# UTTAR PRADESH POWER TRANSMISSION CORPORATION LTD. AND ANR v. CG POWER AND INDUSTRIAL SOLUTIONS LIMITED AND ANR

- **Citation:** [2021] 5 S.C.R. 37
- **Court:** Supreme Court of India
- **Decided:** 2021-05-12
- **Bench:** Uday Umesh Lalit, Indira Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/uttar-pradesh-power-transmission-corporation-ltd-and-anr-v-cg-power-and-35327
- **Pages:** 50

## Headnote

Building and Other Construction Workers' Welfare Cess Act,
1996: s. 3(1), (2) - Building and Other Construction Workers Welfare
Cess Rules, 1998 - rr. 3 and 4 (1)-(4) - Building and Other
Construction Workers (Regulation of Employment and Condition
of Service) Act, 1996 - s. 2 (1)(d), (g) and (i) - Levy of cess on cost
of construction incurred by builders - Respondent no. 1-contractor
entered into an agreement with UPPTCL for construction of 765/
400 KV Substations, split into four contracts - Dispute between
parties - Issuance of letters by UPPTCL directing respondent no.1
to remit Labour Cess computed at 1% of the contract - UPPTCL
demanded cess on the supply Contract, on the basis of report of the
CAG - Writ petition by respondent no. 1 - High Court allowed the
petition, setting aside the letters - Interference with - Held: Not
called for - Cess under the Cess Act read with BOCW Act is leviable
in respect of building and other construction works - Scheme of
BOCW Act excludes supply contract from its ambit - Action of
UPPTCL in forcibly extracting building cess from respondent no.1
in respect of the first contract, solely on the basis of the CAG report,
is in excess of power conferred on UPPTCL, when there was
admittedly no assessment or levy of cess under the Cess Act -
UPPTCL has no power and authority and or jurisdiction to realize
labour cess under the Cess Act in respect of the first contract by
withholding dues in respect of other contracts and/or invoking a
performance guarantee - Furthermore, the Cess Act and/or statutory
rules framed thereunder prescribe the mode and manner of recovery
of outstanding cess under the Cess Act - UPPTCL could not have
taken recourse to the methods adopted by it - Thus, the
communications rightly set aside.
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SUPREME COURT REPORTS
[2021] 5 S.C.R.
Building and Other Construction Workers' Welfare Cess Act,
1996: Elucidation of.
Constitution of India: Art. 226 - Contractual matters - Scope
of interference by High Court - Held: Availability of an alternative
remedy does not prohibit the High Court from entertaining a writ
petition in an appropriate case - Relief u/Art.226 may be granted
in a case arising out of contract - However, the writ jurisdiction u/
Art.226 being discretionary, the High Courts usually refrain from
entertaining a writ petition which involves adjudication of disputed
questions of fact which may require analysis of evidence of witnesses
- Monetary relief can also be granted in a writ petition.
Dismissing the Special Leave Petition, the Court
HELD: 1. In the instant case, the action of UPPTCL in
forcibly extracting building cess from the Respondent No.1 in
respect of the first contract, solely on the basis of the CAG report,
is in excess of power conferred on UPPTCL by law or in terms of
the contract. In other words, UPPTCL has no power and authority
and or jurisdiction to realize labour cess under the Building and
Other Construction Workers' Welfare Cess Act, 1996 in respect
of the first contract by withholding dues in respect of other
contracts and/or invoking a performance guarantee. There is no
legal infirmity in the finding of the High Court that UPPTCL acted
in excess of power by its acts impugned, when there was
admittedly no assessment or levy of cess under the Cess Act.
Even otherwise, the Cess Act and/or statutory rules framed
thereunder prescribe the mode and manner of recovery of
outstanding cess under the Cess Act. It is well settled that when
statute requires a thing to be done in a particular manner, it is to
be done in that manner alone. UPPTCL could not have taken
recourse to the methods adopted by it. The impugned
communications have rightly been set aside. The judgment and
order of the High Court impugned does not call for inference
under Article 136 of the Constitution of India. [Paras 70-72]
[86-D-G]
2.1 By the impugned order dated 24th February 2020, the
High Court set aside the letters dated 2nd September, 2016 and
29th December, 20

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 [2021] 5 S.C.R. 37
37
UTTAR PRADESH POWER TRANSMISSION
CORPORATION LTD. AND ANR.
v.
CG POWER AND INDUSTRIAL SOLUTIONS LIMITED
AND ANR.
(Special Leave Petition (C) No. 8630 of 2020)
MAY 12, 2021
[UDAY UMESH LALIT AND INDIRA BANERJEE, JJ.]
