Challenge to Himachal Pradesh rules allowing construction workers' welfare board to give goods (bicycles, induction heaters, solar lamps, washing machines) instead of cash. The High Court upheld the amendments: Section 22(1)(h) is a distinct welfare power not controlled by ejusdem generis; Articles 14 and 21 not violated. Petition dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 265 of 2017-G Judgment reserved on: 14.6.2017
Date of Decision : July 13 , 2017
Kuldeep & another … Petitioners
Versus
State of Himachal Pradesh and others …Respondents
Coram:
The Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice,
The Hon’ble Mr. Justice, Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
Mr. Shrawan Dogra, Senior Advocate, with Ms. Shreya Chauhan, Advocate, for respondent No. 3.
Sanjay Karol, ACJ.
The short issue which arises for consideration in the present petition is as to whether the State is well within
Whether reporters of Local Papers may be allowed to see the judgment?
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its right in providing “assistance”, in the shape of “goods”/“articles” such as “bicycle”, “induction heater/solar cooker with utensils”, “solar lamp” or “washing machine”, in place of “cash” to the beneficiaries (male and/or female) in view of clause (h) of sub-Section (1) of Section 22 and Section 62 of The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (hereinafter referred to as the Act).
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extent of providing “financial assistance” and not making any provision for distribution of goods. Further the act of the State in the distribution of goods, which are in the nature of “freebies”, in an arbitrary manner, is violative of Article 14 of the Constitution of India, not meeting the test of equality and non arbitrariness. Also distribution is in the nature of “hand outs”, and rather than allowing the beneficiary to live a life with basic human dignity, the State is burdening by fastening the goods upon them.
Ejusdem Generis
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a) Application of maxim ejusdem generis, (noscitur a soccis) may be treacherous unless the “societas” (the fact or condition of being associated for a common purpose – Oxford) to which the “socii” (keeping company with another – Oxford) belongs, are known. The risk may be present when there is no other factor except contiguity to suggest the “societas” [Godfrey Phillips India Ltd. and another vs. State of U.P. and others, (2005) 2 SCC 515)(A Five Judge Bench].
b) For invoking the principle there must be a distinct genus or category running through the bodies already named. [Rajasthan vs. Mohan Lal and others, AIR 1967 SC 1857 (A Five-Judge Bench)].
c) Where two or more words susceptible of analogous meaning are clubbed together, they are understood to be used in their cognate sense. They take, as it were, their colour from and are qualified by each other, the meaning of
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the general word being restricted to a sense analogous to that of the less general. [Godfrey Phillips India Ltd. (supra)].
d) It is merely a rule of construction and cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the Legislature in associating wider words with words of narrower significance is doubtful that the such rule applies.[The State of Bombay and others vs. The Hospital Mazdoor Sabha and others, AIR 1960 SC 610].
e) When general words follow particular and specific words of the same nature, then general words must be confined to the things of the same kind as those specified. It is not an inviolable rule of law, but only a permissible inference, in the absence of an indication to the contrary. [Kavalappara Kottarathil Kochuni @ Moopil Nayar vs. The States of Madras and
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Kerala and others, AIR 1960 SC 1080 (A Five Judge Bench) and Maharashtra University of Health Sciences and others vs. Satchikitsa Prasark Mandal and others, (2010) 3 SCC 786 ].
f) The said doctrine, cannot be invoked in cases where the intention of the Legislature is clear and free of ambiguity. [The Corporation of the City of Nagpur vs. Its employees, AIR 1960 SC 675].
g) What needs examination is whether: (i) The statute contains an enumeration by specific words; (ii) The members of the enumeration constitute a class; (iii) The class is not exhausted by the enumeration; (iv) A general term follows the enumeration; and (v) There is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires. [Jage Ram and others vs. State of Haryana and others, (1971) 1 SCC 671 and Grasim Industries ltd. vs. Collector of Customs, Bombay, (2002) 4 SCC 297].
