Telangana High Court
The Government Of Andhra Pradesh, Rep. … vs G. Anil Reddy, on 14 August, 2025
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
THE HON'BLE THE ACTING CHIEF JUSTICE SRI DILIP B.BHOSALE
AND
THE HON'BLE SRI JUSTICE S.V.BHATT
W.A.Nos.1012, 1013, 1019, 1020, 1021, 1023, 1032, 1033, 1034, 1035,
1040, 1099, 1131, 1137, 1174, 1199, 1216, 1262, 1448, 1464,
1470, 1485 OF 2013, 1383, 1447, 1638, 1640 and
WA (SR) Nos.165064, 16940, 16948, 16954, 16958, 16967, 16968,
16971, 16980, 16981, 17002, 17003, 29440 of 2014, W.A.Nos.58, 59, 60,
61, 62, 71, 78, 94, 123, 124, 125, 135, 150, 188, 190, 256, 282,
294, 445, 469 and WA (SR) Nos.10221, 12180 14663 of 2015
AND
W.P.Nos.28885 of 2009, 1596, 2901, 3959 and 9328 of 2010,
7349 and 7550 of 2013, 27460, 27935 and 29465 of 2014 and
13318 and 13460 of 2015.
COMMON JUDGMENT:
(per Hon’ble The Acting Chief Justice Dilip B.Bhosale)
These writ appeals, under Clause 15 of the Letter Patent, are directed against the order dated
28.11.2013 disposing of a batch of writ petitions whereby the question “whether the works executed by the
petitioners in the 3rd respondent-factory (in W.P.No.9111 of 2010) are the works incidental to and/or
connected with the works of the 3rd respondent-factory and thus exempted from the provisions of The
Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Act, 1996
(27 of 1996) (for short “Act No.27″)” has been answered in the affirmative.
2. All writ appeals are preferred either by the Commissioner of Labour or Joint Commissioner of
Labour, who were respondent No.1 or 2 in the writ petitions (for short “the Commissioner”). The writ
petitions were filed by Infrastructural Development Companies/Contractors (for short “the contractors”)
who were given contracts for erection or raising structures/constructions such as blast furnace within the
campus of respondents-companies/corporations (for short “the Companies”).
3. The writ petitions were filed by the contractors basically challenging orders of the Commissioner,
charging 1% (as cess) of the value of the contracts, executed between them and companies for designing,
manufacturing, supplying, erecting, testing and commissioning of blast furnace, under The Building and
Other Construction Workers’ Welfare Cess Act, 1996, (28 of 1996) (for short “Act No.28”).
3. Since the questions raised are common, W.P.Nos.28885 of 2009, 1596, 2901, 3959 and 9328 of 2010, 7349 and 7550 of 2013,
4. Mr.C.R.Sridharan, the learned Senior Counsel appearing for the contractors in this batch of writ
appeals/petitions, at the outset, submitted that though question “whether the structures raised or
constructions made by the contractors, such as blast furnace, within the premises of factories of the
companies are covered by the definition of ‘building or other construction work’?”, was raised, was not
addressed by learned single Judge while disposing of the batch of writ petitions, perhaps, in view of the fact
the principal question was answered in favour of the contractors. He submitted that this question also needs
to be considered and decided in these appeals. The learned Advocate General appearing for the
Commissioner did not oppose the submission of Mr.C.R.Sridharan. We, therefore, propose to consider and
address both the questions in these appeals. Insofar as the first question is concerned, we reformulate the
same as follows: Whether the Factories Act, 1948 (63 of 1948) would apply to the buildings, such as blast
furnace within the premises of factories, constructed/erected by contractors? and if yes whether they are
liable to pay 1% cess, being ’employers’ under the provisions of Act No.28? In other words whether
structures, such as blast furnace within the factory premises, are exempted from the provisions of Act
No.27, that being the works incidental to and/or connected with the works of factory?
5. The factual matrix and questions raised in these appeals are similar. It is not in dispute that the
contractors were not only required to design, manufacture, supply, erect, test and commission blast
furnace, but they were also suppose to raise civil and structural works for its erection and commission. In
this backdrop, we would like to refer to the facts, to the extent they are relevant, in the first writ petition
(W.P.No.9111 of 2010) to understand the controversy better.
5.1 In this writ petition the company (Rashtriya Ispat Nigam Limited) had its factory registered under
the Factories Act, 1948 (63 of 1948), (for short “Act of 1948”). In order to expand its operations and
increase production capacity, the company after obtaining permission to establish one more blast furnace
entered into an agreement with the contractor (M/s.Larsen & Toubro Ltd., Mumbai) for designing,
manufacturing, supplying, erecting, testing and commissioning of blast furnace-3 including ‘civil and
structural works’. The contractor, accordingly, executed the works in accordance with the terms and
conditions of the agreement. The Commissioner having noticed that contribution contemplated by Act
Nos.27 and 28 was not made by the contractors, determined the amount payable as ‘cess’ and demanded
the amount and issued incidental directions. The direction issued to the company (i.e. principal employer)
was to deduct 1% of the amount payable to the contractors and remit the same to the Government towards
‘cess’ payable under Act No.28. In view thereof, the company deducted 1% of amount payable to the
contractors. These orders of the Commissioner were under challenge in the batch of writ petitions. At the
cost of repetition, it is once again made clear that factual matrix of all the cases is similar.
6. The case of contractors, in short, is that the company is a factory established under Act of 1948
and is, therefore, expressly excluded from the application of the provisions of Act No.27. According to
contractors, under any circumstances, factories of the companies are covered by the provisions of Act of
1948, and are, therefore, not liable to pay 1% cess under the provisions of Act No.28. The provisions
contained in Act No.27, in particular, the definition of “building or other construction work” would not cover
the structures such as blast furnace and, therefore, they are not liable to either deduct 1% cess or remit any
such amount to the Government under the provisions of the said Act.
7. Mr.C.R.Sridharan, learned senior counsel for the contractors, advanced leading arguments on
behalf of the contractors. He submitted that Act of 1948 regulates labour in factories and takes care of the
welfare measures contemplated therein. This Act is a comprehensive piece of legislation covering all
aspects regarding factories. That being so, while defining the expression “building or other construction
work”, despite it being very exhaustive, does not include any building or other construction works to which
the provisions of Act of 1948 apply. Our attention was also invited to the words “means” and “does not
include” to contend that the word “means” in the definition of “building or other construction work” shows
that the definition is a hard-and-fast definition and no other meaning can be assigned to the expression than
it is reflected therein.
7.1 Mr.C.R.Sridharan submitted that since language of the provisions of Section 2(d) of Act No.27 is
clear, unambiguous and intelligible and does not admit of two meanings, this Court will have to construe it in
its ordinary sense. He submitted, it is well settled that the language used speaks the mind and reveals the
intention of framers of law and it is only when a section is capable of two constructions, that construction
should be preferred which fulfils the policy of the Act and is more beneficial to the persons in whose interest
the Act has been passed and not when the language is plain and unambiguous. Insofar as the provisions
that fall for our consideration are concerned, Mr.C.R.Sridharan submitted that its language is clear and,
therefore, intention of the legislature should be gathered from its plain language and not by taking recourse
to any other way of interpretation of the said provision. From a plain reading of the provision, it is clear that
it does not apply to any building to which the provisions of Act of 1948 apply.
7. 2 Our attention was drawn to the categories of works in the definition of ‘building or other
construction work’ to further contend that erection of structures such as blast furnace under any
circumstances cannot be called a ‘building’ since it does not include construction of walls, floors, roofs,
balconies etc. In short, it was submitted that the word ‘building’ used/employed in this definition means a
building having roof, walls, flooring etc. and under any circumstances a blast furnace would not fall in the
category of ‘building’ or ‘other construction work’. Having regard to the language employed while defining
this expression, Mr.C.R.Sridharan further submitted that the ‘other construction work’ also means the
constructions, alterations, repairs, maintenance or demolition, of or, in relation to, buildings and categories
of works included therein. The other categories of works incorporated in this definition also would not cover
blast furnace. He submitted that learned Judge while dealing with the writ petitions did not advert to the
question “whether construction of blast furnace is covered by the definition of building or other construction
work?”.
