Case title: Delhi Building and other Construction Workers Welfare Board v. Dulari Devi and Anr.
Case no: LPA 372/2023 and CM APPL.20067/2023
Dated on: 01st May, 2024.
Quorum: Hon’ble Mr. Justice Rajiv Shakdher and Hon’ble Mr. Justice Amit Bhansal.
Facts of the case:
The appeal is directed against a common judgement dated 23.02.2023 rendered by learned single judge in WP (C) 13969/2022 and WP (C) 14432/2022. Respondent No.1 in the appeal is the wife of the deceased worker, Shri Gauri Shankar Gupta, while the respondent No.2 is the Govt. of NCT of Delhi. The respondent No.1/ Smt. Dulari Devi had preferred WP (C) 13969/2022, an order dated 23.08.2022 passed by the appellant, i.e; Delhi Building and the Other Construction Workers Welfare Board was assailed. Shri Shankar Gupta had been employed as a building worker in Delhi for decades. He registered as with the welfare board for the first time on 17.12.2007, when he was 58 years old. At the time of the registration, Shri Shankar Gupta had deposited the contribution for three months i.e; 17.12.2007 and 17.03.2008. Acknowledging the fact that Shankar Gupta had reached 60 on 01.01.2009. Upon completing 60years, Gupta preferred an application for pension with the Welfare Board. An official had informed him with the fact that his application to grant pension has been rejected by the Welfare Board on 19.08.2020. Aggrieved by the decision, Shri Shankar Gupta lodged an appeal on 19.01.2021 under Rules 273(4) of the BOCW rules. Unfournately, Shri Shankar Gupta expired on 05.05.2021, nearly three weeks after the order dated 16.04.2021 was passed. Respondent No.1/ Smt Dulari Devi received a fresh notice dated 28.07.2021 to conduct a hearing for the same. Based on the advice of the Legal Advisor, Labour Department, the Secretary, welfare Board directed the Deputy Secretary, North-West to decide the matter afresh, after hearing Shri Gauri Shankar Gupta. Shri Gauri Shankar Gupta expired on 05.05.2021. Respondent no.1/Smt Dulari Devi (wife) received fresh notice to conduct hearing in the matter. Another deficiency letter dated 02.09.2021 was issued by the Welfare Board advising to produce documents related to the renewal of Shri Guari Shankar Gupta’s membership for the period 17.03.2008 and 16.10.2012. Since the receipts were unavailable and not submitted, the application preferred by the deceased Shri Gauri Shankar Gupta for granting a pension was temporarily closed. Respondent no.1/Smt Dulari Devi and others protested against the closure of the application. In response, the Secretary of the Welfare Board suggested to file affidavits to overcome the objections raised by the Welfare Board. As per records one, Ms Badam Verva, who was in a similar situation, filed an affidavit in substitution of the renewal receipts. Since Ms Badam Verva application for pension was not processed by the Welfare Board, she approached this Court, where High Court issued directions to consider the affidavit filed by Ms Badam Verva. Respondent no.1/Smt Dulari Devi, taking note of this Order filed affidavit on 10.05.2022, but the Welfare Board rejected the application for pension vide order dated 23.08.2022. Aggrieved by the order dated 23.08.2022, respondent no.1/Smt Dulari Devi filed WP (C) 13969/2022 which was disposed vide the impugned judgment.
Contentions of the appellant:
Under the BOCW Act and BOCW Rules, a building worker is not entitled to pension solely upon reaching 60 years of age. The building worker is required to apply for pension in the prescribed form, in accordance with Rule 272 of the BOCW Rules. Section 14(2) of BOCW Act, provides that a construction worker would be eligible for a pension if he fulfils the following criteria. (i)He should have attained the age of 60 years. (ii) He should have been a beneficiary continuously for three (3) years immediately before reaching the age of 60. The explanation to Section 14 (2) permits inclusion in the stipulated timeframe, i.e., three (3) years, any period for which the building worker has been a beneficiary with any other Welfare Board immediately before his registration with the concerned Welfare Board. Since the deceased, Shri Gauri Shankar Gupta had been registered with the Welfare Board only for three months, between 17.12.2007 and 17.03.2008, he did not fulfil the eligibility criteria as provided in Section 14(2) of the BOCW Act. The impact of the impugned judgment is that any person who acquires membership of the Welfare Board, even for a day between the prescribed age span, i.e., 18 years and 60 years, is entitled for pension and such an interpretation by the learned Single Judge would put severe financial burden on the Welfare Board. The Supreme Court in in NCC-CL v. Union of India & Ors. Held; pension constitutes permanent liability which the states may not be able to sustain in the long term, the State Welfare Boards may formulate pension schemes depending upon their financial capacity. However, pension should be admissible to only those registered of 10 years. In this regard the State Welfare Board should issue a certificate to the effect that a BOC worker has remained registered for a period of 10 years.