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h) If a list or string or family of genusdescribing terms are followed by wider or residuary or sweeping-up words, then the verbal context and the linguistic implications of the preceding words limit the scope of such words.[ M/s Siddeshwari Cotton Mills (P) Ltd. vs. Union of India and another, (1989) 2 SCC 458]
i) The rule must be confined within narrow limits, and general or comprehensive words should receive their full and natural meaning unless they are clearly restrictive in their intendment. [State of Bombay vs. Ali Gulshan, (1955) 2 SCR 868]
j) The purpose of this doctrine is to reconcile any incompatibility between specific and general words so that all words in a Statute can be given effect and no word becomes superfluous. [Satchikitsa Prasark Mandal and others (supra)]
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socially beneficial legislation, intended to inter alia regulate conditions of service of building and other construction workers; provide for their safety, health and welfare measures; and for other matters connected therewith or incidental thereto.
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“22. Functions of the Board. –
(1) The Board may –
(a) provide immediate assistance to a beneficiary in case of accident;
(b) make payment of pension to the beneficiaries who have completed the age of sixty years;
(c) sanction loans and advances to a beneficiary for construction of a house not exceeding such amount and on such terms and conditions as may be prescribed;
(d) pay such amount in connection with premia for Group Insurance Scheme of the beneficiaries as it may deem fit;
(e) give such financial assistance for the education of children of the beneficiaries as may be prescribed;
(f) meet such medical expenses for treatment of major ailments of a beneficiary or, such dependent, as may be prescribed;
(g) make payment of maternity benefit to the female beneficiaries; and
(h) make provision and improvement of such other welfare measures and facilities as may be prescribed………..”
[Emphasis supplied]
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frame Rules for carrying out the provisions of the Act, relevant clauses whereof, reads as under:-
“62. Power to make rules. –
(a)
(o) the limits of grants-in-aid payable to the local authorities and employers under clause (b) of sub-section (3) of section 22;
…”
[Emphasis supplied]
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2,000/- to 3,000/- for purchase of bicycle to female workers (Rule 283-B); and providing financial assistance for purchase of kerosene/diesel stoves (Rule 283-C). With the Rules being amended further (fourth time), with the issuance of impugned notification dated 14.8.2014 (Annexure P-8), inter alia, the provisions of Rules 283 (B),12
283(C), 283(E) and 283(F) came to be
substituted/incorporated in the following terms:-
“ 283 (B) Bicycle to the female beneficiaries. – The female beneficiary after completion of two months of the membership may be provided a bicycle only once by the Board on rate contract approved by the Controller of Stores, Himachal Pradesh and this assistance will be provided to one female beneficiary in the family. Those female beneficiaries who have already availed such conveyance assistance of ` 3,000/- (Rupees three thousand only) shall not be eligible for getting this assistance. The application for this assistance shall be submitted by the said beneficiary to the Secretary or authorized officer in form No. XLVIII alongwith requisite documents.”.
“ 283(C) Induction heater with four utensils or Solar cooker. – The Board may provide one induction heater alongwith four specific utensils through rate contract approved by the Controller of Stores, Himachal Pradesh or one solar cooker through Himurja to a beneficiary or his family once. The application for this assistance shall be submitted by the beneficiary to the Secretary or authorized officer of the Board in Form No. XLVIII alongwith requisite documents.”.
“ 283 (E) Solar lamp. – The Board may provide one Solar lamp as a one time incentive, on rate contract
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approved by the Controller of Stores, Himachal Pradesh, to the beneficiary. The application for this assistance shall be submitted by the beneficiary to the Secretary or authorized officer of the Board in form No. XLVIII alongwith requisite documents.”
“283 (F) Washing Machine for female beneficiary. – The Board may provide one washing machine to female beneficiary as a onetime incentive on rate contract approved by the Controller of Stores, Himachal Pradesh. This benefit will be provided only once per family. The application for this assistance shall be submitted by the beneficiary to the Secretary or authorized officer of the Board in form No. XLVIII alongwith requisite documents.”.
