NTHE HI GH COURT OF PUNJAB AND HARYANA AT v. MONBLE Ml2eJ1

iil Thereare no fire providednear four diesel working at different I ocat ions ln t he est ablishm entThis is violat ion of sect ionlrules40 91 of BOCW Act 1996 iiil The not ice of com m encem ent of buildingor ot her const ruct ionwork not subm iued in Form N036 This 1S violat ionofsect ionlrules46 iv That t he handrails not providedt o st airs m ade for t he QCe room So t hereis every of fallingfrom heightas workersareusingt hem for goingint o QC room for const ruct ionwork This is violat ionof sect ionlrules40 98 ofBOCW Act 1996 v That t he workers found workingwit hout suit able and grindinget c This is violat ionof sect ionlrules40 101 1ike weldingcut t ing ofBOCW Act 1996 vil That t he fast m ovingcouplingof t he DG set has not been properlyguardedor sect ionlrules40 93 ofBOCW Act 1996 fenced This 1S violat ion of 3e oft he said hasbeensoughtm ainlyont he groundt hat t he est ablishm entof t he beingcovered by t he Fact ories Act 1948 could not be requiredt o get under t he BOCW Act I n supportof t his subm issionsust enance is soughtfrom t he Suresh Kum ar 2014.01.09 13: 01 Scanned True Copy of Original PHHC,Chandigarh I lJ JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document J 1 433 L vv2No6102of2008 Ot Ml J e 3 L 1 0 0 C5 I Z 5 r I 08 7 Z deflnit ionof buildingor ot herconst ruct ionwork under sect ion2i9 oft ht BOCWAct 4 Caseset out in t hepet it ionis t hatt he is canyingout a of t he Food of I ndia involvingcreat ionof supplychainfor food grainin t he count ryUndert heproj ectfacilit ieswill for receivingfood grainat t he Base depot sand t he sam et o t he Field Depot sln bulk wagons The proj ectwas an infrast ruct ure and was direct lym onit oredby t he Prim e Minst ers of6ce The receivednot iceof of t heAct and advisingt hem t o applyfor t he which was followedbyShow Cause Not ice asking t o show cause whyI egalact ion be not t aken for violat ionof prOVlSlOnsof t he Act The put forwardt heir replyt o t he effect t hat t he const ruct ionact ivit yundert akenby t hem was covered by t he Fact oriesAct 1948and was t hus not coveredbyt he BOCW Act The alsoreceivednot iceas t o liabilit yt o pay cessundert heCessAct t o which also t hest andoft he was t hatt heywere not coveredby t he said Act on t he sam e groundThis was followedbyfilingof m ent ionedabove 5 The havecont est edt heclaim in t hewrit pet it ionby t hat t he definit ion of buildingand const ruct ion work which excludesconst ruct ion coveredbyt he Fact orlesAct was not det erm inat iveof of BOCW Act and t he Cess Act Even ot herwiset hework oft he was not coveredbyt he Fact ories Act The writ pet it ionwas prem at ureas t he will have full t o put forward t heir defence before t he concem ed Court t ryingt he colnplaint Suresh Kum ar 2014.01.09 13: 01 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 11 1 e 434 OVV1 6 No6102of2008 085M1 4 I n CWPNosA281 7169 10174 11253 of2008 and 8595of 2009 direct ion soughtis against t he BOCW Act Avennent s in t hesaid are t hatt heyare runningest ablishm ent sfor out t he work as buildersandShowCauseNot iceshavebeenissued t ot hem violat ionoft he 1 oft he BOCW Act and 1 t hemt o appear beforet he st at ut oiy Theygave replyt o t he effect t hatt heyhadgivent he work t o t he cont ract ors who in t um had t he I icences llle cont ract ors t he workerswit h whom t he hadno privit yandt hus t heywere not coveredbyt heAct Theycould not be t o follow t he provlsions of t he BOCW Act The t o carry out t he oft he saidAct was on t hosewhom work had been byt he 7 I n t he replyfiled in CWP N03169 of 2008 w41ichhas been in ot her cases byleam edcounse for t he st andt akenis t hatt he beingowners ofest ablishm ent s covered undersect ion 201of t he Act for whom t he buildingworkers were 1 0 0 C C5 I C 4C I 08 7 em ployerunder sect