Central Information Commission
Vandana Prasad vs Ministry Of Labour & Employment on 16 November, 2018
CENTRAL INFORMATION COMMISSION
(Room No.313, CIC Bhawan, Baba Gangnath Marg, Munirka, New Delhi-110067)
Before Prof. M. Sridhar Acharyulu (Madabhushi Sridhar), CIC
CIC/MLABE/A/2017/118245
Vandana Prasad v. PIO, M/o Labour & Employment
Order Sheet: RTI filed on 02.09.2016, CPIO replied on 18.10.2016, FAO on 08.12.2016, Second
appeal filed on 20.03.2017, Hearing on 20.04.2018;
Proceedings on 06.07.2017: Appellant present, Public authority absent. Directions and show
cause issued.
Proceedings on 20.04.2018: Appellant present at CIC, Public Authority represented by
Mr.MinaketanDhurua, RLC (C), HQ CLC (C); Mr. A.K. Singh, Under Secretary; Mr. Satpal Sharma
and Mr. S.S. Chauhan from M/o. Labour and Employment at CIC;
Date of Decision- 16.11.2018:Disposed of with directions.
ORDER
FACTS:
1. The appellant sought information on number of construction workers, domestic workers and women workers in the country who have received maternity benefits in the last five years; what percentage of female workers are engaged in the unorganised sector; how are the proposed amendments of the maternity benefits act likely to cover women working in the unorganised sector; status of implementation of the Unorganised Workers Social Security Act, 2008 etc. Since no information was received, the appellant approached this Commission.
2. The Commission's order dated 11.09.2017:
2. The appellant is the Founding Secretary of Public Health Resource Network who is currently the National Convener. The appellant is a social activist and social worker for over two decades and has a vast experience in health and development.
She has been closely associated with many national health movements like People's Health Movement-India (Jan SwasthyaAbhiyan), Mobile Crèches, Right to Food Campaign etc., to name a few. She has served as a Member (Child Health, Welfare and Development), National Commission for Protection of Child Rights from 2012 to 2013. She stated that the partial response was received after the second appeal was filed. She also submitted that 97% of the working women are in informal sector. The appellant's second appeal gives an insight about arrangements for social welfare to women working in the unorganised sector.
3. On point no. 1, she had sought "how many construction workers in the country have received maternity benefits in the last five years" and the response received was "giving maternity benefits is also included in the scheme of State Building and Other Construction Workers Welfare Boards but that date is not centrally maintained". On point no. 2, she had sought "how many domestic CIC/MLABE/A/2017/118245 Page 1 workers in the country have received maternity benefits in the last five years" and the response received was "it is stated that no data is maintained at the Central level regarding domestic workers who have received maternity benefits in the last five years". On remaining points i.e., nos. 3 to 10, she had sought "how many women workers in the country working in any unorganised sector have received maternity benefits in the last five years","of the entire female workforce, what percentage, according to the Ministry, is engaged in the unorganised sector", "how are the proposed amendments of the maternity benefits act likely to cover women working in the unorganised sector", "what is the status of implementation of the Unorganised Workers Social Security Act, 2008", "what funds have been allocated for the implementation of this Act and under what heads", "what is the status of the utilisation of these funds", " what is the accountability of the Central Ministry of Labour towards ensuring maternity benefits for women working in the unorganised sector" and "what actions is the Central Labour Ministry considering in this regard"
for which the appellant is not in receipt of any response at all till date.
4. The appellant asserts her point by stating that the information sought should in any case have been made proactively available under section 4(1)(b)
(xi), (xii) and 4(1)(c) of the RTI Act which states that every public authority must proactively disclose "the manner of execution of subsidy programmes, including the amounts allocated and the details of the beneficiaries of such programmes" and "publish all relevant facts while formulating important policies or announcing the decisions which affect public".
5. Hundreds and thousands of women leave their domicile and their nearest and dearest for a better life, better career opportunities and in quest of ending all their melancholies, but do they in fact get those better career opportunities? Do they really get what they have been searching for? Does providence take them to a different world altogether? To make a slightest effort to know where those dejected people have headed to, we must have to digest this atrocious and appalling truth. The stakeholders conjures up people by narrating fancy stories of imaginary persons, but alas, people accustomed to peasant culture and bucolic lifestyle who are so naïve are entrapped to their sugar-coated words and succumb to each and every dictum. Paradoxically they are given away to an unusual form of life which is far from reality and strained to carry on for survival with what has been offered to them. To put it in simple words, those guiltless people who have not even attained the age of majority are sold to work at factories, industries as forced/bonded labours; women who are capable and are aspiring to become big in life are auctioned off as domestic workers.
