(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. By this Public Interest Litigation, the writ-petitioner, a registered Central Trade Union under the provisions of the Indian Trade Union Act, 1926, has prayed for issue of writ of mandamus or any other appropriate writ upon the respondents, their agents and servants to register the construction workers and renew their registration with the Gujarat Building and other Constructions Workers Welfare Board [for brevity, the Board, hereinafter] and to make avail the welfare benefits to the workers by quashing and setting aside notification dated 31st December 2008 [annexure 'G'] and to restore notification dated 21st August 2008 [annexure 'E']. Other consequential reliefs have also been made out in this application.
2. The writ petitioner, as stated hereinabove, is a registered Trade Union and according to the case made out in this application, the membership of the petitioner-Union is spread over in 9 different States in the Country. According to the petitioner, the total membership of the petitioner-Union is 13,25,752, out of which the membership from the State of Gujarat itself is 7,35,191. The petitioner claims that the women workers belonging to construction trade are also the members of the petitioner-Union.
3. The facts stated in the writ-application may be epitomized thus:
3.1 Section 12 in Chapter IV of the Building and other Construction Workers (Regulation of Employment and conditions of Service) Act, 1996 [for brevity, the Act, hereinafter) deals with the registration of the workers as beneficiaries. According to section 12(1) of the Act, every building worker who has completed eighteen years of age but has not completed sixty years 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 beneficiary under the Act. The Act confers power upon the respective State Governments to frame Rules. The State of Gujarat has accordingly framed the Gujarat Building and other Construction Workers [Regulation of Employment and Conditions of Service) Rules, 2003 [[for brevity, the Rules, hereinafter). Chapter IV of the said Rules deals with registration of building workers as beneficiaries.
3.2 According to rule 34(3) of the said Rules, the application for registration as beneficiary should be accompanied by the following:
1. Fee fixed by the Board
2. Proof of Age
3. Certificate from the present employer
4. 3 passport-size photographs 3.3 The petitioner points out that the requirement of the Rule is that the certificate from employer to the effect that the worker has worked for 90 days during the preceding 12 months is mandatory for the workers to get registered as beneficiaries with the Board.
3.4 According to the petitioner, in the construction trade, especially in Ahmedabad, the prevailing practice is that the workers stand at the crossroads, known as "Kadiya Naka", in the morning and the contractors /employers hire him/her from that place. Thus, the construction workers work on different construction sites. The same workers may work for contractor 'A' on one day and on the very next day, he/she may work for another contractor 'B'. Consequently, due to the system prevalent in the construction industry, it is impossible for the construction workers of the unorganized sector to get the requisite certificate that he/she has worked for 90 days in the previous year from a particular employer / contractor. Apart from the aforesaid fact, the contractors / employers have no interest in giving such certificate.
3.5 The petitioner points out that in exercise of powers conferred by section 62 of the Act, the Labour and Employment Department of the Government of Gujarat issued a notification dated 21st August 2008 and clause 3(c) of the said notification provided as under:
"3(c). Proof of status as a building worker for at least ninety days during the preceding one year, which would normally be a certificate to that effect issued by the employer or contractor for whom the applicant has been working. However, in appropriate cases, the following may also be considered as a proof of status, namely"-
(i). a certificate issued by a Building Workers' Union, registered under the Trade Unions Act, 1926.
(ii). a certificate issued by the Inspector under this Act or the Inspector under the Factories Act, 1948 or Government Labour Officer having jurisdiction over the concerned area,
(iii). a certificate issued by the Chief Executive Officer of the Gram Panchayat or the Municipal Body concerned, by whatever name called.
(iv). a certificate issued by the Mamlatdar or Taluka Development Officer or Competent Officer in Taluka Panchayat having jurisdiction over the concerned area."
3.6 According to the petitioner, considering the opinion of the Expert Committee, the State Government not only issued the above referred notification dated 21st August 2008 but also issued a Press Note to the effect that earlier the construction workers faced a lot of difficulties in getting the certificate as a proof of continuous work for 90 days from the employers and contractors; however, with the notification dated 21st August 2008, the construction workers' Union would also have the authority to give such a certificate, and, therefore, the whole procedure was simplified.
3.7 The petitioner complains that the State of Gujarat, within a short span of 4 months, without any prior intimation or notice, came out with another notification dated 31st December 2008 inter alia to the effect that clause 3(C)(i) of the notification dated 21st August 2008 stood deleted. In other words, the authority given to the workers' Union to issue certificate that the workmen had worked for 90 days in the preceding year has been taken away from the Union.
3.8 According to the writ-petitioner, as a result of the modified notification, the construction workers of informal economy are facing a lot of problems in registering themselves with the Board and availing welfare benefits.