7.3 Mr.C.R.Sridharan also took us through the relevant provisions of Act of 1948, in particular the
definition of ‘worker’, which covers the persons engaged by the contractor for erection of blast furnace and,
therefore, they are expressly excluded from the purview of Act No.27. In short, it was submitted that Act
Nos.27 and 28 have no application to the contractors and, therefore, the impugned orders directing them to
pay 1% cess or directing the companies to deduct 1% contractual amount from the amounts payable to the
contractors is, ex facie, illegal and without jurisdiction. Mr.C.R.Sridharan, in support of his contentions,
placed reliance upon several judgments of the Supreme Court to which we will make reference at an
appropriate stage.
7.4 Mr.C.R.Sridharan, in response to our pointed question, submitted that workers of the contractors
are not covered by Act of 1948, in view of the agreement/contract executed between contractors and
principal employers-Companies under which the contractors had taken all responsibility of their workers to
extend them all benefits thereunder.
7.5 Mr.C.R.Sridharan, after inviting our attention to the expression “building or other construction
work” submitted that such heading cannot be relied upon or do not control the main section, which is
absolutely unambiguous and clear. He submitted that the expression “building or other construction work” is
nothing but a heading/prefix to the section or is a marginal note, which does not control language of the
section. He submitted that heading of a section is always inserted by a draftsman and strictly speaking is
not a law. It is only a guide to the contents of the part and sections which follow. It may be construed as
preamble to the section. It cannot control the plain word of a section and that it cannot be referred to, for the
purpose of construing the provision, when the words used in the provision are clear and unambiguous. In
view thereof, he submitted that the word ‘building’ used in the expression “building or other construction
work” cannot be read in isolation to contend that the building and other construction work are different. In
support of this contention Mr.Sridharan placed reliance upon the following judgments: Quebec Railway,
[1] [2]
Light, Head and Power Company Limited v. Vandry( ), CIT v. Ahmedbhai Umarbhai & Co.( ),
[3])
Bhinka and others v. Charan Singh( , M/s.H.M.Kamaluddin Ansari and Co. v. Union of India and
[4] [5]
others( ), Durgadas Tulsiram Sood, Accused v. State( ) and Y.L. eServices Pvt. Ltd. v. Silverline
[6])
Business and Tech Park Pvt. Ltd. and Ors.( .
8. Mr.S.Rajan, learned counsel for the contractors in W.A.Nos.60, 62, 71 and 94 of 2015,
WASR No.165064 of 2014 and WA(SR) No.14663 of 2015, submitted that in W.A.Nos.62, 71 and 94 of 2015, services of the contractors we
9. On the other hand, Mr.P.Venugopal, the learned Advocate-General for the State of Andhra
Pradesh, appearing for the Commissioner, invited our attention to the definitions of ‘worker’ and
‘manufacturing process’ in the Act of 1948 and contended that under any circumstances, workers of the
contractors in this batch of writ appeals cannot be stated to be the workers within the meaning of the word
‘worker’ defined under Section 2(l). He submitted that workers of the contractors cannot be stated to be the
‘workers’ engaged in ‘manufacturing process’. He then invited our attention to the definition of “building or
other construction work” to contend that erection of a structure like blast furnace is squarely covered by the
definition of “building or other construction work”. He submitted that it is true, the provisions of Act No.27
do not apply to buildings to which the provisions of Act of 1948 apply, but, in the present case, the learned
Judge while deciding the writ petitions did not address the question “whether provisions of Act of 1948 would
apply to the building i.e. blast furnace within the premises of factory of the company?”.
9.1 He submitted that Act No.27 was introduced to regulate the employment and conditions of service
of building and other construction workers and to provide for safety, health and welfare measures of the
workers. It was introduced with the object of protecting 8.5 million workers in the country who are engaged
in building and other construction works. All building and other construction workers are one of the most
vulnerable segments of the unorganized labour in India. The building and other construction works are
characterized by their inherent risk to the life and limb of the workers. The construction work is also
characterized by its casual nature, temporary relationship between employer and employee, uncertain
working hours, lack of basic amenities and inadequacy of welfare facilities. In view thereof, Act No.27 was
enacted to extend the protection to this class of workers and if workers of the contractors, in this batch of
appeals, are excluded from the purview of Act Nos.27 and 28, the very object of the Acts will be frustrated.
9.2 He submitted that the intention of the Parliament will have to be gathered not only by reading the
expression “does not include” in section 2 (d) of Act No.27 in isolation but it will have to be read in the
backdrop of the scheme of Act and also facts of the present case. In the course of arguments, learned
Advocate-General invited our attention to the submission of Mr.C.R.Sridharan that the workers of the
contractors, as per the agreements executed between them and the companies, are not covered by
Act of 1948, and submitted that if the order of learned single Judge is upheld that will create an anomaly
whereby the workers will not get benefits either under Act Nos.27 and 28 or Act of 1948. He submitted, that
was not the intention of the Parliament in introducing the Act Nos.27 and 28. He submitted that merely
because there is a contract between the contractor and the company whereby the contractor claims to have
taken all responsibilities of their workers would not mean the workers stood excluded from the benefits
contemplated by Act Nos.27 and 28. In other words, he submitted that contracting out of the beneficial
provisions of Act Nos.27 and 28, in the manner in which it has been done in these appeals, is against the
public policy and, therefore, such contracts/agreements should not be looked into while interpreting the
provisions of welfare/beneficial legislation.
10. Relevant provisions of Act No.27 are the definitions of expressions/words “building or other
construction work”, “contractor”, “employer” and “establishment”. The arguments advanced by the learned
counsel for the parties were, however, centered around the definition of “building or other construction
work”, which, in our opinion, needs to be reproduced for better appreciation and for answering the questions
raised in this batch of writ appeals. The definition of “building or other construction work” in Section 2(d)
and 2 (i), to the extent it is relevant for our purpose, of Act No.27 read thus:-
“2(d) “building or other construction work” means the construction, alteration, repairs, maintenance or demolition, of or, in
relation to, buildings, streets, roads, railways, tramways, airfields, irrigation, drainage, embankment and navigation works,
flood control works (including storm water drainage works), generation, transmission and distribution of power, water works
(including channels for distribution of water), oil and gas installations, electric lines, wireless, radio, television, telephone,
telegraph and overseas communications, dams, canals, reservoirs, watercourses, tunnels, bridges, viaducts, aquaducts,
pipelines, towers, cooling towers, transmission towers and such other work as may be specified in this behalf by the
appropriate Government, by notification but does not include any building or other construction work to which the
provisions of the Factories Act, 1948 (63 of 1948), or the Mines Act, 1952 (35 of 1952), apply;
2(i)(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;”
(emphasis supplied)
11. If we hold that ‘blast furnace’ is covered by the definition of “building or other construction work”
and that the provisions of Act of 1948 do not apply to such structure, perhaps, we would not have to make
any reference to the provisions contained in Act No.28. Be that as it may, the relevant provisions to which
perhaps we may have to make reference in Act No.28 are Sub-sections (2) and (3) of Section 3 of ActNo.28, which deal with Levy and collection of cess. Next we are concerned with the provisions of Sections
2(k), (l), (m), 6(1)(a)(b)(c)(d) and Section 6(3) of the Act of 1948. Though we may have to make referenceto these all provisions, at this stage, we deem it appropriate to reproduce the provisions contained in
Section 2(k) and (l) of Act of 1948 only, which read thus:-
“Section 2(k) “manufacturing process” means any process for-
(i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing or
otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal, or[(ii) pumping oil, water, sewage or any other substance, or]
[(iii) generating, transforming or transmitting power; or
[(iv) composing types for printing, printing by letter press, lithography, photogravure or other similar process or book
binding;] [or]
(v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels; [or]
[(vi) preserving or storing any article in cold storage;]
Section 2(l) “Worker” means a person [employed, directly or by or through any agency (including a contractor) with or
without the knowledge of the principal employer, whether for remuneration or not], in any manufacturing process or in cleaning
any part of the machinery or premises used for a manufacturing process, or in any other kind of work incidental to, or
connected with, the manufacturing process, or the subject of the manufacturing process [but does not include any member of
the armed forces of the Union];”
12. It would be advantageous to make reference to the judgments relied upon by Sri C.R.Sridharan
for interpreting the relevant provisions. He invited our attention to the judgment of the Supreme Court in
Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer,
[7])
Labour Court, Chandigarh and others( . In this case, the Supreme Court while interpreting the word
‘means’ observed that if the definition has used the word ‘means’, it shall include certain things or acts and
the definition is a hard-and-fast definition and no other meaning can be assigned to the expression than is
put down in definition. The Supreme Court further observed that if the words of the statute are in
themselves precise and unambiguous, then no more can be necessary than to expound those words in their
natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the
[8])
law. Then the Supreme Court after making reference to its judgment in B.N.Mutto v. T.K.Nandi(
observed that “the Court has to determine the intention as expressed by the words used. If the words of a
statute are themselves precise and unambiguous, then no more can be necessary than to expound those
words in their ordinary and natural sense”. It was further observed that “the cardinal rule of construction of
statute is to read statutes literally, that is, by giving to the words their ordinary, natural and grammatical
meaning”.