lon 2I of t he BOCW Act Their st and t hat t heydid Qe not have any privit yof cont ract wit h t he workersand on t hat groundt he of t he BOCW Act were not applict blecould not be The Act was int endedt o providefor safet yand welfare facllit ies t o t he workerswho were vulnerablesegm ent labour The Cess Act 1S int ended t o augm entt he resources of t he WelfareBoard workingfor t he benefit of workers Mere fact of t heir havinggivent he cont ract did not exclude t heinfrom t he definit ionof The could not be excludedfrom t he purviewof t he Act m erelybecauseof t heir having givencont ract s t o cont ract ors who m ay have undert akent he Suresh Kum ar 2014.01.09 13: 01 Scanned True Copy of Original PHHC,Chandigarh I lJ JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 435 v P No6102of2008 OL49 6 5 wit h t he t he Act cont ract ors were for t he work of t he I n t hesecircum st ancest heyhad nexus wit h t he workersand t huscould not avoid for welfare andsafet yoft he workers 8 9 We haveheardleam edcounselfor t hepart iesand t he Quest ionfor considerat ionis whet hert he st and excluded8om t he purviewof t he BOCW Act and t he Cess Act on t he groundof t heir havingout sourcedt heir const ruct ion act ivit yt o t he cont ract or or on t he groundt hat const ruct ionact ivit ywas covered byt he oft he Fact oriesAct 10 I n our order dat ed1352010 ln CWP No6230 of 2009 New I ndia Const ruct ion Com panyand anot her VSe St at e of Haryana and ot hersl we consideredt he schem eoft he BOCW Act and t he CessAct in t hecont ext ofcont ent ionraisedon behalfoft hecont ract ors t hatt heywere not coveredby t he said Act s The cont ent ions raised on behalf of t he cont ract orswere repelledhavingregardt o t heobj ectand t he plain of t he st at ut e lt was held t hatt heycould not claim t o avoid liabilit yt o pay cess for t he welfare of t he workerson whoset oil and sweat t he cont ract or survived andwho were direct lyem ployedbyt he cont ract or Thereln it was cont ended t hat since work t o t he owner onlyt he owner int endedt o be covered and not t he cont ract or ln t his bat chof st and t aken is t o t he cont raryt hat t he owner had no liabilit yand only cont ract ors were liable Such st and cannot be accept edI n Mls New I ndia Const ruct ion we have held t hat under t he schem e of t he I aw m 0 0 C I Z 2 I 08 7 m Suresh Kum ar 2014.01.09 13: 01 Scanned True Copy of Original PHHC,Chandigarh 1 JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 436 PNo102 of2008 08M1 cont ract or as well as owner were covered While not icingt he DelhiHighCourt it was observed 1 1 96 6 I t has beenpoint edout by learnedcounselfor t he in issuein t hese part iest hat t hevalidit yof levywas not pet it ionsand was upheldby t he Delhi HighCourt lll Builders Associat ion of I ndia Ve Union of I ndia and anot her 1392007 Delhi Law Tim es 578 OOB9 List I Therein t hatt heOevywas referablet o Ent ry97 of Correct nessof has 110t been t he view t aken in t he said by eit her part y t he BOCW Act was held t o be referablet o Ent ries 23 and24 ofList I I I t was alsoheldt hatt helevy ln t he nat ure of fee Under t he Schem eof t he Act int ent ion was not t o confiliet he applicabilit vof t he Act t o t he owner or t hecont ract or but t o cover bot h The cess could be collect ed from t he owner or t he cont ract or I f t he Cess is not collect edfrom t he cont ract or t he sam e could be recoveredfrom t he Owner The owner pass on burdent o t he cont ract or and com ponent of cess could be part of cost of const ruct ionThe collect t he cess and pass Oll t o t he Governm entThere was not hing scopefor direct ionfor deduct ionof cess at source in such m echanismThere wasno No fault could be found wit h t he lhe liabilit yt o pay cess int ended t o fall on t he cont ract or t he wolkers For facilit v of collect ion t he ownerwas