3.9 The petitioner points out that in the State of Gujarat, there are about 12,00,000 construction workers. Out of them, between January 2005 and August 2008, only about 800 workers were registered. However, between 21st August 2008 when the notification authorizing the Workers' Union to issue certificate and 31st December 2008 when the said authority granted to the worker's Union was withdrawn, the total number of registered construction workers increased to about 30,000 and they were also issued identity cards. After the notification dated 31st December 2008 taking away the authority of the workers' Union to issue such certificate, again a brake was applied to the process of registration of the construction workers and the number of registered construction workers has come down to 31,544. The above figures, according to the petitioner, show that the average registration of worker between August and December 2008 was about 8000 a month whereas the figure came down to 500 a month after the workers' Union was deprived of the authority to issue certificate of 90 days work to the workers.
3.10 The petitioner has, therefore, prayed for restoration of the earlier notification dated 21st August 2008 and to quash the later notification issued on 31st December 2008.
4. This application has been opposed by the State-respondent thereby contending that the present writ-application has no merit as by a mere reading of the later notification dated 31st December 2008, it appears that enough provisions exist for a genuine workman to easily get the benefit of the Scheme provided under the Act and the Rules made there under. It is further contended that a writ-application is not maintainable for issue of the directions contained in this writ-application.
5. After hearing the learned counsel for the parties and after going through the material on record, we find that the main prayer of the writ-petitioner is for restoration of clause 3(C)(i) of the earlier notification dated 21st August 2008 which authorized the Building Workers' Union registered under the Trade Unions Act, 1926 to issue certificate of status as a building worker for at least 90 days during the preceding one year. The said notification was modified by the later notification dated 31st December 2008 by which the said authority given to the workers' Union has been taken away.
6. After going through the latter notification, we find that one can establish his/her status as a building worker for at least 90 days during the preceding one year by producing a certificate to that effect from any of the following authorities :-
(i). an Inspector appointed under the Act,
(ii). an Inspector under the Factories Act, 1948,
(iii). Government Labour Officer having jurisdiction over the concerned area,
(iv). Chief Executive Officer of a Gram Panchayat concerned by whatever name called,
(v). Chief Executive Officer of a Municipal body concerned by whatever name called,
(vi) Mamlatdar having jurisdiction over the concerned area, (vii) Taluka Development Officer having jurisdiction over the concerned area, and,
(viii). Competent Officer in Taluka Panchayat having jurisdiction over the concerned area.
6.1 Therefore, by virtue of powers conferred under the Act, the State Government has merely deleted the authority granted to the workmen's Trade Union but having regard to other provisions by virtue of which one can easily establish that he/she is a real, genuine worker for the preceding 90 days in the last 12 months, we are of the view that for deletion of the above clause, none of the legal or fundamental rights of the construction workers or the petitioner-Union has been affected.
7. It is now well settled law that in exercise of powers under Article 226 of the Constitution of India, a High Court can quash any statutory notification issued by a State within the meaning of Article 12 of the Constitution if it violates any of the provisions of the Constitution or infringes any of the legal or fundamental rights of a citizen. In the case before us, there is no dispute that under the provisions of the Act itself, the State Government is invested with the authority to issue such a notification in exercise of the powers conferred under the Act. Therefore, the plea of lack of legislative competence is not available to the petitioner. If a competent legislative authority, on consideration of experts' opinion, has decided to amend a particular provision by deleting certain provisions, in our opinion, the High Court, sitting in writ jurisdiction, cannot ask the legislative authority to enact a law in a particular way. Even under the existing laws prevailing in this country by virtue of other Statutes, a registered Trade Union has not been vested with any authority to certify whether a person is really a beneficiary for continuous 90 days during the course of last 12 months. Thus, by deletion of clause 3(C) (i) of notification dated 21st August 2008 by the subsequent notification dated 31st August 2008, no legal right vested in favour of the petitioner or any construction worker by virtue of any other valid enactment has been taken away. In other words, there is no other existing law in the country having overriding effect over the legislation in question, which gives a right to a registered Trade Union to issue such a certificate.
8. We, therefore, find that by issuing the amending notification dated 31st December 2008, none of the legal right or fundamental right of the petitioner-Union created under any other valid law has been infringed and at the same time, the subsequent notification impugned herein is within the legislative competence of the concerned authority. Such being the position, merely because, according to the petitioner, the earlier provisions of notification of 21st August 2008 was more beneficial, such fact cannot be a ground for setting aside the subsequent notification. A High Court in exercise of its power under Article 226 of the Constitution cannot direct a legislative authority to enact a law in a particular way merely because according to the High Court, the proposed law would be more beneficial. It would amount to encroaching upon the field of legislation, which is the exclusive domain of the legislature only subject to the condition that the impugned legislation does not violate any provisions of the Constitution. We, therefore, find no merits in this writ-petition and the same is dismissed. Notice is discharged. In the facts and circumstances of the case, there will be, however, no order as to costs.
8.1 In view of the dismissal of the main writ-application, the Civil Application does not survive, and is disposed of accordingly.
[BHASKAR BHATTACHARYA, ACTING C.J.] mathew [J.B.PARDIWALA.
J.] Top