1. These writ petitions raise common question of law, as such, they have been heard together and disposed of by common order.
2. The challenge made in the writ petitions is to the orders/decisions of respondents 1 and 2 to charge 1% of the value of the contracts entered by petitioners with third respondent to undertake design, manufacture, supply, erect, testing and commissioning of blast furnace-3 including civil and structural works as cess under “The Building and Other Construction Workers’ Welfare Cess Act, 1996” (Act 28 of 1996).
3. For convenience sake facts and material papers in W.P.No.9111 of 2010 are considered. Rashtriya Ispat Nigam Limited (third respondent) is a factory registered under the Indian Factories Act, 1948 (for short the Act, 1948). In order to expand its operations and increase the production capacity third respondent obtained necessary permissions to establish another blast furnace. This expansion required design, manufacture, supply, erect, testing and commissioning of blast furnace-3 inclusive of civil and structural works and all facilities. For this purpose third respondent entered into agreements with the petitioners. Petitioners have executed the works in accordance with the terms of the agreement. The Commissioner of Labour (first respondent) held that petitioners are governed by Act Nos. 27 and 28 of 1996, determined amount payable as cess under Act 28 of 1996 and demanded the amount quantified and issued incidental directions. One such demand notice is filed as Annexure P-9 to W.P.No.9111 of 2010. Consequently, similar demand is made by Joint Commissioner for Labour (second respondent) in March, 2010. One such demand notice is filed as Annexure P-14 to W.P.No.9111 of 2010. The first and second respondents directed the third respondent to deduct 1% of the amount payable to the petitioners and remit the same to the Government towards cess payable under the Act 28 of 1996. In terms of the said mandate of the first and second respondents, third respondent deducted 1% contractual amount from the amounts payable to the contractors. Said orders of the first and second respondents are under challenge in this batch of writ petitions.
4. Heard Sri C.R. Sridharan, Sri S.Dwarkanath, Sri Gaddam Srinivas, Sri A.Sanjeev Kumar, Sri S.Ram Babu, Sri P.Venkata Rao, Sri V.B.Subrahmanyam, Sri K.B.Ramananna Dora, Sri G.Rama Gopal, Sri V.Ramu, Sri S.Niranjan Reddy and Sri Arcot Mahesh, learned counsels appearing for respective petitioners, learned Government Pleader for Labour for first and second respondents and Sri V.Ravinder Rao, learned counsel appearing for third respondent.
5. Learned counsel Sri C.R. Sridharan contended that third respondent is a factory established under the Factories Act, 1948 and the factories established in accordance with the provisions of the Factories Act are excluded from application of the provisions of “The Buildings and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996” (Act 27 of 1996) and Act 28 of 1996.
6. Leaned counsel relying on relevant provisions of the Factories Act, 1948, Act 27 of 1996 and Act 28 of 1996 submitted that the contractors who entered into agreements to execute civil and structural works, design, manufacture, supply, erect, test and commission with the third respondent, it being factory, governed by the Factories Act, are not required to pay cess as mandated by Act 28 of 1996 read with Act 27 of 1996 and therefore the demand made by the first and second respondents is ex facie illegal, without power and jurisdiction.
7. Learned counsel further submits that the Act, 1948 takes care of the welfare measures required to be followed by factories established under the Act and the contractors who execute the works for the factory and submits that in terms of the mandate of the Act, 1948 and in terms of the agreements entered into between the petitioners and third respondent, the contractors have complied with the obligations imposed thereunder and imposition of cess of 1% is in addition to the obligations already fulfilled and amounts to fixing liability twice on the petitioners.