6. At present, domestic workers often given very low wages, made to work for excessively long hours, have no guaranteed weekly day of rest and at times are vulnerable to physical, mental and sexual abuse or restrictions on freedom of movement. Exploitation of domestic workers can partly be attributed to gaps in national labour and employment legislation, and often reflects discrimination along the lines of sex, race and caste. The growing impact of domestic work in paid employment in India makes it more crucial to ensure that such work is given dignity and occurs under decent conditions with adequate pay. Appointment is done off the record and usually by word of mouth and workers rarely get benefits like insurance, paid leave, compensatory leave, gratuity, provident fund or pensions. Official figures in India suggest there are more than four million domestic workers in the country, but the real figures are almost certainly much higher. It is unfortunate to note that as long as overall productive employment generation remains slothful, the ongoing pressures will be on both male and female workers forcing to accept working conditions that are degrading.
7. There have been many attempts to regulate this sector since independence. Most of these have failed due to governmental resistance-active or through neglect. The Domestic Workers (Conditions of Service) Bill 1959; All India Domestic CIC/MLABE/A/2017/118245 Page 2 Servants Bill 1959; Domestic Workers (Conditions of Service) Bill 1972 and 1977 and The House Workers (Conditions of Service) Bill 1989 are some of the major legislations during the period. However, the government ignored the recommendations of the Committee on the Status of Women in India 1974 and the recommendation of the National Commission on Self Employed Women and Women in the informal Sector 1988.
8. In recent years many NGOs and workers' organizations have put pressure on the government to protect the rights of domestic workers. There is no national law for domestic workers and domestic workers have been excluded from various laws that provide social security benefits for workers in general. Domestic workers do not even enjoy the right to form unions. In India, domestic workers are not covered by most labour legislations because of limitation in the definition of either the 'workman', 'employer' or 'establishment'. The nature of their work, the specificity of employee-employer relationship, the workplace being the private household, excludes their exposure from the existing labour laws including the Minimum Wages Act 1948, Maternity Benefit Act 1961, Workmen's Compensation Act 1926, Inter State Migrant Workers Act 1976, Payment of Wages Act 1936, Equal Remuneration Act 1976, Employee's State Insurance Act, Employees Provident Fund Act, Payment of Gratuity Act, 1972 etc.
9. Fixed minimum wages, equal pay equal work, maternity leave, medical aid and other fundamental essentials provided to any employee are still an optical illusion for the domestic workers. In this background, few moves from the State Governments in India should be welcomed, such as the Minimum Wage Act for Domestic Workers, which has been notified by the State Governments of Kerala, Andhra Pradesh and Rajasthan while a separate Act has come into force in Karnataka. Perceptibly implementation remains a problem, but this is aided by the attempts at unionization of such workers and related collective action, as have occurred in Kerala, Mumbai and other places in India.
10. The Commission finds that the PIO has not forwarded the RTI application as per Section 6(3) to the concerned authorities within time. Denying or delaying in providing the information on the ground that it is not maintained will defeat the very purpose of the RTI Act. Section 8(1) states "Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person". As per Section 19(5) the burden lies on public authority/CPIO to justify the denial saying they would deny the same information to Parliament also on the grounds that it is not centrally maintained. They failed to discharge this burden hence, the denial is illegal. This public authority and the Central Ministry for Labour and Employment are duty bound to take care ofworkers' welfare, besides for framing appropriate policy and its implementation. Most unfortunate that the public authority says it is not in possession of that information. The public authority has failed on two counts - one suo moto disclosure responsibility under Section 4 and discharging the burden under Section 19(5) of the RTI Act. The record shows that there was around 100 days delay in responding to the appellant.
11. The Commission directs the respondent authority to provide certified copies of the information as sought, within 30 days and also directs the Joint Secretary of Directorate General Labour Welfare and Chief Labour Commissioner to consider this as 'Complaint' with recommendation to act promptly to find the facts and to take necessary action as per the Law and inform the appellant.
12. The Commission also directs the concerned CPIO as on the date of the RTI application and the present CPIO of concerned wing of Ministry of Labour & Employment to show-cause why maximum penalty should not be imposed against each one of them for not giving proper reply to the RTI and application and also explain why the public authority should not be directed to pay compensation to the appellant for causing delay in furnishing information, before 12.10.2017.
