Himachal Pradesh High Court
Date Of Decision: 18.12.2024 vs State Of Himachal Pradesh & Ors on 18 December, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:14997
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.1492 of 2020
Date of Decision: 18.12.2024
_____________________________________________________________________
Veer Singh .........Petitioner
Versus
State of Himachal Pradesh & Ors. .......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Petitioner: Mr. Bhag Chand Sharma, Advocate.
For the respondents: Mr. Anup Rattan, Advocate General, Mr. Rajan
Kahol & Mr. Vishal Panwar, Additional
Advocate Generals, with Mr. Ravi Chauhan,
Deputy Advocate General, for respondents-
State.
Mr. Rohan Tomar, Advocate, for respondent
No. 3.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
By way of instant petition filed under Article 226 of the
Constitution of India, petitioner has prayed for the following main
relief:
“It is therefore, prayed that this petition may be allowed, the
impugned orders, i.e. Annexure P-1, P-4, and P-5, passed by
respondents No. 2 and 3, may be quashed and the respondents
may be directed to release the post death benefits of Smt. Amro
Devi (deceased), mother of the petitioner, to the petitioner. The
respondents may also be directed to reimburse the medical
expenses, incurred by the petitioner for treatment of the
deceased, as per provisions of Section 22 (1) (f) of the Act.”
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2. Precisely, the facts of the case, as emerge from the record
are that late Smt. Amro Devi i.e. mother of the petitioner was
registered as a building worker vide Registration No.
BOCW/LO/KNG/06/2784/13 under the Building and Other
Construction Workers (Regulation of Employment and Conditions of
Service, Act, 1996 (hereinafter “Act”). Though w.e.f. year 2013
aforesaid person had been regularly rendering her services as a
building worker, but subsequently in the year 2016, she stopped
working as a building worker on account of her having contacted
serious disease i.e. cancer. On account of aforesaid disease, Smt.
Amro Devi died on 23.09.2017. Petitioner herein being son of aforesaid
person filed an application in the month of March, 2018, seeking
therein payment on account of funeral assistance and death benefit in
terms of Rules 277 and 278 of Himachal Pradesh Building and Other
Construction Workers (Regulation of Employment and Conditions of
Service) Rules, 2008 (hereinafter “Rules”), however, afore prayer of him
came to be rejected vide communication dated 08.10.2018 (Annexure
P-1) on the pretext that alongwith application, as detailed hereinabove,
petitioner herein has failed to annex certificate, thereby showing that
deceased worker had worked for not less than 90 days in the previous
year i.e. 2017. Petitioner herein represented against aforesaid decision
of Authorized Officer-cum-Labour Officer vide communication dated
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17.11.2018 (Annexure P-2), stating therein that since deceased worker
was unable to work on account of having contacted serious disease,
claim put forth by him cannot be rejected for want of certificate of
continuity of service. However afore representation was rejected vide
impugned order dated 22.04.2019.
3. To substantiate the factum of disease suffered by late
Smt. Amro Devi, petitioner also placed on record certificate dated
29.10.2018 issued by the Secretary Gram Panchayat Gharna, wherein
it came to be reported that deceased Smt. Amro Devi expired on
23.09.2018 and she was unable to render her services as a building
worker on account of her having contacted serious disease of cancer
(Annexure P-3). Besides above, petitioner herein has also adduced on
record discharge slip issued by the Indira Gandhi Medical College,
Shimla, suggestive of the fact that on account of cancer, deceased
Smt. Amro Devi was under constant treatment. Since despite there
being aforesaid documents adduced on record, claim put forth by the
petitioner herein came to be rejected, he is compelled to approach this
Court in the instant proceedings, praying therein for the relief as
reproduced hereinabove.
4. Pursuant to notices issued in the instant proceedings,
respondents No. 1 to 3 have filed reply under the signatures of
Secretary-cum-Chief Executive Officer, HP Building & Other
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Construction Workers Welfare Board, Shimla, HP, wherein factum
with regard to registration of deceased Smt. Amro Devi as a building
worker under the Act is not disputed, rather attempt has been made
to refute the claim of the petitioner on the ground that since deceased
Smt. Amro Devi had ceased to be beneficiary in terms of Section 14 of
the Act prior to her death in year 2017, no illegality can be said to
have been committed by the appropriate authority, while rejecting the
application filed by the legal representative of deceased Smt. Amro
Devi.