Building and Other Construction Workers' Welfare Cess Act,
1996: s. 3(1), (2) - Building and Other Construction Workers Welfare
Cess Rules, 1998 - rr. 3 and 4 (1)-(4) - Building and Other
Construction Workers (Regulation of Employment and Condition
of Service) Act, 1996 - s. 2 (1)(d), (g) and (i) - Levy of cess on cost
of construction incurred by builders - Respondent no. 1-contractor
entered into an agreement with UPPTCL for construction of 765/
400 KV Substations, split into four contracts - Dispute between
parties - Issuance of letters by UPPTCL directing respondent no.1
to remit Labour Cess computed at 1% of the contract - UPPTCL
demanded cess on the supply Contract, on the basis of report of the
CAG - Writ petition by respondent no. 1 - High Court allowed the
petition, setting aside the letters - Interference with - Held: Not
called for - Cess under the Cess Act read with BOCW Act is leviable
in respect of building and other construction works - Scheme of
BOCW Act excludes supply contract from its ambit - Action of
UPPTCL in forcibly extracting building cess from respondent no.1
in respect of the first contract, solely on the basis of the CAG report,
is in excess of power conferred on UPPTCL, when there was
admittedly no assessment or levy of cess under the Cess Act -
UPPTCL has no power and authority and or jurisdiction to realize
labour cess under the Cess Act in respect of the first contract by
withholding dues in respect of other contracts and/or invoking a
performance guarantee - Furthermore, the Cess Act and/or statutory
rules framed thereunder prescribe the mode and manner of recovery
of outstanding cess under the Cess Act - UPPTCL could not have
taken recourse to the methods adopted by it - Thus, the
communications rightly set aside.
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38
SUPREME COURT REPORTS
[2021] 5 S.C.R.
Building and Other Construction Workers' Welfare Cess Act,
1996: Elucidation of.
Constitution of India: Art. 226 - Contractual matters - Scope
of interference by High Court - Held: Availability of an alternative
remedy does not prohibit the High Court from entertaining a writ
petition in an appropriate case - Relief u/Art.226 may be granted
in a case arising out of contract - However, the writ jurisdiction u/
Art.226 being discretionary, the High Courts usually refrain from
entertaining a writ petition which involves adjudication of disputed
questions of fact which may require analysis of evidence of witnesses
- Monetary relief can also be granted in a writ petition.
Dismissing the Special Leave Petition, the Court
HELD: 1. In the instant case, the action of UPPTCL in
forcibly extracting building cess from the Respondent No.1 in
respect of the first contract, solely on the basis of the CAG report,
is in excess of power conferred on UPPTCL by law or in terms of
the contract. In other words, UPPTCL has no power and authority
and or jurisdiction to realize labour cess under the Building and
Other Construction Workers' Welfare Cess Act, 1996 in respect
of the first contract by withholding dues in respect of other
contracts and/or invoking a performance guarantee. There is no
legal infirmity in the finding of the High Court that UPPTCL acted
in excess of power by its acts impugned, when there was
admittedly no assessment or levy of cess under the Cess Act.
Even otherwise, the Cess Act and/or statutory rules framed
thereunder prescribe the mode and manner of recovery of
outstanding cess under the Cess Act. It is well settled that when
statute requires a thing to be done in a particular manner, it is to
be done in that manner alone. UPPTCL could not have taken
recourse to the methods adopted by it. The impugned
communications have rightly been set aside. The judgment and
order of the High Court impugned does not call for inference
under Article 136 of the Constitution of India. [Paras 70-72]
[86-D-G]
2.1 By the impugned order dated 24th February 2020, the
High Court set aside the letters dated 2nd September, 2016 and
29th December, 2018 sent by the Petitioner to the Respondent
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demanding
outstanding
labour
cess
amounting
to
Rs.2,60,68,814/- computed at the rate of 1% of the contract value.
The High Court accepted the submission of the Respondent No.1
that in the absence of levy and assessment under the Building
and Other Construction Workers' Welfare Cess Act, 1996 and
Building and Other Construction Workers Welfare Cess Rules,
1998, the letters of the UPPTCL were not sustainable in law.
