Construction Employees Trade Union, Madhya Pradesh, Gwalior vs Union Of India & Others

(1) Though the challenge is to Notification dated 01.10.2007 and 19.10.2007 issued by the respondent/M.P. Building & Other Construction Worker Welfare Board (for brevity "Board") in exercise of the powers conferred under Section 12 of the Building and other Construction Workers (Regulation Of Employment And Conditions Of Service) Act, 1996 [for brevity "1996 Act"]. Whereas the Notification No. बैठक-10-योजना-भसकम-07-549 dated 01/10/2007 published in M.P. Rajpatra (Extraordinary) dated 05.10.2007 is in respect of building workers engaged in building or other construction work in the area within jurisdiction of Panchayats. The Notification No.1032 dated 19.10.2007, published in M.P. Rajpatra (Extraordinary), dated 19.10.2007, relates to building workers engaged in building or other construction work in the urban area of Municipalities/Municipal Corporation. The grievance raised is against the introduction of class within class stipulating that such building workers who receive benefits like regular salary, ESI, Provident Fund, Gratuity are ineligible to be registered under the 1996 Act. The clause with which the petitioner is offended with is Clause 7 in both the notifications, which mandates:

"7. Disqualification :- An act has been enacted mainly for welfare of workers who do not have available social security. Therefore such workers who receive benefits like regular salary, E.S.I, provident fund, gratuity, they shall not have entitlement of registration. The construction workers of organized sector, who receive regularly permanent salary per mensem in registered factories, registered shops and establishments or center or states, public undertaking of state/ center or institutions, local bodies and establishment/ companies or private sector shall not be entitled for registration who are receiving above mentioned minimum social security."

(2) It is urged that the building workers having been defined in the 1996 Act, which is a Central Act, the delegatee i.e. the Board cannot curtail the same by further classifying the building workers. It is urged that with arbitrary classification the building workers who are excluded from the category are deprived from being registered as a beneficiary. It is contended that after the issuance of Notification dated 01/10/2007 and 19.10.2007, new condition has emerged by separating building workers on the basis of the salary received by them. It is urged that it is beyond the jurisdiction of the Board to introduce new qualification and declare the building workers disqualified from being registered as beneficiaries under Chapter V of 1996 Act, if they are recipients of social security.

(3) The respondents, on their turn, have justified their action. It is urged that the stipulations contained in the notification, more particularly the disqualification Clause 7, is in consonance with the aims and objects of 1996 Act. The respondents have also raised the issue of delay.

(4) So far as the objection as to delay is concerned, trite it is that no definite time limit can be provided to challenge the validity of law. For an authority please see "Express Publications (Madurai) Ltd. and Anr. Vs. Union of India and Anr. [2004 (3) SLR 315]";

wherein, it is held:

"23. We may also notice the aspect of long delay in laying challenge to the validity of the impugned provisions. No hard and fast principle can be laid down that under no circumstances delay would be a relevant consideration in judging constitutional validity of a provision. ....."

(5) Further contention that the Board constituted under Section 18 of 1996 Act is empowered to frame procedure of registration for construction of workers and has issued notification on 01.10.2007 and 19.10.2007 in exercise of its power under Section 12 of 1996 Act does not appear to us correct submission. The Board i.e. Building and Other Construction Workers' Welfare Board [as defined under Section 2(c) of 1996 Act] is constituted under Section 18. That Section 22 enumerates the functions of the Board which may:

"(a) provide immediate assistance to a beneficiary in case of accident;

(b) make payment of pension to the beneficiaries who have completed the age of sixty years;

(c) sanction loans and advances to a beneficiary for construction of a house not exceeding such amount and on such terms and conditions as may be prescribed;

(d) pay such amount in connection with premia for Group Insurance Scheme of the beneficiaries as it may deem fit;

(e) give such financial assistance for the education of children of the beneficiaries as may be prescribed;

(f) meet such medical expenses for treatment of major ailments of a beneficiary or, such dependant, as may be prescribed;

(g) make payment of maternity benefit to the female beneficiaries; and

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

Thus, what is within the power of the Board is to make provision and improvement of such other welfare measures and facilities as it may prescribe. But in our considered opinion the Board has no authority to further classify building worker in exercise of its powers under Section 22(1)(h). Even the State Government which under Section 2(a)(iii) is an appropriate government in relation to any other establishment which employs building workers either directly or through contractor, does not enjoy sweeping powers under Section 62 of 1996 Act to classify the building worker by carving out an exclusion clause.