also coveredby t he levy who could pass on t he liabilit y t o t he cont ract or Sect ion 4 providesfor of ret um by t he Sect ion 201of BOCW Act deflnes est ablishinent as est ablishm ent t o or undert he coont rolof Govem m entany 1 0 C C5 I Z 4 I a5 7 Z Llm bodycorporat eor body of firm individualor associat ionor ot her individualsem ployingbuildingworkers and t o a cont ract or but does JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document includesest ablishm ent Suresh Kum ar 2014.01.09 13: 01 Scanned True Copy of Original PHHC,Chandigarh I 437 P No6102of2008 OceMl r notincludeindividualwho einploysworkersln building 7 7J or const ruct ionwork 111relat iont o his residence t ot al lacs Em ployer1S cost ofwhichis not m ore t hanRsl definedas owner oft he est ablishm entand also includesa cont ract orwhocaniesout t he const ruct ion17 11 Referencem ay now be m adet o t he definit ionsof buildingand ot herconst ruct ionact ivit y and est ablishm ent in Sect ion2 aI iI andO9oft he BOCW Act l 2dl buildingor ot herconst ruct ionwork m eanst he const ruct ion alt erat ion repairs m aI nt enance dem olit ion of or in relat iont o buildingsst reet s roads raiI ways t rainways airflelds em bankm entand includingst onn wat er works Oood cont rolworks works9 t ransm lsslon and dist ribut ionof power wat er works channelsfor dist ribut ionofwat er9oil andgas inst allat ions elect ric lines wireless radio t elevision and overseas com m unicat ion dam s canals reservoirs wat ercourses t unnels bridges viaduct s pipelinest owers coolingt owers t ransm issiont owers and such ot her work as m ay be specifledh1t his behalfby t he Govem m ent bynot ificat ionbut doesnot include any buildingor ot her con st ru ct l Oll work t o which t he t he Fact oriesact 1948 63 of 19489or t he Mines Act 1952 35 0f19529apply i9 em ployefin relat ion t o an est ablishm ent m eans t he owner t hereof andoincludesl i1 in relat ion t o a building01 ot her const ruct ionwork 0 0 I C5 I Z 2 r I 08 7 Z Ll carriedon by or undert he of any t he Govem m ent direct lywit hout any cont ract or speciOedin t his behalf or where no Suresh Kum ar 2014.01.09 13: 01 Scanned True Copy of Original PHHC,Chandigarh I l speciedt he head oft he t he JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document 438 yyPNo6102of200860841 1 ii9inrelaon t o a budingor odler consUucon work carriedon by or on behalf of a local ot herest ablishm entdirect lywit hout anycont ract or t he Chief Execut ive Offlcer t hat est ablishm ent ii o in relat ion t o a buildingor ot her const ruct lon work carriedon by or a cont ract or or byt he of buildingworkers suppliedby a cont ract ort hecont ract or XX XX Xx Xxx j 1 est ablishm ent m eans any est ablishm ent t o or under t he cont rol of Govem m entany bodycorporat eor ot her bodyof firm an individuals which or who em ploysbuildingworkersin any building individual or associat ion or or ot her const ruct ionwork and includes an est ablishm ent t o a cont ract or but does not include an individual who em ployssuch workersin any buildingor residence const ruct ionwork in relat ion t o his own t he t ot alcost of suchconst ruct ionnot beingm ore t hanrupeest en lakhs 0 0 I C5 I Z 2 I 08 7 Z Om 12 The definit ion of shows t hat t he owner of an est ablishm ent buildingworkers 1S covered by t he said deflnit ion The definit ionis furt herext endedt o includecont ract or who m ay in relat iont o buildingor ot herconst ruct ionwork Even when t here is no privit yof cont ract wit h t he workersof t he cont ract or it is t he owner for whose beneflt t hework is carried on 13 Mere fact t hat t heI iabilit ywas undert akenbyt he cont ract or did not excludet he liabilit yoft he Role of owner was akin t o t herole of principalem ployerunder t he schem eof t he Cont ractLabour Regulat ion and Abolit ior Act Suresh Kum ar 