IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 WP(C).No. 14377 of 2005(J) -------------------------- PETITIONER(S): --------------- THE VRINDAVAN APARTMENTS PVT.LTD., 24, 546, RAGAMALIKA ROAD, KATTAPURAM THRISSUR, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, RAJAN ALATH. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE RESPONDENT(S): --------------- 1. THE APPELLATE AUTHORITY UNDER THE BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE CESS ACT, 1996, THRISSUR. 2. THE DEPUTY TAHSILDAR (RR) O/O.THE THASILDAR (RR), TRICHUR. 3. THE ASSESSMENT OFFICER BUILDING & CONSTRUCTION WORKERS WELFARE CESS ACT, O/O THE DISTRICT LABOUR OFFICER, TRICHUR. 4. MR.M.K.ELIAS, KIZHAKKEDATH THENGODE P.O., KOCHI-21. ADV. SRI.SOMAN P.PAUL FOR R4 SRI.P.P.THAMPI FOR R4 GOVERNMENT PLEADER SRI.MATHEW VADAKKEL FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) 14377/2005 APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1 : TRUE COPY OF THE DEMAND NOTICE DATED 15.01.2005 ISSUED BY R2 IN FORM NO. 10. EXHIBIT P2 : TRUE COPY OF THE DEMAND NOTICE DATED 15.01.2005 ISSUED BY R2 IN FORM NO. 1 EXHIBIT P3 : TRUE COPY OF THE ASSESSMENT NOTICE ISSUED BY R3. EXHIBIT P4 : TRUE COPY OF THE SHOW CAUSE NOTICE ISSUED BY ASSISTANT LABOUR OFFICER, GRADE I, THRISSUR DATED 28.10.2004. EXHIBIT P5 : TRUE COPY OF THE ORDER DATED 10.03.2005 ISSUED BY R3. EXHIBIT P6 : TRUE COPY OF THE APPEAL DATED 18.04.2005 FILED BY THE PETITIONER BEFORE R1. EXHIBIT P7 : TRUE COPY OF THE COMMUNICATION DATED 05.05.2005 RECEIVED BY THE PETITIONER FROM THE DISTRCIT LABOUR OFFICER, THRISSUR. /TRUE COPY/ P.A. TO JUDGE. CR P.R. RAMACHANDRA MENON, J. ----------------------------------------------- WP(C) No. 14377 of 2005 ---------------------------------------- Dated, this the 6th day of January, 2010 J U D G M E N T The petitioner is challenging the fixation of liability under the Kerala Building and Other Construction Workers' Welfare Cess Act with regard to the contribution to be paid in respect of the construction of a building which was got effected by the petitioner through the 4th respondent as a contractor. The main grievance of the petitioner is that, the statutory appeal preferred by the petitioner has been dismissed as per Ext.P7, without entertaining the same, stating that the necessary deposit to an extent of 1% of the amount in dispute has not been paid and the necessary proof of deposit has not been produced along with the appeal which is a pre-requisite as contemplated under Rule 14 of the relevant Rules. 2. With regard to the sequence of events, it is to be noted that the petitioner is a Private Limited Company, undertaking construction of flats and one of its projects by name 'Vrindavan Palace' was entrusted to the 4th respondent. It is the case of the petitioner that, by virtue of clause 6 (b) of the construction agreement executed between the WP(C) No.14377/2005 2 petitioner and the 4th respondent, all the statutory payments in connection with the employment of workmen for the above project were to be borne by the contractor. 3. Mr. K. Ramakumar, the learned Senior counsel appearing for the petitioner submits that, after effecting the construction as above, the flats were sold by the petitioner to the prospective purchasers. While so, on 17.01.2005, the petitioner was served with Ext.P1 communication issued by the 3rd respondent demanding a sum of Rs.3,65,810/- as the contribution payable by the petitioner under the 'Act'. It is contended that, no prior notice of assessment whatsoever was served to the petitioner which however, is rebutted as not correct, in view of the earlier notice issued in this regard and produced by the petitioner himself as Exts.P2, P3 and P4. But then, there is a case for the petitioner that the said notices were issued in the individual capacity and not in the name of the petitioner Company. 4. Challenging the said proceedings, the petitioner had approached this Court earlier by filing WP(C) 2086/2005, which was disposed of, directing the petitioner to pursue the matter before the statutory authority. It was accordingly that the 3rd respondent considered the matter afresh, after giving notice to the petitioner and also the contractor, i.e., the 4th respondent, who alone was liable according to the petitioner. After evaluating the facts and circumstances, the contention of the petitioner that he was not the employer, WP(C) No.14377/2005 3 was turned down, referring to the relevant provisions under the statute, particularly the definition clause under Section 2 (1) (i) and 2 (1) (iii). Referring to the provisions of law as above, it was observed by the 3rd respondent that the definition was only an 'enabling one', whereby inclusive interpretation was to be given so as to include the contractor as well, within the purview of the term ‘employer’. Accordingly, on the basis of the available materials on record, finding that the total cost of construction was Rs. 3,65,81,013/-, the extent of contribution as prescribed was fixed as Rs.3,65,810/- (1%) and the liability was mulcted upon the shoulders of the petitioner as well as the 4th respondent, jointly and severally. 