[Emphasis supplied]
implemented and for the first time, challenge came to be laid with the filing of the present petition on 8.2.2017. Principles of interpretation of Statutes
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and legislations enacted for the welfare of employees/workmen, the Court has adopted liberal rule of interpretation to ensure that the benefits extend to those workers who need to be covered based on the intention of the legislature do remain the same.
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“23…Each word, phrase or sentence is to be considered in the light of general purpose of the Act itself. A bare mechanical interpretation of the words 'devoid of concept or purpose' will reduce most of legislation to futility. It is a salutary rule, well established, that the intention of the legislature must be found by reading the statute as a whole.”
“41. A policy-oriented interpretation, when a welfare legislation falls for determination, especially in the context of a developing country, is sanctioned by principle and precedent and is implicit in Article 37 of the Constitution since the judicial branch is, in a sense, part of the State. So it is reasonable to assign to 'damages' a larger, fulfilling meaning."
Pradesh and others, (2016) 10 SCC 329, it has been held as
under:-
“40. Purposive interpretation in a social amelioration legislation is an imperative, irrespective of anything else. This is so eloquently brought out in the
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following passage in the case of Atma Ram Mittal v. Ishwar Singh Punia, (1988) 4 SCC 284:
"9. Judicial time and energy is more often than not consumed in finding what is the intention of Parliament or in other words, the will of the people. Blackstone tells us that the fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs most natural and probable. And these signs are either the words, the context, the subjectmatter, the effects and consequence, or the spirit and reason of the law. See Commentaries on the Laws of England (facsimile of 1st Edn. of 1765, University of Chicago Press, 1979, Vol. 1, p. 59). Mukherjea, J. as the learned Chief Justice then was, in Poppatlal Shah v. State of Madras, 1953 AIR(SC) 274 said that each word, phrase or sentence was to be construed in the light of purpose of the Act itself. But words must be construed with imagination of purpose behind them said Judge Learned Hand, a long time ago. It appears, therefore, that though we are concerned with seeking of intention, we are rather looking to the meaning of the words that the legislature has used and the true meaning of what words [Ed.: Lord Reid in the aforecited case had observed: (All ER p. 814) "We often say that we are looking for the intention of Parliament, but this is not quite accurate. We are seeking the meaning of the words which
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Parliament used. We are seeking not what Parliament meant but the true meaning of what they said."] as was said by Lord Reid in Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G, 1975 1 AllER 810 . We are clearly of the opinion that having regard to the language we must find the reason and the spirit of the law."
(Emphasis supplied)
“42. We would also like to reproduce a passage from Workmen of American Express v. Management of American Express, (1985) 4 SCC 71, which provides complete answer to the argument of the appellants based on literal construction:
‘4. The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and human rights' legislation are not to be put in Procrustean beds or shrunk to Liliputian dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognised and reduced. Judges ought to be more concerned with the "colour", the "content" and the "context" of such statutes (we have borrowed the words from Lord Wilberforce's opinion in Prenn v. Simmonds, 1971 3 AllER 237 ). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond
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the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations...’ ”
Act is a socially beneficial legislation
held that:-
“[3] The background in which the BOCW Act was enacted, is set out in the Statement of Objects and Reasons, appended to the Bill preceding its enactment. To better appreciate the legislative intent, it would be instructive to refer to the following extract from the Statement of Objects and Reasons :
"(1)It is estimated that about 8.5. Million workers in the country are engaged in building and other construction works. Building and other construction workers are one of the most numerous and vulnerable segments of the unorganized labour in India. The building and other construction works are characterized by
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their inherent risk to the life and limb of the workers. The work is also characterized by its casual nature, temporary relationship between employer and employee, uncertain working hours, lack of basic amenities and inadequacy of welfare facilities. In the absence of adequate statutory provisions, the requisite information regarding the number and nature of accidents is also not forthcoming. In the absence of such information, it is difficult to fix responsibility or to take any corrective action. (2) Although the provisions of certain Central Acts are applicable to the building and other construction workers yet a need has been felt for a comprehensive Central Legislation for regulating their safety, health, welfare and other conditions of service."
