431 1NTHE HIGH COURT OF PUNJAB AND HARYANA AT 1 CHANDIGARHe CWP No6102 of2008 085MI Dateofdecisionl 21 32010 AdaniAgriLogistics Limited and another Petitioners Vs The Stateof Haryanaand others tQ CORAM HONBLE Ml JUSTICE ADARSH KUIWAR GOEL MONBLE Ml2eJ1JSTICEALOK SINGH 0 0 Present Mr PKlvlutnejaMrAshish Chopra I andMr VikasBahaI Advocatesfor the C5 Ms Ritu Bahri DAG Haryana Mr ICICKahlon Advocate for Union ofIndia Z 5t 0 Adarsh Kumar GoelJ I 1 This orderwill disposc of CWP NosA281 6102 7169 10174 08 11253 of 2008 and 8595 of 2009 as all the involvecommon as to coverageof thewrit owners of cstablishrnentby 17 Z the of the BuildingandotherConstructionWorkers tl of andConditionsof Service Act 1996 3OCW Act9andthe Buildingand Other ConstructionWorkers WelfareCess Act 1996 Act Cess Actl 2 In CWP No6102 of 2008 seven complaints have been filed againstpetitioner N2 withthefoliowing i9 That the is found runningconstruction J work of establishmentwith the aid of 325 workers Hence the establishmentis covered under BLuldingand other ConstructionWorkers Act 1996 The managementfailed to show the proofof paymentof fee i gettng IIJ Suresh Kumar 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 PNo6102of2008 085No vvvs 1 2 t 1 certificateof in favour of Clef of Factories alongwitll Form No1 on triplicatel for running thebuilding or constructlon work for theyear 2007 This 1S violationofsectionlrules7171821 ofBOCW Act 1996 iil Thereare no fire provided near four diesel workingat different Iocations ln the establishmentThis is violationof sectionlrules40 91 of 1 BOCW Act 1996 tr 0 iiil The notice of commencement of buildingor other C constructionwork not submiued in Form N036 This 1S 0 violationofsectionlrules46 I iv That the handrails not provided to stairsmade for the Z QCe room So thereis every of fallingfrom height as workersareusingthem for goinginto QC room for constructionwork This is violationof sectionlrules40 98ofBOCW Act 1996 08 v That the workers found workingwithout suitable W2 Z for 1ike weldingcutting andgrinding etc This is violationof sectionlrules40 101 ofBOCW Act 1996 vil That the fast movingcoupling of the DG set has not been properlyguardedor fenced This 1S violation of sectionlrules40 93ofBOCW Act 1996 3e ofthe said hasbeensoughtmainlyonthe groundthat the establishmentof the beingcovered by the Factories Act 1948 could not be required to get under the BOCW Act In supportof this submissionsustenance is soughtfrom the IlJ Suresh Kumar 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 J e J 433 L vv2No6102of2008 OtMl 3 1 L deflnitionof building or otherconstructionwork under section2i9 oftht BOCWAct 4 Caseset out in thepetition is thatthe is canying out a of the Food of India involving creationof supply chainfor food grainin the countryUndertheprojectfacilitieswill be for receiving food grainat the Base depots and the 1 sameto theField Depotsln bulk wagons The project was an infrastructure and was directlymonitoredby the Prime Minsters of6ce The 0 0 receivednoticeof of theAct andadvising them C5 to applyfor which was followedbyShow CauseNoticeasking I the to show cause whyIegalactionbe not taken for violationof Z prOVlSlOnsof the Act The put forwardtheir replyto the effect 5 that the constructionactivityundertakenby them was covered by the r FactoriesAct 1948and was thus not coveredbythe BOCW Act The I 08 alsoreceivednoticeas to liabilityto pay cessundertheCessAct to whichalso thestandofthe was thattheywere not coveredby 7 Z the saidAct on the same groundThis was followedbyfilingof mentionedabove 5 The havecontestedtheclaim in thewrit petitionby that the definition of buildingand construction work which excludesconstruction coveredbythe FactorlesAct was not determinativeof of BOCW Act and the Cess Act Even otherwisethework ofthe was not coveredbythe Factories Act The writ petition was premature as the will havefull to put forward their defence before the concemed Court tryingthe colnplaint lll Suresh Kumar 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 1 1 1 434 e No6102of2008 085M1 4 OVV1 6 In CWPNosA281 7169 10174 11253 of2008 and 8595of 2009 direction soughtis against of the BOCW Act Avennents in thesaid are thattheyare running establishmentsfor out thework as buildersandShowCauseNoticeshavebeenissued 1 tothem violationofthe ofthe BOCW Act and 1 themto appearbeforethestatutoiy Theygave replyto theeffect 1 thattheyhadgiventhe work to thecontractors whoin tum hadthe 0 Iicences llle contractors theworkerswith whomthe 0 C hadno privityandthustheywere not coveredbytheAct Theycouldnot be C5 to follow theprovlsions of the BOCW Act The to I carry out the ofthe saidAct was on thosewhomwork hadbeen bythe 7 In the replyfiled