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Minor legal heir eligible for compassionate apportionment; but appointment upon attaining majority-Chennai High Court (Madurai Bench).

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Case title: State of Tamil Nadu v. C. Arnold

Case no: W.A(MD)No.479 of 2024 and C.M.P(MD)No.3875 of 2024

Dated on: 01st April 2024

Quorum: Hon’ble Mr. Justice R. Suresh Kumar and Hon’ble Mr. Justice G. Arul Murugan.

Facts of the case:

This Writ Appeal filed, under Clause 15 of Letters Patent, is to set aside the order dated 16.11.2023 made in W.P(MD)No.27247 of 2023 and W.M.P(MD)No.23395 of 2023 seeking Compassionate appointment. The Respondent/Writ Petitioner and father, working as a B.T Assistant in a Government High School, passed away on 03.01.2016, while in service. At the time of his father’s death, the Writ Petitioner was 15 years and 6 months old. On his behalf, his mother made an application dated 02.01.2018, before the Chief Educational Officer, seeking compassionate appointment which was rejected vide Order dated 31.05.2023 on the ground that on the date when the application was made, the respondent/writ petitioner was a minor. That rejection order was challenged before the High Court. The learned Judge, who heard the Writ Petition, took note of the fact that the Rule issued by the Tamil Nadu Government, in the Tamil Nadu Civil Services (Appointment on Compassionate Grounds) Rules, 2023 was notified on 08.03.2023 and at the time of consideration of the application submitted by the respondent/writ petitioner the said Rule was already in force and despite which it was rejected in May 2023 ie., by order, dated 31.05.2023. Hence, it was an erroneous approach on the part of the Appellant employer.

Issues:

Whether it was correct on the part of the Respondent to reject the Compassionate appointment on 31.05.2023 based on G.O.Ms.No.155 Labour and Employment (Ku1) Department, dated 10.12.2014 when Tamil Nadu Civil Services (Appointment on Compassionate Grounds) Rules, 2023 was already notified on 08.03.2023?

Legal provisions:

Writ Appeal filed, under Clause 15 of Letters Patent- lays down that any appeal can be made to the High Court provided it is not a sentence or order passed or made in the exercise of criminal jurisdiction.

Tamil Nadu Civil Services (Appointment on Compassionate Grounds) Rules, 2023- These rules govern the appointment of individuals on compassionate grounds within the Tamil Nadu Civil Services.  

Contentions of the appellant:

At the time of making the application seeking compassionate appointment, the respondent/writ petitioner, was only a minor who has completed only 15 years and 6 months. Therefore, at the time when he attained majority, three years period was over from the date of death of the employee ie., his father. Therefore, beyond three years period, compassionate appointment would not be considered. This rejection was based on Rule, dated 10.12.2014, of G.O.Ms.No.155, Labour and Employment Department and therefore, the said order of rejection ought not to have been interfered by the Writ Court.

Contentions of the respondent:

The Government of Tamil Nadu had framed rules for appointment on compassionate grounds under Tamil Nadu Civil Services (Appointment on Compassionate Grounds) Rules, 2023. The said rule was notified on 08.03.2023 and as per the said Rule 6, there is no minimum age limit for making an application. However, an appointment order could be issued only on completion of 18 years of age. These Rules were prevailing on the date of consideration of the application. Hence, the action of the 3 rd Respondent in relying upon G.O.Ms.No.155 Labour and Employment (Ku1) Department, dated 10.12.2014 was not right.  

Court analysis and judgement: 