[4] A fairly long preamble to the BOCW Act is again indicative of its purpose. It reads thus:
"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."
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measures for the benefit of the building and other construction workers”. … … …
17 It is manifest from the overarching schemes of the BOCW Act, the Cess Act and the Rules made thereunder that their sole object is to regulate the employment and conditions of service of building and other construction workers, traditionally exploited sections in the society and to provide for their safety, health and other welfare measures”. .. … …
(Emphasis supplied)
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“45. In taking the aforesaid view, we also agree with the learned counsel for the respondents that 'superior purpose' contained in BOCW Act and Welfare Cess Act has to be kept in mind when two enactments the Factories Act on the one hand and BOCW Act/Welfare Cess Act on the other hand, are involved, both of which are welfare legislations. (See: Allahabad Bank v. Canara Bank, (2000) 4 SCC 406, which has been followed in Pegasus Assets Reconstruction P. Ltd. v. Haryana Concast Limited & Anr, (2016) 4 SCC 47 in the context of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and Companies Act, 1956) Here the concept of 'felt necessity' would get triggered and as per the Statement of Objects and Reasons contained in BOCW Act, since the purpose of this Act is to take care of a particular necessity i.e. welfare of unorganised labour class involved in construction activity, that needs to be achieved and not to be discarded. Here the doctrine of Purposive Interpretation also gets attracted which is explained in recent judgments of this Court in Richa Mishra v. State of Chhattisgarh and Others, (2016) 4 SCC 179 and Shailesh Dhairyawan v. Mohan Balkrishna Lulla, (2016) 3 SCC 619”.
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purpose of the socially beneficial legislation with which we are dealing. For the language, intent and context of the Statute being evidently clear.
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“other” welfare measures and facilities which may be prescribed. Clause (h) is not species to the genus specified in Clauses (a) to (g) of sub-Section (1) of Section 22 of the Act. It is a distinct and separate genus (category), not even analogous or corresponding with financial assistance to be provided to the beneficiary. The intent, purpose and text is unambiguously clear. The word “other” only amplifies such intent. “Other” necessarily cannot mean same or similar. It is distinct and separate from the mechanism of providing assistance, financial in nature, as envisaged under different and earlier sub-clauses. There is no contradiction in implementing the provisions in the manner in which the State intends to do so. “Make provision” would take well within its sweep, the act of providing for the “goods” as “welfare measures and facilities” to the beneficiary.
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22, rule making power is restricted only to clauses (c), (e), (f) and (h) of sub-Section (1). The language of even this Section is evidently clear. It is plain, simple and unambiguous. Clause (a) of sub-Section (2) of Section 62 itself draws distinction in relation to which the State can exercise its power rule making power.
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etc. of the mechanism for providing safety measures to the workers. What is important in clauses (a) to (g) is not financial assistance, but the purpose for which such assistance is rendered i.e. to meet the exigency of accident, old age, construction of house, insurance, education, ailment and maternity benefits, which are totally distinct and separate of the “other” welfare measures and facilities. 28. There is yet another angle from which the Statute needs to be examined. It be only noticed that legislatures have used the word “and” before Clause (h) both in Sections 22 and 62 of the Act making the said Clause distinctive and a separate category. It is also in this backdrop, we find the principle of ejusdem generis not to be applicable. The Apex Court in Maharishi Mahesh Yogi Vedic Vishwavidyalaya vs. State of Madhya Pradesh and others, (2013) 15 SCC 677, observed as under:-
“91. As far as the decision relied upon by the learned counsel for the State for the proposition that the word “and” in the Preamble, as well as in Section 4 will have to be read conjunctively viz. the decision in Utkal Contractors and Joinery (P) Ltd. vs. State of Orissa, (1987) 3 SCC 279, in the light of our conclusions based on the context in which the 1995 Act was brought into force and the reading of Section
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4(i) in the said context, the expression “and” used in the said section will have to be necessarily read disjunctively. We do not find any scope to apply the said decision to the facts of this case.