(6) A "building worker" as per definition under Section 2(e) means "a person who is employed to do any skilled, semi-skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied, in connection with any building or other construction work but does not include any such person- (i) who is employed mainly in a managerial or administrative capacity; or (ii) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

(7) The expression "building or other construction work" is defined under Section 2(d) to mean:

"the construction, alteration, repairs, maintenance or demolition, of or, in relation to, buildings, streets, roads, railways, tramways, airfields, irrigation, drainage, embankment and navigation works, flood control works (including storm water drainage works), generation, transmission and distribution of power, water works (including channels for distribution of water), oil and gas installations, electric lines, wireless, radio, television, telephone, telegraph and overseas communications, dams, canals, reservoirs, watercourses, tunnels, bridges, viaducts, aquaducts, pipelines, towers, cooling towers, transmission towers and such other work as may be specified in this behalf by the appropriate Government, by notification but does not include any building or other construction work to which the provisions of the Factories Act, 1948 (63 of 1948), or the Mines Act, 1952 (35 of 1952), apply."

(8) Furthermore, Section 2(j) defines "establishment" to mean:

"any establishment belonging to, or under the control of, Government, any body corporate or firm, an individual or association or other body of individuals which or who employs building workers in any building or other construction work; and includes an establishment belonging to a contractor, but does not include an individual who employs such workers in any building or construction work in relation to his own residence the total cost of such construction not being more than rupees ten lakhs.

(9) Section 62 of 1996 Act as noted supra empowers the appropriate Government [in the present case, the State Government] to make rules for carrying out the provisions after consultation with the expert committee. Presently, we are concerned with Chapter IV of the 1996 Act which provides for registration of building workers as beneficiaries. Section 12 deals with the provision regarding registration. The State Government under Section 62(2), (f), (g) and (h) is empowered to frame rules which may provide for:

"62. Power to make rules:-

(1) XX XX XX

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:--

(f) the form in which an application for registration as a beneficiary shall be made under sub-section (2) of section 12;

(g) the document and the fee which shall accompany the application under sub-section (3) of section 12;

(h) the registers which the Secretary of the Board shall cause to be maintained under sub-section (6) of section 12;

The provision contained under Section 62, thus, does not empower the Board to frame rules to further sub-categorize a building worker.

(10) Trite it is that the delegate on whom the power to make subordinate legislation is conferred has to act within the limits of authority conferred by the Act.

(11) In "Hukam Chand Etc. Vs. Union of India & Others [AIR 1972 SC 2427]", it is held:

"6. .......The underlying principle is that unlike Sovereign Legislature which has power to enact laws with retrospective operation, authority vested with the power of making subordinate legislation has to act within the limits of its power and cannot transgress the same. The initial difference between subordinate legislation and the statute laws lies in the fact that a subordinate law making body is bound by the terms of its delegated or derived authority and that Court of law, as a general rule, will not give effect to the rules, thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled (see Craies on Statute Law, p. 297 Sixth Edition)."

(12) In "St. Johns Teachers Training Institute Vs. Regional Director, National Council for Teacher Education & Anr. [(2003) 3 SCC 321]", it is held that the rules cannot be made to supplant the provisions of the enabling Act but to supplement it. It is held by their Lordships:

"10. A regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and regulations are all comprised in delegated legislations. The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The legislature may, after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the frame work of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the Rule, after coming into force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statutes. Rules and regulations made by reason of the specific power conferred by the Statutes to make rules and regulations establish the pattern of conduct to be followed. Regulations are in aid of enforcement of the provisions of the Statute. The process of legislation by departmental regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of rules and regulations is conferred by Parliament. The main justification for delegated legislation is that the legislature being over burdened and the needs of the modern day society being complex it can not possibly foresee every administrative difficulty that may arise after the Statute has begun to operate. Delegated legislation fills those needs. The regulations made under power conferred by the Statute are supporting legislation and have the force and effect, if validly made, as the Act passed by the competent legislature. (See Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi AIR 1975 SC 1331)."

(13) In the case at hand, as perceived, a building worker is a person who is employed to do any skilled, semi-skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied, in connection with any building or other construction work. And only such person is excluded who is employed mainly in a managerial or administrative capacity or who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. Thus, there is no other category than what is excluded from the definition of building worker. In the case at hand, the appropriate Government, however, included the building workers who receive benefits like regular salary, ESI provident fund, gratuity, engaged in registered factories, registered shop and establishment or centre or State's Public Undertaking of State/Centre or institution or local bodies and establishments/companies or private sector in an excluded category of building worker which besides being in excess of the delegated authority is also contrary to the provisions of 1996 Act. In view whereof, Clause 7 of the impugned notifications dated 01.10.2007 and 19.10.2007 are quashed being ultra vires the provisions contained in 1996 Act, from the date of their inception. The consequences shall ensue.

(14) Petition is allowed to the extent above. No costs.