Delhi High Court reinstates the right of construction workers to pensions benefits, rejects application of hyper technical issues.

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision:- 29th May, 2023.

W.P.(C) 15061/2022

BADAM VERVA                                                                                                                                                                                                                                ..... Petitioner

Through: Mr. Chirayu Jain & Ms. Sakshi Dewangan, Advs.

versus

DELHI BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE BOARD & ANR.                                                                                                    ..... Respondents

Through: Ms. Pavitra Kaur, Advocate for R-2. (M: 9811999292)

CORAM: JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.

Background

2. In the present case, this Court is concerned with the issue of pension in respect of the Petitioner who is a building and other construction worker. The Petitioner had applied to the Delhi Building and Other Construction Workers Welfare Board (hereinafter ‘the Board’) for release of pension as per Rule 273 of the Delhi Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2002 (hereinafter ‘the Rules’).

3. Vide order dated 20th May, 2020 in W.P.(C) 3001/2020 titled Jai Pal & Ors. v. Delhi Building and Other Construction Workers Welfare Board, a ld. Single Judge of this Court had directed processing of applications, which were pending with the Board for release of pensionary benefits and passed the following order: W.P.(C) 15061/2022 “10. At this stage, I may note that the learned counsel for the respondent no.1 has submitted that the delay in processing of the files is also taking place because of lack of adequate staff/officers in the respondent no.1. 11. Keeping in view that the claim in the present petition is for the lowest strata of the society who are most affected by Covid-19 pandemic and the consequent lockdown, it is hoped that the respondent no.2 shall ensure that adequate staff /officers are provided to the respondent no.1 to carry out the process of verification of the pending applications as also the new applications that would be received by it for grant of the benefits under the Scheme announced for the workers by the respondent no.2, as expeditiously as possible. For this purpose, the Delhi State Legal Services Authority is also requested to provide necessary assistance to the workers as also to the respondent no.1 in the process of verification.”

4. After the said order was passed directing the expeditious processing of applications for grant and release of pensionary benefits by the Board, the Petitioner as also many other beneficiaries received deficiency letters in respect of their pension applications. In effect however, the pensionary benefits have not been released. Brief Facts

5. The Petitioner – Badam Verva, is a building and construction worker who worked for several decades. She was registered with the Board on 22nd September, 2009. As per her Registration Card, her year of retirement is mentioned as 2013. She was a resident of M-413, Savda. J.J. Colony, Delhi 110081. Her registration card reflects that her family constitutes of her husband. W.P.(C) 15061/2022

Correspondence with the Board

6. She made an application for pension on 8 th February, 2016. A first deficiency letter dated 11th June, 2020 was issued by the Board which directed the Petitioner to submit an affidavit stating her correct date of birth. In compliance with the said direction, the requisite Date of Birth affidavit was submitted by the Petitioner, which was received by the Board on 21st December, 2020. However, the Board rejected the application for pension on the ground that the Petitioner was not a member of the Board on the date of superannuation. The relevant extract of the order dated 21st December, 2020 is extracted as under: “As per your labour passbook, a renewal of registration was done for a period of five years from 21.03.2010 to 21.03.2015, and the renewal was approved by the registering authority on 25.11.2014. Whereas you had completed sixty years on 01.01.2013 itself. On the said date of superannuation, you were not a live worker with the Board. There is no provision to deposit annual contribution after crossing the age of 60, therefore you are not eligible to get pension.”

7. The said rejection order was appealed to the Board as per Rule 273(4) of the Rules before the Board. The said appeal was filed on 19th January, 2021. Vide order dated 16th April, 2021, the Board remanded the matter back to the Deputy Secretary (North-West) with the direction to decide the matter afresh after giving hearing to the Petitioner. In compliance with the said order, a hearing notice dated 28th July, 2021 was issued by the Section Officer of the North West District of the Board. The relevant extract of the hearing notice is set out below: “In your labour passbook, you were re-registered by the sanction of the competent authority from for 5 years was done by the district office. The re- registration was done by the concerned official on 25.11.2014, during which time you had completed 63 years of age and after attaining the age of 60 years, there is no provision for making contribution. As per Pension Rule 273, the pension benefit can only accrue to those registered construction workers, who are registered with the Board for at least 1 years. According to your labour passbook, you were registered with the Board from 22.09.2009 to 21.03.2010 for six months and the re-registration of your labour passbook was done on 25.11.2014 by the district office, during which time you attained the age of 63 years. There is no provision to make contribution after attaining the age of 60 years. Therefore, in relation to this matter, you are requested to appear before the district office on 12.08.2021 at 2 pm through your representative or in person, so that appropriate action can be taken on your pension application.”

 8. Thereafter, letters dated 2nd September, 2021 and 14th October, 2021 were also issued by the Board directing the Petitioner to submit the following: • Letter to District Office informing that the Petitioner was not aware that there is no provision to submit contribution to the Board after attaining the age of 60 years. • Bank Slip or MR Slip or other related document by which the renewal with contribution of Rs. 212/- has been done by the Petitioner on 23rd December, 2014. • Submission of the requisite serial numbers of the records verified by the notary.