8. Learned counsel emphasized on the terms used in definition clause in Section 2(d) of Act 27 of 1996 more particularly word “means” and “does not include” to contend that factories governed by the
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ct 1948 are excluded from the provisions of the Act 28 of 1996 read with Act 27 of 1996. Learned counsel for petitioners Sri C.R.Sridharan cited plethora of judgments in support of his contention that the word ‘means’ used in Section 2(d) of Act 27 of 1996 is very clear and categorical and provisions of Act 27 and 28 of 1996 are not applicable to the factories governed by the Act, 1948. Learned counsel further emphasized that when the language of the statute is unambiguous, it must be given effect irrespective of its consequences.9. He therefore submits that Acts 27 and 28 of 1996 have no application to the petitioners and impugned action is ex facie without jurisdiction and power. The respondents 1 and 2 cannot seek to draw power from said Acts to levy cess on petitioners under the said enactments. Since the judgments cited are many on each of the propositions, I propose to consider few of the decisions which support the contentions of the learned counsels for petitioners.10. In Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court (1990) 3 SCC 682), Hon’ble Supreme Court was considering the definition of work “retrenchment” as defined in Section 2(oo) of Industrial Disputes Act, 1947. Section 2(oo) reads as under:Section 2(oo) : “retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include…….Explaining the importance of word “means” Hon’ble Supreme Court held as under:72. The definition has used the word ‘means’. When a statute says that a word or phrase shall “mean”— not merely that it shall “include” — certain things or acts, “the definition is a hard-and-fast definition, and no other meaning can be assigned to the expression than is put down in definition” (per Esher, M.R., Gough v. Gough( 1891 (2) QB 665:65 LT). A definition is an explicit statement of the full connotation of a term.”11. The Hon’ble Supreme Court in Dadi Jagannadham v. Jammulu Ramulu (2001) 7 SCC 71), held as under:“13. We have considered the submissions made by the parties. 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.”12. The Hon’ble Supreme Court in Grasim Industries Ltd. v. Collector of Customs (2002) 4 SCC 297), held 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 sententia 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 (sic altering) 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. Spooner “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, Union of India v. Deoki Nandan Aggarwal, Institute of Chartered Accountants of India v. Price Waterhouse and Harbhajan Singh v. Press Council of India.)”13. The Hon’ble Supreme Court in Nathi Devi v. Radha Devi Gupta (2005) 2 SCC 271), held as under:“12. On the other hand counsel for the respondent heavily relied on the decision of this Court in Kanta Goel( 1977 (2)SCC 814 ) and submitted that for the application of Section 14-D it is not necessary that the premises must have been let out either by the petitioning widow or by her husband. For the application of this section it is enough to prove that she was the landlord of the premises and entitled to institute proceedings qua landlord. The use of the words “let out by him” only convey the idea that the premises must be owned by him directly and the lease must be under him directly.13. The interpretative function of the court is to discover the true legislative intent. It is trite that in interpreting a statute the court must, if the words are clear, plain, unambiguous and reasonably susceptible to only one meaning, give to the words that meaning, irrespective of the consequences. Those words must be expounded in their natural and ordinary sense. When the language is plain and unambiguous and admits of only one meaning, no question of construction of statute arises, for the Act speaks for itself. Courts are not concerned with the policy involved or that the results are injurious or otherwise, which may follow from giving effect to the language used. If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In considering whether there is ambiguity, the court must look at the statute as a whole and consider the appropriateness of the meaning in a particular context avoiding absurdity and inconsistencies or unreasonableness which may render the statute unconstitutional.14. It is equally well settled that in interpreting a statute, effort should be made to give effect to each and every word used by the legislature. The courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. A construction which attributes redundancy to the legislature will not be accepted except for compelling reasons such as obvious drafting errors. (See State of U.P. v. Dr. Vijay Anand Maharaj( AIR 1963 SC 946), Rananjaya Singh v. Baijnath Singh( AIR 1954 SC 749), Kanai Lal Sur v. Paramnidhi Sadhukhan(AIR 1957 SC 907), Nyadar Singh v. Union of India(1998 (4) SCC 170), J.K. Cotton Spg. and Wvg. Mills Co. Ltd. v. State of U.P.