IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 OP.No. 3904 of 2003(M) ---------------------- PETITIONER(S): --------------- SR.THOMASINA, PROVINCIAL SUPERIOR, PROVINCIAL HOUSE, S.H.CONVENT, THONDIYIL (P.O), PERAVOOR, KANNUR DISTRICT. BY ADVS. MR.M.A.FIROZ MR.SERGI JOSEPH THOMAS RESPONDENT(S): ------------------------- 1. UNION OF INDIA, REP. BY ITS SECRETARY, MINISTRY OF LABOUR, NEW DELHI - 1. 2. THE STATE OF KERALA, REP. BY ITS SECRETARY TO GOVT., LABOUR & REHABILITATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 3. THE ASSISTANT LABOUR OFFICER, KANNUR - 2. BY ADV. MR.ABRAHAM THOMAS GOVERNMENT PLEADER MR.T.K.VIPIN DAS FOR RESPONDENT THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/06/2009, ALONG WITH OP NO. 3906 OF 2003 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.6904/2003 IN OP. NO.3904/2003 DISMISSED 17/06/2009 SD/- V.K.MOHANAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REGISTRATION CERTIFICATE S. NO.472/1986 DT. 13.10.1986. P2:- COPY OF THE OCCUPANCY CERTIFICATE DT. 16.6.99 ISSUED BY THE MUNICIPAL SECRETARY. P3:- COPY OF THE NOTICE NO.E4/52/02/TLY DT. 30.9.02. P4:- COPY OF THE ASSESSMENT NOTICE NO.E4/42/02/TLY DT. 13.11.02, ISSUED BY THE 3RD RESPONDENT. P5:- COPY OF THE ORDER NO.E4/52/02 TLY DT. 28.11.02 DT. 28.11.02 OF THE 3RD RESPONDENT. TRUE COPY P.S. TO JUDGE TSS V.K.MOHANAN, J. ---------------------------------------- O.P. Nos.3904, 3905, 3906, 3750, 3854,3860, 7733 & 7739 of 2003. ---------------------------------------- Dated, 17th day of June, 2009 JUDGMENT All these Writ Petitions are preferred basically challenging the cess notices issued under section 4(2) of the Building and Other Construction Workers' Welfare Cess Act, 1996. As several questions are raised, which are identical in these writ petitions, the same are heard together and being disposed of by this common judgment. 2. This Court, by order dated 3.2.2003 in CMP No.6650/2003 in O.P.No.3750/2003, stayed the recovery in pursuance to the notice which challenged in that writ petition. By the very same order, this Court directed the petitioner therein to file objection and the respondents were directed to determine the liability and file a report to this Court. The above order is not complied with so far. Admittedly, only in one case, i.e., O.P.No.3904/2003, the respondents have issued the final assessment order. But, according to the counsel for the petitioner in that case, the party was not given proper opportunity to file the objection. O.P.Nos.3904/03 and Co.cases -:2:- 3. In these writ petitions, several questions are raised, especially, regarding the applicability of the provisions of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996; The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Kerala Rules, 1998; The Building and Other Construction Workers' Welfare Cess Act, 1996 and the Building and Other Construction Workers' Welfare Cess Rules,1998. The above contentions are raised basically on the fact asserted by the petitioners to the effect that for the construction of their building, they did not engage any “building worker” and the Construction was carried on by voluntary services rendered by the members of the parish. So, according to the petitioners, Sections 1(4), 2(1)(e) and Sec. 2(1)(i) of the above Act and similar provisions of similar other Acts mentioned above are not at all attracted connected with the Construction of the building undertaken by them. It is also the case of the petitioners that the persons those who are voluntarily offered their service for doing the work are not the beneficiaries under section 11 of the Act. According to the petitioners, the liability to pay contribution cannot be fixed merely on the ground that they have made certain construction and without considering the O.P.Nos.3904/03 and Co.cases -:3:- scheme of the Act or guess work. 4. The above legal contention can be considered only on the basis of the facts involved in each case and the materials and evidence on record. Admittedly, except in one case, no final assessment order was passed so far, in spite of the interim order passed by this Court as indicated above. The final assessment order passed in O.P.No.3904/2003 is in a printed form. In that case, no objection is seen filed, but according to the petitioners, no opportunity was granted for filing such objection. However, going by Ext.P5, it can be seen that none of the contentions are met with or considered. With respect to the other writ petitions, the details are not made available to this Court regarding the subsequent proceedings, if any, adopted in pursuance of the cess notice issued under section 4(2) of the Building Construction workers' Welfare Cess Act, 1996. In the absence of such materials, especially, regarding the nature of construction undertaken by the petitioners, number of persons utilised for construction and the nature of service of work done, the legal question involved in the writ petitions cannot be considered effectively and no finding can be arrived. Therefore, according to me, these writ petitions can be disposed of with certain directions without going into the merits or O.P.Nos.3904/03 and Co.cases -:4:- demerits of the contentions. 5. Accordingly, all these writ petitions are disposed of with the following directions: i. All the petitioners in the writ petitions are directed to file their objection or additional objection to the notice issued under section 4(2) of the Building and other Construction Workers' Welfare Cess Act, 1996. On such filing of the objection/additional objection, even if orders have been passed pursuant to the interim order of this Court mentioned above, the Assessing Authority is directed, to consider their objection afreshly after giving opportunity of being heard and after considering the materials, if any, filed and produced by them and, if so required, after collecting evidence, in the manner he deems fit, to pass order on such objections. ii. In O.P.No.3904/2003, the petitioner is also free to file additional objection if he so required and his objection shall also be considered in the manner indicated above. iii. In O.P.No.3904/2003, the petitioner has got a contention that without giving ample time to file objection to Ext.P4 notice, Ext.P5 final order was issued. The jurisdiction of the assessing authority to invoke the provisions of the Act to fix liability depends on the basis of the outcome of the enquiry that directed by this Court on the basis of the objection to section 4(2) notice and, therefore, to enable the O.P.Nos.3904/03 and Co.cases -:5:- Assessing authority to take decisions in accordance with the direction contained in this judgment, Ext.P5 is quashed without entering into its merit. (iv) The petitioners are directed to produce a copy of this judgment before the Assessing authority within one month from today and file their objection as aforesaid at the time of producing the copy of the judgment and the 3 rd respondent Assessing authority, the Assistant Labour Officer, Kannur -2, is directed to pass speaking orders, as aforesaid, as early as possible, at any rate, within 3 months from the date of receipt of a copy of this judgment. (v) If the petitioners failed to file their objection, as directed above, the Assessing authority is free to pass the final assessment order, if the proceedings are otherwise correct and in order. These writ petitions are disposed of accordingly. V.K.MOHANAN, JUDGE kvm/- O.P.Nos.3904/03 and Co.cases -:6:- V.K.MOHANAN, J. O.P.Nos. 3904,3905, 3906,3750 3854,3860,7733 &7739 of 2003 JUDGMENT Dated:17.6.2009.