CIC/MLABE/A/2017/118245 Page 3 Decision:
3. Shri S.S. Chauhan, Deputy Welfare Commissioner, Ministry of Labour and Employment, O/o. DGLW, in his written submissions dated 11.10.2017, explained as under:
"... An interim order dated 11.09.2017 has been received from Sh. M. Sridhar Acharyulu, Central Information Commissioner, against an Appeal filed by Ms. Vandana Prasad under the RTI Act. The case had come up for hearing before the CIC on 6/7/2017. It appears that no one was present in the hearing from the side of the Ministry of Labour & Employment. It is also stated that no notice of the aforesaid hearing was received in the O/o DGLW, New Delhi.
In the order dated 11/09/2017 in the RTI case "Ms. Vandana Prasad verses PIO Ministry of Labour and Employment" Hon'ble CIC has given the following direction:-
"The Commission directs the respondent authority to provide certified copies of the information as sought, within 30 days and also directs the Joint Secretary of Directorate General Labour Welfare and Chief Labour Commissioner to consider this as 'Complaint' with recommendation to act promptly to find the facts and to take necessary action as per the Law and inform the appellant.
The Commission also directs the concerned CPIO as on the date of the RTI application and the present CPIO of concerned wing of Ministry of Labour & Employment to show-cause why maximum penalty should not be imposed against each one of them for not giving proper reply to the RTI and application and also explain why the public authority should not be directed to pay compensation to the appellant for causing delay in furnishing information, before 12.10.2017".
In her RTI application, Ms. Vandana Prasad has sought the information on the following points.
1. How many construction workers in the country have received maternity benefits in the last five years.
2. How many domestic workers in the country have received maternity benefits in the last five years.
3. How many women workers in the country working in any unorganised sector have received maternity benefits in the last five years.
4. Of the entire female workforce, what percentage, according to the ministry, is engaged in the unorganisedsector.
5. How are the proposed amendments of the maternity benefits act likely to cover women working in the unorganised sector.
6. What is the status of implementation of The Unorganised Workers Social Security Act, 2008.
7. What funds have been allocated for the implementation of this act and under what heads.
8. What is the status of utilization of these funds.
9. What is the accountability of the central ministry of labour towards ensuring maternity benefits for women working in the unorganisedsector.
CIC/MLABE/A/2017/118245 Page 4
10. What actions is the Central labour ministry considering in this regard.
The matter on which the information was sought by Ms. Vandana Prasad in her RTI application is dealt by different CPIO's in the O/o DGLW, Ministry of Labour and Employment, New Delhi. The undersigned deals with the matter as sought by Ms. Vandana Prasad at Sr. No. 1 of her RTI application, viz. "How many construction workers in the country have received maternity benefits in the last five years".
In this connection, it is further stated that in response to the query raised by Ms. Vandana Prasad in her application/letter dated 22/09/2016, a reply was given vide O/o DGLW letter no. Z-16021/02/2014-BL (pt.) dated 23rd Dec. 2016 stating that "Under the Building and Other Construction Workers; Welfare Cess Act, 1996, a cess @1% of the construction cost is collected by the State Government and given to the respective State Building and Other Construction Workers' Welfare Boards mainly for the purpose of welfare of construction workers. Giving maternity benefits is also included in the schemes of State Building and Other Construction Workers' Welfare Boards but that data is not centrally maintained in this Office."
The applicant being dissatisfied with the reply, filed an appeal on the grounds that the PIO has not forward the RTI application as per Section 6(3) of the RTI and has also stated that as per Section 8(1) of the Act, "Information that cannot be denied to the Parliament Shall not be denied to any Person". To the appeal, a reply was given vide O/o DGLW letter no. Z-16021/02/2014-BL(pt.) dated 30th Mar, 2017 stating the instant guidelines forwarded to the CPIO by the Nodal Officer (RTI), Ministry of Labour and Employment that reads as under:
"If some part of the information is the concern of a public authority under any State Government or the Union Territory Administration, the CPIO receiving the application should inform the applicant that the information may be had from the concerned State Government/UT Administration. Application in such a case, need not be transferred to the State Government/UT administration."
Thus, the applicant had been advised to approach State Building and Other Construction Welfare Board of respective State Government/UT Administration regarding the information about number of construction workers who had had received maternity benefits in the last five years.
In view of the above, it may be concluded that:
1. The reply furnished to this RTI (in respect of point no.1) is in conformity to all the replies that this division has furnished in such cases to the Members of the Parliament during sessions. Thus Section 8(1) of the RTI Act cannot be invoked in this case.
2. As per instant guidelines in respect of RTI Act, if some part of the information is the concern of a public authority under any State Government or the Union Territory Administration, the CPIO receiving the application should inform the applicant that the information may be had from the concerned State Government/UT Administration.
