Telangana High Court
Singareni Collieries Company Ltd., vs The Commissioner Of Labour, on 3 August, 2022
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
Writ Petition No.33592 of 2015
ORDER:
This Writ Petition is filed for issue of a Writ of Mandamus to declare the impugned order dt.04.09.2012 issued by the 2nd respondent and subsequent orders dt.24.04.2013 and 20.02.2015 issued by the 1st respondent, as illegal and arbitrary, and sought for a consequential direction to the respondents to set aside the same.
2. The issue involved in the present Writ Petition relates as to whether the petitioner is covered by the provisions of the Central Act, 27 of 1996 and is liable to pay cess under the provisions of the Building and Other Construction Workers (Regulation of Employment and Condition of Service) Act, 1996 (for short, 'the BOCW Act'), in respect of various construction activities undertaken by it, for the benefit of its employees and other purposes, inasmuch as petitioner is engaged in the 'Mining activity' as defined in Mines Act, 1952, stands excluded under the BOCW Act.
3. During the pendency of this writ petition on the file of this Court, a challenge was made before the Hon'ble Supreme Court in the case of Lanco Anpara Power Limited v. State of Uttar Pradesh1 1 (2016) 10 SCC 329 2 to the order passed by different High Courts, including the High Court of erstwhile Andhra Pradesh, whereby High Courts have upheld the notices issued to the petitioner therein under the BOCW Act. The Hon'ble Supreme Court, while rejecting the challenge to the notices issued to the petitioner therein under the BOCW Act, having regard to the scope and applicability of the BOCW Act, had held that third part of definition of Section 2(1)(d) of the BOCW Act contains exclusion stipulating that the Act does not include, "any building or other construction work to which the provisions of the Factories Act, 1948, or the Mines Act, 1952, applies". It is on the basis of the above exclusion, the petitioner in the present petition claims of its non- liability/eligibility to pay cess under BOCW Act.
4. Heard Sri J.Prabhakar, learned Senior Counsel appearing on behalf of Sri Vivek Reddy, learned counsel for the petitioner, and the learned Government Pleader for Labour, appearing for the respondents, and perused the record.
5. Learned Senior Counsel appearing for the petitioner would vehemently contend that various activities undertaken by the petitioner, though involves construction, however, would not get covered by the Act, inasmuch as the definition of Section 2(1)(d) of the Act, excludes the construction of building and other constructions 3 covered by the Mines Act, 1952; that since the petitioner is involved in Mining activity/operations, the Act is not applicable; and that no demand for cess under the BOCW Act can be made on the petitioner.
6. I have noted the contentions advanced.
7. The term 'mine' has been defined under Section 2(j) of the Mines Act, 1952, as under:
'2(j) "mine" means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on, and includes,-...' Clause (xi) thereof specifies that:
'any premises in or adjacent to and belonging to a mine on which any process ancillary to the getting, dressing or preparation for sale of minerals or of coke is being carried on can only be considered as the 'mine'.
8. In the facts of the present case, though the petitioner has undertaken various activities, including construction as welfare measures for its employees, like construction of quarters etc., the said activity cannot be considered as premises, whereat process ancillary to getting/winning the mineral or construction is being carried on for being considered as "Mine" as defined under the Mines Act, 1952 for it to be covered by the exclusion definition under the BOCW Act. 4
9. It is sought to be contended that extended meaning is to be given to the word "Mine" so as to include not only the actual area where excavation is undertaken, but also the area used for providing accommodation to employees and other areas of operation, whereat petitioner carries on its activities like function of administrative nature.
10. The said submission of the learned Senior Counsel cannot be accepted for more than one reason.
11. Firstly, the scope of 'mine' as defined under Section 2(j) clearly stipulates that it is only the place whereat any operation for the purpose of obtaining mineral by excavation is undertaken and also the premises adjacent to mine where ancillary processes are undertaken would be considered as "mine".
12. Secondly, accepting the said contention urged by the learned Senior Counsel would result in any activity undertaken by the petitioner being considered a 'Mining activity' irrespective of location where such activity is undertaken, which is not even notified with the concerned authority as the area of 'Mining activity' under the Mines Act, 1952. Merely because the petitioner is primarily involved in 'Mining', all the activities undertaken by it cannot be brought under the ambit of 'Mining activity' for it be covered by the Act, 1952. The same can be better explained by way of illustration, where the petitioner undertakes 5 construction of its Administrative office at the State capital, which is away at a distance of more than 300 k.m. from the 'Mining Area', such construction cannot be considered as in relation to 'Mining activity' as covered by the Act, 1952.
13. Since, the construction of residential quarters or offices, does not involve any excavation relating to obtaining mineral, the same cannot be considered as a "mine" and the employees involved in such construction activity cannot be considered as covered under the Mines Act, 1952, for being excluded from the operation of BOCW Act. The Hon'ble Supreme Court in Rani Umesh-wari Suthoo v. Member, Board of Revenue, Orissa2, while considering as to what constitutes 'Mine' under the Mines Act, has held that:
'15.....That Act defines a mine as any excavation for searching for or obtaining minerals. This definition would include a quarry, for it is an excavation for searching for or obtaining minerals. It is true that quarries are excavations on the surface while mines are normally underground excavations, but that would not prevent a quarry from being a mine, for the definition of mine mentions any kind of excavation and does not restrict a mine to underground excavations....."2
1967 (1) SCA 413 6
14. Thus, the prerequisite for attracting the provisions of the Mines Act, is undertaking operations of excavation or quarrying. In the facts of the present case, though the petitioner claims to have undertaken various activities involving construction, though some of them are for the benefit of its employees, such constructions undertaken do not come under the purview of the 'Mine' as defined under the Act and expanded/wider meaning cannot be given.
15. Further, it is also to be noted that the BOCW Act is a beneficial legislation and the object of enacting the said Act is 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. If the said object is kept in mind, while the petitioner claims of undertaking of various construction activities as a welfare measure for its workers, the workers, who are employed for undertaking such works, cannot be left out merely because of the exclusion provided under the BOCW Act. Thus, the contention of the learned Senior Counsel that the judgment of the Supreme Court in Lanco Anpara Power Limited (1 supra) is distinguishable on facts, does not appeal to this Court for being accepted.
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16. Viewed from any angle, the Writ Petition is without any merit and is liable to be dismissed and is accordingly dismissed. No order as to costs.
17. Consequently, miscellaneous petitions pending, if any, shall stand closed.
___________________ T. VINOD KUMAR, J Dt.03.08.2022 GJ 8 THE HON'BLE SRI JUSTICE T. VINOD KUMAR Writ Petition No.33592 of 2015 Dt.03.08.2022 gj