Compassionate appointments are made to bail out the families of the employee, whose sudden demise would push the family to penury. Compassionate appointment is made depending upon the education and other qualifications of the dependent of the deceased employee and further no person can be employed in any organization, unless he attains majority ie., above 18 years. In most cases, when such an employee dies, the son or daughter or the dependents other than the spouse would be minor and therefore, it will take some years for them to reach the majority by which period the three years period from the date of death of the employee would be over. Under such circumstances, though the dependent or legal heirs would become eligible to seek for compassionate appointment but by then the period of three years would be over. These difficulties were considered by the State Government, and they bought Rule 6, the same is briefly mentioned herein. On the date of application for appointment. –  the spouse or medically invalidated Government servant or parent of the deceased servant, must have completed fifty years of age; and the son, daughter, brother or sister of the deceased or medically invalidated Government servant must not have completed forty years of age. There shall be no minimum age limit for the applicant on the date of application for appointment, provided appointment shall not be provided unless the applicant completes eighteen years of age.” Hence, under Rule 6, the maximum age has been prescribed, but minimum age limit was not prescribed. It was made clear that the appointment shall not be provided unless the applicant completes eighteen years of age Therefore, the intention of the Rule making authority is clear, that under no circumstances compassionate appointment should be denied to a family for want of attaining the majority of the legal heir/dependent of the deceased employee’s family. If compassionate appointment could not be given immediately, the employer can consider such application and grant/extend the benefit of compassionate appointment to the dependent/legal heir upon his attaining majority. When the intention of the Government was made very clear and as the Rule was effective from 08.03.2023, the Rule should have been applied by the employer. It is due to this reason that the learned Judge interfered with the said order and given direction for extending the benefit of compassionate appointment.  Writ Appeal is accordingly disposed with no costs. The appellants to consider the application, within a period of two months from the date of receipt of a copy of this order. When such consideration is made, if any similarly placed persons are there seniority is to be followed. In the name of following the seniority, the plea of the respondent/writ petitioner cannot be deferred or rejected and if in case there is no vacancy available, where he has sought, then as per the existing procedure, the request of the respondent/writ petitioner be forwarded, where similar vacancy is available and necessary orders to be passed. 


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Decision to fill vacancies from the additional list, is state’s prerogative- Delhi High Court.

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Case title: Dr. Shashi Bhushan v. University of Delhi and Anr.

Case no: W.P.(C) 4949/2024 & CM APPL. 20278/2024

Dated on: 05th April 2024

Quorum: Hon’ble Mr. Justice Tushar Rao Gedela.

Facts of the case:

A Mandamus writ petition under Article 226, of the Indian constitution,1950 has been filed against the Respondents by the Petitioner to appoint him as a Assistant Professor in the Department of Geography at the Respondent’s College. Mr. Chimni, appearing for the petitioner submits that the petitioner had participated in the recruitment process for the post of Assistant Professor of the Department of Geography, Kalindi College, University of Delhi. He says that the petitioner was the first candidate in the waitlist. There was a candidate named Ms Usha Rani who was at Sl. No.1 in the list of selected candidates was offered the appointment and had consequently joined the College at the Geography Department as an Assistant Professor. But, she had resigned from the Respondent’s College and joined another College with the same post. He says that the post of the assistant professor allotted for the scheduled caste was left vacant after the resignation of Ms. Usha Rani. He submits that as the petitioner is the first candidate in the waiting list he had the right to be offered with the appointment to the said vacant post. As, that was not done the following writ petition was filed.

Issues:

Whether a Candidate placed in waiting list be offered appointment upon resignation of the candidate who joined the post and later resigned?

Legal provisions:

Article 226 of the Indian Constitution- Power of High Courts to issue certain writs. 


Contentions of the appellant:

Mr. Chimni the counsel appearing for the petitioner says that the Petitioner had participated in the recruitment process for the Assistant Professor of the Department of Geography, Kalinidi College, University of Delhi. After the selection the petitioner was the first in the candidate list, he submits that a candidate named Ms. Usha Rani had also participated for the same and she was selected and started working in the said department. But, this said candidate resigned from the Respondent’s College subsequently and had gotten a new job with the same post. He says that the post of the Assistant Professor allotted for the scheduled caste was vacant after the resignation of the candidate. He submits that as the petitioner was the first candidate in the waiting list had a right to be offered with the appointment with the said post. Mr. Chimni says that the respondent is under the obligation to reserve the waitlisted panels on the basis of the selection, particularly when the incumbent had just resigned leaving the post vacant. The respondent had addressed that he would fill up the vacant position by selecting from the waitlist. Mr. Chimni says that the same has been violated.  

Contentions of the respondent:

Mr. Mathur states that the university had clearly stated that an offer to the Assistant Professor in the waitlisted candidate category created on the resignation of the candidate who had joined to the said post, and later resigned, it would again have to be advertised for such vacant post following the processes and procedures that are envisioned under the directives of the university. In Sudesh Kumar Goyal vs. State of Haryana and Others reported in (2023) 10 SCC 54, the Supreme Court held that a person cannot seek a right against a vacancy caused due to the resignation of the selected candidate. If a selected candidate joins and the resigns, it creates a fresh vacancy that must be filled through a fresh advertisement and selection process. With this case as precedent in the present case also the petitioner seeks offer from the vacancy on the resignation of the previously selected candidate. Mr. Mathur says that the petitioner has no cause of action.  