Application in such a case, need not be transferred to the State Government/UT administration. Thus, Section 6(3) of the RTI cannot be invoked in this case."
CIC/MLABE/A/2017/118245 Page 5
4. Shri Satpal Sharma, CPIO and Under Secretary, Ministry of Labour and Employment, in his written submissions dated 11.10.2017, explained as under:
"... An interim order dated 11.09.2017 has been received from Sh. M. Sridhar Acharyulu, Central Information Commissioner, against an Appeal filed by Ms. Vandana Prasad under the RTI Act. The case had come up for hearing before the CIC on 6/7/2017. It appears that no one was present in the hearing from the side of the Ministry of Labour & Employment. It is also stated that no notice of the aforesaid hearing was received in the O/o DGLW, New Delhi.
In the order dated 11/09/2017 in the RTI case "Ms. Vandana Prasad verses PIO Ministry of Labour and Employment" Hon'ble CIC has given the following direction:-
"The Commission directs the respondent authority to provide certified copies of the information as sought, within 30 days and also directs the Joint Secretary of Directorate General Labour Welfare and Chief Labour Commissioner to consider this as 'Complaint' with recommendation to act promptly to find the facts and to take necessary action as per the Law and inform the appellant.
The Commission also directs the concerned CPIO as on the date of the RTI application and the present CPIO of concerned wing of Ministry of Labour & Employment to show-cause why maximum penalty should not be imposed against each one of them for not giving proper reply to the RTI and application and also explain why the public authority should not be directed to pay compensation to the appellant for causing delay in furnishing information, before 12.10.2017".
The facts of the case are as under:-
The original application dated 22/09/2016 from Ms. Vandana Prasad was not received by the undersigned, only the first appeal dated 14/11/2016 was received in the O/o DGLW which was forwarded by the Ministry of Labour and Employment to this officer through their Order No. RTI/50/2016-SS.I dated 08/12/2016 alongwith enclosure, including a copy of the original application dated 22/09/2016 received under RTI Act from Ms. Vandana Prasad, L-91, Sector-25, Noida. In her RTI application, Ms. Vandana Prasad has sought the information on the following points.
1. How many construction workers in the country have received maternity benefits in the last five years.
2. How many domestic workers in the country have received maternity benefits in the last five years.
3. How many women workers in the country working in any unorganised sector have received maternity benefits in the last five years.
4. Of the entire female workforce, what percentage, according to the ministry, is engaged in the unorganisedsector.
5. How are the proposed amendments of the maternity benefits act likely to cover women working in the unorganised sector.
6. What is the status of implementation of The Unorganised Workers Social Security Act, 2008.
CIC/MLABE/A/2017/118245 Page 6
7. What funds have been allocated for the implementation of this act and under what heads.
8. What is the status of utilization of these funds.
9. What is the accountability of the central ministry of labour towards ensuring maternity benefits for women working in the unorganisedsector.
10. What actions is the Central labour ministry considering in this regard.
The matter on which the information was sought by Ms. Vandana Prasad in her RTI application is dealt by different CPIO's in the O/o DGLW, Ministry of Labour and Employment, New Delhi. The undersigned deals with the matter regarding domestic workers and is concerned with the information sought by Ms.Vandana Prasad at Sr. No. 2 of her RTI application, viz. "How many domestic workers in the country have received maternity benefits in the last five years".
In this connection, it is further stated that in response to the query raised by Ms. Vandana Prasad in her application/letter dated 22/09/2016 i.e how many domestic workers in the country have received maternity benefit in the last five years, a reply was given vide O/o DGLW letter no. Z-20025/15/2015-W.II dated 3rd January, 2017 stating that no data is maintain at the Central level regarding domestic worker who have received maternity benefit in the last five years. Hence, it is not possible to provide the information.
In this context, it is clarified that the Ministry of Labour and Employment is engaged in formulation of a National Policy for domestic workers since the year 2012. A draft National Policy was circulated to concerned Ministry & State Govt. is in the year 2012. In May 2013, the Union Cabinet desired some amendments in the draft policy to focus on social security, welfare, personal safety, right to organize union and collective bargaining. In January 2014 the revised draft was again examined by the cabinet who decided to refer it to the Group of Minister (GoM). With the change of the Govt. at the Centre in the year 2014, the GoM has lapsed. A revised draft, further improved incorporating the features of ILO Convention 189; recommendation 201 and recommendation 204 was again submitted to the Hon'ble Minister of State (Labour and Employment) on 21.09.2017. The Hon'ble Minister has desired that in the first instance, opinion of the general public may be obtained on the Draft National Policy for Domestic Workers. Action is being taken to comply with the direction of the Hon'ble Minister.