in CWP N03169 of 2008 w41ichhas been C 4C in other cases byleamedcounse for the standtakenis I 08 thatthe being owners ofestablishments coveredundersection 201of the Act for whom the buildingworkers were are 7 employerunder sectlon 2I of theBOCW Act Their standthat theydid Qe not have any privityof contract with the workersand on thatground the of theBOCW Act were not applictblecould not be The Act was intendedto providefor safetyand welfare facllitiesto the workerswhowere vulnerablesegment labour The Cess Act 1Sintendedto augmenthe resources of theWelfareBoard working for the benefit of workers Mere fact of their havingiventhe contract did not exclude theinfrom the definitionof The could not be excludedfrom the purviewof the Act merely becauseof their having givencontracts to contractors who may haveundertakenthe of IlJ Suresh Kumar 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 435 v P No6102of2008 OL49 6 5 with the of the Act contractors were for thework of the In thesecircumstancestheyhad nexus with the workersandthuscould not avoid for welfare andsafety ofthe workers 8 We haveheardleamedcounselfor theparties and the recor m 9 Questionfor considerationis whetherthe stand excluded8om the purviewof the BOCW Act and the Cess Act on the 0 0 groundof their havingoutsourcedtheir construction activityto the C contractor or on the ground that constructionactivity was covered bythe I ofthe FactoriesAct Z 10 In our orderdated1352010 ln CWP No6230 of 2009 2 New India Construction Companyand another VSe State of Haryana I and othersl we consideredthe schemeofthe BOCW Act and the CessAct 08 in thecontext ofcontentionraisedon behalfofthe contractors thattheywere not coveredby the said Acts The contentions raised on behalf of the 7 contractorswere repelled havingregard to theobjectand the plain m of thestatute lt was held thattheycouldnot claim to avoidliabilityto pay cess for thewelfare of theworkerson whosetoil and sweat thecontractor survivedandwho were directlyemployed bythe contractor Thereln it was contended that since work to the owner onlythe owner was intendedto be covered and not the contractor ln this batchof stand taken is to the contrarythat the owner had no liabilityand only contractors were liable Such stand cannot be acceptedIn Mls New India Construction we have held that under the scheme of the Iaw 1 Suresh Kumar 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 1 1 436 96 PNo102 of2008 08M1 6 contractor as well as owner were covered While noticing the of DelhiHighCourt it was observed It has beenpointed out by learnedcounselfor the parties that thevalidityof levywas not in issuein these petitions and was upheldby the Delhi HighCourt lll Builders Association of India Ve Union of India and another 1392007 Delhi Law Times 578 1 OOB9 thattheOevy was referableto Entry97 of List I Correctnessof the view taken in the said 0 has 110t been by either party C Therein the BOCW Act was held to be referableto C5 Entries 23 and24 ofList II It was alsoheldthatthelevy I was ln the nature of fee Under the Schemeof the Act intention was not to confiliethe applicabilitvof the Act Z to the owner or thecontractor but to cover both The cess could be collected from the owner or the contractor If 4 the Cess is not collectedfrom the contractor the same I could be recoveredfrom the Owner The owner could a5 pass on burdento the contractor andcomponentof cess could bepartof cost of constructionThe could 7 Z collect the cess and pass Oll to the GovernmentThere Llm was nothing in such mechanismThere wasno scopefor No fault could be foundwith the directionfor deductionof cess at source lhe liabilityto pay cess was intended to fall on the contractor the wolkers For facilitv of collection the ownerwas alsocoveredby the levywho could pass on the liabilityto the contractor Section 4 providesfor of retum by the Section201of BOCW Act deflnes establishinent as establishment to or underthe coontrolof Govemmentany bodycorporate or firm individualor associationor other bodyof individualsemployingbuildingworkers and includesestablishment to a contractor but does I Suresh Kumar 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 437 vv PNo6102of2008 OceMl 7 r 7J notincludeindividualwhoeinploys workersln building or constructionwork 111relationto his residencetotal cost ofwhichis not more thanRsl lacs Employer 1S defined as owner ofthe establishmentandalsoincludesa contractorwhocaniesout theconstruction 17 11 Referencemay now be madeto the definitionsof buildingandotherconstructionactivity and establishment in Section2 aI iI andO9ofthe BOCW Actl 0 2dl building or otherconstructionwork meansthe 0 I construction alteration repairs maIntenance or C5 