5. While making this Court peruse aforesaid provision of law,
Mr. Rohan Tomar, learned counsel for the respondent-board,
vehemently argued that though in terms of aforesaid provision of law,
building worker ceased to be beneficiary under the Act on his/her
attaining the age of sixty years or when he/she is not engaged in
building or other construction work for not less than ninety days in a
year, but in the case at hand, even if it is presumed that deceased
Smt. Amro Devi had not ceased to be beneficiary under the Act,
petitioner herein being legal representative of deceased was under
obligation to place on record certificate suggestive of the fact that
deceased was engaged in building or other construction work for not
less than ninety days in a year, which he failed to do so.
6. To the contrary, Mr. Bhag Chand Sharma, learned
counsel for the petitioner, while refuting the aforesaid submission
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made by learned counsel for the respondent-Board, strenuously
argued that proviso 2 of aforesaid provision of law itself suggests that
if a person had been a beneficiary for at least three years continuously
immediately before attaining the age of sixty years, he shall be eligible
to get such benefits as may be prescribed. He submitted that since it
is not in dispute that deceased Smt. Amro Devi was registered as a
building worker in the year 2013 and she kept on working as a
building worker till 2016, petitioner herein is eligible to get benefit as
per Rules 277 and 278 of the Rules.
7. Having heard learned counsel for the parties and perused
material available on record, this Court finds that mother of the
petitioner Smt. Amro Devi was admittedly registered as a building
worker vide Registration No. BOCW/LO/KNG/06/2784/13 and
petitioner herein is her son and nominee. There is nothing on record to
suggest that registration of deceased, Smt. Amro Devi done in the year
2013, had expired prior to her death on 23.09.2017, meaning thereby
at the time of her death, she continued to be registered under the Act.
As per Section 14 of the Act, a building Worker, who has been
registered as a beneficiary under this Act shall cease to be as such
when he attains the age of sixty years or when he is not engaged in
building or other construction work for not less than ninety days in a
year. Admittedly, in the case at hand, deceased Smt. Amro Devi had
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not attained the age of sixty years and similarly, there is nothing to
demonstrate that she had stopped rendering her services as a building
worker before her death in the year 2017. Though, Mr. Rohan Tomar,
learned counsel for the respondent-Board, while inviting attention of
this Court to certificate issued by Gram Panchayat Gharna (Annexure
P-3), attempted to argue that deceased Smt. Amro Devi had stopped
working after August, 2018, but such submission of him may not be
sufficient to reject the claim of the petitioner because as per aforesaid
certificate issued by the Secretary Gram Panchayat on 29.10.2018,
deceased Smt. Amro Devi had stopped rendering her services as a
building worker for the last two years w.e.f 29.10.2016. At this stage,
it would be apt to take note of Section 14 of the Act, which reads as
under:
14. Cessation as a beneficiary.
(1) A building worker who has been registered as a
beneficiary under this Act shall cease. to be as such when
he attains the age of sixty years or when he is not engaged
in building or other construction work for not less than
ninety days in a year:
Provided that in computing the period of ninety days under
this sub- section, there shall be excluded any period of
absence from the building or other construction work due to
any personal injury caused to the building worker by
accident arising out of and in the course of his employment.
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(2) Notwithstanding anything contained in sub- section (1),
if a person had been a beneficiary for at least three years
continuously immediately before attaining the age of sixty
years, he shall be eligible to get such benefits as may be
prescribed.