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and not conjunctively with the words Vedic learning and practice.”
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which are approved on rate contract basis by the Controller of Stores, Himachal Pradesh or supplied through a Government agency Himurja. Supply of solar cooker and solar lamp, perhaps, only fulfills the aims of propagating and advancing the benefits renewal energy. The intent and the letter of Act is clear. Method of distribution is left to the functionaries thereunder.
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consonance with Article 21 fulfilling the constitutional goal of social justice.
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“62. The concept of State largesse is essentially linked to the directive principles of State policy. Whether the State should frame a scheme, which directly gives benefit to improve the living standards or indirectly by increasing the means of livelihood, is for the State to decide and the role of the court is very limited in this regard.
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to time. It is factual that what was once considered to be a luxury has become a necessity in the present day. It is well settled that the concept of livelihood is no longer confined to bare physical survival in terms of food, clothing and shelter but also now necessarily includes basic medicines, preliminary education, transport, etc. Hence, the State distrusting largesse in the form of distribution of colour TVs, laptops etc. to eligible and deserving persons is directly related to the directive principles of the State policy.”
“68. As a result, we are not inclined to agree with the argument of the appellant that giving a colour TVs, laptops, mixer-grinders, etc. by the Government after adhering to due process is not an expense for public purpose. Judicial interference is permissible when the action of the Government is unconstitutional and not when such action is not wise or that the extent of expenditure is not for the good of the State. We are of the view that all such questions must be debated and decided in the legislature and not in Court.”
“69. More so, the functioning of the Government is controlled by the Constitution, the laws of the land, the legislature and the Comptroller and Auditor General of India. As per Article 73 of the Constitution, the executive power of the Union of India is co-extensive with its legislative power. Similarly, the executive power of the State is coextensive with its legislative power (Article 162). In Bhim Singh vs. Union of India, (2010) 5 SCC 538, this Court has held that the Government can frame a
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scheme in exercise of its executive powers but if such a scheme entails any expenditure, then it is required to be backed by law. Article 266 of the Constitution lays down that all monies received by the Central Government or by the State Government by way of taxes or otherwise must be credited to the Consolidated Fund of India. Article 267 also constitutes Contingency Fund of India. If any money (except which is charged on the Consolidated Fund) is to be withdrawn for any governmental purpose, then there has to be an Appropriation Act under Article 266(3) read with Article 114 of the Constitution. Every department of the Government presents its demand to the legislature concerned and the legislature votes on the same, and thereafter, the Appropriation Act is passed which authorizes the Government to withdraw the money from the Consolidated Fund. There are similar provisions relating to the State. The Contingency Fund can be established only by enacting a law in that behalf and not by an executive fiat. The law creating the Contingency Fund authorizes the purposes for which the amount in it can be spent. This is how the money is being spent by the Government on its schemes under the control of the legislature.”
“70. In Bhim Singh (supra), Article 282 of the Constitution in the context of government expenditure on various projects was considered. In that case, the Government in question had framed the scheme empowering the Members of constituencies. The said Scheme was challenged on
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the ground that the same has been formulated without enacting any law in that behalf. This challenge was negatived by this Court principally and the ground that any expenditure which the Government incurs on the said Scheme is authorized by the Appropriation Act and the Appropriation Act is a law as contemplated by Article 282. This Court also negatived the challenge on the ground that the same is not for public purpose.”
