local authority, where an approval of such local authority is required. The proceeds of the cess collected is to paid to the board.
Under Section 5 of the Cess Act, the officer or the authority is to make an inquiry if he thinks fit into the cess particulars stated in the returns and by orders assess the amount. If the employer does not furnish the returns and records to the authority he may after an inquiry assess the cess payable by the authority.
If the cess amount payable under Section 3 of the Cess Act is not paid such employer is liable to pay interest on the amount at the rate of 2% per month or part of the month under Section 8 of the Cess Act. If the Cess amount is not paid on the date specified as mentioned in the order of assessment by the employer, it is deemed to be in arrears and the authority may impose a penalty not exceeding the amount of Cess. Incase of any amount due under the Act including any interest or penalty, it may be recovered in the same manner as an arrear of land revenue.
Under the Cess Act and Rules, the cess levied under Sec 3(1) shall be paid by an employer within 30 days of completion of the construction project or within 30 days of the date on which assessment of cess payable is finalized which ever is earlier to the Cess Collector. The assessment of cess shall be made by the Assessing officer on receipt of information in Form 1 as per Rule 7 who shall pass an order specifying the amount of cess payable.
Though the Act and the rules had been enacted by the Central Government in 1996, only two States, Kerala and Tamil Nadu have enacted near competent State legislations. Kerala implemented the Central Act in place of its State Act. Under the State Act only workers from the State of Kerala were registered. But now the Central Act being implemented, the State is continuing with the earlier practice of registering workers from Kerala and denying the benefits to workers from other States whereas the workers from other States should have been registered under the Central Act and Rules.
Even 9 years after the enactment of the two laws by the Union of India, only nine States and Union Territory of Pondichery have partially implemented. The nine States include Kerala, Tamil Nadu, Orissa, Uttaranchal, Andaman & Nicobar, Delhi, Gujarat, Madhya Pradesh, and West Bengal. Kerala have adopted the Central Act, but have implemented only the welfare rules and the rules for safety and other provisions have not been implemented and enforced. In Kerala the Board is not registering migrant construction workers from adjacent States nor has it been able to collect cess from Central Government construction sites, hence there is a large amount to be collected as cess.
The State of Tamil Nadu has adopted a scheme under the Tamil Nadu Manual Workers Act 1982 instead of the said Main Act. The Main Act applies only to establishments which employed or had employed on any day of the proceeding twelve months ten or more building workers in any building and other construction work, but Section 1 (4) of the Tamil Nadu scheme has no such employment limit and applies to all establishments where the construction workers are employed. Whereas the Tamil Nadu Act, has provisions for regulation of employment, the said Central Act does not have such provisions. While the Cess under the Central Cess Act is 1% (up to a maximum of 2%) of the cost of the project, it is only 0.3% under the Tamil Nadu Scheme, which is a major variation of the State from the Main Act. Section 16 of the provision seeks for contribution to be made by the worker to the fund, the Tamil Nadu Scheme as it operates now does not call for any contribution to be made by or collected from the workers. It is submitted that there is no uniformity in the Acts and rules framed by different States with that of other States/ Union Territories.
In Delhi although the Board was formed in September 2002, the registration of the workers started in November 2005 roughly 300 workers have been registered and only Rs. 25 crores has been collected as cess as against the estimated 100 crores, which is low and less than 1%. Further the cess should have been collected from 19th August 1996. One of the major problems faced is who should be the collecting and assessing the cess especially when there are three authorities like in Delhi, which has, M.C.D, N.D.M.C, Delhi Cantonment as the sanctioning authorities of buildings.
In Kerala Cess is being collected by the Labour Department, while under the law; cess is to be collected by the Local Authority (Sec 3 and Rule 4 & 5 of Cess Act). Since the Labour Department cannot utilize the amount and the amount is to be utilized by the Board they are not interested in collecting the cess and the labour Department is overburdened. One of the arguments of the board is that there is not enough money and staff to handle the functions and duties under both Acts. It is submitted that in Delhi the registration of Construction Workers as ‘beneficiaries’ has been outsourced to the Citizens Service Bureau of MCD, which has handed over it’s Citizen Service Bureau to the Electronic Cooperation of India Limited (ECIL) who in turn had passed on the C.S.B - MCD work to SARK, which collects Rs 7/- per transaction and Rs 12/- if per transaction is more than Rs. 500/- hence the money so collected for the welfare of the workers will have a substantial deductions if the above transaction charges are applied, since the contribution of the worker towards the Board is to be collected quarterly at the rate of Rs 20/ per month. If five lakhs workers are registered then the Board will have to pay Rs 14 million per year for two million transactions.
In Gujarat the rules have been notified while the board was formed in January 2005, which consists of one person, registration of the workers and establishments and the collection of Cess has started very recently. In Madhya Pradesh the implementation of both the acts has been done. In Maharashtra, Uttar Pradesh, Expert Committee was formed but the rules have not been notified. Rests of the States have not taken steps for the implementation of 1996 Acts of Construction Workers in their states.
Chapter -III of the main Act provides for a Central Advisory Committee (CAC) although it functions are not given in the Acts or Rules, it is clear from the proceedings of four meetings held so far that one of the main function of CAC is to monitor the implementation of Building and other Construction workers Welfare Board Acts and Cess Acts all over the States.
In June 2000 1st Central Advisory Committee (CAC) was formed which met only thrice although the Act provide for a meeting every six months and then for next 2½ years, the 2nd Central Advisory Council was not constituted, thus the very purpose of the CAC was defeated by the inaction of the DG (LW) office. The suggestions given at the meeting had no result.
Central Advisory Council which was reconstituted in January 2006 and met last on 3rd Feb, 06 at which the following information was circulated as the information received from the State Governments regarding the implementation of the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act 1996 as on 31.01.2006.

