Andhra Pradesh High Court - Amravati
The Apgenco.,Rep.By Its Managing ... vs The Commissioner Of Labour,Government ... on 28 July, 2022
THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
WRIT PETITION No. 26993 OF 2010
ORDER:
The above writ petition is filed to call for the records in Lr.No.A/1437/2010, dated 15.07.2010 issued by the 3rd respondent in pursuance of notice No. b/387-1/2010 dated 17.03.2010, and the Notice No.1st/Notice/08, dated 16.12.2008 issued by the 4th respondent and quash the same as illegal, since the notices were issued in contravention of the provisions of the Building and other construction Workers Welfare Cess Act, 1996 and Rules made there under.
2. W.P.M.P.No.34499 of 2020 was filed seeking stay of all further proceedings in pursuance of impugned letter. This Court by order dated 01.11.2010 granted interim stay with the following observations:
"Interim stay as prayed for.
However, while making the payments to the writ petitioner, the principal employer shall ensure that 1% of the contract value should be withheld, but the same may not be transmitted to Labour Department.
The amount demanded by the Labour Department will be deducted from the bills payable to the contractor, but the same will not made over to them."
3. The main contention of the petitioner is that the provisions of Building and Other Construction Workers (Regulation of Employment and Conditions of Services) Act, 1996 (main Act) Central Act No. 27 of 1996 are not applicable to the Building and Construction Work, which comes under the purview of the Central Acts, Factories Act, 1948 or 2
4. Learned counsel for the petitioner would also contend that the provisions of Factories Act 1947 or Mines Act, 1952 would apply to Nagarjuna Sagar Tail and Dam which is part and parcel of Nagarjunasagar Pumped storage Scheme of Nagarjuna Sagar Dam Main Power House and the same has been covered by the provisions of Factories Act, 1948. Petitioner also pleaded that a similar W.P. No.3700 of 2010 was filed and this Court granted interim direction.
5. Counter affidavit was filed on behalf of respondent Nos.1 to 4 and contended interalia that the petitioner being an employer/principal employer of Nagarjunasagar Tail Pond Project is liable under Section 8 of the Building and Other Construction Workers Welfare Cess Act. It was also further contended that the liability for payment of amount will not be excluded because the nature of construction activity undertaken to commission or refinery cannot be by any stretch of imagination, be considered, as an activity under the Factories Act and eventually, prayed to dismiss the writ petition.
6. Heard Sri M.Vidya Sagar, learned counsel for the appellant and learned Assistant Government Pleader for Labour.
7. Learned Assistant Government Pleader submits that the issue involved in this writ petition is squarely covered by Judgment in the case of Lanco Anpara Power Limited Vs. State of Uttar Pradesh and Others1 wherein the Hon'ble Supreme Court held as follows:-
"24. We now advert to the core issue touching upon the 3 construction is to be accorded to find the legislative intent. To our mind, this submission is of no avail. Section 2(d) of the BOCW Act dealing with the building or construction work is in three parts. In the first part, different activities are mentioned which are to be covered by the said expression, namely, construction, alterations, repairs, maintenance or demolition. Second part of the definition is aimed at those buildings or works in relation to which the aforesaid activities are carried out. The third part of the definition contains exclusion Clause by stipulating that it does not include 'any building or other construction work to which the provisions of the Factories Act, 1948 (63 of 1948), or the Mines Act, 1952 (35 of 1952), applies'. Thus, first part of the definition contains the nature of activity; second part contains the subject matter in relation to which the activity is carried out and third part excludes those building or other construction work to which the provisions of Factories Act or Mines Act apply.
33. We are left to deal with the argument of the Appellants that while granting permission under the Factories Act, various conditions are imposed which the Appellants are required to fulfill and these conditions are almost the same which are contained in BOCW Act. We are not convinced with this submission either. It is already held that provisions of Factories Act are not applicable to these construction workers. Registration under the Factories Act becomes necessary in view of provisions contained in Section 6 of the said Act as this Section requires taking of approval and registration of factories even at preparatory stage i.e. at the stage when the premises where factory is to operate has to ensure that construction will be done in such a manner that it takes care of safety measures etc. which are provided in the Factories Act. This means to ensure that construction is carried out in such a manner that provisions in the Factories Act to ensure health, safety and provisions relating to hazardous process as well as welfare measures are taken care of. It is for this reason that even after the building is completed before it is occupied, notice Under Section 7 is to be given by the occupier to the Chief Inspector of Factories so that a necessary inspection is carried out to verify that all such measures are in place. Therefore, when the permissions for construction of factories is given, the purpose is altogether different."
8. In view of the above findings of the Hon'ble Apex Court, this writ petition falls to ground. However, learned counsel for petitioner would contend that since the petitioner is directed to submit the relevant forms to assess the Cess within a period of seven days, from the date of issuance of the notice which was impugned in the writ petition, the petitioner may be permitted to submit the relevant documents as 4
9. In view of the same, the petitioner shall submit the relevant documents required by the authority in the impugned notice within a period of three (3) weeks from the date of receipt of a copy of this order and on furnishing such documents, the respondents shall consider the same by following the Apex Court Judgment within a period of four weeks thereafter.
10. With the above directions, the writ petition is disposed of. No order as to costs.
Miscellaneous applications, pending if any, shall stand closed.
_______________________ JUSTICE SUBBA REDDY SATTI 28th July, 2022 PSR