Cess could only be recovered in the manner stipulated in the
Cess Act and the Rules framed thereunder. The High Court
observed that if cess were leviable under the Cess Act, it would
be necessary for the concerned authorities to undertake the
exercise of assessment and levy of cess under the Cess Act of
1996 as amended, before the same could be realized from a
contractor. The High Court found that in the absence of any order
for levy and assessment under the Cess Act of 1996 recovery
could not be made pursuant to an audit objection of CAG. [Paras
43-44][73-C-F]
2.2 There does not appear to be any provision in the first
contract, second contract, third contract, or fourth contract or in
the Special Conditions of Contract or the General Conditions for
Supply of Plant and the Execution of work which enables UPPTCL
to withhold any amount from the bills raised by the Respondent
No.1 on UPPTCL towards any taxes, cess or any other statutory
dues of the contractor. Nor has the UPPTCL adverted to any
specific provision of the contract which enables UPPTCL to do
so. Clause 8.1 of the Special Conditions of Contract relied upon
by UPPTCL reads that the prices of imported items, if any, shall
be inclusive of all taxes, duties, licence fees, import/customs
duties etc. legally payable. Any such taxes, duties levies shall be
on Contractor's account and no separate claim on the Account
shall be entertained by the purchaser. This clause does not
authorize UPPTCL to deduct taxes etc. from bills. [Para 45]
[73-F-H; 74-A-B]
2.3 It is nobody's case that Respondent No.1 has committed
any breach or default in performance of the First Contract, that
is, the Supply Contract, rendering it liable for any damages, costs
or expenses. The Respondent No.1 duly discharged its
obligations under the First Contract (Supply Contract) to the
UTTAR PRADESH POWER TRANSMISSION CORP. LTD. v. CG POWER
AND INDUSTRIAL SOLUTIONS LTD.
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SUPREME COURT REPORTS
[2021] 5 S.C.R.
satisfaction of UPPTCL, and accordingly all payments due to it
were cleared. The Performance Guarantees furnished by the
Respondent No.1 were also partially discharged except to the
extent of covering cess on the First (Supply) contract. This is
apparent from the communication of the UPPTCL dated 1st June
2018 to the Bank (Respondent No.2). [Para 47][76-E-G]
2.4 Clause 8 of the Special Conditions of the Contract
merely says that duties, taxes, fees etc. as are legally applicable,
shall be paid at actuals by the contractor. This clause does not
enable UPPTCL to withhold payments or to realize cess by
revocation of a Performance Guarantee. [Para 48][76-G-H]
2.5 The clear statutory scheme of the BOCW Act excludes
a supply contract from within its ambit. On behalf of the
Respondent No.1, it is pointed out that several public authorities
and corporations, such as the Delhi Metro Rail Corporation and
Karnataka Power Transmission Corporation Limited, have issued
instructions that no cess under the BOCW Act is leviable on a
contract for supply of goods. [Para 51][79-E-F]
2.6 Under Section 2(g) of the BOCW Act the term
'Contractor' means a person who undertakes to produce a given
result for any establishment, other than a mere supply of goods
or articles of manufacture, by the employment of building workers
or who supplies building workers for any work of the
establishment and includes a sub-contractor. The Respondent
No.1 is apparently not a contractor, within the meaning of Section
2(1)(g) of the BOCW Act in respect of the first, second and fourth
contracts. Nor is the Respondent No.1 employer within the
meaning of Section 2(1)(i) of the BOCW Act. Section 2(1)(i) of
the BOCW Act defines 'employer' to include the contractor in
relation to a building and other construction work carried on by
or through a contractor or by employment of building workers
supplied by a contractor. The Respondent No.1 neither falls within
the definition of 'contractor in Section 2(1)(g) nor 2(1)(i)(iii) of
the BOCW Act. Apparently, the Respondent No.1 is not liable
to cess in respect of the First, Second and Fourth contracts.
[Para 52][79-F-H; 80-A-B]
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2.7 Cess under the Cess Act read with BOCW Act is
leviable in respect of building and other construction works. The
condition precedent for imposition of cess under the Cess Act is
the construction, repair, demolition or maintenance of and/or in
relation to a building or any other work of construction,
transmission towers, in relation inter alia to generation,
transmission and distribution of power, electric lines, pipelines
etc. Mere installation and/or erection of pipelines, equipments
for generation or transmission or distribution of power, electric
wires, transmission towers etc. which do not involve construction
work are not amenable to Cess under the Cess Act. Accordingly
no intimation or information was given or any return filed with
the Assessing Officer under the Cess Act or the Inspector
under the BOCW Act in respect of the First and Second
Contracts, either by UPPTCL or by the Respondent No.1.
[Para 53][80-B-E]
2.8 A contractor who enters into a pure Supply Contract is
statutorily exempted from levy under the BOCW Act. The
Contract in question is a Supply Contract as would be evident
from Clause 8.7 of the Special Conditions of Contract.