The information given in below at the CAC meeting agenda on 3/2/06 is also misleading and it does not give the real information about the amount of cess collected and number of construction workers registered as beneficiaries and the amount utilize to give benefits to the registered workers.

INFORMATION RECEIVED FROM THE STATE GOVERNMENTS REGARDING IMPLEMENTATION OF THE BUILDING AND OTHER CONSTRUCTION WORKERS (REGULATION OF EMPLOYMENT AND CONDITIONS OF SERVICE) ACT, 1996. (As on 31.01.2006):

1	Andhra Pradesh	Rules under the Act have not been framed so far. I State Welfare Board has not been constituted. I State Advisory Committee has not been constituted.I Authorities under the main Act and Cess Act have been notified on 25-8-99
2	Arunachal Pradesh	Rules under the Act have not been framed so far. State Welfare Board has not been constituted. State Advisory Committee has not been constituted. Authorities under the main Act and Cess Act have not been notified.
3	Assam	Welfare Board has been constituted. Implementing authorities notified. Drafting of Rules are under process. State Advisory Committee has not been constituted
4	Bihar	Rules under the Act have been framed and sent to the Govt. approval. State Welfare Board has not been constituted. State Advisory committee has not been constituted. Expert Committee has been constituted ant notified
5	Goa	Rules under the Act have not been framed so far. State Welfare Board has not been constituted. The Expert Committee has been constituted. State Advisory Committee has been constituted.
6	Gujarat	State Rules have been framed and notified on 18/ 8/ 2003. Welfare Board has been constituted State Advisory Committee has been constituted. The Expert committee has been constituted.
7	Haryana	Haryana Building and Other Construction Workers (RECS) Rules have been Notified on 29.03.2005. i State Welfare Board has not been constituted. I The Expert Committee has not been constituted. I State Advisory Committee has not been constituted
8	Himachal Pradesh	Rules under the Act have not been framed. State Welfare Board has not been constituted. The Expert Committee has not been constituted. State Advisory Committee has not been constituted.
9	J&K	Rules under the Act have not been framed. State Welfare Board has not been constituted. The Expert Committee has been constituted. State Advisory Committee has not been constituted
10	Karnataka	Rules under the Act have not been framed. I State Welfare Board has not been constituted. ! The Expert Committee has been constituted. I State Advisory Committee has not been constituted. I Karnataka is contemplating to bring its own Kanataka Manual I
11	Kerala	Rules under the Act have not been framed. State Welfare Board has not been constituted. The Expert Committee has been constituted. State Advisory Committee has been constituted. (The state government had enacted the Kerala Construction Workers' Welfare Fund Act, 1989 and transferred It to the Kerala.
12	Madhya Pradesh	Building and Other Construction Workers' Welfare Board). State Advisory Committee has been constituted. The State Rules under the Act have been formulated and notified. Madhya Pradesh Building & Other Construction Workers Welfare Board has been constituted and notified on 10.4.2003. The Act is being emnumented. !
13	Maharashtra	State rules under the Act have not been finalized. State Advisory Committee constituted. Expert Committee has been constituted. Registering Officers, Appellate Authority, Inspectors under the Acts have been notified. Welfare Board has not been constituted.
14	Manipur	Rules under the Act have not been framed. State welfare Board has not been constituted. The Expert Committee has been constituted. State Advisory Committee has not been constituted.