demolitionof or in relationto buildings streets roads I raiIways trainways airflelds Z embankmentand works Ooodcontrolworks includingstonn water works9 2 r transmlsslon and distributionof power water works I channelsfor distributionofwater9oil andgas 08 installationselectric lines wireless radio television and overseas communication dams canals reservoirs watercourses tunnels bridges 7 Z viaducts pipelines towers coolingtowers Ll transmissiontowers and such other work as may be specifled h1this behalfby the Govemment bynotificationbut doesnot include any building or other con stru ctl Oll work to which the of the Factoriesact 1948 63 of 19489 or theMines Act 1952 35 0f19529apply i9 employefin relation to an establishment meansthe owner thereof andoincludesl i1in relation to a building 01 other constructionwork carriedon byor underthe of any of the Govemment directlywithout any contractor the speciOed in this behalf or where no is speciedthe headofthe Il Suresh Kumar 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 438 yyPNo6102of200860841 1 ii9inrelaon to a budingor odler consUucon work carriedon by or on behalf of a local or otherestablishmentdirectly withoutanycontractor the Chief Executive Offlcer of that or establishment ii o in relationto a building or other constructlon work carriedon byor a contractor or bythe of buildingworkers suppliedby a contractorthecontractor XX XX Xx Xxx 0 0 j1 establishment means any establishment to or I C5 underthe controlof Govemmentany bodycorporate or I firm an individual or association or other bodyof individuals which or who employs building workersin any Z building or other constructionwork and includes an 2 establishment to a contractor but does not include an individualwho employs such workersin any I buildingor constructionwork in relation to his own 08 residence the totalcost of suchconstructionnot being more thanrupeesten lakhs 7 Z Om 12 The definition of shows that the owner of an establishment buildingworkers 1S covered by the said deflnitionThe definitionis furtherextendedto includecontractor who may be in relationto building or otherconstructionwork Even when thereis no privityof contract with the workersof the contractor it is the owner for whosebeneflt thework is carried on 13 Mere fact that theIiability was undertakenbythe contractor did not excludethe liabilityofthe Role of owner was akin to therole of principal employer under the schemeof the ContractLabour Regulation and Abolitior Act 1970 In fact in replyfiled on behalf of Labour t Suresh Kumar 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 439 0 No102 of2008 08vMl to VV l 1 of Punjaba pleato this effect has been raised in CWP 11 No10174of2008 The factthatevery is coveredis furtherclear by section 44 of the Act which to building activity to ensure of of theAct The saidprovision 1S asunderl 44 of An shallbe for providing constant and 1 of any buildingor other construction work in his 0 establishmentas to ensure coinpliancewith the provisions 0 of this Act relating to safetyand for takingall practical I steps to preventaccidents C5 I 14 As regards thecontentionthatthatan individualwho employs Wollkersfor getting his OW11 houseconstructedfor thevalueof morethan 2 Rsl O lacs though covered under sectiOIl 2 could not be intendedto be I covered bythe Act and gethimself and to a5 which may be for an individual learnedcounselfor 7 the pointed out thatnone of the was an individual Z houseowner and thusthis contentionwas academicThe were buildersor contractors in commercialactivityhaving largeestablishmentsand theyhad no difficultyl tl gettingthemselves and carrying out the ofthe nature of of of of the Act bythe contractor whereverwork was to contractor 15 Leamed counselfor the also brought to our notice thatapartfroin of theDelhi HighCourtin BuildeI Association a Division Bench of Andhra PradeshHlghCourt in judgment dated 1572008 ln Writ Petition NosA587 of 2008 OWlsCormandel Prestcrete Private lll Suresh Kumar 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 440 7No6102of2008 08LMI 10 Irl Limited ve StateofAP and othersland a Single BenchofMadhya Pradesh 1 HighCourt in dated62009 in Writ PetitionN02717 of 2008 Mls Gannon Dunkerlevand CoeLimited vState of MP and othersl haveupheld theIiability ofthe owner as well as contractor 16 In Mls CormandelPrestcrete the issueconsideredwas in the context of writ petitionfiled by contractors seekingexclusion 8om the m BOCW Act andtheCessAct In Mls Gannon c0 Co dealing with theplea ofownersas well as contractors bytheBOCW and 0 C theCessAct even whenFactoriesAct appliedit was observed C4 19 The intentionofthe is thereforenot onlyto I includethe owner of theestablishmentin the