8. If the Section 14 (2) of the Act is read in its entirety, it
clearly provides that notwithstanding anything contained in sub-
section(1), if a person had been a beneficiary for at least three years
continuously immediately before attaining the age of sixty years, he
shall be eligible to get such benefits as may be prescribed. Admittedly,
in the case at hand, claim of the petitioner has not been rejected on
the ground that late Smt. Amro Devi had attained the age of sixty
years, but the case of the petitioner has been rejected on the ground
that he has failed to furnish certificate suggestive of the fact that
deceased was engaged as a building worker for not less than ninety
days in a year. However, in the case at hand, petitioner herein was not
required to furnish afore certificate, as sought for, for the reason that
deceased Smt. Amro Devi had been a beneficiary under the Act for at
least three years continuously immediately before her death on
23.09.2017. Though, Mr. Rohan Tomar, while referring to certificate
dated 29.10.2018 issued by the Secretary Gram Panchayat Gharna,
strenuously argued that deceased Smt. Amro Devi had stopped
working in year 2015, if it is so, petitioner cannot be granted benefit
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under Section 14(2) of the Act, however, careful perusal of certificate
dated 29.10.2018 if read in its entirety, nowhere suggests that
deceased Smt. Amro Devi had actually not worked till 23.09.2017,
rather afore certificate suggests that on account of her having
contacted serious disease i.e. cancer, deceased was unable to work.
There is no definite certification, if any, in the afore certificate that
prior to her death in year 2017 deceased Smt. Amro Devi had stopped
working. There is nothing cogent on record to refute the claim put-
forth by the petitioner that deceased Smt. Amro Devi continued to be
registered as beneficiary under the Act till her death on 23.092017, if
it is so, benefit as claimed by the petitioner in terms of Rules 277 and
278 of the Rules, deserves to be allowed.
9. It is not in dispute that in exercise of power conferred
under Section 62 and 40 of the Act, Government of Himachal Pradesh
has made rules, wherein under Rules 277 and 278 of the Rules,
specific provisions have been made with regard to payment of funeral
assistance and payment of death benefit. Afore rules came to be
amended in the year 2018 and 2020.
10. If the aforesaid amended rules are read in conjunction, it
nowhere suggests that payment of funeral assistance and payment of
death benefit, if any, depends upon production certificate of continuity
of service, rather as per aforesaid rules, board shall sanction amount
of Rs. 20,000/- to the nominee dependent upon the deceased towards
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funeral expenses and sum of Rs. 2,00,000/- towards death benefit. If
the death is due to an accident during the course of employment,
nominee dependent of the deceased shall be given Rs. 50,000/-
towards death benefits, provided the death is certified by a doctor.
However, in the instant case, death is not during the course of
employment, rather deceased was died on account of cancer and as
such, petitioner herein being legal representative of Smt. Amro Devi
deserves to be sanctioned amount under aforesaid rules without there
being any stipulation. Needless to say, Act is beneficial legislation and
as such, its intent needs to be given effect to. Interpretation of
beneficial legislation should be in a manner to benefit the welfare of
building and other construction workers and any contrary
interpretation should be avoided. Reliance in this regard is placed
upon judgment passed by Hon’ble High Court of Delhi in WP(C) No.
6578 of 2023 titled as Sita Devi Vs. Delhi Building and Other
Construction Workers Welfare Board. Relevant paras of the afore
judgment reads as under:
“12. The BOCW Act is a social welfare measure enacted for the benefit
of unorganized labour in India where jobs are temporary and working
hours are uncertain. The basic amenities and welfare facilities provided
to these workers are inadequate. The work is characterized by its
casual nature, temporary relationship between employer and employee,
uncertain working hours, lack of basic amenities and inadequacy of
welfare facilities. It was enacted keeping in mind the socioeconomic
realities of the intended beneficiaries – the construction workers – aiming
to tackle both administrative and bureaucratic hurdles faced by them on
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2024:HHC:14997account of lack of knowledge and lack of access to professional
resources.
12.1 The intention of the legislature was not to punish or deprive the
worker who failed to renew his/her registration but to provide a remedy
to enable the worker to overcome the difficulties caused by non-
renewal. Section 17 of the BOCW Act is one such remedial provision.
The proviso to Section 17 of the BOCW Act thus states that where there
are reasonable grounds for non-payment and the worker deposits the
arrears, the delay can be condoned and the registration restored. It
reads as under:
“17. Effect of non-payment of contribution – When a
beneficiary has not paid his contribution under sub-
section (1) of section 16 for a continuous period of not less
than one year, he shall cease to be a beneficiary:
Provided that if the Secretary of the Board is satisfied that
the non- payment of contribution was for a reasonable
ground and that the building worker is willing to deposit
the arrears, he may allow the building worker to deposit
the contribution in arrears and on such deposit being
made, the registration of building worker shall stand
restored.”