[Para 54][80-E-F]
2.9 Respondent No.1 rightly submitted that the four
contracts had been treated as a singular contract solely for the
purposes of responsibility for timely execution. For all other
intents and purposes, including levy of any tax or fees, the contract
for supply was understood by the parties as a separate and distinct
contract. As per the terms of payment under Clause 9.1 of the
Special Conditions of Contract, the Schedule of Payments were
separate for the supply and delivery of equipment and materials,
totaling to Rs.275,09,33,042.00 as against the total value of the
contract which is Rs.302,06,08,217.00. It was submitted that the
terms and clauses of the contract made it amply clear that the
first contract was for supply and delivery of equipment and
materials. It was a pure supply contract, separate and distinct
from civil works contract. The UPPTCL itself understood the
Cess Act as not applicable to the Supply Contract and accordingly
did not deduct cess from the invoices/bills of the Respondent.
[Paras 55-57][80-G-H; 81-A-B]
UTTAR PRADESH POWER TRANSMISSION CORP. LTD. v. CG POWER
AND INDUSTRIAL SOLUTIONS LTD.
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SUPREME COURT REPORTS
[2021] 5 S.C.R.
2.10 There can be no comparison between realization of
disputed cess by withholding the bills raised by the Respondent
No.1 or by invocation of a bank guarantee furnished by the
Respondent No.1 after release of payment to the Respondent
No.1, and deduction of Income Tax at source which is a statutory
obligation of any person making a payment which constitutes
'income' under Section 192 of the Income Tax Act, 1961.
[Para 59][81-D-E]
2.11 UPPTCL demanded and partly realized cess on the
supply Contract, solely on the basis of report of the CAG. In the
absence of any adjudication, it was impermissible for UPPTCL to
issue the impugned communication to realize cess solely on the
basis of the report of the CAG. [Para 60][81-F]
2.12 In the instant case, there is apparently no dispute,
difference or controversy between UPPTCL and the Respondent
No.1 as to the true construction, meaning or intent of any part of
the conditions of contract or to the manner of execution or the
quality or description or payment for the same. Nor is there any
dispute as to the true meaning, intent, interpretation, construction
or effect of the clauses of contract, specifications or drawings or
any of them. UPPTCL has changed its stand only after the CAG
report. Cess in respect of the First Contract has been deducted
only in view of the audit objection raised by the Office of
Comptroller and Auditor General (CAG). [Para 63][83-G-H;
84-A]
2.13 Even though there is an arbitration clause, the
Petitioner has not opposed the writ petition on the ground of
existence of an arbitration clause. There is no whisper of any
arbitration agreement in the Counter Affidavit filed by UPPTCL
to the writ petition in the High Court. In any case, the existence
of an arbitration clause does not debar the court from entertaining
a writ petition. [Para 66][85-E]
3.1 It is well settled that availability of an alternative remedy
does not prohibit the High Court from entertaining a writ petition
in an appropriate case. The High Court may entertain a writ
petition, notwithstanding the availability of an alternative remedy,
particularly (1) where the writ petition seeks enforcement of a
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fundamental right; (ii) where there is failure of principles of natural
justice or (iii) where the impugned orders or proceedings are
wholly without jurisdiction or (iv) the vires of an Act is under
challenge. [Para 67][85-F-G]
3.2 It is now well settled that relief under Article 226 of the
Constitution of India may be granted in a case arising out of
contract. However, the writ jurisdiction under Article 226, being
discretionary, the High Courts usually refrain from entertaining
a writ petition which involves adjudication of disputed questions
of fact which may require analysis of evidence of witnesses.
Monetary relief can also be granted in a writ petition. [Para 69]
[86-C]
Lanco Anpara Power Limited v. State of Uttar Pradesh
and Ors. (2016) 10 SCC 329:[2016] 5 SCR 731 -
distinguished
Dewan Chand Builders and Contractors vs. Union of
India (2012) 1 SCC 101 : [2011] 13 SCR 214; Centre
of Public Litigation v. Union of India (2012) 3 SCC 1 :
[2012] 3 SCR 147; Arun Kumar Agrawal v. Union of
India and Others (2013) 7 SCC 1 : [2013] 3 SCR 508;
Pathan Mohammed Suleman Rehmatkhan v. State of
Gujarat and Others (2014) 4 SCC 156 : [2013]
12 SCR 446; Whirlpool Corporation v. Registrar of
Trade Marks, Mumbai and Ors. AIR 1999 SC 22 :
[1998] 2 Suppl. SCR 359; Pimpri Chinchwad Municipal
Corporation and Ors. v. Gayatri Construction Company
and Ors (2008) 8 SCC 172 : [2008] 11 SCR 980;
Harbanslal Sahnia and Ors. v. Indian Oil Corporation
Ltd. (2003) 2 SCC 107 - referred to.