5. Aggrieved by Ext.P5 order passed by the 3rd respondent, the petitioner preferred Ext.P6 appeal before the Appellate Authority. But observing that the appeal was defective, as the same was not accompanied by a Demand Draft for the requisite amount, i.e., 1% of the amount in dispute as stipulated in Rule 14 of the relevant Rules, the appeal was rejected and the position was communicated to the petitioner vide Ext.P7. The petitioner is before this Court challenging the course and proceedings as above. 6. The learned Senior Counsel for the petitioner, with reference to the pleading in the Writ Petition submits that the rejection of appeal for not satisfying the alleged requirement under Rule 14 is not correct or sustainable. It is pointed out that the stipulation under Rule 14 does not take WP(C) No.14377/2005 4 its root from any statutory prescription under the Act, which provides the remedy by way of appeal under Section 11. The learned Senior counsel submits that the 'Rules' can't amend, alter or modify the provisions under the 'Act' and so long as there is no liability for the assessee like the petitioner under the Act to effect any deposit for availing the appellate remedy, no such restriction can be brought into force by the Rules. More so, when the Rule making power of State under the relevant provision of the Act does not enable the State to provide for any such restriction. 7. In view of the nature of the proceedings and the scheme of the statute, the case in hand requires to be considered in a wider magnitude. But before proceeding to any such exercise, it has to be ascertained whether any challenge is raised from the part of the petitioner against the 'Rules' in this regard. Obviously, the prayers incorporated in the Writ Petition do not contain any such relief and the constitutional validity of the Rule 14 has not been subjected to challenge. This being the position, this Court is not justified in venturing into any such exercise, for the obvious reason that a prayer which is not sought for in the Writ Petition cannot be granted by this Court invoking the power under Article 226 of the Constitution of India in view of the dictum laid down by the Apex Court in National Board of Examinations Vs. G. Anand Ramamurthy and other [2006 (5) SCC 515], which in turn was followed by a Division Bench of this Court as well, as per the decision WP(C) No.14377/2005 5 reported in Mukesh Vs. State of Kerala [2006 (4) KLT 1023]. In so far as the 'Rule' is not under challenge, the challenge raised against Ext.P7 issued in conformity with the Rules fails and no interference is called for on this ground. 8. However, coming to the factual position and the sequence of events, it is noted that an interim stay was granted by this Court on 16.05.2005, taking note of the contention of the petitioner that the liability was exclusively on the shoulders of the 4th respondent, by virtue of the stipulation in the construction agreement. The contention of the petitioner that the petitioner is not the actual employer in respect of the construction of the building and that it was none other than the 4th respondent does not appear to be palatable to this Court, for the obvious reason that the crucial question to be considered is, who met the cost of the construction or for whose benefit/requirement the construction was effected. The construction effected either by oneself or by engaging a contractor by itself will not tilt the balance, so as to shift the liability from the shoulders of the person at whose instance the construction is carried out, unless the liability is already satisfied by the latter. If the proposition made by the petitioner is to be accepted, it could even be contended that the person who actually constructs the building being the 'mason', the liability has to be shifted to such person. This sort of interpretation or construction is rather beyond the scheme of the statute and WP(C) No.14377/2005 6 does not