AI Structured Summary
Not yet generated for this judgment
Judgment
Mr. Najmi Waziri, J.—Learned counsels for the respondents seek and are granted four weeks time to file reply. Rejoinder, if any, before the next date.
CM 26001/2016 (stay)
The petition has impugned the letter dated 31st July 2015 whereby construction site workers have been brought under the coverage of ESI Scheme. The letter has been issued in partial modification of the ESIC''s earlier Headquarters Instruction No.4-99 vide a Circular No. P-12(11)-11/27/99-Ins.IV dated 14th June 1999.
Mr. Gopal Jain, learned Senior Advocate for the petitioner, submits that this extension is erroneous because the benefits sought to be extended to the workmen and the right sought to be protected already stands occupied by other statutes. He submits that such peripatetic construction site workers had already been taken into consideration and were consciously left out of the Scheme in terms of the aforesaid instruction which recorded inter alia:-
".... In construction industry the work is carried out through the construction workers at the construction sites where the projects are situated. The workers engaged in it are mobile and migratory in nature. The criteria and duration of employment also vary from work to work. Due to the nature of employment and the nature of work place involving the construction organising Medical & other facilities for them which are normally available under the ESI scheme will be difficult. Therefore, the existing scheme under the ESI Act is neither applicable nor suitable for workers engaged in construction sites...."
(emphasis supplied)
The learned Senior Advocate submits that benefits are available to the workers at site under subsequent statutes, i.e., The Workmen''s Compensation Act, 1923 and under the Building and Other Constructions Workers (Regulation of Employment and Conditions of Service Act, 1996). Indeed Section 53 of the ESI Act specifically protects the rights of the workmen already covered under the Workmen''s Compensation Act. A compilation of benefits available to the workers under three statutes has been supplied and detailed by him. It reads as under:-
Employees State Insurance Corporation Act, 1948
Employees Compensation Act, 1923
Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996
An Act to provide for certain benefits to employees in case of sickness, maternity and "employment injury" and to make provision for certain other matters in relation thereto.
The Workmen''s Compensation Act, 1923 provides for payment of compensation to the workmen and their dependants in the case of injury by industrial accidents including certain occupational diseases arising out of and in t he course of employment resulting in death or disablement. This Act applies to certain railway servants and person employed in hazardous employments such as factories, mines, plantations mechanically propelled vehicles, construction work, etc. specified in Schedule [1] of the Act. However, the Act is not applicable to the employees who are covered under the Employees'' State Insurance Act, 1948
An Act to regulate the employment and conditions of service of building and other construction workers and o provide for their safety, health and welfare measures and for other matters connected therewith or incidental thereto. The object of the Act is to confer various benefits to the construction workers like fixing hours for normal working days, weekly paid rest day, wages for overtime, basic welfare amenities at site, temporary living accommodation near site, safety and health measures etc; National Campaign Committee for Central Legislation on Construction Labour v. Union of India, 2010 (9) Scale 442
Chapter V: Benefits
Sec 49: Sickness Benefits
Sec 50: Maternity Benefits
Sec 51: Disablement Benefits
Sec 52: Dependent''s Benefits
Sec 52A: Occupational Disease
Sec 56: Medical Benefits
Chapter II: Employees Compensation
Sec 3: Employer''s Liability for Compensation
(1) Personal injury
(a) in respect of any injury (partial disablement)
(b) in respect of any injury not resulting in death (or permanent disablement)
(2) contracts disease as an occupational disease (2093) Occupational disease
Sec 4: Amount of Compensation (4) Amount of Compensation
Sec 8: Distribution of Compensation workers?
Chapter V: Building and other Construction Welfare Boards
Sec 22: Functions of the Board
(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 dependents as may be prescribed
(g) make payment of maternity benefits to the female beneficiaries
(h) make provision and improvement of such other welfare measures and facilities as may be prescribed
Sec 53: Bar against receiving or recovery of compensation or damages under any other law
The learned senior counsel further submits that the benefits envisaged under the impugned letter dated 31st July, 2015 are already available and shall be made available to the petitioner''s workmen, all-the-more-so in terms of the petitioner''s existing contract with DMRC.
If the field of protection of rights and extension of benefits is already occupied by other later statutes, then an employer cannot be subjected to providing the same benefits twice over. A workman would not be adversely affected if his statutory rights are duly protected. In view of the above, the Court is prima facie, of the view that since the interests and benefits of the workman already stand secured through subsequent statutes and/or statutory schemes, the impugned letter would result in the duplication of benefits resulting in a piquant circumstance, i.e., imposing a double obligation on an employer, which is not mandated in law. Therefore, till the next date of hearing, the impugned letter dated 31st July, 2015 shall remain stayed.
Renotify on 22nd November 2016.