Case Law Reference
[2011] 13 SCR 214
referred to
Para 49
[2012] 3 SCR 147
referred to
Para 61
[2013] 3 SCR 508
referred to
Para 61
[2013] 12 SCR 446
referred to
Para 62
UTTAR PRADESH POWER TRANSMISSION CORP. LTD. v. CG POWER
AND INDUSTRIAL SOLUTIONS LTD.
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[2021] 5 S.C.R.
[1998] 2 Suppl. SCR 359
referred to
Para 67
[2008] 11 SCR 980
referred to
Para 67
(2003) 2 SCC 107
referred to
Para 68
[2016] 5 SCR 731
distinguished
Para 50
CIVIL APPELLATE JURISDICTION : Special Leave Petition
(C) No. 8630 of 2020.
From the Judgment and Order dated 24.02.2020 of the High Court
of Judicature at Allahabad (Lucknow Bench, Lucknow) in MISC.
BENCH (M/B) No. - 125 of 2019.
Shishir Prakash, Ms. Karuna Krishan Thareja, Rahul Bhatia, Advs.
for the Appellants.
Ramesh Singh, Sr. Adv., Ms. Monisha Handa, Mohit D. Ram,
Advs. for the Respondents.
The Judgment of the Court was delivered by
INDIRA BANERJEE, J.
1. This Special Leave Petition, under Article 136 of the Constitution
of India, filed by the Petitioner, hereinafter referred to as the UPPTCL,
is against a final Judgment and Order dated 24th February 2020 passed
by the High Court of Judicature at Allahabad (Lucknow Bench), allowing
the writ petition filed by Respondent No.1 and setting aside the
lettersdated 2nd September 2016 and 29th December 2018 issued by the
Executive Engineer, Unnao UPPTCL directing the Respondent No.1 to
remit Labour Cess amounting to Rs.2,60,68,814/-, computed at 1% of
the contract value, under Sections 3 sub-section (1) and (2) of the Building
and Other Construction Workers' Welfare Cess Act, 1996, hereinafter
referred to as the "Cess Act", read with Rules 3 and Rule 4 (1), (2) (3)
and (4) of the Building and Other Construction Workers Welfare Cess
Rules, 1998, hereinafter referred to as the "Cess Rules" and also Section
2 (1)(d), (g) and (i) of the Building and Other Construction Workers
(Regulation of Employment and Condition of Service) Act, 1996,
hereinafter referred to as the "BOCW Act".
2. The BOCW Act has been enacted to regulate the employment
and conditions of service of building and other construction workers and
to provide for their safety, health and welfare measures and for other
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matters connected therewith or incidental thereto. As per the Statement
of Objects and Reasons for the BOCW Act, "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."
3. The Statement of Objects and Reasons further state "in view
of the circumstances explained above, it has been considered
necessary to constitute Welfare Boards in every State so as to provide
and monitor social security schemes and welfare measures for the
benefit of building and other construction workers. For the said
purpose, it has been considered appropriate to bring in a
comprehensive legislation by suitably amplifying the provisions of
the Building and Other Construction Workers (Regulation of
Employment and Conditions of Service) Bill, 1988 which was
introduced in the Rajya Sabha on the 5th December, 1988. It has
also 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."
4. As stated in its Statement of Objects and Reasons, the BOCW
Act, iner alia, provides for the following matters:-
"i) provision to cover every establishment which employs or
had employed on any day of the preceding twelve months,
fifty or more workers in any building or other construction
work;
........
(v) registration of establishments employing construction
workers,
(vi) registration of building workers as beneficiaries under
the said Ordinance and provision for their identity cards, etc.;
UTTAR PRADESH POWER TRANSMISSION CORP. LTD. v. CG POWER
AND INDUSTRIAL SOLUTIONS LTD. [INDIRA BANERJEE, J.]
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SUPREME COURT REPORTS
[2021] 5 S.C.R.
(vii) constitution of Welfare Boards by the State Governments
and registration of beneficiaries under the Fund;
(viii) provide for financing and augmenting resources of the
Welfare Board constituted by the State Governments;
(ix) fixing hours for normal working day, weekly paid rest
day, wages for over time, provision of basic welfare: amenities
like drinking water, latrines and urinals, creches, first aid,
canteens, etc., for the building workers;
(x) provision for temporary living accommodation to all
building workers within or near the work site;
(xi) making adequate provisions for safety and health
measures for construction workers including appointment of
safety committees and safety officers and compulsory
notification of accidents."