Courts analysis and judgement:

According to the Selection committee under clause 7 (4-a) of Ordinance XVIII of the university offers a appointment to the post of Assistant Professor to the waitlisted candidate when there is a vacancy that has been created by the resignation of the candidate who joined the post and later resigned. In such cases, it requires to issue a fresh advertisement following the processes and due procedures of the University. The candidates can be given appointment to the said post if the selected candidate did not join in the given timeframe. Thus, the said post which has fallen vacant due to any reasons cannot be filled from the position in the waitlist. If the Resignation of selected candidate. Death/VRS/Resignation of an employee, Post has fallen vacant due to the incumbent appointment at any other higher position/principal etc. In Subha B. Nair v. State of Kerala A decision on the part of an employer whether to fill up the existing vacancies or not is within its domain. On this limited ground in the absence of discrimination or arbitrariness, a writ court ordinarily would not interfere in such matters. Further, Mandamus cannot be issued to direct the Government or the State to fill up certain or all vacancies. The discretion to fill or not to fill vacancies lies with the Government. When a selected candidate in the final selection list has only a right of consideration, then the candidates who are in wait list would not even have that right, which is subject to rules/notification issued. The petitioner could not establish that he has derived the right from any rule/statute or an ordinance. Hence, the position that arises from all the above decisions is that the duty to fill up vacancies from waiting list can arise only on the basis of a mandatory rule. If no such mandate exists, the decision to fill all the vacancies from the Additional List, is left to the State. However, it needs to be added that State cannot act arbitrarily, and its action can be judicially reviewed. It is clear that the petitioner has no ground to maintain the writ petition. Consequently, the writ petition is dismissed. 


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delhi high court

Delhi High Court upholds EC Commissioner order for compensation to parents of deceased employee by upholding that the deceased person was an “Employee”

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Case title: M/S Madras Trading Co v. Ramjeet @ Ramjeet and Anr

Case no: FAO 119/2017 & CM APPL. 9580/2017, CM APPL. 28069/2018

Dated on: February 13th, 2024

Quorum: Hon’ble Mr. Justice Dharmesh Sharma

Facts of the case:

The appellant herein is a proprietorship concern run by Mr. Sukhpreet Singh, and it is engaged in a small business of sale of air conditioners and spare parts. The respondents were the claimants before the Employee Commissioner and are the legal heirs/parents of the deceased. The claimants filed Statement of Claims before the Commissioner on 27.07.2015, stating that that their deceased son Tata, was employed with the appellant as an AC Mechanic at a monthly wage of Rs. 15,000/-. On 30.04.2014, Sh. Tata was sent by the appellant to do AC repair work wherein the AC compressor burst resulting in fatal injuries and his death at the age of 25 years. An FIR was registered on 01.05.2014 at P.S. Kirti Nagar, on statement of coworker Sh. Sanjay Kumar who along with the deceased had gone to carry out work when the accident occurred. He stated that both of them were employed with the appellant firm and are entitled for compensation of Rs. 20,00,000/- along with penalty of 50% and interest @12% per annum, payable from the date of the incident till realization. The appellant on 09.12.2015 replied by denying the “employer-employee‟ relation and objected for non-enclosure of any documents/proofs to prove such employer- employee relationship. The learned Commissioner framed the following issues “(i) whether the employee – employer relationship exists between the parties? – (ii) Whether accident resulting into death of the deceased is caused out of and during the course of employment and if so, to what amount of death compensation, the dependents of the deceased are entitled to? (iii) Relief, if any? The learned Commissioner decided in favor of the claimants/respondents by holding that the claimant’s evidence was reliable and sufficient in proving the events. However, the respondent firm (appellant herein), failed to prove that there exists no employer- employee relationship. The learned Commissioner held that the claimants are entitled to compensation of Rs. 8,67,640/- along with simple interest @12% per annum w.e.f. 29.07.2015. Hence, this appeal.

