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To address such inhuman working conditions and poor health and safety standards in the real estate industry, the Government of India enacted the Building and Other Constructions Workers Regulation of Employment and Conditions of Service Act, hereinafter referred to as the "BOCW Act". The BOCW Act is a social welfare legislation that aims to benefit workers engaged in building and construction activities across the country. The ambit of the BOCW Act is wide, particularly in a country where the infrastructure and construction sectors have seen significant growth.
Building worker is defined in Section 2 e of the BOCW Act as ' a person who is employed to do any skilled, semi- skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be expressed or implied, in connection with any building or other construction work.
As per Section 2 d of the BOCW Act, 'building or other construction work' includes 'the construction, alteration, repairs, maintenance or demolition- of or, in relation to, buildings, streets, roads, railways, tramways, airfields, irrigation, drainage, embankment and navigation works, flood control works including storm water drainage works , generation, transmission and distribution of power, water works including channels for distribution of water , oil and gas installations, electric lines, wireless, radio; television, telephone, telegraph and overseas communication dams, canals, reservoirs, watercourses, tunnels, bridges, viaducts, aquaducts, pipelines, towers, cooling towers, transmission towers and such other work as may be specified in this behalf by the appropriate Government, by notification but does not include any building or other construction work to which the provisions of the Factories Act, 63 of , or the Mines Act, 35 of , apply.
Hence, the term "building or other construction work" is defined in a manner that it does not include any building or other construction work to which the provisions of the Factories Act, apply. This exclusion clause of Section 2 d has been used by employers to evade registration and payment of cess under the BOCW Act.
As per Section 2 l of the Factories Act, , 'worker' means a person employed in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any kind of work incidental to or connected with, the manufacturing process, or the subject of the manufacturing process. In view of the above, it is inferred that the term 'worker' under the Factories Act, does not involve a person involved in the construction of buildings.
Also, the term 'manufacturing process' does not involve any process for construction of buildings. Hence, the Factories Act covers only those workers who are engaged in the manufacturing process or any work that is incidental to the manufacturing process, and not workers who are involved in building and construction works.
The validity of these notices were challenged in several writ petitions before various High Courts on the ground that the BOCW Act was not applicable to these factories as they were registered under the Factories Act. The Petitioner construction companies which are engaged in construction activities argued that once the undertaking or the establishment had obtained a license for registration under the Factories Act, the BOCW Act was not applicable on account of the exclusion under Section 2 1 d of the BOCW Act.
However, the Respondents called for a more beneficial interpretation to the exclusion clause on the ground that the legislation must cater to the benefits of construction workers. Consequently, the provisions of the Factories Act would apply only when the manufacturing process commences, and even upon commencement of the manufacturing activity, it only covered those workers who are engaged in such manufacturing activity under the Factories Act and not construction workers.
It is laudable that the Indian government has made welfare provisions for long neglected construction workers. However, there have been gaps in the clarity and enforcement until the courts have stepped in. The Supreme Court has clarified that building and construction workers engaged in factory premises are entitled to welfare measures under the BOCW Act. It is understood that the Central Government is also planning to make amendments 4 to the BOCW Act to widen the scope of applicability of the BOCW Act to enable the respective state governments to implement the Acts and it is hoped that the amendments will truly benefit the construction workers by providing better and safer work conditions.
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Learn More Accept. Real Estate and Construction. To print this article, all you need is to be registered or login on Mondaq. Introduction There are more than 28 million skilled and unskilled workers engaged in the construction sector in India. The preamble of the BOCW Act explicates the said purpose: " An Act to regulate the employment and conditions of service of building and other construction workers and to provide for their safety, health and welfare measures and for other matters connected therewith or incidental thereto.
As under Section 2 k 'Manufacturing process' includes the following: making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal, or pumping oil, water, sewage or any other substance; or generating, transforming or transmitting power; or composing types for printing, printing by letter press, lithography, photogravure or other similar process or book binding;] or constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels; or preserving or storing any article in cold storage In view of the above, it is inferred that the term 'worker' under the Factories Act, does not involve a person involved in the construction of buildings.
Lanco Anpara Power Ltd. Takeaway It is laudable that the Indian government has made welfare provisions for long neglected construction workers. Sudipto Mitra. Stamp duty and registration of instruments has always been a complex and talked about issue. Several questions are usually asked by people, such as:. Under the provisions of Transfer of Property Act, 'TPA' , one of the grounds for termination of a lease is by efflux of time.
This article attempts to highlight the significance of undertaking legal due diligence exercises in real estate transactions and the methodology to be followed. Construction contracts are entered into between one or more owners and one or more contractors for development and construction in terms of the owner's specifications. Sign Up for our free News Alerts - All the latest articles on your chosen topics condensed into a free bi-weekly email.
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India: BOCW Act, 1996, Applies to Construction Workers
In building and other construction works more than eight million workers are engaged throughout the country. These workers are one of the most vulnerable segments of the unorganised labour in India. Their work is of temporary nature, the relationship between employer and the employee is temporary, working hours are uncertain. Basic amenities and welfare facilities provided to these workers are inadequate. Risk to life and limb is also inherent. In the absence of adequate statutory provisions to get the requisite information regarding the number and nature of accidents was quite difficult and due to this to fix responsibility or to take corrective measures was not an easy job. Although the provisions of certain Central Acts were applicable to the building and other construction workers yet a need was felt for a comprehensive Central Legislation for regulating the safety, welfare and other conditions of service of these workers.
The Building and Other Construction Workers