5. The Statement of Objects and Reasons reveals that the necessity
to enact BOCW Act arose from the necessity to levy cess on the cost of
construction incurred by the employers on a building and on other
construction works, in order to generate funds for the Welfare Boards
to enable such Welfare Boards to undertake social security schemes
and welfare measures for building and construction workers.
6. Section 2(1)(d) of the BOCW Act defines "building or other
construction work" to mean 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
communication 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.
7. Under Section 2(1)(e) of the BOCW Act 'building worker'
means a person who is employed to do any skilled, semiskilled or unskilled
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manual, supervisory, technical or clerical work for hire or reward, whether
the terms of employment be express or implied, in connection with any
building or other construction work but does not include any such
person-
(i)
who is employed mainly in a managerial or administrative
capacity; or.
(ii)
who, being employed in a supervisory capacity, draws
wages exceeding one thousand six hundred rupees per
mensem or exercises, either by the nature of the duties
attached to the office or by reason of the powers vested in
him, functions mainly of a managerial nature.
8. Clause (b) of Section 2(1) of the BOCW Act defines
'beneficiary' to mean building workers, registered under Section 12 of
the said Act. 'Contractor', 'employer' and 'establishment' respectively
have been defined in Sections 2(1)(g), 2(1)(i) and 2(1)(j) of the BOCW
Act set out hereinbelow:-
"(g) "contractor" means a person who undertakes to produce
a given result for any establishment, other than a mere supply
of goods or articles of manufacture, by the employment of
building workers or who supplies building workers for any
work of the establishment; and includes a sub-contractor;
......
(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;
UTTAR PRADESH POWER TRANSMISSION CORP. LTD. v. CG POWER
AND INDUSTRIAL SOLUTIONS LTD. [INDIRA BANERJEE, J.]
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(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 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"
9. Some of the relevant provisions of the BOCW Act are set out
hereunder:-
"7. Registration of establishments.- (1) Every employer shall,-
(a) in relation to an establishment to which this Act applies
on its commencement, within a period of sixty days from such
commencement; and
(b) in relation to any other establishment to which this Act
may be applicable at any time after such commencement,
within a period of sixty days from the date on which this Act
becomes applicable to such establishment, make an
application to the registering officer for the registration of
such establishment:
Provided that the registering officer may entertain any such
application after the expiry of the periods aforesaid, if he is
satisfied that the applicant was prevented by sufficient cause
from making the application within such period.
8. Revocation of registration in certain cases.- If the registering
officer is satisfied, either on a reference made to him in this
behalf or otherwise, that the registration of any establishment
has been obtained by misrepresentation or suppression of any
material fact or that the provisions of this Act are not being
complied with in relation to any work carried on by such
establishment, or that for any other reason the registration
has become useless or ineffective and, therefore, requires to
be revoked, he may, after giving an opportunity to the
employer of the establishment to be heard, revoke the
registration.
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9. Appeal.-(1) Any person aggrieved by an order made under
Section 8 may, within thirty days from the date on which the
order is communicated to him, prefer an appeal to the appellate
officer who shall be a person nominated in this behalf by the
appropriate Government:
Provided that the appellate officer may entertain the appeal
after the expiry of the said period of thirty days if he is satisfied
that the appellant was prevented by sufficient cause from filing
the appeal in time.
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11. Beneficiaries of the Fund.-Subject to the provisions of
this Act, every building worker registered as a beneficiary
under this Act shall be entitled to the benefits provided by the
Board from its Fund under this Act.
12. Registration of building workers as beneficiaries.- (1)
Every building worker who has completed eighteen years of
age, but has not completed sixty years of age, and who has
been engaged in any building or other construction work for
not less than ninety days during the preceding twelve months
shall be eligible for registration as a beneficiary under this
Act.
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16. Contribution of building workers.- (1) A building worker
who has been registered as a beneficiary under this Act shall,
until he attains the age of sixty years, contribute to the Fund
at such rate per mensem, as may be specified by the State
Government, by notification in the Official Gazette and
different rates of contribution may be specified for different
classes of building workers:
Provided that the Board may, if satisfied that a beneficiary is
unable to pay his contribution due to any financial hardship,
waive the payment of contribution for a period not exceeding
three months at a time.
(2) A beneficiary may authorise his employer to deduct his
contribution from his monthly wages and to remit the same,
within fifteen days front such deduction, to the Board.
UTTAR PRADESH POWER TRANSMISSION CORP. LTD. v. CG POWER
AND INDUSTRIAL SOLUTIONS LTD. [INDIRA BANERJEE, J.]