“78. With regard to the contention that distribution of State largesse in the form of colour TVs, laptops, mixer-grinders, etc. violates Article 14 of the Constitution as the unequals are treated equally. Before we venture to answer this question, we must recall that these measures relate to implementation of the directive principles of State policy. Therefore, the principle of not to treat unequals as equal has no applicability as far as State largesse is concerned. This principle applies only where the law or the State action imposes some burden on the citizen either financial or otherwise. Besides, while implementing the directive principles, it is for the Government concerned to take into account its financial resources and the need of the people. There cannot be a straitjacket formula. If certain benefits are restricted to a particular class that can obviously be on account of the limited resources of the State. All welfare measures cannot at one go be made available to all the citizens. The State can gradually extend the benefit and this principle has been recognized by this Court in several judgments.”
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With the aforesaid observations, present petition is dismissed, so also pending application(s), if any. No order as to costs.
(Sanjay Karol), Acting Chief Justice.
(Sandeep Sharma), Judge.
July 13 , 2017 (PK/Purohit)
3 issues framed by the court
Whether clause (h) of Section 22(1) and Section 62 of the BOCW Act permit the State to provide goods or articles instead of cash as welfare measures to beneficiaries.
Whether the amended Rules 283(B), 283(C), 283(E) and 283(F) providing goods are ultra vires Section 22(1)(a) to (g) and violative of Article 14.
Whether distribution of goods as State largesse violates Article 14 or the right to live with dignity under Article 21.
Colour shows how this judgement treated each authority
Godfrey Phillips India Ltd. and another vs. State of U.P. and othersReferred¶26
(2005) 2 SCC 515) · Who else cites this
Rajasthan vs. Mohan Lal and othersReferred¶27
AIR 1967 SC 1857 · Who else cites this
The State of Bombay and others vs. The Hospital Mazdoor Sabha and othersReferred¶31
AIR 1960 SC 610 · Who else cites this
The Corporation of the City of Nagpur vs. Its employeesReferred¶35
AIR 1960 SC 675 · Who else cites this
Jage Ram and others vs. State of Haryana and othersReferred¶36
(1971) 1 SCC 671 · Who else cites this
Grasim Industries ltd. vs. Collector of Customs, BombayReferred¶36
(2002) 4 SCC 297 · Who else cites this
M/s Siddeshwari Cotton Mills (P) Ltd. vs. Union of India and anotherReferred¶38
(1989) 2 SCC 458 · Who else cites this
State of Bombay vs. Ali GulshanReferred¶39
(1955) 2 SCR 868 · Who else cites this
Transport Corpn. of India vs. ESI Corpn.Relied on¶87
(2000) 1 SCC 332 · Who else cites this
R. L. Arora vs. State of Uttar Pradesh & othersRelied on¶87
AIR 1964 SC 1230 · Who else cites this
Organo Chemical Industries v. Union of IndiaRelied on¶90
(1979) 4 SCC 573 · Who else cites this
Lanco Anpara Power Limited vs. State of Uttar Pradesh and othersRelied on¶93
(2016) 10 SCC 329 · Who else cites this
Dewan Chand Builders and Contractors Versus Union of India and othersRelied on¶108
(2012) 1 SCC 101 · Who else cites this
Maharishi Mahesh Yogi Vedic Vishwavidyalaya vs. State of Madhya Pradesh and othersRelied on¶139
(2013) 15 SCC 677 · Who else cites this
Babaji Kondaji Garad vs. Nasik Merchants Coo-operative Bank Ltd. Nasik and othersDistinguished¶155
(1984) 2 SCC 50 · Who else cites this
Common cause, a Registered Society vs. Union of India and othersDistinguished¶158
(1996) 6 SCC 530 · Who else cites this
Meerut Development Authority vs. Association of Management Studies and anotherDistinguished¶158
(2009) 6 SCC 171 · Who else cites this
S. Subramaniam Balaji vs. State of Tamil Nadu and othersRelied on¶159
(2013) 9 SCC 659 · Who else cites this
10 provisions across 3 enactments
Kuldeep
State of Himachal Pradesh
Sanjay Karol
Sandeep Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court