[9])
12.1 In Shri Hariprasad Shivshanker Shukla and another v. Shri A.D.Divelkar and others( the
Supreme Court observed that “there is no doubt that when the Act itself provides a dictionary for the words
used, we must look into that dictionary first for an interpretation of the words used in the statute. We are not
concerned with any presumed intention of the legislature; our task is to get at the intention as expressed in
the statute”.
[10])
12.2 In C.E.S.C. Limited and Ors. v. Subhash Chandra Bose and Ors( the Supreme Court held
that Court cannot travel beyond the scheme of the statute and extend the scope of it on the pretext of
extending statutory benefits to those not covered by the scheme of the statute.
[11])
12.3 I n M.P. Mineral Industry Association v. Regional Labour Commr. (Central)( , the
Supreme Court while dealing with the provisions of the Minimum Wages Act, 1948, observed that this Act is
intended to achieve the object of doing social justice to workmen employed the scheduled employments by
prescribing minimum rates of wages for them, and so in construing the said provisions the court should
adopt what is sometimes described as a beneficent rule of construction.
12.4 In Regional Director, Employees’ State Insurance Corporation, Trichur v. Ramanuja Match
[12])
Industries( the Supreme Court observed that “there is no doubt that beneficial legislations should have
liberal construction with a view to implementing the legislative intent but where such beneficial legislation
has a scheme of its own there is no warrant for the Court to travel beyond the scheme and extend the scope
of the statute on the pretext of extending the statutory benefit to those who are not covered by the scheme”.
[13])
12.5 I n Dadi Jagannadham v. Jammulu Ramulu and others( the Supreme Court while
interpreting the provisions that fell for consideration observed in
paragraph 13 thus:-
“13. …….. The settled principles of interpretation are that the court must proceed on the assumption that the legislature
did not make a mistake and that it did what it intended to do. The court must, as far as possible, adopt a construction which
will carry out the obvious intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by the
legislature, the court would not go to its aid to correct or make up the deficiency. The court could not add words to a statute or
read words into it which are not there, especially when the literal reading produces an intelligible result. The court cannot aid
the legislature’s defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there.”
[14])
12.6 In Shyam Sunder and others v. Ram Kumar and another( , the supreme Court made the
following observations as to how to interpret the provisions of an enactment:-
“……. When the words used in a statute are capable of only one meaning. In such a situation, the courts have been
hesitant to apply the rule of benevolent construction. But if it is found that the words used in the statute give rise to more than
one meaning, in such circumstances, the courts are not precluded from applying such rule of construction. The third situation
is when there is no ambiguity in a provision of a statute so construed. If the provision of a statute is plain, unambiguous and
does not give rise to any doubt, in such circumstances the rule of benevolent construction has no application.”
[15])
12.7 Similarly in Grasim Industries Ltd. v. Collector of Customs, Bombay( , the Constitution
Bench of the Supreme Court in paragraph 10 observed as under:-
“10. No words or expressions used in any statute can be said to be redundant or superfluous. In matters of interpretation
one should not concentrate too much on one word and pay too little attention to other words. No provision in the statute and
no word in any section can be construed in isolation. Every provision and every word must be looked at generally and in the
context in which it is used. It is said that every statute is an edict of the legislature. The elementary principle of interpreting
any word while considering a statute is to gather the mens or sentential legis of the legislature. Where the words are clear and
there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for
the court to take upon itself the task of amending or alternating the statutory provisions. Wherever the language is clear the
intention of the legislature is to be gathered from the language used. While doing so, what has been said in the statute as also
what has not been said has to be noted. The construction which requires for its support addition or substitution of words or
which results in rejection of words has to be avoided. As stated by the Privy Council in Crawford v. Spooner2 “we cannot aid
the legislature’s defective phrasing of an Act, we cannot add or mend and, by construction make up deficiencies which are left
there”. In case of an ordinary word there should be no attempt to substitute or paraphrase of general application. Attention
should be confined to what is necessary for deciding the particular case. This principle is too well settled and reference to a
few decisions of this Court would suffice. (See : Gwalior Rayons Silk Mfg.(Wvg.) Co. Ltd. v. Custodian of Vested Forests 3,
Union of India v. Deoki Nandan Aggarwal4, Institute of Chartered Accountants of India v. Price Waterhouse5 and Harbhajan
Singh v. Press Council of India6.) [See also Nathi Devi v. Radha Devi Gupta [(2005) 2 SCC 271][16])
12.8 In Deepal Girishbhai Soni and others v. United India Insurance Co. Ltd., Baroda( whileinterpreting the provisions that fell for consideration in paragraph 53, the Supreme Court observed as
under:-
“53. Although the Act is a beneficial one and, thus, deserves liberal construction with a view to implementing the
legislative intent but it is trite that where such beneficial legislation has a scheme of its own and there is no vagueness or
doubt therein, the court would not travel beyond the same and extend the scope of the statute on the pretext of extending the
statutory benefit to those who were not covered thereby. (See Regional Director, ESI Corpn. V. Ramanuja Match Industries 4.)[17])
12.9 The Supreme Court in Ombalika Das v. Hulisa Shaw( explained the rule of literalinterpretation in the following terms:-
“Resort can be had to the legislative intent for the purpose of interpreting a provision of law, when the language employed
by the legislature is doubtful or susceptible of meanings more than one. However, when the language is plain and explicit and
does not admit of any doubtful interpretation, the Supreme Court cannot, by reference to an assumed legislative intent, expand
the meaning of an expression employed by the legislature and therein include such category of persons as the legislature has
not chosen to do.”
12.10 On the basis of the judgments referred to in the foregoing paragraphs, in short, it was submitted
by Mr.C.R.Sridharan that the language of Section 2 (d) of Act No.27 is clear, unambiguous and intelligible
and does not admit of two meanings, and, therefore, needs to be construed in its ordinary sense, in view of
the well settled position of Law that the language used speaks the mind and reveals the intention of its
framers. He submitted that if language of the Statute is clear, unambiguous and if two interpretations are
not reasonably possible, it would be wrong to discard the plain meaning of the words used in order to meet a
possible injustice. He then submitted, even while construing a social welfare legislation, the Court should
adopt a beneficent rule of construction; if a section is capable of two constructions. He, however, submitted
that the language of Section 2(d) being plain and unambi-guous, we must give effect to it whatever may be
the consequences. Apart from the judgments referred to above, in support, he also placed reliance upon the
[18])
following judgments: Col.D.D.Joshi and others v. Union of India and others( , Lalappa Lingappa and
[19]) [20])
others v. Laxmi Vishnu Textile Mills Ltd.,( , Kanai Lal Sur v. Paramnidhi Sadhukhan( , Utkal
[21])
Contractors and Joinery Pvt. Ltd., and others v. State of Orissa and others( , Dr.Ajay Pradhan v.