13. It is no longer res integra that a beneficial legislation must be
construed liberally and interpreted in a manner that advances its
purpose so as to fructify the legislative intent. The Supreme Court
in Transport Corpn. of India v. ESI Corpn. And Anr.6 held that a
beneficial legislation must be construed in a correct perspective and
where two views are possible on its applicability, a view which furthers
the legislative intention should be preferred. The relevant extract is
reproduced below:
“27. Before parting with the discussion on this point, it is
necessary to keep in view the salient fact that the Act is a
beneficial piece of legislation intended to provide benefits to
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2024:HHC:14997employees in case of sickness, maternity, employment injury
and for certain other matters in relation thereto. It is enacted
with a view to ensuring social welfare and for providing safe
insurance cover to employees who were likely to suffer from
various physical illnesses during the course of their
employment. Such a beneficial piece of legislation has to
be construed in its correct perspective so as to fructify
the legislative intention underlying its enactment. When
two views are possible on its applicability to a given set
of employees, that view which furthers the legislative
intention should be preferred to the one which would
frustrate it. It is difficult to appreciate how it could be
contended by the appellant with any emphasis that an
employee working at its head office in Secunderabad would be
governed by the beneficial sweep of the Act as admittedly the
head office employees are covered by the Act, but once such an
employee, whether working on the administrative side or
connected with the actual transportation of goods, if transferred
to the Bombay branch even with his consent, cannot be
governed by the beneficial provisions of the Act…”
[Emphasis supplied]
14. In Builders Association of India and Anr. v. Union of India
(UOI) and Anr.7, while upholding the Constitutionality of the BOCW
Act, a (2000) 1 SCC 332 2007 SCC OnLine Del 327 : ILR (2007) 1 Del
1143 Division Bench of this Court held that the Act is a beneficial
legislation aimed towards the welfare of building and other
construction workers. The relevant extract of the said judgement reads
as:
“5.8 The scheme of the BOCW Act indicates that the
central focus of this statute is the building and
construction worker and the welfare of such worker.
Clearly the BOCW Act belongs to the genre of labour
welfare legislation relatable to Articles 39(e), 42 and 43 of
the Constitution of India. The Hon’ble Supreme Court has
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2024:HHC:14997in Bandhua Mukti Morcha v. Union of India [1984] 2 SCR
67 explained that such legislation would be straightaway
enforceable under Article 21 which enshrines the right to
human dignity. It was explained that (SCC p.184):”where
legislation is already enacted by the State providing these
basic requirements to the workmen and thus investing
their right to live with basic human dignity, with concrete
reality and content, the State can certainly be obligated to
ensure observance of such legislation for inaction on the
part of the State in securing implementation of such
legislation would amount to denial of the right to live with
human dignity enshrined in Article 21.
5.9. The BOCW Act envisages a network of
authorities at the Central and State levels to ensure
that the benefit of the legislation is made available
to every building worker. The provisions concerning
registration of workers, providing them with identity
cards, constitution of Welfare Boards and registration of
beneficiaries under the Fund, providing for augmentation
of the Fund and specifying the purposes for which the
Fund will be used, providing for the safety and health of
the worker, making the contravention of the provisions of
the statute punishable and entailing penalties for the
violator all go to emphasise the primary purpose of
the BOCW Act, which is the welfare of the building
and construction worker. These aspects of the BOCW
Act are sought to be supplemented in considerable
measure by the making of the Central Rules in 1998.
Detailed rules have been made with regards to particular
aspects of safety in construction work and for the health
and welfare of the workers.”
[Emphasis supplied] 14.1 It was further held that the interpretation of
the provisions of the BOCW Act should be in a manner to benefit the
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welfare of building and other construction workers, and any contrary
interpretation would have to be avoided.
11. Consequently, in view of above detailed discussion made
hereinabove, this Court finds merit in the present petition and
accordingly, the same is allowed and impugned orders i.e. Annexure P-
1, P-4 and P-5 are quashed and set aside. Respondent-Board is
directed to grant benefit, as prayed for, to the petitioner being legal
representative of the deceased Smt. Amro Devi in terms of Rules 277
and 278 of the Rules forthwith.
December 18, 2024 (Sandeep Sharma), (Sunil) Judge