2014.01.09 13: 01 Scanned True Copy of Original PHHC,Chandigarh t 1970 I n fact in replyfiled on behalf of JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document Labour 439 t o VV l 0 No102 of2008 08vMl 1 11 of Punj aba pleat o t his effect has been raised in CWP No10174of2008 The factt hat every is coveredis furt herclear by sect ion 44 of t he Act which t o building act ivit yt o ensure of t heAct The said provision1S as underl 44 An shall be for providingconst ant and of any buildingor ot her const ruct ion work in his est ablishm entas t o ensure coinpliancewit h t he provisions t his Act relat ingt o safet yand for t akingall pract ical st epst o preventaccident s 1 0 0 I C5 I 14 As regardst he cont ent iont hatt hatan individualwho em ploys 2 Wollkersfor get t inghis OW11 houseconst ruct edfor t he value of m oret han I a5 7 Z Rsl O lacs t houghcovered under sect iOI l 2 covered byt he Act and gethim self could not be int endedt o be t o which m ay be for an individual learnedcounselfor t he point edout t hat none of t he an individual houseowner and t hust his cont ent ionwas academ icThe buildersor cont ract ors in com m ercialact ivit yhaving largeest ablishm ent sand t heyhad no difficult yl t l get t ingt hem selves and carryingout t he oft he nat ure of t he Act byt he cont ract or whereverwork was t o cont ract or 15 Leam ed counselfor t he also broughtt o our not ice t hatapartfroin of t heDelhi HighCourt in BuildeI Associat ion a Division Bench of Andhra PradeshHlghCourt in j udgm entdat ed 1572008 ln Writ Pet it ion NosA587 of 2008 OWlsCorm andel Prest cret e Privat e JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document Suresh Kum ar 2014.01.09 13: 01 Scanned True Copy of Original PHHC,Chandigarh 440 I rl 7No6102of2008 08LMI 10 Lim it ed ve St at eofAP and ot hersland a SingleBenchofMadhyaPradesh 1 HighCourt in dat ed62009 in Writ Pet it ionN02717 of 2008 Mls Gannon Dunkerlevand Coe Lim it ed vSt at e of MP and ot hersl haveupheldt heI iabilit yoft he owner as well as cont ract or 16 I n Mls Corm andelPrest cret e t he issueconsideredwas in t he cont ext of writ pet it ionfiled by cont ract ors seekingexclusion 8om t he BOCW Act andt heCessAct I n Mls Gannon c0 Co dealing wit h t heplea ofownersas well as cont ract ors byt heBOCW and t heCess Act even whenFact oriesAct appliedit was observed 19 The int ent ionoft he is t hereforenot onlyt o includet he owner of t he est ablishm entin t he presentcase t he com pany but also t he cont ract orswho carries out t he of buildingor ot her const ruct ionwork and 1S an for t he purposeof t heConst ruct ionWorkersAct 1996and t he CessAct 1996 Thus t here1S no escape for t hecont ract ors who haveundert akent hebuildingand ot her COllSt rUCt lOllwork in t he est ablishm ent t o t he com panyThus in t heconsideredopnionof t his Court t he Cont ract orswho undert aket he work of buildingand ot her const ruct ion wot eksin an est ablishm ent t o or under t he cont rol of Governm entany bodycorporat eor m 0 C C4 I Z 2 r a5 W2 Z flrm an individual or associat ion or ot ller body of individualswhich or who em ploysbuildingworkers in any buildingor ot her const ruct ionwork and includes an est ablishm ent t o a cont ract or are govem edby t he provisionsof Cess Act 1996 and t he Rules of 1998 lnade t hereunder 20 The next subm isslonof t he leam ed counsel for t he pet it ionercont ract or is based on t he exclusion clause cont aionedin t lle deflnit ion under sect ion 2d1 Buildingor ot her const ruct ionwork which st ipulat est hat JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document Suresh Kum ar 2014.01.09 13: 01 Scanned True Copy of Original PHHC,Chandigarh I 441 e vv PNo102 of2008 08MI any buildingor ot her const ruct ionwork t o which t he oft he Fact oriesAct 1948will not be includedin t hedefinit ionas cont ainedin t hisclause