[22])
State of Madhya Pradesh and others( and Institute of Chartered Accountants of India v. Price
[23])
Waterhouse and another( .
13. We would like to make a detailed reference to the judgment of the Supreme Court in Employees’
[24])
State Insurance Corporation v. K.Ramachandran and others( . This judgment was strongly relied
upon by not only Mr.C.R.Shridharan, learned senior counsel, but even learned single Judge in support of the
view taken in the impugned judgment.
13.1 The incidental question that fell for consideration of the Supreme Court was “whether the
construction of factory buildings for expansion of the existing factories is incidental or preliminary to or
connected with the work of the factory or not?”. The principal question that the Supreme Court considered
in this case was “whether the workers employed for construction of additional buildings for expansion of the
factories in question are employees within the meaning of Section 2(9) of the Employees’ State Insurance
Act, 1948?” (for short “the ESI Act“).
13.2 In this case, the respondent-company, which was a factory within the meaning of Act of 1948,
commenced the construction of another building in the compound of existing factory for its expansion and
engaged workmen for construction on daily wage basis. The E.S.I. Corporation called upon the respondent-
company to make contribution in respect of the workmen employed for the construction of factory building
as required by the Act. This was challenged in the Madras High Court under Article 226 of the Constitution.
A learned single Judge held that the persons employed in construction of a new unit of the factory were not
employees within the meaning of the definition of the word ’employee’ under Section 2(9) of the said Act.
On an appeal, a Division Bench held that construction workers being casual employees do not come within
the purview of the Act. On behalf of the appellants, heavy reliance was placed on the following observations
made by the Supreme Court in Paragraph 12, which read thus:-
“12. ……. It has been already noticed that the definition of the term ’employee’ under Section 2 (9) of the Act is very
wide. It includes within it any person employed on any work incidental or preliminary to or connected with the work of the
factory or establishment. It is difficult to enumerate the different types of work which may be said to be incidental or
preliminary to or connected with the work of the factory or establishment. It seems that any work that is conducive to
the work of the factory or establishment or that is necessary for the augmentation of the work of the factory or
establishment will be incidental or preliminary to or connected with the work of the factory or establishment. In the
instant cases, the additional buildings have been constructed for the expansion of the factories in question. It is because of
these additional buildings that the existing factories will be expanded and, consequently, there will be increase in the
production, that is to say, increase in the work of the factories concerned. So the work of construction of these additional
buildings has a link with the work of the factories. It cannot be said that the construction work has no connection
with the work or the purpose of the factories. So it is difficult to hold that the work of construction of these additional
factory buildings is not work incidental or preliminary to or connected with the work of the factories.”
(emphasis supplied)
13.3 The Employees’ State Insurance Act, 1948, is a piece of social security legislation enacted to
provide for certain benefits to employees in case of sickness, maternity and employment injury. To hold
that the workers employed for the work of construction of buildings for expansion of the factory are not
employees within the meaning of Section 2(9) of the Act on the ground that such construction is not
incidental or preliminary to or connected with the work of the factory will be against the object of the Act. In
an enactment of this nature, the endeavour of the Court should be to interpret the provisions liberally in
favour of the persons for whose benefit the enactment has been made. Paragraph 14 of this judgment is
also relevant, which reads thus:-
“14. In this connection, we may refer to a decision of this Court in Royal Talkies v. E.S.I. Corpn. 5. The question that
came up for consideration by this Court was whether the workers employed to run the canteen and the cycle stand situate
within the compound of a ‘cinema theatre’ were employees within the meaning of Section 2 (9) of the Act. It was held that the
workers employed to run the canteen and the cycle stand were employees within the meaning of Section 2 (9) of the
Act. Krishna Iyer, J. speaking for the court, observes: (SCC p.211, para 14)
The expression “in connection with the work of an establishment” ropes in a wide variety of workmen who may not be
employed in the establishment but may be engaged only in connection with the work of the establishment. Some nexus must
exist between the establishment and the work of the employee but it may be a loose connection. ‘In connection with the
work of an establishment’ only postulates some connection between what the employee does and the work of the
establishment. He may not do anything directly for the establishment; he may not do anything statutorily obligatory
in the establishment; he may not even do anything which is primary or necessary for the survival or smooth running
of the establishment or integral to the adventure. It is enough if the employee doe some work which is ancillary,
incidental or has relevance to or link with the object of the establishment ….. Taking the present case, an establishment
like a cinema theatre is not bound to run a canteen or keep a cycle stand (in Andhra Pradesh) but no one will deny that a
canteen service, a toilet service, a car park or cycle stand, a booth for sale of catchy film literature on actors, song hits and
the like, surely have connection with the cinema theatre and even further the venture.”
(emphasis supplied)
13.4 Having regard to the questions that fell for consideration in the facts of the case, it is clear that
the Supreme Court in order to extend benefits under the
ESI Act, brought the employees/workers engaged on daily wages for construction of additional factory
building within the definition of employee, observing that the endeavor of the Court should be to interpret the
provisions liberally
in favour of the persons for whose benefit the enactment has been made. In the present case, reliance is
placed on the observations made in paragraphs 12 and 14 of the judgment to exactly contend other way
round. In other words, on the basis of the observations made in these paragraphs, it was contended that
the contractor is not liable to pay 1% cess for the benefit of the workers engaged for the construction work
incidental or preliminary to or connected with the work of factory or establishment. In stricto sensu, in our
opinion, this judgment would not help the contractors to contend that the building-blast furnace, within the
factory premises of Company, is covered by Act of 1948 and that the provisions of Act Nos.27 and 28 would
not bind them to pay/contribute 1% cess, on the basis of the contract executed between them and
companies. Even if construction/erection of blast furnace is taken as incidental or ancillary to the factory,
what is necessary to examine is whether workers/employees engaged for its erection/construction are
covered by Act of 1948? and if answer to this question is in the negative, that would only mean that the
contractors are obliged to contribute/pay 1% cess under Act No.28. We would deal with this aspect of the
matter little later.
14. That takes us to consider the provisions contained in Section 2(d) of Act No.27 and address the
questions raised, in the light of the submissions made by learned counsel for the parties and judgments
relied upon in support of the interpretation given by them in the course of arguments. At the outset, we
would like to consider the question ‘whether construction of blast furnace or cranes would amount to
construction of a building as defined under Section 2 (d) of Act No.27?’.
14.1 The definition of ‘building or other construction work’ states what does that exactly mean. It
means the construction, alteration, repairs, maintenance or demolition, of or, in relation to buildings and
several other structures/constructions such as streets, roads, tramways etc., but does not include any
building or other construction work to which the provisions of Act of 1948 apply. It is true that the provision
itself provides a dictionary for the type of other construction works, and, therefore, the question is whether
blast furnace can be treated as ‘building or other construction work’. Insofar as the word ‘building’ in this
expression is concerned, it was argued on behalf of the contractors that it means a structure having walls,
ceiling, flooring, windows etc. and in view thereof by no stretch of imagination blast furnace or cranes could
be treated as building or called a building. Insofar as the ‘other construction works’ as stipulated in the
definition are concerned, it was submitted that the definition does not include ‘blast furnace’ or ‘cranes’ nor
the appropriate Government, by notification, has included it in the definition. We would, therefore, like to
consider “whether blast furnace or cranes are covered by the definition of ‘building or other construction
works’ in particular by the word ‘building’ therein?