15	Meghalaya	Rules under the Act have not been framed. State welfare Board has not been constituted. The Expert Committee has been constituted. State Advisory Committee has not been constituted.
16	Mizoram	Rules under the Acts have not been framed. State Welfare Board has not been constituted. The expert Committee has not been constituted
17	Orissa	Rules have been framed and notified. The Building and Other. Construction Workers Welfare (Central) Rules 1998 have been adopted. Welfare Board has been constituted. State advisory committee has been constituted
18	Punjab	The State Advisory Committee has been constituted. Expert Committee have been constituted. Rules under the act have not been finalised. The Punjab Building and other construction Workers Board constituted vide State Government Notification No. S.0./20 CA 27/96/S-18/2002 dated 29.5.2002
19	Rajasthan	Rules under the Act have not been finalised. State Welfare Board has not been constituted. The Expert Committee has been constituted. State Advisory Committee has been constituted
20	Tamil Nadu	State Govt of Tamil Nadu informed in 1999 that the State Government is implementing Tamil Nadu Construction Workers Welfare Scheme 1994 framed under the Tamil Nadu Manual Workers (Regulation of Employment and Conditions of Service) Act, 1982. According to them, the scheme is more beneficial than the Central Act and has decided to continue the scheme, which is already in operation and the matter ""rill be reviewed after two years. On detailed examination of the Scheme being implemented under State Act, it is _ observed that though the scheme provides welfare measures to the construction workers but it does not provide health and safety measures to the workers as available under the Central Act. The State Government has, therefore, been advised to review the matter and implement the Central Act.
21	Tripura	Rules under the Act have been framed in 2001. State Welfare Boards has not been constituted. The Expert Committee has been constituted. State Advisory Committee has not been constituted.
22	Uttar Pradesh	Rules under the Act not been finalised. State Welfare Board has not been constituted. The Expert Committee has been constituted. State Advisory Committee has been constituted.
23	Uttaranchal	Uttaranchal Building and Other Construction Workers (RECS) Rules 2005 have been framed and Notified on 25.06.2005. Welfare Board has not been constituted. State Advisory committee has been constituted. Expert committee has been constituted.
24	West Bengal	West Berigal Building and Other Construction Workers (RECS) Rules, 2004 have been framed. . Welfare Board has been constituted. State Advisory committee has been constituted. Expert committee has been constituted.
25	Andaman & Nicobar Islands	Andaman & Nicobar Islands Building &; Other Construction I Workers (RECS) Rules, 2003 have been framed and Notified. Welfare Board has not been constituted. State Advisory committee has been constituted. Expert committee has been constituted.
26	Daman, Diu & Dadar Nagar Haveli	Rules under the Act have been framed in 2003. State Welfare Board has been constituted. The Expert Committee has been constituted. State Advisory Committee has been constituted
27	Delhi	Rules have been notified on 10.1.2002. Authorities have been notified under the Act. Welfare Board has been constituted. The Act is being implemented.
28	Pondichery	Rules under the Act have been framed and notified on 28.8.2001. Authorities have been notified under the Act Welfare Board has been constituted. The Act is being implemented.

