The Model Code of Conduct cannot suspend statutory rights or benefits under welfare legislation during elections.

JUDGMENT :

1. Rule. By consent of the parties, rule made returnable forthwith, and taken up for final hearing and disposal.

Challenge in the Petition:

2. This Petition impugns a Circular dated October 17, 2023 (“Impugned Circular”) issued by the Maharashtra Building and Other Construction Workers’ Welfare Board (“Board”), suspending the implementation of various activities involving welfare measures administered under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (“the Act”), on the premise of the implementation of the Model Code of Conduct applicable to the conduct of the forthcoming Maharashtra Legislative Assembly Elections.

3. The Impugned Circular, issued to various authorities administering the Act, directs that until receipt of clarification from the Election Commission, fresh registration, renewal of registrations, distribution of benefits such as protective gears, essential gears, household utility sets, grant of fresh approvals under the housing scheme and publicity work of the Board, shall remain suspended until further orders.

4. Ms. Sudha Bharadwaj, Learned Counsel appearing on behalf of the Petitioners (essentially trade unions and organizations representing building and construction workers in Maharashtra), took us through the Impugned Circular, and the scheme of the Act with a view to point out that the suspended activities are all activities of fresh registration, renewal of registration, distribution of benefits, distribution of safety kits, approval to housing schemes etc . A screenshot of the official website of the Board (https://mahabocw.in), demonstrating the suspension of the registration process is appended to the Petition – it carries the legend:

“Submission of new Registration is Stopped due to CODE OF CONDUCT”

5. Ms. Bharadwaj took us through various provisions of the Act to submit that the suspended activities are statutory imperatives which are required to be conducted under the schemes already formulated under the Act. Such activities have nothing to do, she would submit, with the any new policy decision or even any new scheme for distribution of new largesse to the electorate in the context of the forthcoming elections or for that matter, any election related activity. She then pointed out the serious consequences and debilitating effect that such notification would have on the Petitioners members in as much many would not be entitled to avail of the statutory benefits under the Act and crucial welfare schemes which include for the provision of health and maternity cover, allowances for education and housing etc.

6. Mr. Akshay Shinde, Learned Counsel appearing on behalf of the Board (Respondent No.2) fairly stated that the registration exercise is indeed a basic statutory activity that is required to be conducted for the basis administration of the Act. Since the benefits under the Act relate to distribution of direct transfers of monies to the registered workers, the Board had doubts about conflict with the Model Code of Conduct, which led to the Board seeking guidance from the Election Commission. Since the clarification is still awaited, the activities covered by the Impugned Circular have remained suspended.

7. Upon a careful consideration of the provisions of the Model Code of Conduct applicable to the conduct of elections, the Scheme of the Act and the Impugned Circular, we are left in no manner of doubt that there is nothing in the Model Code of Conduct that would interfere with conduct of ongoing statutory activity administering the provisions of the Act and the schemes made thereunder. Likewise, there is nothing in the Act and the schemes made thereunder that would render continued implementation of pre-existing benefits under pre-existing schemes and that too consistent with past practice as existing before commencement of the Model Code of Conduct that would be violative in letter or spirit. Consequently, we are of the view that the