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17. Effect of non-payment of contribution.- When a beneficiary
has not paid his contribution under sub-section (1) of section
16 for a continuous period of not less than one year, he shall
cease to be a beneficiary:
Provided that if the Secretary of the Board is satisfied that
the non-payment of contribution was for a reasonable ground
and that the building worker is willing to deposit the arrears,
he may allow the building worker to deposit the contribution
in arrears and on such deposit being made, the registration
of building worker shall stand restored.
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22. Functions of the Boards.-(1) The Board may-
(a) provide immediate assistance to a beneficiary in case of
accident;
(b) make payment of pension to the beneficiaries who have
completed the age of sixty years;
(c) sanction loans and advances to a beneficiary for
construction of a house not exceeding such amount and on
such terms and conditions as may be prescribed;
(d) pay such amount in connection with premia for Group
Insurance Scheme of the beneficiaries as it may deem fit;
(e) give such financial assistance for the education of children
of the beneficiaries as may be prescribed;
(f) meet such medical expenses for treatment of major ailments
of a beneficiary or, such dependant, as may be prescribed;
(g) make payment of maternity benefit to the female
beneficiaries; and
(h) make provision and improvement of such other welfare
measures and facilities as may be prescribed.
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24. Building and Other Construction Workers' Welfare Fund
and its application.- (1) There shall be constituted by a Board
a fund to be called the Building and other Construction
Workers' Welfare Fund and there shall be credited thereto-
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(a) any grants and loans made to the Board by the Central
Government under section 23;3
(b) all contributions made by the beneficiaries;
(c) all sums received by the Board from such other sources
as may be decided by the Central Government,
(2) The Fund shall be applied for meeting-
(a) expenses of the Board in the discharge of its functions
under section 22; and
(b) salaries, allowances and other remuneration of the
members, officers and other employees for the Board;
(c) expenses on objects and for purposes authorised by
this Act.
(3) No Board shall, in any financial year, incur expenses
towards salaries, allowances and other remuneration to its
members, officers and other employees and for meeting the
other administrative expenses exceeding five percent of its
total expenses during that financial year.
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32. Drinking water.-(1) The employer shall make in every
place where building or other construction work is in progress,
effective arrangements to provide and maintain at suitable
points conveniently situated for all persons employed there
in, a sufficient supply of wholesome drinking water.
(2) All Such points shall be legible marked Drinking Water in
a language understood by a majority of the person employed
in such place and no such point shall be situated within six
metres of any washing place, Urinal or latrine.
33. Latrines and urinals.- In every place where building or
other construction work is carried on, the employer shall
provide sufficient latrine and urinal accommodation of such
types as may be prescribed and they shall be so conveniently
situated as may be accessible to the building workers at all
times while they are in such place:
UTTAR PRADESH POWER TRANSMISSION CORP. LTD. v. CG POWER
AND INDUSTRIAL SOLUTIONS LTD. [INDIRA BANERJEE, J.]
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Provided that it shall not be necessary to provide separate
urinals in my place where less than fifty persons are employed
or where the latrines are connected to a water-borne sewage
system.
34. Accommodation.- (1) The employer shall provide, free of
charges and within the work site or as near to it as may be
possible temporary living accommodation to all building
workers employed by him for such period as the building or
other construction work is in progress.
(2) The temporary accommodation provided under sub-section
(1) shall have separate cooking place bathing, washing and
lavatory facilities
35. Creches.-(1) In every place where in more them fifty female
building workers are ordinarily employed, there shall be
provided and maintained, a suitable room or rooms for the
use of children under the, age of six years of such female
workers.
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36. First-aid.-Every employer shall provide in all the places
where building or other construction work is carried on such
first-aid facilities as may be prescribed.
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38. Safety Committee and safety officers.-(1) In every
establishment wherein five hundred or more building workers
are ordinarily employed, the employer shall constitute a Safety
Committee consisting of such number of representatives of
the employer and the building workers as may be prescribed
by the State Government.
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40. Power of appropriate Government to make rules for the
safety and health of building workers.-(1) The appropriate
Government may, by notification, make rules regarding the
measures to be taken for the safety and health of building
workers in the course of their employment and the 14
equipment and appliances necessary to be provided to them
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for ensuring their safety, health and protection, during such
employment.
(2) In particular, and without prejudice to the generality of
the foregoing power, such rules may provide for all or any of
the following matters, namely:-
41. Framing of model rules for safety measures.-The Central
Government may, after considering the recommendation of
the expert committee constituted under section 5, frame model
rules in respect of all or any of the matters specified in section
40 and where any such model rules have been framed in
respect of any such matter, the appropriate Government shall
while making any rules in respect of that matter under section
40, so far as is practicable, conform to such model rules.