deserve any consideration at all. 9. The learned Senior counsel also made a submission with regard to the contention raised in the Writ Petition that the petitioner is not the actual employer. Reference is made to the definition of the term ‘employer’ under Section 2(i) of the Building and other Construction Workers' (Regulation of Employment and Conditions of Service) Act 1996 which defines the term 'employer' as follows. S. 2(i) : “employer”, in relation to an establishment, means the owner thereof, and includes, (i) in relation to a building or other construction work carried on by or under the authority of any department of the Government, directly without any contractor, the authority specified in this behalf, or where no authority is specified, the head of the department; (ii) in relation to a building or other construction work carried on by or on behalf of a local authority or other establishment, directly without any contractor, the chief executive officer of that authority or establishment; (iii) in relation to a building or other construction work carried on by or though a contractor, or by the employment of building workers supplied by a contractor, the contractor; The learned senior counsel submits that the meaning of the term ‘employer’ has to be read and understood with specific reference to the definition of the term 'establishment' as it appears under Section 2(j) which reads as follows. S. 2 (j): “establishment” means any establishment belonging to, or under the control of, Government, any body corporate or firm, an individual or association or other body of individuals which or who employs building workers in any building or other construction WP(C) No.14377/2005 7 work; and includes an establishment belonging to a contractor, but does not include an individual who employs such workers in any building or construction work in relation to his own residence the total cost of such construction not being more than rupees ten lakhs; 10. By virtue of the term ‘establishment’ the persons concerned should have been attached to the establishment and so long as the petitioner has not employed any worker as attached to his establishment no liability could have been fixed upon him; submits the learned Senior Counsel. But as observed earlier, definition of the term ‘employer’ under Section 2(i) is only an 'inclusive definition', whereby the contractor who is chosen to be engaged to construct the building by the person concerned is also brought within the purview of the statute. This being the position, the workers engaged by the contractor are liable to be deemed as very much attached to the establishment of the petitioner and as such, there cannot be any individual or separate consideration of these two categories, applying separate jackets. As it stands so, the contention raised from the part of the petitioner, seeking to distinguish the petitioner as not the 'employer' of the persons concerned, in respect of the 'Cess' demanded does not appear to be correct or sustainable. 11. As noted above, subsequent to the interim order of stay passed by this Court on 16.05.2005, taking note of the specific pleadings and also observing that the 4th respondent has not turned up despite the service of WP(C) No.14377/2005 8 notice, this Court directed the concerned respondents to proceed against the 4th respondent and to recover entire arrears from him and to file a report before the Court. It appears that pursuant to the said direction, the District Collector, Thrissur issued Ext.R2(a) letter dated 19.07.2005 to the District Collector, Ernakulam seeking to realize the due amounts to an extent of Rs.3,65,810/- from the 4th respondent, a copy of which has been produced along with the statement filed by the 2nd respondent. 12. When the matter came up for further consideration before this Court on 16.08.2005, it was brought to the notice of this Court that, the work executed by the 4th respondent was only to the tune of Rs.1.43 crores. In the said circumstance, this Court granted six weeks’ time to the 4th respondent to remit the undisputed liability. The 3rd respondent was directed to accept the payment and to delete the said extent from the demand raised against the petitioner and accordingly, the earlier direction given on 03.06.2005 to recover the entire amount from the 4th respondent was varied/modified, simultaneously giving some breathing time to the 4th respondent to effect the payment as ordered. 