It is re-iterated that no data is maintained at the Central level regarding maternity benefits extended to domestic workers. This position has also been indicated in replies given by the Ministry of Labour and Employment on various Parliament questions raised in Lok Sabha &Rajya Sabha from time to time where data regarding domestic worker was required to be given. As such, the reply given to Ms. Vandana Prasad on her RTI application is factually correct. In this connection, kind attention is also invited to para 4 of the guidelines issued by the Department of Personnel & Training vide their O.M No. 1/8/2007-IR dated 08 November, 2007 which states that "The public authority under the RTI Act is not supposed to create information or to interprets information to solve the problems raised by the applicant or to furnish replies to hypothetical questions, Only such information can be had under the Act which already exists with the public authority".
CIC/MLABE/A/2017/118245 Page 7 It may kindly be appreciated that the undersigned CPIO does not hold "information" or "record" in the information sought by the applicant regarding the number of Domestic Workers to whom maternity benefit has been extended during the last five years as defined in para 2(f) and (i) of the RTI Act 2005.
Further, as stated earlier the original application dated 22/09/2016 from Ms. Vandana Prasad was received in the O/o DGLW alongwith her first appeal vide Ministry of Labour and Employment forwarding order no. RTI/50//2016-SS.I dated 08/12/2016 and a reply was given to Ms. Vandana Prasad within a period of one month (i.e. dated 03/01/2017) as required under the RTI Act. As such, there has been no delay or wilful suppression of facts or denial of information.
However, a copy of the application submitted by Ms. Vandana Prasad under RTI has also been forwarded to the CPIO, Ministry of Health & Family Welfare requesting them to intimate directly to the appellant if any maternity benefits have been given to domestic workers under RashtriyaSwasthyaBimaYojana".
5. Shri A.K Singh, Under Secretary to the Government of India, Ministry of Labour and Employment, in his written submissions dated 10.11.2017, explained as under:
"The undersigned is directed to refer to the Hon'ble CIC's Interim Order dated 11.09.2017 on the subject mentioned above. It is submitted that no notice of the aforesaid hearing was received by the undersigned.
2. It is submitted that Ms. Vandana Prasad had applied online on dated 22.09.2016 for seeking the information under RTI Act, 2005. The RTI application was received by the undersigned CPIO dealing with the matters relating to unorganized workers on dated 22.10.2016. The relevant information in respect of unorganized workers was furnished to the applicant vide letter no. M- 21019/01/2016-RW dated 18.11.2016.
3. It is submitted that the 1st Appeal under Section 19 of the RTI Act, 2005 filed by Ms. Vandana Prasad was received on 23.12.2016 and reply thereof was furnished promptly by the 1st Appellate Authority vide letter no. M-2019/01/2016- RW dated 23.12.2016.
4. It is submitted that the undersigned CPIO deals with matters relating to the Unorganized Workers' Social Security Act, 2008. The social security schemes available to the unorganized workers are listed in Schedule I of the said Act. It is pertinent to mention that the applicant was informed about the 9 schemes as listed in Schedule I of the said Act and also the name of Ministry/Department responsible for managing the schemes. As none of the schemes were being managed by the undersigned CPIO nor by the Ministry of Labour and Employment, details thereof, especially the number of beneficiaries, the status of implementation of the said schemes, funds allocated and utilized in this regard, further action taken by the concerned Ministry/Department, as sought by the applicant was not available with the undersigned CPIO. It may also be clarified that the objective of providing social security to the unorganized workers as envisaged under UWSS Act, 2008 is achieved by way of implementation of the schemes as mentioned in schedule I of the Act for which the concerned Ministry/Department hold the responsibility.
CIC/MLABE/A/2017/118245 Page 8
5. It is therefore submitted that the information as available with undersigned has been provided forthwith and the applicant's grievance is not sustainable under the provisions of the RTI Act.
6. The JS and DG (Labour Welfare) has considered the Applicant's 2nd Appeal as 'complaint' and has concurred with reply furnished above".
6. The respondent authority further submitted two handouts, which categorically traverses about unstarred questions posed before Rajya Sabha and Lok Sabha.