9. Representations dated 3 rd November, 2021 and 24th November, 2021 were made by the ld. Counsel for the Petitioner to the Chairperson and Secretary of the Board. Thereafter, in response to the directions issued by the Secretary of the Board in meeting dated 23rd December, 2021, an affidavit dated 20th January, 2022 was then submitted by the Petitioner to the Board. A second round of representations dated 7th February, 2022 and 24th February, 2022 were made by the Petitioner.

Prior Litigation

10. Aggrieved by the non-action by the Board, the Petitioner preferred a writ petition, titled Badam Verva v. Delhi Building and Other Construction Workers Welfare Board. Vide order dated 18th April, 2022, the said writ petition was disposed of with the following order: “1. This petition has been filed by the petitioner impugning communications dated September 02, 2021 and also dated October 14, 2021. 2. By the first communication dated September 02, 2021, the respondent No.1 has sought clarification from the petitioner as to why appropriate action be not taken with regard to pensionary benefits payable to him. 3. It appears that the petitioner did not respond to the communication within time prescribed which resulted in the issuance of the second communication dated October 14, 2021. 4. Mr. Jain, learned counsel for the petitioner states that the petitioner has now responded to the first communication dated September 02, 2021 by filing an affidavit (pages 208-209) which may be considered by the respondent No.1 to decide the grant of pensionary benefits to the petitioner. 5. The plea made by Mr. Jain is reasonable. 6. Accordingly, this petition is disposed of directing the respondent No.1 to consider the affidavit filed by the petitioner at pages 208-209 dated January 20, 2022 and pass appropriate orders with regard to the claim of the petitioner for pensionary benefits. Further action shall be taken based on the decision. 7. It goes without saying that if the petitioner is aggrieved by any order to be passed by the respondent No.1 to his prejudice to file appropriate petition in accordance with law.

11. However, even after the direction to consider the case of the Petitioner for the grant of pensionary benefits, the application of the Petitioner was not decided. Constrained by the non-implementation of the order dated 18th April, 2022 of the ld. Single Judge of this Court, the Petitioner filed an application for recall of the order. Vide order dated 27th July, 2022, the said application was disposed of with the direction to the Board to decide the case of the Petitioner within 2 weeks. The said order dated 27th July, 2022 is extracted as under: “1. This is an application filed by the petitioner seeking recall of the order dated 18.04.2022. 2. The grievance of the petitioner is that even though this Court had disposed of the writ petition with a direction to the respondents to expeditiously consider the petitioner’s plea based on her affidavit, no action has been taken thereon and resultantly the petitioner, who is an old widow, continues to suffer. 3. Issue notice. Learned counsel for the respondent no.1 accepts notice and has no justification for the respondent not deciding the petitioner’s case in terms of this Court’s order dated 18.04.2022. He, therefore, prays for further time to comply with the same. 4. As prayed for, the respondent is granted two weeks’ time, by way of a last opportunity, to decide the petitioner’s case in terms of the order dated 18.04.2022, failing which the Court will be W.P.(C) 15061/2022 Page 7 of 17 constrained to initiate contempt proceedings against the respondent. 5. The application is, accordingly, disposed of. 6. Needless to state, this Court has not expressed any opinion on the merits of the petitioner’s claim and in case the petitioner is aggrieved by any order passed by the respondent, it will be open for the petitioner to seek legal recourse as permissible on law. 12. After the said order was passed by the ld. Single Judge of this Court, the Board issued a second rejection letter. The grounds for rejection of the application for pension in the said letter are extracted as under: “As per Section 14(1) of the Delhi Building and Other Construction Workers Act - notwithstanding anything, only if a person is registered for a period of three years prior to turning 60- he/she is eligible. Even as per Section 12(1) and Section 17 of the Delhi Building and Other Construction Workers Act you are not eligible to receive pension.” 13. Aggrieved by the said rejection of the application for pension, the present writ petition has been filed. It is the case of the Petitioner that despite repeated attempts, reminders and representations, her application for pension was not processed by the Board. Analysis and Findings 14. The prayer in this writ petition is for sanction and release of the pension with effect from 1st February, 2019 along with applicable interest. 15. The present petition was first taken up for hearing on 1st November, 2022 and notice was issued on the said date. Subsequently, the petition was listed with other connected petitions on 10th May, 2023 and this Court has held that the present petition would be covered by the decision of this Court in Dulari Devi v. Delhi Building and Other Construction Workers Board W.P.(C) 15061/2022 Page 8 of 17 & Anr., 2023/DHC/001341. 16. Vide order dated 24th April, 2023, notice was issued in the appeal against Dulari Devi (supra) preferred by the Delhi Building and other Construction Workers Board. However, it is observed that no stay has been ordered on the decision of this Court in Dulari Devi (supra). 17. The Court has perused the documents and record of this petition. Insofar as the pension benefit is concerned, the SOP of the BOCW Board reads as under:

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