Contentions of the respondent:
BOCW Act is a welfare legislation and under Section 22(1)(a) to (g) of the BOCW Act and Clause (h) of Section 22(1) of the BOCW Act, the Welfare Board can make provisions for and improvement of such other welfare measures and facilities. As far as pension payment to beneficiaries was concerned, as per Section 22 (1) (b) pension would be paid to beneficiaries who completed 60 years of age. This provision had to be read with Section 2(1)(b), which defines beneficiary as a building worker registered under Section 12 of the BOCW Act. Section 12, provides that only that building worker could register himself with the Welfare Board who had completed 18 years of age but had not reached 60 years of age and who had been engaged in any building or construction work for not less than 90 days for the preceding 12 months. Under Section 14 of the BOCW Act, the registration acquired by the building worker ceases once the building worker attain 60 or when he is not engaged in building or other construction work for 90 days or more in a year. Under Clauses (a) to (g) of Section 14 (1), the Board had power to make provisions or improvements in the welfare measures and facilities as may be prescribed from time to time. A building worker could avail welfare measures or improvements only if he had been a beneficiary for at least three years immediately preceding the date he completed 60 years of age. For availing pension, the building worker was not required to fulfil the criteria stipulated in Section 14(2). No eligibility criteria was provided in the BOCW Act for a pension grant. The eligibility criteria was, provided in Rule 272 of the BOCW Rules wherein, a building worker, who was a member of the fund would become eligible for pension upon completion of 60 years of age, if he had been working for not less than one year after the commencement of the BOCW Rules. It was contended that contrary to the submissions advanced on behalf of the Welfare Board, there was no inconsistency between the provisions of the BOCW Act and the BOCW Rules.
Issues:
Whether Smt. Dulari Devi would be entitled to receive pension in terms of the BOCW Act read with the BOCW Rules?
Legal provisions:
Section 12 of the BOCW Act- there is no restriction for a worker to avail or get registered after fulfilling the conditions.
Section 14(2) of BOCW Act- The members of the export committee shall be paid such fees and allowances for attending the meetings of the committee as may be prescribed.
Courts analysis and judgement:
There is no contestation that Shri Gauri Shankar Gupta was a building worker within the meaning of the provisions of Section 2(1)(e) of the BOCW Act. There is no dispute that Shri Gauri Shankar Gupta fulfilled the criteria for registration as a beneficiary, as prescribed under Section 125 of the BOCW Act. Shri Gauri Shankar Gupta’s application for registration renewal was allowed on 31.01.2012. The exercise of the power of registration/renewal in Shri Gauri Shankar Gupta’s case, as observed in the order dated 16.04.2021 was in in accordance to Section 17 of the BOCW Act. It is not disputed that Shri Gauri Shankar Gupta had deposited Rs.532/- as his contribution for the period between 17.03.2008 and 16.10.2012. The renewal of registration as a beneficiary would relate back to March 2008 and therefore, on the date Shri Gauri Shankar Gupta reached 60, he fulfilled the eligibility criteria concerning registration and crossing the threshold of 60 years of age to claim a pension from the Welfare Board. The point to considered as whether Shri Gauri Shankar Gupta should have been registered as a beneficiary in the immediately preceding three years before attaining the age of 60 years as for claiming pension? Under Section 22 (1) (a) to (g) of the BOCW Act invest in the Welfare Board power to accord specific benefits to registered beneficiaries. The Welfare Board has been, among other things, conferred with a specific power to grant pensions to beneficiaries who have reached 60 years of age. However, the BOCW Act does not provide eligibility criteria as regards the qualifying period for which the building worker should have worked before he reached 60. The stipulated eligibility criteria of having been a beneficiary for at least three (03) years preceding the date when the beneficiary completes 60 years of age cannot apply to specific benefits which are the subject matter of Section 22 (1) (a) to (g). Pension is one such specific benefit, provided in Section 22 (1) (a) to (g), and cannot be controlled by the eligibility criteria provided in sub- Section (2) of Section 14. The eligibility criteria concerning pensions are expressly provided in Rule 272 of BOCW Rules 8. The said provision, in no uncertain terms, states that a member of the fund who is a building worker would be eligible for a pension on reaching 60 years of age if he has worked for a period of not less than one year. Although Shri Gauri Shankar Gupta had asserted that he had been working as a building worker in Delhi for several decades before his registration with the Welfare Board on 17.12.2007, even if it is assumed that he commenced his work from the said date, he would have met the minimum eligibility criteria of one year provide in Rule 272 before the date when he completed the age of 60 years. 21. It is not disputed that Shri Gauri Shankar Gupta turned 60 on 01.01.2009, at which point he had already worked as a building worker for more than one (01) year. Therefore, the order dated 23.08.2022 passed by the Welfare Board was contrary to the provisions of the BOCW Act and BOCW Rules. The object and purpose of the BOCW Act is not only to regulate employment and conditions of service for building workers but also to provide safety, health, and other welfare measures from time to time. The Welfare Board, have to find resources, like increasing the rate of levy of cess, to gather funds to extend benefits to building workers. The financial burden that may fall on the Welfare Board cannot be a basis for non-implementation of the will of the legislature, which can very well be gathered in the scheme of the BOCW Act and Rules. In view of the aforesaid reasons, it is not required to interfere with the impugned judgment and the appeal is, accordingly, dismissed.
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Judgement reviewed by- Parvathy P.V.
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