Contentions of the appellant:

The learned Commissioner finding is perverse. The “employer-employee‟ relation between the deceased and the appellant firm, was decided solely on the FIR by completely ignoring the contradictions in the testimony of the claimants during cross-examination. An FIR is not a piece of substantive evidence as it requires corroboration through documentary, circumstantial or oral evidence. It is contended that apart from the “Control Test‟, “Integration Test‟ also needs to be considered such as the power to select and dismiss, to pay remuneration, deduct insurance contributions and the “mutual obligations‟ between the employer and the employee as well. The only evidence put forth by the respondents/claimants is a photocopy of the visiting card of the appellant. The testimony of respondent No.1 as well as of Sanjay Kumar was inconsistent. The appellant firm is not engaged in the business of AC repair but is a small proprietorship concern engaged in the sale of Air Conditioners and that they have not employed any persons.  

Contentions of the respondent:

The order passed by the learned Commissioner is well reasoned and has been passed after a thorough consideration of the pleadings of the parties and the materials placed on the record. The grounds taken by the appellant in the present appeal are misconceived and baseless. There is no substantial questions of law involved.

Issues:

Whether the Respondents are entitled to claim compensation under the EC Act?  

Legal provisions:

Compensation Claim under EC Act- Workers can file claims for compensation directly with the Commissioner or through a lawyer.  

Courts analysis and Judgement:

An appeal under Section 30 of the EC Act lies to the High Court from the following orders of a Commissioner ie (a) an order awarding as compensation; (aa) an order awarding interest or penalty (b) an order refusing to allow redemption of a half- monthly payment; (c) an order providing for the distribution of compensation among the dependents of a deceased employee, or disallowing any claim of a person alleging himself to be such dependents; (d) an order allowing or disallowing any claim for the amount of an indemnity under Section 12 (2). It is further provided by way of a proviso that no appeal lies against any order unless a “substantial question of law‟ is involved in the appeal. In the case of North East Karnataka Road Transport Corporation vs. Sujatha, the Supreme Court considered the scope and ambit of Section 30 of the EC Act as to what would constitute “substantial question of law‟, the question such as “whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependants of the deceased employee the extent of disability caused to the employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident, etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRs sue(s) his employer to claim compensation under the Act” The aforementioned questions are essentially the questions of fact and, therefore, to be proved with the aid of evidence. Once they are proved either way, the findings recorded thereon are regarded as the findings of fact.” The learned Commissioner has given a categorical finding that the deceased workman suffered fatal injuries during the course of his employment with the appellant. The reliance by the Commissioner on the contents of the FIR and statement of co-worker cannot be faulted. The proceedings under the EC Act are summary in nature and hence strict adherence to provisions the Indian Evidence Act, 1872 cannot be applied. There are grounds by which it can be presumed that the facts were truthfully revealed regarding the circumstances which resulted in the fatal accident and was correctly incorporated by the Investigating Officer. The claimants are from poor background who are illiterate and ignorant. The Visiting card in possession is sufficient to show the connection of the appellant as an employer with the Respondent’s deceased son. Once the Claimants had laid the basic foundation to the claim, the onus then shifted upon the appellant to disprove the fact that there existed no employer-employee relationship between the parties. The appellant could have even summoned and examined the co-worker Sanjay Kumar to disprove the relationship of employer and employee. The plea of respondent No.1 acknowledging that he did not know the proprietor of the appellant can be taken considering the background of the parents. There is no apparent reason for the Investigating Officer to have fabricated the FIR or for the co-worker Sanjay Kumar to have given a false statement soon after the accident. In view of the foregoing discussion, the impugned order does not suffer from any patent illegality, perversity or incorrect approach adopted in law. The present appeal is dismissed with exemplary costs of Rs. 25,000/- which be paid to the respondents No. 1 and 2 in equal share within one month from today, failing which they shall be entitled to claim the same with interest @ 9% per annum from the date of this order till realization. The pending applications also stand disposed of accordingly.  

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delhi high court

Unaided recognized private school is not required to take prior approval before fees hike- Delhi High Court.

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Case title: Action committee unaided recognized private schools v. Directorate of Education.

Case no: W.P. (C) 5743/2024 and CM APPL. 23712/2024, CM APPL.23713/2024

Dated on: April 29th, 2024

Quorum: Hon’ble Mr. Justice C. Hari Shankar.