presentcase et the company but alsothe contractorswho carries out the Z work of building or other constructionwork and 1S an 2 for the purposeof theConstructionWorkersAct r 1996andthe CessAct 1996 Thus there1S no escape for thecontractors whohaveundertakenthebuilding and other a5 COllStrUCtlOllwork in the establishment to the companyThus in theconsideredopnionof thisCourtthe W2 Z Contractorswho undertakethework of building and other construction woteksin an establishment to or flm under the controlof Governmentany bodycorporateor flrm an individual or association or otller bodyof individualswhich or whoemploys building workers in any buildingor other constructionwork and includes an establishment to a contractor are govemedby the provisions of Cess Act 1996 and the Rules of 1998 lnadethereunder 20 The next submisslonof the leamed counsel for the petitionercontractor is based on the exclusion clause contaionedin tlle deflnition under section 2d1 of Buildingor otherconstructionwork which stipulates that I Suresh Kumar 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 441 e vv PNo102 of2008 08MI ll any buildingor other constructionwork to which the r ofthe FactoriesAct 1948will not beincludedin thedefinitionas containedin thisclause It is thecontention ofthe leamedcounselfor the thatthecompany1S by the Factoriesact 1948 and as such the constructloll which are carriedout are bythesaid Act the necessarycorollarywhereof would be the of the contractors herein 8om the 1 C ofthe constructionWorkersAct 1996andthe Cess Act 1996andtheRules madethereunder 0 C I 21 The FactoriesAct 1948was enactedto consolidateand C amendthelaw labourin factoriesThe statement I of objects of reasons revealsthatat thetimeof enactment the Factories Act l 934 was ln existence but numberof t defects and weakilesses were and the provisions to safetyhealth and welfare of I workers in factorieswere foundto be a5 and which the need for inlnimum health cleanliness 7 ventilationand dustsand 8imes Z lightingand control of glareetc9safetyeye protection QW control of and inflammabledusts etc and generalwelfareof workers washingfacilities first aid canteens shelter rooms crches etc9 where necessar by rules and to be prescribedby Governments Thus the Factories Act 1948 as the stateinent of objects and reasons and variousprovisions containedthereinrevealsoperates in a differentfield with differentscope and objectthan the ConstructionWorkers Act 1996 Cess Act 1996 The nature of construction activities undertakento COinlntssion a retlnery cannot by any stretchof beconstruedas an activity under the Act of 1948 Merelybecausetheprovisionofthe Act of 1948has beenmadeapplicable besidesother labourlaws to J Suresh Kumar 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 442 lI No102 of2008 MMl 127 be contractors will not in the consideredopinionof this Court exclude the of the Construction WorkersAct 1996and Cess Act 1996to the contractors The secondsubmissionthereforeputforthby the exclusion of the Contractorsfrom the of the Construction WorkersAct 1996andCessAct 1996thereforealsofails 17 We agreewith the above observationsWe are 0 thus of the Vlew that the owner of establishmentfor whom or for whose C benefitconstructionactivity is cairied on andwhoemploys building workers C5 is includedand is to comply with the ofthe BOCW Act I and the Cess Act llhe cannot thus be excluded Oom the Z ofBOCW andtheCess Act r 18 As regards criminal for alleged violation we makeit I clear thatit will beopen to theaccusedin thesaid to put forward a5 their defencebeforetlheconcernedcourt whichwill beconsideredon its own r merits in accordancewithlaw mm Z 19 We thus do not find any ground to interfereto granttherelief tl soughtin thewritpetitions 20 Thewrlt petitions are dismissed 21 Before partingwith this order we considerit to invite attentionofthe concemedauthoritiesto the ofan individual his own houseof valueof more thanRs lacs Though in absence byanysuch individual we do not consider it necessaryto on this the concemed authoritymaybe well advisedto havea freshlook at themonetaryIimit in the lightofexpert opinlOOSO that the limit is not vulnerableto on the groundof llI Suresh Kumar 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 443 lPJ ON0102 of2008 084Ml 13 0 VV 1 l7 An individualwho constructs a small house which also may cost more thanRs10 lacs may not find it to seek and render for ofthe Act 22 A copy of this order be sent to the Cabinet Governmentoflndia for beingforwardedto concemed for due consideration ofthis aspectin accordancewith law Judge 0 Aldr 0 May21 2010 6AlokSinghl I gs Judge 5 I Z 1 C4 4t I 1 a5 7 Z 0 Suresh Kumar 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