13. In the course of further proceedings, this Court observed that the subsequent developments were not discernible from the materials on record, whereupon an interim order was passed on 27.05.2008 to reveal the turn of events after issuance of Ext.R2(a). It was accordingly that the matter was WP(C) No.14377/2005 9 adjourned, requiring the learned Government Pleader to file an additional statement as to the existing state of affairs, which is yet to be complied with. 14. The learned counsel appearing for the respondents 1 to 3 submits that, because of the interim order of stay passed by this Court, no further proceedings could be pursued or finalized. The learned Government Pleader, based on the instructions provided vide letter No. E7 1/07/08/cess dated 11.06.2008 of the Tahsildar (RR) Kanayannur, submits that in furtherance to the interim order passed by this Court on 16.08.2005, the 4th respondent paid a sum of Rs.1.43 lakhs vide DD 010104 dated 05.10.2005 drawn on the Lord Krishna Bank, Thrissur and sent the same directly to the office of the ALO, Thrissur. This being the position, the dispute could only be with regard to the balance amount payable under Ext.P5. 15. Obviously, the fixation of liability as per Ext.P5 casting a total liability of Rs.3,65,810/- upon the petitioner as well as the 4th respondent jointly and severally has not been sought to be challenged from the part of the 4th respondent. This being the position, it has become final and the respondents 1 to 3 are very much entitled to proceed against the 4th respondent as well, for realisation of the balance amount as well, by virtue of the inclusive definition under the Act. Equally important is to note that this will not mitigate the liability of the 'principal employer' who is none other than the petitioner, who got the construction effected by engaging the 4th WP(C) No.14377/2005 10 respondent as a contractor. 16. It may be true that, a stipulation is there in the concerned agreement between the petitioner and the 4th respondent casting the liability upon the contractor/4th respondent to effect the statutory payments including the liability as now cast under Ext.P5. Copy of the said agreement however is not produced before this Court. At the same time, the specific averment made by the petitioner as to the actual liability fixed on the 4th respondent is not chosen to be rebutted from his part and as such, adverse interference is liable to be drawn against him in this regard. But the primary duty to satisfy the liability under the 'Act' is always upon the Principal Employer/petitioner himself and by virtue of the specific clause in the agreement, the petitioner may proceed against the 4th respondent, after satisfying the primary liability in respect of the balance amount as well; particularly when the 4th respondent has not chosen to contest the matter effectively, virtually letting the pleadings raised against him unrebutted in all respects. 17. The learned Senior counsel however submits that, even though the liability, to an extent of Rs.1.43 lakhs has now been scaled down from the total of more 3.65 lakhs as shown in Ext.P5 assessment order (having satisfied by the 4th respondent), the petitioner is not in a position to clear the balance in a lump sum and that the petitioner might be permitted to satisfy the same by way of reasonable instalments. After hearing both the sides, this WP(C) No.14377/2005 11 Court finds it fit and proper to permit the petitioner to clear the balance liability under Ext.P5, by way of monthly instalments at the rate of Rs.70,000/- to be effected on or before the 7th of every month commencing from March, 2010. The last instalment will constitute only the balance figure, to top up the actual liability cast upon the petitioner vide Ext.P5. It is also made clear that, after satisfying the said liability, the petitioner is very much at liberty to proceed against the 4th respondent, by resorting to appropriate proceedings in accordance with law. 18. It is made clear that, the contentions raised by the petitioner with regard to the status of the petitioner and the liability to satisfy the amount due under Ext.P5, will not stand watered down merely by virtue of the instalment facility provided by this Court. The Writ Petition fails and interference is declined, except to the extent as aforesaid. P. R. RAMACHANDRA MENON JUDGE dnc In the second line of the first paragraph of the judgment dated 06.01.2010 in WP (C) 14377/2005 J, the word “Kerala” is deleted and the figure “1996” is inserted after the word “Act” - vide order dated 12.03.2010 in WP(C) 14377/2005. sd/- Registrar (judicial)