Facts of the case: 


Directorate of Education (DoE) issued Order dated 27.03.2024 that as per Section 17 of DSEAR, 1973 no private unaided school in Delhi which has been allotted land by the Govt. Agencies shall enhance fee without prior sanction of the Director of Education. All the Head of Schools/Managers of Private Recognized Unaided Schools, seeking prior sanction for increase in fee, to submit their proposals, for the academic session 2024-25, online from 01.04.2024 through website of Directorate latest by 15.04.2024. The proposals submitted by the schools shall be scrutinized by the Director and in case, no proposal is submitted, the school shall not increase tuition fee/fee. In case of complaint regarding increase of any fee without prior approval will be viewed seriously and will make the school liable for action against itself as per the statutory provisions. The said Notification was challenged by the Action Committee Unaided Recognized Private Schools and which has come up for hearing.

Contentions of the appellant: 


Committee Unaided Recognized Private Schools v. DoE1 and Mt. Carmel School v. DoE2. Both were decided by a common judgment dated 15 March 2019. The The impugned order is in the teeth of the judgment of this Court in Action Court to rely on the judgment of the Supreme Court in Modern School wherein was held that schools which are subject to the “land clause” have to take prior approval of the DoE before enhancing their fees.   
Contentions of the respondent: 


Upon reference in para 140 of Action Committee Unaided Recognized Private Schools case, this Court has accorded license to the principle that schools which are situated on land, to which the land clause applies, could not increase their fees without prior approval. From Modern School the propositions emerged was; (i) The issue for consideration, before the Supreme Court, was whether schools were charging excessive and disproportionate fees and whether, the DoE acted within its jurisdiction in issuing directives (ii) Unaided educational institutions enjoyed greater autonomy, in the matter of determination fee structure. Such institutions to be allowed to plan their investment and expenditure, to generate reasonable profit. (iii) Charging of capitation fees, and profiteering, could not be allowed. (iv) Balance, to be struck between autonomy of the institutions and measures to be taken to prevent commercialization of education. (v) These regulatory measures could not, trespass on the autonomy of the unaided educational institutions. (vi) The right to establish and administer minority educational institutions, conferred, by Article 30(1) of the Constitution, was subject to reasonable regulations. (vii) Subject to the prohibitory parameters, regarding charging of capitation fee and profiteering, fees chargeable by unaided educational institutions could not be regulated. (viii) The “issue”, condensed by the Supreme Court, was “as to what constitutes reasonable surplus”. (ix) The directions, issued to the DoE is to “ascertain whether terms of allotment of land by the Government to the schools have been complied with, by the schools”. In the event of non-compliance being detected, the DoE was directed to take “appropriate steps in that regard”.  

Issue: 


Whether unaided recognized private school is required to take prior approval of the DoE before increasing its fees, irrespective of whether the land clause? 

Legal provision: 


Section 8(2) of the Delhi School Education Act, 1973- which mandates prior approval for dismissal orders.  

Courts analysis and Judgement: 

 Action Committee Unaided Recognized Private Schools v. DoE1 and Mt. Carmel School v. DoE2 the Court observed that “the schools are entitled to complete autonomy in the matter of fixation of their fees and management of their accounts, subject only to the condition that they do not indulge in profiteering, and do not charge capitation fee, thereby “commercializing” education. There is no requirement for the school to take “prior approval”, of the DoE, before enhancing its fees”. The resultant legal position, following Action Committee Unaided Recognized Private Schools, is that an unaided recognized private school is not required to take prior approval of the DoE before increasing its fees, irrespective of whether the land clause. The principle that private unaided schools do not have to seek prior approval before enhancing their fees, so long as they do not indulge in profiteering or commercialization of education by charging capitation fees and making of profits, is undisturbed till date though it is subject to decision of the Division Bench. The DoE, even if dissatisfied with the judgment of this Court in Action Committee Unaided Recognized Private Schools has to respect the verdict so long as it stands. The attitude of the DoE in continuously issuing Circulars threatening recognized unaided schools is objectionable and cannot be allowed. The grievances are to be ventilated before Division Bench where the Appeal is pending, and not issue continuous circular thereby driving the schools to drive to litigations and repeatedly re-arguing the same points which were considered in Action Committee Unaided Recognized Private Schools. As long as there is no prohibition by the Division Bench, with the principle in Action Committee Unaided Recognized Private Schools the DoE is required to respect that position. In view of the aforesaid reasons, why rule nisi should not be issued? And until next hearing DoE Circular dated 27.03.2024 shall stand stayed.    

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Delhi High Court Deems Monthly Pension of ₹3K for Building and Construction Workers Minuscule in a City Like Delhi.

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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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