15. Insofar as cranes are concerned, in three Writ Appeals (W.A.Nos.62, 71 and 94 of 2015) two
separate agreements were executed between the contractors and companies-principal employer. Out of
which, three agreements each were for construction and three agreements were for supplying of all plant
machinery and equipment. Thus, both the agreements together were for supply, construction and
commissioning plant i.e. Cranes for Wire Rod Mill. Technically, learned counsel appearing for the
contractors in these appeals, may be right in submitting that the contracts for supply of plant machinery
cannot be taken into account for directing the appellants or the companies to pay/deduct 1% cess under the
provisions of Act No.28. We, therefore, with the assistance of learned counsel for the contractors tried to
understand the exact nature of these agreements and the work undertaken by them thereunder. Though two
separate agreements were executed, the work that was undertaken by the contractors cannot be separated.
It was like a composite contract for construction/erection and commissioning of the plant. If the argument,
such as advanced by learned counsel for the appellants in these appeals, is accepted that will defeat the
very object of Act Nos.27 and 28. In every construction work/activity, the contractors and/or the principal
employer would execute two agreements, one for supply of materials and the other for construction/erection
of buildings such as blast furnace and cranes. The expression ‘the cost of construction’ as employed in
Section 3(1) of Act No.28, in our opinion, would mean the entire cost incurred for construction of a building,
such as crane or blast furnace, since its construction and erection cannot be separated. It was a composite
contract for construction/erection of crane with material. Therefore, the submission of the learned counsel
for the appellants in these three appeals must be rejected.
16. The word ‘building’ is defined in Concise Oxford English Dictionary 11th Edition by Catherine
Soanes and Angus Stevenson to mean a structure with a roof and walls and the process or trade of building
houses and other structures. In The Chambers Dictionary (New Edition), the word ‘building’ is defined to
mean the art, occupation or process of erecting houses etc.; a substantial structure for giving shelter; for
example: a house, office-block; used as a collective noun for a gathering of roofs. Oxford Advanced
Learner’s Dictionary defined the word ‘building’ to mean a structure such as a house or school that has a
roof and walls. Similarly, the Webster’s Encyclopaedic Unabridged Dictionary of the English Language-New
Revised Edition descried the word ‘building’ to mean relatively permanent, essentially boxlike construction
having a roof and often windows and enclosing within its walls space, usually on more than one level, for
any of a wide variety of activities, as living, entertaining, manufacturing etc. These dictionaries give a plain
meaning of the word ‘building’.
16.1 In common parlance the word ‘building’, is understood to mean any construction/structure raised
for whatsoever purpose and of whatsoever material and every part thereof, whether or not used as human
habitation. Halsbury’s Laws of England, Fourth Edition 2002, Volume 4(2) described the word ‘building’
as follows:
“305. Meaning of ‘building’. For the purposes of Part I of the Building Act 19841 and any other enactment 2, whether or
not contained in that Act, that relates to building regulations 3, or that mentions ‘buildings’ or ‘a building’ in a context from which
it appears that those expressions are there intended to have the same meaning as in Part I of the Building Act 1984, means
any permanent or temporary building, and, unless the context otherwise requires, it includes any other structure or
erection4 of whatever kind or nature, whether permanent or temporary5. For these purposes, unless the context
otherwise requires: (1) a reference to a building includes a reference to part of a building6; and (2) a reference to the provision
of services, fittings and equipment in or in connection with buildings, or to services, fittings and equipment so provided,
includes a reference to the affixing of things to buildings or, as the case may be, to things so affixed7.”
(emphasis supplied)
[25])
16.2 The Supreme Court in Ghanshiam Das v. Debi Prasad( considered the word ‘building’
defined in the Websters New International Dictionary, which reads thus:-
“That which is built specify (a) as now generally used as fabric or edifice, framed or constructed, designed to stand
more or less permanently and covering a space of land for use as a dwelling, store house, factory, shelter forbeasta or
some other useful purpose. Building in this sense does not include a mere wall, fence monument, hoarding or similar
structure though designed for permanent use where it stands, nor a steamboat ship or other vessel or navigation. “From this
definition it does not appear that the existence of a roof is always necessary for a structure to be regarded as a
building. Residential buildings ordinarily have roofs but there can be a non-residential building for which a roof is
not necessary. A large stadium or an open-air swimming pool constructed at a considerable expenses would be a building as
it is permanent structure and designed for a useful purpose.”
(emphasis supplied)
[26])
16.3 In Hukamchand Mills Ltd. V. C.I.T.( and in Panyam Cements & Mineral Industries Ltd.,
[27])
v. Addl. C.I.T.( the word ‘building’ occurring in the I.T. Act, 1961, was considered by the High Courts
and it was observed that the word ‘building’ has to be understood from the commonsense point of view and
its use in the Act has to be appreciated in the context in which provision for depreciation on building had
been made treating the same as a capital asset of an assessee. There is nothing either in principle or in the
use of the word ‘building’ in the I.T. Act, to exclude roads, which assessee had laid in the proximity of the
factory and for the purpose of providing access to the factory and the other building within the compound.
[28])
I n C.I.T. v. Gwalior Rayon Silk Manufacturing Co. Ltd.( the Supreme Court considered the word
‘building’ and observed that everything that is necessary to perfect a manufacturing establishment and fit for
use, designed as a part of it, is a building.
[29])
16.4 The Supreme Court in State of Punjab v. British India Corporation Ltd.,( considered the
question ‘whether certain buildings belonging to the respondent, the British India Corporation Ltd., are liable
to taxation under the Punjab Urban Immovable Property Tax Act, 1940?’. The Supreme Court also
considered whether the High Court in that case was right in its view that the buildings of the respondent
come within the Clause, which has been prescribed for exemption by Rule 18 of the Punjab Urban
Immovable Property Tax Rules, 1941? While dealing with the question, the Supreme Court observed that it
is obvious that in order that a factory may function in accordance with law buildings or parts of buildings
have to be provided by the owner for the use of the workmen for the purposes mentioned in several sections
in the Act. Such use of buildings must therefore be held to be used for the purpose of a factory.
16.5 It is true that the word ‘building’ has not been defined separately in Act No.27 and must,
therefore, be construed in the context in which it has been used/employed in different Sections of this Act.
It is equally true that when the word is not defined, it needs to be construed in its ordinary grammatical
sense or its dictionary meaning, but where the word requires to be read in the context or object of the
Statute to understand that it is used in a special sense different from its ordinary grammatical sense or its
dictionary meaning, it should be read to mean that. There are instances where the Supreme Court has
treated even swimming pool or roads as ‘building’ as those being permanent structures and designed for
useful purpose.
16.6 The word ‘building’ used in the definition of ‘building or other construction work’ in Act No.27 will
have to be understood not only by its bare reading but in the light of the scheme of the Act and intent of the
Parliament in defining the said expression. The first part of the definition states that it means ‘construction,
alteration, repairs, maintenance or demolition, of or, in relation to buildings’. This part of the definition
covers any construction of or in relation to any ‘building’. Having regard to the scheme of the Act and the
intent of the Parliament to regulate the employment and conditions of service of building and other
construction works and to provide for their safety, health and welfare measures and for other matters
connected therewith or incidental thereto, the word ‘building’, in our firm opinion, would mean any permanent
or temporary structure/construction of whatever kind or nature covering a space of land for use not only as
a dwelling but even a factory including the structures like blast furnace and cranes.
16.7 Whether particular structure amounts to a building depends upon the circumstances of each
case and the scheme of Act. Similarly, what is building? is generally a question of degree and
circumstances, though its ordinary meaning is block of brick and stone work, may or may not be covered by
a roof. It may be true that usually the structure is covered with a roof, such as a house, a Church, a shop,
etc. but that does not mean that the structure which does not have roof is not a building. Thus, as stated in
the Law Lexicon by Justice C.K.Thakker what is a building must always be a question of degree and
circumstances and depends upon facts and circumstances of each case.