The Central Government is the largest employer as public constructions like dams, bridges, roads, and public buildings make up the major share of expenditure in this industry. According to various studies about 70% total construction in India is from public funds of various government agencies. The Central Government has been clearly escaping the Central Law since its enactment. It is submitted that in various state the Labour Department is collecting the cess but is not interested since they are not the authorities to utilize this amount, as the amount collected cess has to be given to the Construction Workers Welfare Board constituted under the Act. The collection of Cess by labour department instead of the local Authority is contrary to the provision under the Cess Act. It is submitted that the authority for the collection of cess should be with the construction project sanctioning authority to whom the construction projects and the construction estimates are submitted for approvals. Otherwise the labour department would not be able to track all the construction projects sanctioned and approved by the concerned authorities for collection of cess.
It is found from the studies of most countries that even in the best-regulated countries the numbers of inspectors are too few to provide day-to-day surveillance on site, even were it their job to do so. Further, will the delay in promulgating Rules under the Main Act stand in the way of collecting Cess under the Cess Act. It is submitted that Cess is to be collected, with retrospect effect from 3.11.1995, when the Rules under the Cess Act was enacted. Section 3 (3) of the Cess Act stipulates that the Cess collected should be made over to the Board (set up under Section 18 (1), of the said Act.); notwithstanding the delay in setting up the Boards by various States/ Union Territories, the Cess is to be collected by the local body concerned and kept in deposit by the State Government/ Union Territories until the Board is constituted when the amounts can be transferred to the Board. It is humbly submitted that there can be no justification for not collecting the Cess, authorized by Statute. Even on a modest estimate the amount of the Cess so far left uncollected by States/Union Territories runs into thousands of crores, this amount legitimately belongs to the construction workers, which is to be used for their welfare and social security.
It is mandatory that the rules and regulations provide for general duties of clients, designers, engineers and architects to take into consideration the safety and health aspects in the designing of buildings, structures or construction projects. Further the workers should have the right and the duty at any workplace to participate in ensuring safe working conditions to the extent of their control over the equipment and methods of work and to express views on working procedures adopted as they may affect safety and health. It is submitted that the workers should have the right to obtain proper information from the employer regarding safety and health risks and safety and health measures related to the work processes. This information should be presented in forms and languages, which the workers easily understand. It is stated and submitted that the workers should have the right to remove themselves from danger when they have good reason to believe that there is an imminent and serious danger to their safety or health. They should have to duty so to inform their supervisor immediately.
Apart from the above, there are other major concerns which is whether persons employed in brick kilns are included under the said Act. The other major concern is that Expert Committees are contemplated under Section 5 of the said Act to be constituted in order to facilitate the making of Rules under Act and that to what extent, has the Union Government used the powers conferred on it under Section 60 to give directions for the same.
Considering that 92% of the work force is in the unorganized sector and such workers and their families constitute the bulk of the population the Act provides as a system of universal social security. 31 million workers in the country are engaged in building and other construction works. The Building and other construction workers are one of the most numerous and vulnerable segments of the unorganized labour in India. The building and other construction works are characterized by their inherent risk to the life and limb of the workers. The work is also characterized by its casual nature, temporary relationship between employer and employee, uncertain working hours, lack of basic amenities and inadequacy of welfare facilities. It is difficult to fix responsibility or to take any corrective action.
Hence the implementation of the above said Acts in all the States/Union Territories is imperative since the same regulates their safety, health, welfare and other conditions of service. Further by a direction by this Hon’ble Court for the constitution of Welfare Boards in every State would provide and monitor social security schemes and welfare measures for the benefit of building and other construction workers. For the above directions to become functional it is imperative that direction for collecting cess by the local authority on the cost of construction incurred by the employers on the building and other construction works is directed so as to ensure that sufficient funds for the Welfare Boards to undertake the social security schemes and welfare measures are at hand. Further the petitioner seeks for a direction to the Respondents for the Constitution of Central and State Advisory Committee to advise the appropriate Government on matters arising out of administration of the said Act, for constitution of Expert Committee to advise on matters relating to framing of rules by the appropriate Government, for registration of establishments employing construction workers, and appointment of registering officers, registration of building workers as beneficiaries under the said Act and provision for their identity cards, etc, for constitution of Welfare Boards by the State Governments and registration of beneficiaries under the Fund, providing for financing and augmenting resources of the Welfare Board constituted by the State Governments and for the appointment of inspecting staff including Director-General of Inspection at the Central Level and Inspector-General at the State level.
The petitioner states that in a study prepared by the Corporate Safety Section of the National Thermal Power Corporation Ltd, New Delhi dealing with the factors underlying injuries/accidents in Construction Industry with special reference to NTPC, it was found that there was no statistics of accidents or safety management systems in construction activities, and the same are not maintained by contractors or owners in absence of any legislative requirements and even otherwise it is not maintained either due to the reason that the contractors felt it undesirable, or fear of police investigations and other administrative problem. The above study covered six NTPC projects employing more than 45,000 workers. The true copy of the study prepared by the Corporate Safety Section of the National Thermal Power Corporation Ltd dated 1996 is marked and attached as Annexure P - 2.
The findings of the above Study states that unmarried workers in the wage group of Rs 21-30 per day, and unskilled workers, in the age group of 16 – 25 years were more susceptible to injuries. Further workers, particularly employed by petty contractors, either illiterate or studied up to 6 – 10 class and having less than 3 months experience, were found to have higher injuries per unit employment. It was also found that morning hours starting from 8 a.m. – 12 noon unsafe acts of workers were found responsible for only 25% of accident caused. From and the first two hours of start of the work had higher number of injuries. The study also found that most of the injuries had occurred due to unsafe conditions which if rectified could have prevented most of the injuries. These results are in line with latest studies, as the predominantly the Study it was found from the social psychology of accidents and injuries contractors, sub–contractors and petty contractors take accidents and injuries as realities of working on hazardous occupation such as construction. The casual manner of the petty contractors reveals that in addition to supply of PPEs and its use on job, vigilance on the part of management is necessary for enforcing safety rules and procedures.
The factors leading to the occurrence of accidents range from the