6.1 According to question no. 702 (which was supposed to be answered on 29.04.2015) pertaining to COLLECTION AND USE OF CONSTRUCTION WORKERS' CESS by Smt. GunduSudharani, Member of Parliament, asked:
"Will the Minister of LABOUR AND EMPLOYMENT be pleased to state:
(a) The State-wise and year-wise details of construction cess so far collected in the country since its introduction;
(b) The details of amount from the above fund so far spent on construction workers since collection of the cess;
(c) The number of workers benefited from the above cess; and
(d) What role the Ministry has on spending the above cess.
6.2 The answer given by the Minister of State (IC) For Labour and Employment Shri BandaruDattatreya is as under:
(a) & (b): State-wise details of cess collected under the Building and Other Construction Workers Welfare Cess Act, 1996 and amount spent is annexed.
(c): The data regarding number of workers benefitted from the cess is not maintained at the central level.
(d): The responsibility of collection of cess and its utilization for welfare of workers lies with the respective State governments and the State Building and Other Construction Workers' Welfare Boards.
The Central Government can issue directions under Section 60 of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 to the State Governments and the State Building and Other Construction Workers' Welfare Boards for carrying into execution the provisions of the Act".
6.3 As per the annexed date as stated in point (a) is verbatim reproduced as under and its title is: State-wise detail of cess collected and amount utilized under the Building and Other Construction Workers' Welfare Cess Act, 1996 as on 31.12.2014 (Provisional):
CIC/MLABE/A/2017/118245 Page 9
Sl. Names of the Amount of cess collected Amount spent
No. States/UTs. (Rs. in Crore) (Rs. in Crore)
1 Andhra Pradesh 993.94 73.42
2 Arunachal Pradesh 22.96 4.56
3 Assam 205.09 1.82
4 Bihar 374.33 8.45
5 Chattisgarh 424.26 227.8
6 Goa 36.9 0
7 Gujarat 73.09 5.99
8 Haryana 1276.36 42.74
9 Himachal Pradesh 51.22 0
10 J&K 282.44 93.6
11 Jharkhand 21.09 0.11
12 Karnataka 2225.45 112.07
13 Kerala 954.5 888.1
14 Madhya Pradesh 1288.88 473.27
15 Maharashtra 2666.09 163.98
16 Manipur 0 0
17 Meghalaya 48.37 0.23
18 Mizoram 16.14 8.93
19 Nagaland 3.49 0.05
20 Odisha 312.32 0.34
21 Punjab 554.99 97.92
22 Rajasthan 203.4 22.3
23 Sikkim 30.52 2.77
24 Tamilnadu 901.9 345.47
25 Tripura 86.63 4.79
26 Uttar Pradesh 1169.08 99.52
27 Uttarakhand 39.17 0.16
28 West Bengal 290.62 4.59
29 Delhi 1504.23 150.61
30 A & N Island 25.87 0.59
31 Chandigarh 53.18 1.39
32 Dadra & Nagar 3.08 0
Haveli
33 Daman and Diu 16.63 0.02
34 Lakshadweep 1.71 0
35 Puducherry 56.58 24.27
Total 16214.51 2859.86
6.4 According to question no. 2174 (which was supposed to be answered
on 11.03.2013) pertaining to WELFARE OF CONSTRUCTION WORKERS by Smt. Paramjit Kaur Gulshan, Member of Parliament; Smt. Maneka Gandhi, Member of Parliament, Shri Dhruvanarayana, Member of Parliament and Shri M. Krishnaswamy, Member of Parliament asked:
"Will the Minister of LABOUR AND EMPLOYMENT be pleased to state:
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(a) the steps taken by the Government to implement the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1966;
(b) whether the Government has collected Rs. 350 crores for the welfare of the labourers engaged in construction under the said Act;
(c) if so, the details thereof;
(d) the number of labourers who have been benefited from the said amount during the last three years and the current year;
(e) whether the construction workers have been kept out of the Provident Fund List; and
(f) if so, the reasons therefor?
6.5 The answer given by the Minister of State For Labour and Employment Shri Kodikunnil Suresh is as under:
(a) to (d): A statement is annexed.
(e): No, Madam.
(f): Does not arise.