(AIR 1961 SC 1170 and Ghanshyamdas v. CST(AIR 1964 SC 766)”14. The Hon’ble Supreme Court in Karnataka State Financial Corpn. V. N.Narasimahaiah (2008) 5 SCC 176), held as under:“42. Interpretation of a statute would not depend upon a contingency. It has to be interpreted on its own. It is a trite law that the court would ordinarily take recourse to the golden rule of literal interpretation. It is not a case where we are dealing with a defect in the legislative drafting. We cannot presume any. In a case where a court has to weigh between a right of recovery and protection of a right, it would also lean in favour of the person who is going to be deprived therefrom. It would not be the other way round. Only because a speedy remedy is provided for that would itself (sic not) lead to the conclusion that the provisions of the Act have to be extended although the statute does not say so. The object of the Act would be a relevant factor for interpretation only when the language is not clear and when two meanings are possible and not in a case where the plain language leads to only one conclusion.”15. In support of his contention that the work entrusted to the petitioners by the third respondent is in addition to the existing factory already established by the third respondent, learned counsel placed reliance on the decision of the Supreme Court in Regional Director, ESI Corpn. V. South India Flour Mills (P) Ltd. (1986) 3 SCC 238). The issue in the said case was whether provisions of ESI Act apply to workers involved in construction of another building in the compound of existing factory for the expansion of the factory. It was held as under:“12. Therefore, the investigation under the principal question formulated above boils down to this, namely, whether the construction of factory buildings for the expansion of the existing factories is incidental or preliminary to or connected with the work of the factory or not. 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.”16. Learned Government Pleader submits that Act 27 of 1996 is a social welfare legislation and it is noticed by Government of India that by the year 1996 about 8.5 million workers are engaged in building and other construction works and are found to be vulnerable segments of the labour force and they are characterized by their inherent risk to life and limb. Works undertaken by them are of casual nature and temporary relation exists between employer and employee; working hours are not certain and basic amenities are not provided and did not have adequate welfare facilities. Government of India therefore felt it desirable to create statutory mechanism to ensure welfare of those workers and to establish 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. With the said objective in mind, Act 27 of 1996 was promulgated. Act 27 of 1996 intends to regulate employment and conditions of service of building and other construction workers and to provide for their safety and welfare measures. Learned Government Pleader further submits that in accordance with the provisions of Act 27 of 1996, welfare boards are established. As a supplementary to the above enactment, the Parliament also promulgated Act 28 of 1996 with an objective to levy and collect cess on the cost of construction incurred by the employer with a view to augment the resources of the welfare boards constituted under Act 27 of 1996. In terms of the provisions contained in Acts 27 and 28 of 1996, 1% of cess is imposed on the petitioners and imposing and collecting such cess is mandatory for effective and smoother running of the welfare boards. Learned Government Pleader emphasized that it being a social welfare legislation any amount of effort by the contractors to eschew from payment of cess would be detrimental to the very objective for which these enactments were made and such exclusive provision should be construed strictly and the objective of the enactments should receive liberal construction.17. Learned Government Pleader submits that as per Section 6(1) of the Act, 1948, the State Government is empowered to make rules and accordingly rules were made in the year 1950. According to Rule3 of the Rules, it is mandatory for any organization to obtain prior permission including permission for construction or extension of any factory or class or description of factories. Relying on the definition of ‘factory’ incorporated in Section 2 (m) of the Act, 1948, learned Government Pleader contends that factory means a place where manufacturing process is being carried on. Insofar as the agreements entered into between the petitioners and third respondent, the terms of agreements would mean that petitioners have to undertake civil construction works to enable the third respondent to expand the factory and to commence manufacturing process in the new extended unit. To commence the manufacturing process detailed procedure is envisaged by the Act, 1948 and unless the procedure is followed