i. Technical aspects of Construction, Plant and equipments used in Construction: Government departments and agencies in the irrigation and public work departments are the major buyers as well as users of these equipments. Barring exceptions, these agencies have done precious little in training their staff in safe operation of the equipments. Safety manuals are rare. Machine inspections are done primarily to determine the life and conditions of the machines. Columns for safety do not find place in the prescribed inspection reports. Thus, the safety audit of the construction plant and equipment is conspicuous by its absence, the senior levels of the enterprises, safety audit of plant, machinery, tools and instruments is yet to be institutionalized.

ii. Materials used in Construction,

iii. Methods used in Construction,

iv. Importance of Designs and Drawings in Construction,

v. Standard and Norms used in Construction: The standards and norms for civil engineering works have been established by the Bureau of Indian Standards. The two major criticisms of these norms are Firstly; they were laid down in the sixties. Construction technology and materials have undergone a sea change during the last 30 years. The standards have not been revised fast enough to cope with the changing technology hence they tend to become obsolete. Second, the laying down of the standards have not been accompanied by the professionally competent implementing machinery to supervise works and issue certificates for safety.
Hence it is vitally important duty of the employers, architects, project engineers, and designers to ensure and give due consideration for the safety and health aspects at the planning stage as required under Chapter II of the rules framed. 57.
The Petitioner prefers this petition under Article 32 and 256 of the Constitution of India inter alia on the following ground:

GROUNDS

Because it has been found and witnessed that occurrence of death and injuries among the construction workers is highly prevalent, even though there was no statistics of accidents or safety management systems in construction activities and affecting the safety, health and welfare of the workers.
Because the indifference of the Respondent States and the non implementation and non-functioning of the various institutions under the above said Act is violation under the Article 21 of the Constitution of India and The Building And Other Construction Workers (Regulations Of Employment And Conditions Of Service) Act, 1996 and The Building And Other Construction Workers Welfare Cess Act 1996. The workers suffer tragically due to non-implementation of the said Act.
Because the death and injuries are not recorded and maintained by contractors or owners for the absence of legislative requirements and it is not maintained either due to the reason that the contractors feel it undesirable, or fear police investigations and other administrative problems
Because the employers chose themselves from the financial burden and responsibility of safety, health and welfare of the workers by recruiting labour through contractors.
Because there is a poor record of the Construction industry on occupational safety and health of workers mainly because its an unorganized sector, large numbers are migratory, socially backward and illiterate with low bargaining power and have no protection and medical benefits in the form of medical, life insurances, routine health check ups and treatments, etc.
Because the Respondents, employers, contractors, agents etc. were grossly and willfully negligent in neglecting the working conditions of the Construction workers which led to death, injuries and occupational diseases. It is stated that it was the duty of the employers to take reasonable care of the workers health and working conditions. Every expense for the check up and treatment had to be borne out from the meager income of the workers.
Because the State Government, owners, contractors, agents, etc have been negligent monitoring, inspecting and supplying any safety equipment. Further the non-supply of safety equipment did not prevent them to provide adequate instructions for safe use, which is a further failure on their part.
Because the workers and families are entitled to compensation and monetary damages which include but not limited to (past & future) physical pain, mental anguish, physical disfigurement, physical impairment, loss of wages (earnings), hospital expenses and monetary damages against the Respondents.
Because the concerned Boards has not been given any Cess for the constructions undertaken so far since the enactment of the above said Act.
Because the acts of the State Government, owners, contractors, agents, etc are in violation of right to life of the workers as is under Article 21 of the Constitution of India. The State being the guardian and protector for the welfare of its citizens disastrously failed in its duty and obligation.
Because the employers, architects, project engineers, and designers have a duty to ensure and give due consideration for the safety and health aspects at the planning stage as mandated under Chapter II of the rules framed.
Because in the Directive Principles of State Policy under Article 44 of the Constitution of India, it is the duty of the Union government to provide i) securing the health and strength of workers, men and women ii) against abuse of children/child labour iii) just and humane conditions of work iv) secure the participation of workers in the management, etc. Therefore it was incumbent on the Union of India to implement The Building And Other Construction Workers (Regulations Of Employment And Conditions Of Service) Act, 1996 And The Building And Other Construction Workers Welfare Cess Act 1996 with rules.