6.6 STATEMENT REFERRED TO IN REPLY TO PART (a) TO (d) OF LOK SABHA UNSTARRED QUESTION NO.2174 FOR 11.03.2013 BY SHRIMATI PARAMJIT KAUR GULSHAN: SHRIMATI MANEKA GANDHI: SHRI DHRUVA NARAYANA: SHRI M. KRISHNASSWAMY REGARDING WELFARE OF CONSTRUCTION WORKERS:
(a) The Central Government has framed Building and Other Construction Workers (RECS) Central Rules, 1998, constituted Central Advisory Committee, notified appointment of Director General (Inspection) under the Act. The Union Government has been issuing instructions to the States for speedy and proper implementation of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and the Building and Other Construction Workers; Welfare Cess Act, 1996 from time to time at appropriate levels. Instructions were issued under section 60 of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 by the Union Secretary (Labour & Employment) on 27.09.2010. Union Minister of Labour & Employment has also written to the Chief Ministers of the States/UTs in April, 2010 and recently on 5th June, 2012 requesting them to take steps for collecting and utilizing cess and implementing the Acts. Union Secretary (Labour & Employment) has also written to Chief Secretaries of the States/UTs on 29th June, 2012 suggesting, inter-alia, to take steps for accelerating registration of workers, drawing out strategies for implementing model schemes of the Central Government and utilizing welfare funds for vocational training and skill development of the construction workers and their children.
(b) to (d): As per the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, the State Building and Other Construction Worker Welfare Board constitutes a fund called Building and Other Construction Workers Welfare Fund. The main source of the fund is cess @ 1% of the construction cost collected by State Governments which is transferred to the CIC/MLABE/A/2017/118245 Page 11 Boards as provided in the Building and Other Construction Workers Cess Act, 1996.
As per the information received from State Governments, the total amount collected as construction cess as on 30.09.2012 is Rs. 7057.29 Crore, out of which Rs. 1009 Crore has been utilised for welfare of construction workers.
The detail about the number of labourers who have been benefitted from the said amount during the last three years and the current year is not maintained at Central level".
7. The officers during the hearing submitted that there is no policy existing pertaining to domestic workers and construction workers maternity benefits. In fact, they further pressed on data not being maintained at Central level since there is no bill has been tabled before either of the Houses in the Parliament or a central policy for the benefit of the construction workers and domestic workers brought out as on date. He also added that the State Welfare Board will be in possession of such details pertaining to the number of construction workers as the Ministry does not receive any report (annually/bi-annually) on this regard.
8. The appellant opposed on the point that the Ministry has no data with regard to the number of construction workers/domestic workers in India. She specifically stated that there are several data available in public domain pertaining to the subject matter of this RTI application. As per the Indian Labour Year Book 2011 and 2012, it has been categorically mentioned under clause Employment, sub-clauseEmployment in Un-organised Sector:
"The term 'unorganised worker' has been defined under the Unorganised Workers' Social Security Act, 2008, as a home based worker, self-employed worker or a wage worker in the unorganised sector and includes a worker in the organised sector who is not covered by any of the Acts mentioned in Schedule-II of Act i.e. The Employee's Compensation Act, 1923; The Industrial Disputes Act, 1947; The Employees' State Insurance Act, 1948; The Employees Provident Funds and Miscellaneous Provisions Act, 1952; The Maternity Benefit Act, 1961; and The Payment of Gratuity Act, 1972. As per the survey carried out by the National Sample Survey Organization in the year 2009-10, the total employment in both organized and unorganized sector in the country was of the order of 46.5 crore. Out of this, about 43.7 crore were in the unorganized sector. Of which 24.6 crore workers were employed in agriculture sector, 4.4 crore in construction, and remaining were in manufacturing activities, trade and transport, communication & services. A large number of unorganized workers are home based and are engaged in occupation such as beedi rolling, agarbatti making, papad making, tailoring, and embroidery work".
9. In the same report/year book, under sub-clauseWomen Workers, it has been emphatically revealed that:
CIC/MLABE/A/2017/118245 Page 12 "Women form an integral part of the Indian workforce. As per Census 2011, the total number of female workers in India is 149.8 million comprising of 121.8 and 28.0 million in rural and urban areas respectively. Out of total 149.8 million female workers, 35.9 million females are working as cultivators and another 61.5 million are agricultural labourers. Of the remaining, 8.5 million are in household Industry and 43.7 million are classified as other workers. As per Census 2011, the work participation rate for women is 25.51 per cent as compared to 25.63 in 2001. The work participation rate of women was however 22.27 per cent in 1991. The work participation rate for women in rural areas in 30.02 per cent as compared to 15.44 per cent in the urban areas.
In so far as the organized sector is concerned, in March 2011, women workers constituted 20.5 per cent of total employment in organized sector in the country which is higher by 0.1 per cent as compared to the preceding year. As per the last Employment Review by Directorate General of Employment & Training (DGE&T), on 31st March, 2011, about 59.54 lakh women workers were employed in the organized sector (Public and Private Sector). Of this, nearly 32.14 lakh were employed in community, social and personnel service sector. The average daily employment of women is factories is given in Table 1.18.