and manufacturing process is commenced, the said building cannot be treated as a factory and therefore the exclusion provision provided in Section 2 (d) of Act 27 of 1996 has no application. Referring to definition of ‘worker’ as contained in Section 2(l) of Act, 1948, learned Government Pleader submits that this definition also envisages that worker should involve in manufacturing process or incidental or connected there with and works executed by the petitioners do not answer the description of the factory since manufacturing process has not commenced in the new establishment, and therefore the workers engaged by petitioners are not the workers as defined under the Act 1948. He therefore contends that Acts 27 and 28 of 1996 continue to apply to the workers engaged by petitioners who are involved in building and construction activity prior to commencement of manufacturing process in the new establishment of third respondent.18. Learned Government Pleader placed reliance on following decisions for the proposition that an establishment does not become a factory unless manufacturing process commences:THE NAGPUR ELECTRIC LIGHT AND POWER COMPANY LIMITED Vs. THE REGIONAL DIRECTOR, EMPLOYEES’ STATE INSURANCE CORPORATION (AIR 1967 SC 1364) and WORKMEN OF DELHI ELECTRIC SUPPLY UNDERTAKING Vs. THE MANAGEMENT OF DELHI ELECTRIC SUPPLY UNDERTAKING (AIR 1973 SC 365).19. Learned Government Pleader contends that as held by the Supreme Court in POLYMAT INDIA PRIVATE LIMITED Vs NATIONAL INSURANCE COMPANY LIMITED (AIR 2005 SC 286) the work undertaken by petitioners does not constitute the expression ‘factory’.20. On the proposition that the intent of the legislation has to be seen by reading the words and phrases in the Act as a whole but not in isolation or in detached manner disassociated from the context, learned Government Pleader relies on the decision of the Supreme Court in DARSHAN SINGH BALWANT SINGH Vs THE UNION OF INDIA (AIR 1953 SC 83).21. Learned Government Pleader contends that the object of the enactments being to protect the workers working in unorganized building construction sector, unless cess is collected from the contractors, the welfare boards cannot be effectively managed and welfare of the workers cannot be taken care of. For the said proposition he relies on the decisions in STATE Vs. ARDESHIR HORMUSJI BHIWANDIWALA (AIR 1956 Bombay 219 (Vol.43 C.81 April), M/s.GANNON DUNKERLEY & CO LTD Vs STATE OF MADHYA PRADESH (2010 LLR 184), ADANI AGRI LOGISTICS LIMITED AND ANOTHER Vs THE STATE OF HARYANA AND OTHERS (2010 LLR 752) and VISHOPS SCHOOL Vs STATE OF BIHAR (LAWS (JHAR)-2008-9-30=LLJ 2009-1693).22. Sri V.Ravinder Rao, learned counsel appearing for third respondent submits that contractual terms are very clear and petitioners have fulfilled all the obligations imposed on them as per the terms of contracts and the obligations imposed by the Act, 1948. The third furnace established by the third respondent is in-consequence to the existing furnace operated by the third respondent and third respondent is already recognized as a factory and what is contemplated by the agreements entered by the petitioners is extension of the existing facilities in the factory, therefore, the provisions of the Act, 1948 are applicable and in view of the exclusion provision provided in Act 27 of 1996 and Act 28 of 1996 are not applicable.23. The point for determination is whether the works executed by petitioners in the third respondent factory are the works incidental to and/or connected with the works of the third respondent factory and thus exempted from the provisions of “The Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 ?24. To appreciate the rival contentions, it is necessary to understand the mandate of relevant provisions of the three enactments in issue i.e., Act 27 of 1996, Act 28 of 1996 and Act, 1948.25. Relevant provisions of Act 27 of 1996, Act 28 of 1996 and Act, 1948 and Factories Rules, 1950 read as under:Act 27 of 1996“Sections 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,Section 2 (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 buildings workers or who supplies building workers for any work of the establishment; and includes a sub-contractor;Section 2 (j): “Establishment” means any establishment belonging to, or under the control of, Government, any body corporate or firm, an individual or association or other body of individuals which or who employs building workers in any building or other construction 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;Act 28 of 1996:Sub Section 2 and 3 of Section 3 of Act 28 of 1996 reads as under:“3. Levy and collection of cess :--(1)……..(2). 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.(3). 