That the Petitioner has not filed any other similar petition before this Hon’ble Court or any other High Courts seeking the same relief’s.
That this petition is bonafide and made in the interest of justice.

PRAYER

In the facts and circumstances stated herein above, it is most respectfully prayed that this Hon’ble Court may graciously be pleased to:

Issue a writ of mandamus or any other appropriate writ, order or direction to the Respondents, to forthwith implement the Building And Other Construction Workers (Regulations Of Employment And Conditions Of Service) Act, 1996 And The Building And Other Construction Workers Welfare Cess Act 1996 forthwith and in its entirety and, in particular, establish the welfare boards, collect the cess, complete the registration and grant benefits to the beneficiaries with immediate effect.
For an order directing the Respondents who have not framed rules under the statutes mentioned in Relief Clause 1 to forthwith adopt the Central Rules, 1998 and the Cess Rules, 1998.
For an order directing the Respondents to forthwith ensure that all building and construction sites abide by all the rules and regulations relating to the health and safety and welfare of workers and in particular to ensure that all building/construction activity is done in a manner that is safe and further that all workman will be provided with adequate safety equipment including, safety harnesses and safety nets while at work at heights.
Issue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondents to constitute Expert Committee to advise on matters relating to framing of rules by the appropriate Government under the Building And Other Construction Workers (Regulations Of Employment And Conditions Of Service) Act, 1996,
Issue an appropriate writ, order or direction, directing the Respondents to levy cess on the cost of construction incurred by the employers on the building and other construction works from the date of enactment of the above Central Acts and rules so as to ensure that sufficient funds for the Welfare Boards to undertake the social security schemes and welfare measures.
Issue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondents to constitute Central and State Advisory Committee and hold timely meetings of such Advisory Committee to advise the appropriate Government on matters arising out of administration of the said Act,
Issue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondents to register establishments employing construction workers, and appoint registering officers, Cess Collectors, registration of building workers as beneficiaries under the said Act and provision for their identity cards,
Issue a writ of mandamus or any other appropriate writ, order or direction, directing the Respondents to appoint inspecting staff including Director-General of Inspection at the Central Level and Inspector-General at the State level.
Issue a writ, order or direction, directing the Respondents for the appointment of Safety Committee and Safety officers under Section 38 of the Main Act.
Issue a writ, order or direction, directing the Respondents to seal every establishment employing fifty or more building workers unless a written policy in respect of safety and health of Building workers is approved from the Chief Inspector of Inspections of Building and
For an order directing the Respondent No. 1 to frame rules relating to social security and labour welfare and add them with the Central Rules of 1998 so that they can be adopted by the State Governments to avoid delay in the formation of Expert Committee, framing of rules by the Expert Committee, translation of rules in the regional language and clearance to the rules framed by the Expert Committee by the law department of respective States.
Pass such other and further order/s as may be deemed just, fair and proper in the facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.

Filed by:

JYOTI
MENDIRATTA
ADVOCATE FOR PETITIONER

Drawn on:
Filed on:
New Delhi.