Table 1.18 Average Daily Employment of Women in factories ('000) Year Total Employment Women's Employment %age share of women (000) (000) in total employment 1991 5214.3 507.1 9.7 1992 5208.7 524.4 10.1 1993 5242.4 577.9 11.0 1994 5494.2 629.9 11.5 1995 4660.6 513.8 11.0 1996 4683.4 528.8 11.3 1997 4882.5 676.9 13.9 1998 5169.6 818.2 15.8 1999 4983.7 676.8 13.6 2000 2194.5 210.5 9.6 2001 3272.1 474.4 14.5 2002 3330.4 542.6 16.3 2003 2139.5 235.6 11.0 2004 3554.0 635.0 17.9 2005 3848.1 640.4 16.6 2006 4373.0 730.0 16.7 2007 3054.0 313.9 10.3 2008 2628.4 220.9 8.4 2009 2662.4 194.0 7.2 2010 4713.7 737.6 15.6 Source: Annual Returns under the Factories Act, 1948 received by the Labour Bureau
10. Adding on to her argument, the appellant Smt. Vandana Prasad stated that out of the above-mentioned humongous figures, only a decimal point of women are receiving benefits. She also expressed her grief when she came to know that CIC/MLABE/A/2017/118245 Page 13 there is no mechanism of maintaining such vital data concerning to construction workers and domestic workers. The appellant who is advocating the employees of unorganised sector, questioned the officers about monitoring and tracking of their labour rights for which the officers had only one cosmetic reply - "We do not have any data on this issue, in fact, we do not maintain such data at all".
11. Aftermath, the appellant questioned the respondent authority as to which Wing of the Ministry is dealing with the issues of the subject matter of this RTI, for which the officers submitted that it's a matter of concurrent list both Centre and State has authority over it but they regret to state that no information is not available with them as sought in the RTI application. They further submitted that the issues pertaining to construction workers is not a central scheme instead it's a nodal scheme and assured the Commission that the issues pertaining to the maternity benefits will be addressed and implemented in the future course of time. Upon hearing such statements by the officers the Commission conjectures that there is certainly no coordination within the Ministry, however, the riposte of the respondent authority is justified individually but not acceptable on behalf of the Government. The Commission absolutely come to an agreement that the appellant's query is a huge issue for crores of women in this nation who are facing cases of violation of their basic, human and fundamental rights.
12. The officers submitted that there is no data available with them as per the schemes for the time being in force but they can bring about a fair amount of statistics as to how much monies have been spent on this subject matter. At this juncture, the appellant strongly avowed that there is a large policy black-hole persisting in the system along with extending less budget/funding for labour issues, which is something alarming considering the current concerns surrounding on and off the record. She nonchalantly averred that such kind of convoluted issues in this country will not be determined until and unless the Supreme Court intervenes. She further submitted that neither the present nor the previous government have shown concern about social security of these women labourers. She expressed her angst that the penultimate command of this Country does not act/execute/perform until and unless burden is imposed. She further pressed that she was also a member of National Commission for Protection of Child Rights and she factually understands the pain and toil of these women labourers. She questioned the authority over the implementation of various laws relating to the CIC/MLABE/A/2017/118245 Page 14 Social Security for which the officers stated till a comprehensive survey is conducted they cannot lay their hands on giving any assurance.
13. The appellant Smt. Vandana Prasad apprised the Commission that despite 71 years have been passed since our nation got independent from British rule, women are still being dominated, vanquished and systematically victimized. Even if she want to approach the Court, she must be having documentary proofs to say that there is serious lapse in implementation of the Schemes and merely considering the dictum that "no information is available" does not serve the purpose.
14. In view of the above, the Commission firstly, appreciates the initiative taken by the appellant Smt. Vandana Prasad by bringing to the forefront on such a crucial issue; secondly the Commission observes that it is a huge task to provide complete information as sought in this RTI application, however, the information sought is supposed to be disclosed voluntarily under section 4 of the RTI Act. The Commission in this regard recommends the Ministry of Labour and Employment under Section 25(5) of the Act to take necessary steps in formulating the statistics pertaining to construction workers, domestic workers and women workers in unorganised sector for promoting transparency, accountability and conformity. The Commission further directs the respondent authority to update in their official website on the aforementioned aspects keeping in view the provisions of Section 4(1)(b), 4(1)(c) and 4(1)(d) of the RTI Act, with an intimation to this Commission, within 90 days from the date of receipt of this Order. Disposed of.
SD/-
(M.Sridhar Acharyulu)
Central Information Commissioner
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