17. Mr.C.R.Sridharan also submitted that a heading prefixing to the Section or a marginal note of any
Section does not control the language of the Section. He submitted that merely the heading of Section 2(d)
of Act No.27 uses the word ‘building’ does not mean any building, including blast furnace, which is otherwise
not included in the definition originally or by issuing notification contemplated under this provision. In
support of this contention, he placed reliance upon several judgments referred to supra. However, in our
opinion, none of those judgments would help Mr.C.R.Sridharan in support of his arguments and so also to
contend on the basis thereof that blast furnace cannot be called or treated as a “building”.
17.1 A mere look at clause (d) of Section 2 of Act No.27 would show that “building or other
construction work” is neither a heading of Section nor can that be treated as a marginal note. It is an
expression which is defined by Section 2(d). Therefore, the judgments relied upon are of no avail to the
contractors. In our opinion, the blast furnace and the cranes, in the present case, would have to be treated
as buildings as defined by section 2(d) of Act No.27. In other words, erection/construction of the blast
furnace and the cranes means construction of ‘building’.
18. Next, having regard to the principles of interpretation as reflected in the judgments of the
Supreme Court, we would like to consider the question ‘whether structures, such as blast furnace/cranes
within the premises of factory are exempted from the provisions of Act No.27, that being the works
incidental to and/or connected with the factory?’ Answer to this question, in our considered opinion, is in the
affirmative. We now proceed to record reasons for taking such view.
19. Before we look into the provisions of all three Acts, it would be advantageous to make a brief
reference to the Statement of Object and the Preamble of all three Acts, to know and understand the intent
of Parliament. Act of 1948, as the preamble recites, is an Act to consolidate and amend the law regulating
labour in factories. It was enacted primarily with the object of protecting workers employed in factories
against industrial and occupational hazards. For that purpose it seeks to impose upon the owners or
occupiers certain obligations to protect workers unwary as well as negligent and to secure for them
employment in conditions conducive to their health and safety. This Act also requires that the workers
should work in healthy and sanitary conditions and for that purpose it provides that precautions should be
taken for the safety of workers and prevention of accidents. Incidental provisions in Act
of 1948 are made for securing information necessary to ensure that the objects are carried out and the State
Governments are empowered to appoint Inspectors, to call for reports and to inspect the prescribed
registers with a view to maintain effective supervision. The duty of the employer under this Act is to
secure the health and safety of workers and extends to providing adequate plant, machinery and appliances,
supervision over workers, healthy and safe premises, proper system of working and extends to giving
reasonable restrictions. Detailed provisions are, therefore, made in diverse chapters of the Act imposing
obligations upon the owners of the factories to maintain inspecting staff and for maintenance of health,
cleanliness, prevention of overcrowding and provision for amenities such as lighting, drinking water, etc.
Provisions are also made for safety of workers and their welfare, such as restrictions on working hours and
on the employment of young persons and females, and grant of annual leave with wages. Employment in a
manufacturing process was at one time regarded as a matter of contract between the employer and the
employee and the State was not concerned to impose any duties upon the employer. It is however with the
introduction of Act, 1948, recognized that the State has a vital concern in preventing exploitation of labour
and in insisting upon the proper safeguards for the health and safety of the workers. The Factories Act
imposes numerous restrictions upon the employers to secure to the workers adequate safeguards for their
health and physical well-being. [See Bhikusa Yamasa Kshatriya (P) Ltd. and Another v. Union of India (AIR
1963 SC 1591)]
20. Similarly, we find the background in which Act No.27 was enacted as set out in the Statement of
Objects & Reasons. It would be relevant to extract the following portion of the Statement of Objects &
Reasons to better appreciate the Legislative intent:
“(1) It is estimated that about 8.5 million workers in the country are engaged in building and other construction works.
Building and other construction workers are one of the most numerous and vulnerable segments of the unorganised labour in
India. The building and other construction works are characterised by their inherent risk to the life and limb of the workers. The
work is also characterised by its casual nature, temporary relationship between employer and employee, uncertain working
hours, lack of basic amenities and inadequacy of welfare facilities. In the absence of adequate statutory provisions, the
requisite information regarding the number and nature of accidents is also not forthcoming. In the absence of such information,
it is difficult to fix responsibility or to take any corrective action.
(2) Although the provisions of certain Central Acts are applicable to the building and other construction workers yet a need
has been felt for a comprehensive Central Legislation for regulating their safety, health, welfare and other conditions of
service.”
20.1 The Supreme Court in Dewan Chand Builders and Contractors v. Union of India and
[30])
Others( considered the scheme of Act No.27 and the Rules framed thereunder and in paragraphs 10,
11 and 17 observed thus:
“10. It is thus clear from the scheme of the BOCW Act that its sole aim is the welfare of building and construction workers, directly
relatable to their constitutionally recognised right to live with basic human dignity, enshrined in Article 21 of the Constitution of India.
It envisages a network of authorities at the Central and State levels to ensure that the benefit of the legislation is made available to every
building and construction worker, by constituting Welfare Boards and clothing them with sufficient powers to ensure enforcement of the
primary purpose of the BOCW Act. The means of generating revenues for making effective the welfare provisions of the BOCW Act is
through the Cess Act, which is questioned in these appeals as unconstitutional.
11. The Statement of Objects and Reasons to the BOCW Act explained that it had been considered
“necessary to levy a cess on the cost of construction incurred by the employers on the building and other construction works
for ensuring sufficient funds for the Welfare Boards to undertake the social security schemes and welfare measures”.
Simultaneously with the enactment of the BOCW Act, Parliament enacted the Cess Act. The Statement of Objects and Reasons to the Cess
Act noted that the intention was to
“provide for the levy and collection of a cess on the cost of construction incurred by the employers for augmenting the resources of
the Building and Other Construction Workers’ Welfare Boards constituted by the State Governments under the Building and Other
Construction Workers’ (Regulation of Employment and Conditions of Service) Ordinance, 1995”.
17. It is manifest from the overarching schemes of the BOCW Act, the Cess Act and the Rules made thereunder that their sole object is to
regulate the employment and conditions of service of building and other construction workers, traditionally exploited sections in the
society and to provide for their safety, health and other welfare measures. The BOCW Act and the Cess Act break new ground in that,
the liability to pay cess falls not only on the owner of a building or establishment, but under Section 2(1)(i)(iii) of the BOCW Act
“in relation to a building or other construction work carried on by or through a contractor, or by the employment of building workers supplied
by a contractor, the contractor”;
The extension of the liability on to the contractor is with a view to ensure that, if for any reason it is not possible to collect cess from
the owner of the building at a stage subsequent to the completion of the construction, it can be recovered from the contractor. The
Cess Act and the Cess Rules ensure that the cess is collected at source from the bills of the contractors to whom payments are
made by the owner. In short, the burden of cess is passed on from the owner to the contractor.
(emphasis supplied)
The BOCW Act, referred to in the judgment, is the Act No.27 and the “Cess Act” is the Act No.28.
21. Act No.28, as preamble recites, provides for levy and collection of a cess on the cost of
construction incurred by “employers” with a view to augmenting the resources of the building and other
construction workers. It was introduced with a view to provide for levy and collection of a cess on the cost
of construction incurred by the employers for augmenting the resources of the building and other
construction workers welfare Boards constituted under Act No.27. Section 3 of Act No.28 provides for levy
and collection of a cess for the purpose of Act No.27 from every “employer”. The words and expressions
used in Act No.28, which are not defined therein and defined in Act No.27 shall have the same meaning
respectively assigned to them in that Act. The word ’employer’ is defined in Act No.27 in relation to an
establishment, which means the owner thereof and for our purpose includes, in relation to a building or other
construction work carried on by or through a contractor or by the employment of building workers supplied
by a contractor. Act No.28 casts burden to pay a cess not exceeding 2% but not less than 1% of the cost
of the construction incurred by an employer as contemplated by Section 3 of this Act. Contractors, in the
present case, thus are employers as defined by clause (iii) of sub-section (i)(i) of Section 2 of Act No.27
and, therefore, if they are held to be liable to pay the cess, they would have to pay the same.