I t is t hecont ent ion oft he leam edcounselfor t he t hatt he com pany1S by t he Fact ories act 1948 and as such t he const ruct loll which are carriedout are byt he said Act t he necessary corollarywhereof would be t he t he cont ract ors herein 8om t he oft he const ruct ionWorkersAct 1996andt he Cess Act 1996andt heRules m adet hereunder 21 The Fact oriesAct 1948was enact edt o consolidat eand labourin am endt he law fact oriesThe st at em ent obj ect sof reasons revealst hat at t he t im e of enact m ent t he Fact ories Act l 934 was defect s and weakilesses ln exist ence but num berof t he provisions workers inlnim um vent ilat ionand light ingand cont rol of t o safet yhealt h and welfare of foundt o be in fact orieswere t he need for healt h cleanliness dust s and 8im es cont rol of glareet c9safet yeye prot ect ion and inflam m abledust s et c r 1 C 0 C I C I t I a5 7 Z QW generalwelfare of workers washingfacilit ies first aid cant eens shelt er room s crches et c9 necessar by rules and Governm ent s Thus t he Fact ories Act t o be prescribedby as t he 1948 st at einent of obj ect sand reasons cont ainedt hereinrevealsoperat esin a differentfield wit h and variousprovisions different scope and obj ectt han t he Const ruct ionWorkers Act 1996 Cess Act 1996 The nat ure of const ruct ion act ivit ies undert akent o COinlnt ssion a ret lnerycannot by any st ret chof be const ruedas an act ivit yunder t he Act of 1948 Merelybecauset heprovisionoft he Act of 1948 has beenm adeapplicablebesidesot her labourlaws t o JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document Suresh Kum ar 2014.01.09 13: 01 Scanned True Copy of Original PHHC,Chandigarh J 442 No102 of2008 MMl lI 127 be cont ract ors will not in t he consideredopinionof t his Court exclude t he t he Const ruct ion WorkersAct 1996and Cess Act 1996t o t he cont ract ors The secondsubm issiont hereforeput fort hby t he exclusion of t he Cont ract orsfrom t he t he Const ruct ion WorkersAct 1996andCessAct 1996t hereforealsofails 17 We agreewit h t he above observat ionsWe are 0 C C5 I Z r I a5 r m m Z t l t hus of t he Vlew t hat t he owner of est ablishm entfor whom or benefitconst ruct ionact ivit yis cairied for whose on and who em ploysbuildingworkers is includedand is t o com plywit h t he oft he BOCW Act and t he Cess Act cannot t hus be excluded Oom t he ofBOCW andt heCess Act 18 As regardscrim inal for allegedviolat ion we m akeit clear t hatit will be open t o t heaccusedin t hesaid t o put forward t heir defencebeforet lheconcernedcourt whichwill be consideredon it s own m erit s 19 in accordancewit h law We t hus do not find any groundt o int erferet o grantt herelief soughtin t hewrit pet it ions 20 21 The wrlt pet it ionsare dism issed Before part ingwit h t his order we considerit invit e at t ent ionoft he concem edaut horit iest o t he t o individual his own houseof value of m ore t han Rs Thoughin absence byanysuch individual we do not consider it necessaryt o on t his t he concem ed aut horit ym aybe well advisedt o havea freshlook at t he m onet aryI im it in t he lightofexpert opinlOOSO t hat t he lim it is not vulnerablet o Suresh Kum ar 2014.01.09 13: 01 Scanned True Copy of Original PHHC,Chandigarh llI on t he groundof JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document ON0102 443 0 VV 1 of2008 084Ml lPJ 13 l7 An individualwho const ruct s a sm all house which also m ay cost m ore t han Rs10 lacs m ay not find it t o seek render oft he Act 22 A copy of t his order be sent t o t he Cabinet Governm entof lndia for beingforwardedt o concem ed for due considerat ionoft his aspectin accordancewit h law May21 2010 Judge Aldr 6AlokSinghl Judge 1 1 0 0 0 I 5 I Z C4 4t I a5 7 Z Suresh Kum ar 2014.01.09 13: 01 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:53 I attest to the accuracy and integrity of this document