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.”The Factories Act, 1948:-Sections 2 (l), (m), 6 (1) (a), (b), (c), (d), 6 (3) of The Factories Act, 1948 read as under: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.Section 2 (m) : “factory” means any premises including the precincts thereof:--(i).. whereon ten or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on, or(ii) whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on, but does not include a mine subject to the operation of the Mines Act, 1952 (35 of 1952), or a mobile unit belonging to the armed forces of the Union, railway running shed or a hotel, restaurant or eating place.“6. Approval, licensing and registration of factories :--(1) The State Government may make rules--(a). ….(aa) requiring the previous permission in writing of the State Government or the Chief Inspector to be obtained for the site on which the factory is to be situated and for the construction or extension of any factory or class or description of factories;(b)…(c)…(d)…(e)……(2)…..(3). Where a State Government or a Chief Inspector refuses to grant permission to the site, construction or extension of a factory or to the registration and licensing of a factory, the applicant may within thirty days of the date of such refusal appeal to the Central Government if the decision appealed from was of the State Government and to the State Government in any other case.”Explanation:- A factory shall not be deemed to be extended within the meaning of this section by reason only of the replacement of any plant of machinery or within such limits as may be prescribed, of the addition of any plant or machinery if such replacement or addition does not reduce the minimum clear space required for safe working around the plant or machinery or adversely affect the environmental conditions from the evolution or emission of steam, heat or dust or fumes injurious to health.The A.P. Factories Rules, 1950.Rule 3: Submission and Approval of plans:-- (1) In the case of any factory where,--(a).any hazardous process of the nature specified in the First Schedule of the Act is proposed to be carried on whether or not with the aid of power and notwithstanding that the number of persons employed is less than any number specified in Section 2 (m) of the Act; or(b).the installed power is proposed to be or extended to 75 H.P. or more;No site shall be used for the location of a factory nor shall any building in a factory be constructed, extended or taken into use as a factory or part of a factory and no machine, or plant or any permanent fixture shall be installed or fixed, nor shall any manufacturing process be carried on in any factory or part of a factory, unless the occupier or the owner of the factory obtains the previous permission in writing approving the plans from the Chief Inspector.”26. Underlying objective to enact Act No.27 of 1996 is that there is no law which regulate the conditions of employment and welfare of workers working in the Building and other Construction Sector and these workers are the most deprived class in the working force. Thus, the Act intends to provide statutory frame work to regulate the employment and conditions of service of workers involved in building and other construction workers working in unorganized sector and to ensure their safety, health and welfare. Act 28 of 1996 takes care of funds required to enforce the objectives of Act 27 of 1996. To establish a factory and also to expand existing factory undertaking construction of buildings and other equipment is mandatory. The factory needs work force to run a factory and to undertake civil construction. The Factories Act, 1948 regulate all aspects of a factory from the stage of proposal, to establish, to run and to expand and welfare of workers. The definition of worker in Factories Act, 1948 is comprehensive and encompasses workers involved in construction activity.27. In these writ petitions the demand made is on the work executed by petitioners as per agreements entered into with third respondent. Third respondent is a factory governed by Factories Act, 1948. Act 27 of 1996 excludes from its purview establishments governed by Factories Act, 1948. The scheme of the Act would show that workers involved in building or other construction work in an establishment covered by Act, 1948 are treated as a class by themselves. Objective underlining such classification appears to be that the Act, 1948 is a self contained code dealing with all the provisions concerning the safety, health and welfare of the workers working in the factories.28. All provisions which are intended by Act 27 of 1996 are already incorporated in Act, 1948. Act, 1948 is divided into several chapters. Chapter III deals with health, Chapter IV deals with safety, Chapter V deals with welfare and Chapter VI deals with working hours of adults, Chapter VIII deals with wages. Other chapters deal with various aspects like safety, care and caution that is required to be taken in ensuring safety and health of the workers. The Act also incorporates penal provisions if the mandate of the enactment is violated. Thus, objectives of the Act 27 of 1996 are already enshrined in Act, 1948. All the welfare measures for building and other construction workers are taken care of by the Act, 1948. It is thus clear that in the