22. Act No.27 defines the expression “building or other construction work” so as to extend benefits to
the workers engaged in building and other construction work. The word ‘worker’ as defined in clause(l) of
Section 2 of Act of 1948 undoubtedly include the persons employed directly or by or through any agency
including a contractor with or without the knowledge of the principal employer. Therefore, from a plain
reading of the definition it is clear that if “workers” are engaged in ‘building or other construction work’ in the
factory premises, they stand covered by the provisions of Act of 1948, whether engaged by principal
employer or through any agency including a contractor in any kind of work incidental to, or connected with,
the manufacturing process, and, as stated in Section 2 (d) of Act No.27, would stand excluded from the
purview of Act No.27. But the question is, if building workers engaged in construction of a building within
the factory premises are excluded by the principal employer and the contractor from being covered by Act
of 1948, by entering into a contract to that effect, whether such workers would stand excluded from the
benefits of Act No.27.
23. In view of the scheme of Act No.27 and Act No.28, in the present case, the Commissioner had
issued directions to the principal employer i.e., Companies to deduct 1% of amount payable to the
contractors and remit the same to the Government towards cess payable under Act No.28.
24. In the present case, admittedly the workers, employed/engaged by the contractors for
construction of blast furnace/cranes, are not covered by Act of 1948. Mr.C.R.Sridharan, learned Senior
Counsel, in response to our specific query, submitted that the workers/employees engaged for
erection/construction of blast furnace/cranes, within the factory premises of companies, are not covered by
the provisions of Act of 1948, in view of the contracts/agreements executed between the companies and the
contractors. He submitted that the contractors had taken all responsibilities such as extending benefits to
its workers/employees including the benefits contemplated under Act of 1948. In view thereof, in our firm
opinion, it cannot be stated that the provisions of Act of 1948 would apply to blast furnace/cranes
constructed by the contractors within the factory premises. The expression “but does not include any
building or other construction work to which the provisions of the Factories Act, 1948 (63 of 1948), or the
Mines Act, 1952 (35 of 1952), apply” used in the definition of “building or other construction work” would
have to be read to mean the workers engaged/employed for construction of the buildings to which Act of
1948 apply. In other words, the expression “building or other construction work” would not include the
workers, engaged/employed for construction of any building or other construction work, to which the
provisions of Act of 1948 apply. Thus, in our opinion, from the facts of a case, if it is clear that the workers
engaged/employed for construction of any building or other construction work within the premises of the
factory are covered or entitled for the benefits under Act of 1948, such employees alone would stand
excluded from the purview of Act No.27, and consequently Act No.28, not otherwise.
25. If, in the facts of the present case, the submission of learned Senior Counsel appearing for the
contractors is accepted, the workers engaged/employed by the contractors would stand excluded from and
deprived of the benefits of both the Acts namely Act of 1948 and Act No.27. To make it further clear, the
case of contractors is accepted, their workers would not be entitled for the benefits of Act of 1948 in view of
the contract entered into between the companies and the contractors and at the same time they would not
be entitled for any benefits under the provisions of Act No.27 since they are engaged/employed for
construction of building to which the provisions of Act of 1948 apply. That was not the intent of the
Legislature. As a matter of fact, Act No.27 was brought into force to cover the employees/workers who are
not covered by the provisions of other enactments, including Act of 1948.
26. The Supreme Court in Regional Director, Employees State Insurance Corporation, Mad v.
[31])
South India Flour Mills (P) Ltd.,( considered the question ‘whether the construction of factory
buildings for expansion of the existing factories is incidental or preliminary to or connected with the work of
the factory or not?. This question was considered in the light of the provisions contained in Section 2(9) of
the Employees’ State Insurance Act, 1948. Section 2(9) of that Act defines ’employee’ and the expression
‘work of the factory therein’. The following observations made by the Supreme Court are relevant:-
“…….. It has been already noticed that the definition of the term ’employee’ under section 2 (9) of the Act is very wide. It
includes within it any person employed on any work incidental or preliminary to or connected with the work of the factory or
establishment. It is difficult to enumerate the different types of work which may be said to be incidental or preliminary to or
connected with the work of the factory or establishment. It seems that any work that is conducive to the work of the factory or
establishment or that is necessary for the augmentation of the work of the factory or establishment will be incidental or
preliminary to or connected with the work of the factory or establishment. In the instant cases, the additional buildings have
been constructed for the expansion of the factories in question. It is because of these additional buildings that the existing
factories will be expanded and, consequently, there will be increase in the production, that is to say, increase in the work of
the factories concerned. So the work of construction of these additional buildings has a link with the work of the factories. I
cannot be said that the construction work has no connection with the work or the purpose of the factories. So it is difficult to
hold that the work of construction of these additional factory buildings is not work incidental or preliminary to or connected with
the work of the factories. The Act is a piece of social security legislation enacted to provide for certain benefits to
employees in case of sickness, maternity and employment injury. To hold that the workers employed for the work of
construction of buildings for the expansion of the factory are not employees within the meaning of section 2 (9) of the
Act on the ground that such construction is not incidental or preliminary to or connected with the work of the factory
will be against the object of the Act. In an enactment of this nature, the endeavour of the Court should be to interpret
the provisions liberally in favour of the persons for whose benefit the enactment has been made.”
(emphasis supplied)
26.1 The observations made by the Supreme Court that the Act is a piece of social security legislation
enacted to provide for certain benefits to employees in case of sickness, maternity and employment injury,
and to hold that the workers employed for the work of construction of building for expansion of the factory
are also employees, are relevant since they would apply even to Act Nos.27 and 28. Thus, while
considering the definition of “building and other construction work” and further expression “but does not
include any building or other construction work to which the provisions of Act of 1948 apply” will have to be
interpreted to mean that the workers employed for the work of construction of any building for expansion of
the factory to which Act of 1948 applies. In this connection, it is relevant to have a glance at Section 3 of
Act No.28. Section 3 clearly provides that a cess to be levied and collected by the employer for the Building
and other construction workers, contemplated under the provisions of Act No.27. Levy of cess under Act
No.27 is to ensure sufficient funds for the Welfare Boards to undertake social security schemes and welfare
measures. If we do not read the definition of ‘building and other construction work’ to mean this, that will
frustrate not only the object of Act Nos.27 and 28 but also Act of 1948. Thus, to read the expression
‘building to which Act of 1948 apply’ will have to be understood to mean the workers employed or engaged
for construction of such building within the premises of a factory.
26.2 To test, it may be considered that the workers working in the premises of a factory including the
workers engaged by contractor, such as in the present case, are excluded from the purview of Act Nos.27
and 28, as indicated in the definition (sec.2(9)) should get all the benefits under Act of 1948 and if those
benefits are denied to them by the contractor or the principal employer in view of a contract between them,
that would frustrate the very object of Act Nos.27 and 28. In other words, the workers/employees cannot be
deprived/excluded of/from the benefits of both the Acts viz., Act of 1948 as well as Act Nos.27 and 28. The
intent of the Parliament in carving out the category of ‘buildings’ to which Factories Act apply is only to see
that workers/employees engaged in construction of buildings within the factory premises are covered by
either of the Acts and not to deprive/eliminate them from being covered by both the Acts.