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46. Notice of commencement of building or other construction
work.-(1) An employer shall, at least thirty days before the
commencement of any building or other construction work,
send or cause to be sent to the Inspector having jurisdiction
in the area where the proposed building or other construction
work is to be executed, a written notice containing-
(a) the name and situation of the place where the building or
other construction work is proposed to be carried on;
(b) the name and address of the person who is undertaking
the building or other construction work;
(c) the address to which communications relating to the
building or other construction work may be sent;
(d) the nature of the work involved and the facilities, including
any plant and machinery, provided;
(e) the arrangements for the storage of explosives, if any, to
be used in the building or other construction work;
(f) the number of workers likely to be employed during the
various stages of building or other construction work;
UTTAR PRADESH POWER TRANSMISSION CORP. LTD. v. CG POWER
AND INDUSTRIAL SOLUTIONS LTD. [INDIRA BANERJEE, J.]
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(g) the name and designation of the person who will be in
overall charge of the building or other construction work at
the site;
(h) the approximate duration of the work;
(i) such other matters as may be prescribed.
(2) Where any change occurs in any of the particulars
furnished under sub-section (1), the employer shall intimate
the change to the Inspector within two days of such change.
(3) Nothing contained in sub-section (1) shall apply in case
of such class of building or other construction work as the
appropriate Government may by notification specify to be
emergent works."
10. A perusal of the various provisions of the BOCW Act makes
it amply clear that the said Act has been enacted for the welfare of only
building and other construction workers and to make adequate provisions
for their safety, health and financial security.
11. The Cess Act has been enacted to provide for the levy and
collection of cess on the cost of construction incurred by employers,
with a view to augment the resources of the Building and Other
Construction Workers' Welfare Boards, constituted under the BOCW
Act.
12. Section 3(1) of the Cess Act, which is the charging section,
provides for the levy and collection of a Cess for the purposes of the
BOCW Act, at such rate not exceeding two per cent, but not less than
one per cent, of the cost of construction incurred by an employer, as the
Central Government may, by notification in the Official Gazette, from
time to time specify.
13. Sub-Section (2) of Section 3 of the Cess Act provides that the
Cess levied under Sub-Section (1) shall be collected from every employer
in such manner and at such time, including deduction at source, in relation
to a building or other construction work of a Government or of a Public
Sector Undertaking, or advance collection through a local authority, where
an approval of such building or other construction work by such local
authority is required, as may be prescribed by rules made under the
BOCW Act.
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14. Sub-Section (3) of Section 3 provides that the proceeds of the
Cess collected under Sub-Section (2) shall be paid, by the local authority
or the State Government collecting the Cess, to the Board after deducting
the cost of collection of such cess not exceeding one per cent of the
amount collected.
15. Sub-Section (4) of Section 3 of the Cess Act, contains a non
obstante clause which makes it clear that, notwithstanding anything
contained in Sub-Section (1) or (2), the Cess leviable under the Cess
Act, including payment of such Cess in advance may, subject to final
assessment to be made, be collected at a uniform rate or rates, as may
be prescribed by the Cess Rules, on the basis of the quantum of the
building or other construction work involved.
16. Section 4(1) requires every employer to furnish such return to
such officer or authority, in such manner and at such time as may be
prescribed. Sub-Section (2) of Section 4 provides that, if any person
carrying on the building or other construction work, liable to pay the
Cess under Section 3, fails to furnish any return under Sub-Section (1),
the officer or the authority shall give a notice requiring such person to
furnish such return before such date as may be specified in the notice.
17. Sections 5, 6, 7, 8, 9 and 10 of the Cess Act provide:-
"5. Assessment of cess.-(1) The officer or authority to whom
or to which the return has been furnished under Section 4
shall, after making or causing to be made such inquiry as he
or it thinks fit and after satisfying himself or itself that the
particulars stated in the return are correct, by order, assess
the amount of cess payable by the employer.
(2) If the return has not been furnished to the officer or
authority under sub-section (2) of Section 4, he or it shall,
after making or causing to be made such inquiry as he or it
thinks fit, by order, assess the amount of cess payable by the
employer.
(3) An order of assessment made under sub-section (1) or
sub-section (2) shall specify the date within which the cess
shall be paid by the employer.
6. Power to exempt.-Notwithstanding anything contained in
this Act, the Central Government may, by notification in the
UTTAR PRADESH POWER TRANSMISSION CORP. LTD. v. CG POWER
AND INDUSTRIAL SOLUTIONS LTD. [INDIRA BANERJEE, J.]
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Official Gazette, exempt any employer or class of employers
in a State from the payment of cess payable under this Act
where such cess is already levied and payable under any
corresponding law in force in that State.
7.