definition clause in Section 2(d) of Act 27 of 1996 incorporating the exclusion of the building or other construction workers from the purview of Act 27 of 1996 is a clear provision expressing the intent of the Legislature. But for such exclusion, it would have been two provisions of law operating in the same filed and in such a situation it would have been a matter for consideration as to which provision would apply. There is no ambiguity in the provision and the provision is capable of giving only one meaning. When provision is expressive and clear no interference can be drawn to view otherwise. More so, when Factories Act, 1948 is also a welfare legislation and enough provisions are made to safeguard the interest of work force involved in Building and Other Construction work in a factory.29. It is thus necessary to be seen whether the works executed by the petitioners are governed by the Act, 1948. Section 2(m) of the Act, 1948 defines ‘Factory’. Factory means any premises including the precincts thereof where manufacturing process is carried on. Section 2(k) defines ‘manufacturing process’. Section 2 (l) defines ‘worker’. Worker means a person involved in any manufacturing process, or in cleaning, any part of the machinery or premises used for manufacturing process or in any other kind of work incidental to, or connected with, the manufacturing process. 30. It is enough if the employer does some work which is ancillary, incidental, relevance to or link with the object of the establishment. The work of construction of additional structure, manufacturing, erection, testing and commissioning of blast furnace entrusted to petitioners is ancillary, incidental and connected to the work of the factory. These works were intended to augment and increase the production. The construction activity taken up by the third respondent is incidental to and connected with the manufacturing process undertaken by the third respondent. As held by Supreme Court in Regional Director ESI (para 12 of judgment extracted above at para 15) any work that is necessary for augmentation of the work of the factory is connected with the work of the factory. Work of construction of additional buildings has link with work of the factory. Therefore work undertaken by the petitioners forms part of the third respondent factory and therefore governed by the provisions of the Act, 1948. Thus, the workers engaged by the petitioners are the workers governed by the provisions of Act, 1948. Conscious of the mandate of the Act, 1948 the third respondent has incorporated all the requisite clauses in the agreements entered with the petitioners with reference to the welfare of the workers engaged by the petitioners as part of its expansion activity.31. As per Act 28 of 1996, the cess to be collected is for the purpose of strengthening the Welfare Boards constituted under the Act 27 of 1996. When the provisions of the Act 27 of 1996 are excluded from its application to the establishment governed by the provisions of the Act, 1948 there is no obligation on the part of such establishment to pay cess as demanded by the respondents 1 and 2.32. The argument of the learned Government Pleader if accepted, would amount to creating one more class of building workers i.e., building workers involved in building and construction work relating to factory which is governed by the Act, 1948, but the buildings which were under construction where no manufacturing process is commenced, a mini-classification of the ‘building and other construction worker’ working in a factory. Such an inference cannot be drawn by reading the definition clause in Section 2 (d) of the Act 27 of 1996. The principle laid down by Supreme Court in Regional Director ESI Corporation, Madras (referred to supra) is complete answer to negate the contention of the learned Government Pleader.33. When the provision is very clear and express and provision does not intend to create such classification, no inference can be drawn to create a mini-classification of the building and other construction workers working in a factory. Building and other construction worker involved in construction activity means he would have to undertake construction of building or some other establishment which may be used after such construction for manufacturing purposes. The Parliament was conscious of the term ‘building and other construction worker’ and also conscious of the fact that a building and other construction worker wherever he works is involved in construction of the building or some other construction and building or other construction can be utilized only when construction is complete. Thus consciously all building or other construction workers working in a factory are excluded from the application of the provisions of Act 27 of 1996. Therefore, there cannot be a further classification of such building or other construction workers. Definition of ‘worker’ provided in the Act, 1948 is more expansive than the definition of the building or other construction worker