26.3 On a conjoint reading of Statement of Objects and Reasons of Act No.27 and Act of 1948 and the
provisions contained therein reveal that these Acts operate in different fields and there is no overlapping. In
other words, overlapping has been avoided by inserting the expression “but does not include any building or
other construction work to which the provisions of Act of 1948 apply”. If a building and/or employees
engaged for construction of such building are not covered by Act of 1948, such workers cannot be stated to
have been excluded from the application of Act No.27. In the present case, admittedly, as observed earlier,
employees/workers of the contractors are not covered by the Act of 1948 in view of the contract executed
between the contractors and the companies. In other words, the employees/workers of the contractors are
not entitled for any benefits whatsoever from the principal employer under the provisions of Act of 1948 or
from the contractor who is otherwise not obliged to extend any benefits under Act of 1948. Contractor, in
terms of Act of 1948, is neither a principal employer nor an occupier of the factory and is, therefore, not
liable to extend any benefits under this Act.
27. We now would like to consider the submission of Mr.C.R.Sridharan that cess is really a tax. In
support, he placed reliance upon the judgment of the Supreme Court in Vyapar Mandal and Ors. v. The
[32])
Municipal Board and Ors( , wherein after considering the meaning of the word ‘cess’ given in different
dictionaries, it was held that cess is a ‘tax’ and not a ‘fee’. In this backdrop, it was further contended that
principles of interpretation that apply to Taxation Law will have to be applied while interpreting the definition
of ‘Building and other construction work”, the Act Nos.27 and 28, being fiscal Acts. He submitted that if two
interpretations of the word “Building” or “other construction work” are possible, effect is to be given to the
one that favours the assessee i.e. contractors in our case. In support of this contention, Mr.C.R.Sridharan
placed reliance upon the judgments of the Supreme Court in Shinde Brothers etc., v. Deputy
[33])
Commissioner, Raichur & Others etc.( , Commissioner of Income Tax, Bombay City 1 v. Jargaon
[34])
Electric Supply Co., Ltd., Bombay( , Keshavji Ravji And Co. and Others v. Commissioner of
[35])
Income Tax( a n d Sun Export Corporation, Bombay v. Collector of Customs, Bombay and
[36])
another( .
27.1 Clear answer to the question raised by Mr.C.R.Sridharan, whether “cess” in Act No.28 is a tax,
finds place in the judgment of the Supreme Court in Dewan Chand Builders and Contractors (supra). In
this case, the Supreme Court considered the constitutional validity of Act No.27 and rules framed
thereunder and so also Act No.28 and rules framed thereunder and held that they are constitutionally valid
and within the competence of Parliament as the levy under Act No.28 is a “fee” referable to Schedule VII
List I Entry 97 of the Constitution of India. While dealing with the challenge, the Supreme Court in
paragraph 31 held thus:-
“There is no doubt in our mind that the Statement of Objects and Reasons of the Cess Act, clearly spells out the essential
purpose the enactment seeks to achieve i.e., to augment the Welfare Fund under the BOCW Act. The levy of cess on the
cost of construction incurred by the employers on the building and other construction works is for ensuring sufficient funds for
the Welfare Boards to undertake social security schemes and welfare measures for building and other construction works. The
fund, so collected, is directed to specific ends spelt out in the BOCW Act. Therefore, applying the principle laid down
in the aforementioned decisions of this Court, it is clear that the said levy is a “fee” and not “tax”. The said fund is
set apart and appropriated specifically for the performance of specified purpose; it is not merged in the public
revenues for the benefit of the general public and as such the nexus between the cess and the purpose for which it is
levied gets established, satisfying the element of quid pro quo in the scheme. With these features of the Cess Act in
view, the subject levy has to be construed as “fee” and not a “tax”. Thus, we uphold and affirm the finding of the High
Court on the issue.”
(emphasis supplied)
28. Even if we look at the question from another angle, in view of the admitted facts, the question will
have to be answered in favour of the Commissioner. Contracting out of beneficial provisions of the Acts like
Act No.27, Act No.28 and even Act of 1948 for that matter is against the public policy and is unsustainable
in law and has been deprecated by the Supreme Court and High Courts from time to time. Recently, five
Judge Bench of this Court in C.M.A.Nos.3092 of 1998 and 2242 of 1999 decided on 03.07.2015 considered
the question ‘whether the parties are entitled to contract out of beneficial provisions of ESI Act, 1948?’.
While dealing with the question, after considering several judgments of the Supreme Court, in paragraph 24
observed thus:
“…… A democratic society is founded on the rule of law and any practice which seeks to subvert or circumvent the law strikes
at its very root. When the Court discountenances such practice, it only safeguards the foundation of the society [see Rattan
Chand Hira Chand (supra)]. Having regard to the scheme of the ESI Act, we do not have a slightest doubt that it was
enacted for the benefit of industrial workers and the object of this Act is one of public policy. Therefore, the question
is ‘whether parties can, by their consent, contract out of the beneficial provisions of such Act?’. The answer to this
question is obviously in the negative since contracting out of the beneficial provisions of this Act would infringe
upon the public rights or public policies. Any agreement, which tends to be injurious to the public or against the
public good, is liable to be invalidated on the ground of public policy. In other words, no one can lawfully do that which
has a tendency to be injurious to the public or against the public good. The very meaning of the public policy is in the interest
of others than the parties and that the interest cannot be at the mercy of any party alone.”
(emphasis supplied)
29. In the instant case, the contractors state that there is an agreement/contract between them and
the companies under which they claim that the Companies, who are principal employer/owner of factory are
not obliged to extend any benefit to the workers/employees of the contractors, since under the
agreements/contracts the contractors had taken all responsibilities of their workers to pay/extend all the
benefits including the benefits under the provisions of Act of 1948. It is not in dispute
that workers/employees are not party to the agreement/contract. We are not unmindful of the fact that all
contractors may not be M/s.Larsen & Tourbro, who may, in practice, take care of their workers or extend all
benefits that they are entitled to and that their workers/employees may not have any grievance. But while
dealing with the question of law, it would not be possible and proper to see who are the parties before the
Court. In the present case, we are not going into the facts. Even learned single Judge did not deal with the
facts of each case. To support the view, take a case of an ordinary contractor, who may enter into an
agreement with the principal employer of the similar nature, as entered in the instant case, whereby
principal employer would not have any responsibility to extend any benefits under Act of 1948 and at the
same time, if the contractor also does not extend any benefits to his workers/employees as contemplated
under the said Act, the workers/employees working in the premises of factory for construction or raising any
building structures would stand deprived of the benefits of either of the Acts. In a given case, a contractor,
like the one in the present case, behind the back of a company, may outsource labour for doing only civil
work and if the sub-contractor is not extending any benefits to his workers, such workers also would stand
excluded from the benefits of both the Acts. Contracting out of the beneficial provisions would thereby stand
encouraged depriving workmen/employees for whose benefit Act of 1948 and Act Nos.27 and 28 were
enacted and brought into force. In the circumstances, on this count also, the question framed by us
deserves to be answered against the contractors.
30. Thus, we hold that blast furnace and cranes are covered by the definition of ‘building or other
construction work’ and that the workers/employees engaged/employed by the contractors for construction of
the same are covered by the provisions of Act No.27. Thus, the questions framed by us stand answered
against the appellant-contractors.
31. In the result, the appeals are allowed and the judgment and order passed by the learned single
Judge in the batch of writ petitions is set aside. In view thereof, the writ petitions also stand disposed of in
terms of this judgment. No order as to costs.
32. Miscellaneous petitions pending in these cases, if any, also stand disposed of.
_________________
Dilip B.Bhosale, ACJ
__________
S.V.Bhatt, J
6th August, 2015.
TSNR
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[2]
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[3]
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[4]
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[5]
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[6]
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[7]
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[8]
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[9]
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[10]
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[11]
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[15]
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[16]
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[18]
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[19]
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[20]
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[21]
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[22]
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[23]
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[24]
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[25]
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[26]
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[27]
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[29]
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[30]
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[31]
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[32]
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[33]
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[34]
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[35]
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[36]
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