Justices Arif S Doctor and Somasekhar Sundaresan held there was nothing in the MCC that would interfere with the Board's ongoing activities.
Construction workers in Maharashtra, at the bottom of the ladder of unorganised labour, received a major relief on Friday, November 8, 2024, when the Bombay high court ordered the Board constituted for their welfare to resume activity.
The Maharashtra Building and other Construction Workers Welfare Board had suspended its functions when the model code of conduct for elections came into effect, on October 17.
The Board has been doing this during all elections, said Bilal Khan of the Kamgar Sanrakshan Sammaan Sangh (KSSS), including last year's panchayat elections, and this year's Lok Sabha elections.
Suspension of the Board's activities meant a stop to all new registrations of workers with the Board, as well as to renewals of registrations.
In effect, it meant that workers could not avail of the benefits given to them once they registered, whether in the form of protective gear and household kits, or in the form of scholarships for their children and health schemes, including maternity schemes.
Frustrated by these frequent suspensions, 8 unions, including the KSSS, approached the Bombay high court. Well-known labour lawyer Sudha Bharadwaj, out on default bail after having spent three years behind bars as an accused in the Bhima Koregaon case, argued the case for the unions.
Bharadwaj pointed out that the suspended activities were statutory duties which had to be conducted under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996. They had nothing to do with any new policy decision or any distribution of election largesse.
Counsel for the Board agreed that registration of workers was a basic statutory activity required to be carried out under the Act. However, since the benefits involved direct transfer of money to workers, the Board hadn't been sure whether such transfers clashed with the MCC. Hence they had written to the Election Commission, which had not yet replied.
The vacation bench of Justices Arif S Doctor and Somasekhar Sundaresan held there was nothing in the MCC that would interfere with the Board's ongoing activities.
Similarly, there was nothing in the Act which would render pre-existing schemes that were being implemented under it violative of the MCC.
Pointing out that the Act was a welfare legislation for workers who were fragmented and unorganised, the judgment said that registration of workers was a 'central and imperative' feature of the Act.
Renewal of registration too had to be a continuous process.
The judgment also pointed out that the Union labour ministry had drawn up a Model Plan based on recommendations of a committee constituted by the Supreme Court in 2018. Under this, construction workers were entitled to life insurance and disability insurance under government schemes.
The MCC was meant to prevent abuse of power by ruling parties who wanted to influence voters, said the judges. By no stretch would this require suspension of administration of pre-existing schemes.
'The right to register in order to avail of benefits under the schemes made under the Act, is a statutory right conferred by Parliament. Such right cannot be suspended in the name of elections,' said the judges.
In fact, they pointed out, the MCC explicitly said that pre-existing schemes should not be stopped or delayed. However, these should not be implemented by political figures or with fanfare.
Agreeing with Sudha Bharadwaj that none of the schemes already in operation under the Act could be viewed as 'inducement to the electorate', the judges quashed the circular as void and ultra vires of the Act.
They ordered the Board not to stop registrations, renewals, or disbursement of claims under ongoing schemes under the Act while the MCC is in force.
The Board has been directed to revive its online portal immediately.
The judges, however, added that this judgment could not be used by the state government to start a new scheme or provide new benefits which were not there when the MCC came into force.
This directive applies for all elections in the state, said the judgment.
Welcoming the judgment, Bilal said that their union would keep monitoring the functioning of the Board. "We cannot understand why the Board was so prompt in withholding benefits from workers. Otherwise, they are the most inefficient Board in the country," he said.
"They take 2-3 months to processes every new registration. Since construction workers are mostly migrants, they tend to go back to their village at any time, making it difficult for us to follow up on registrations."
Bilal pointed out that despite having ample funds from the cess collected from construction projects, the Board had prioritised household and safety kits over fundamental necessities such as housing.