provided in Act 27 of 1996. Building or other construction worker as defined in Act 27 covers a person who is involved in connection with any building or other construction work whereas a ‘worker’ as defined in Act, 1948 includes a worker not only involved in manufacturing process, cleaning any machinery but also in any other kind of work which is incidental or connected with manufacturing process. Agreements entered by third respondent with petitioners are for expansion of the production capacity and is incidental to and connected with the manufacturing process. Thus, by virtue of the exclusive clause in Section 2 (d) of Act 27 of 11996 mandate of Act 27 of 1996 is excluded to a worker working in a factory involved in ‘building or other construction work’ to whom Act 1948 would apply.34. The Parliament carved out a separate class of ‘Building and Other Construction Workers’ working in connection with factory within the category of ‘Building and Other Construction Workers’ and excluded said class of ‘Building and Other Construction Worker’ from the purview of Acts 27 and 28 of 1996, as the said work-force is already covered by the Factories Act. The classification brought out is based on intelligible differentia. The class of ‘Building and Other Construction Workers’ who are working in a factory established under Factories Act, 1948 are treated as different from ‘Building and Other Construction Workers’ working else where, more particularly in unorganized sectors, such as real estate developments. Thus, classification is based on the fact that the objective of enacting Acts 27 and 28 of 1996 is to provide safety and welfare to building workers working in unorganized construction industry, whereas Factories Act, 1948 takes care of safety and welfare of workers working in a factory. ‘Worker’ working in a factory cannot be classified as working in unorganized sector. A factory governed by Factories Act 1948 is bound by the provisions of the Act, 1948. The Act imposes mandatory obligations on the management of the factory to ensure safety and welfare of workers working in a factory. Act also imposes penal consequences if management fails to provide safety and welfare. Thus, the principal objective to enact Acts 27 and 28 of 1996 is achieved by Act, 1948 and but for exclusive clause it would have been duplication. Thus, the exclusion of ‘Building and other construction workers’ working in a factory governed by Act, 1948 is clearly intended and there is no ambiguity in the provision to read otherwise and infer a different meaning. Therefore, there cannot be a further classification as argued by the learned Government Pleader.35. As admitted by the third respondent, the provisions of Act, 1948 are made applicable to the workers engaged by the petitioners for undertaking additional fixtures on the premises of the third respondent factory to increase its production and therefore all the safety and welfare clauses which are required to be followed for any worker in the factory are incorporated in the agreements entered with the petitioners. There is no allegation of petitioners not taking welfare measures.36. The decision of Supreme Court in Polymat India turns on its facts. The issue was on insurance claim. Insurance policy covered “plant and machinery”. The entire premises of factory was not covered by the policy. Supreme Court held as under:“16……….. Loosely the expression, ‘factory’ may include the whole premises of factory. But each expression has to be given the meaning in the context where it occurs. The expression “Factory-cum-Godown” has to be read in the present context with the other conditions which appear in the Policy document “…..”37. In Nagpur Electric Light, company was involved in transforming and transmitting electrical energy. Inside the premises there are several buildings and yards. The receiving station, the workshop, meter testing department, the engineers quarters, the general office and stores are located in different buildings inside the premises. The Supreme Court held entire premises of the company constitutes ‘factory’. Supreme Court held all workers working in the premises, including in the administrative building and workers outside the factory are held to be workers of the factory as they are engaged in connection with the work of the factory. The principle decided therein supports the stand of the petitioners.38. In Delhi Electric Supply Undertaking, the issue for consideration was whether sub-stations and zonal stations of electrical company were located at various places and it was contended that sub stations or the zonal stations located at various places constitute as one unit and form part of factory. Rejecting the said contention, the Supreme Court held that sub-stations and zonal stations do not form part of factory. The said decision turns on its facts and the facts are not similar to the cases on hand.39. The principles deducible from the plethora of decisions cited by learned counsel for petitioners are, a definition is an explicit statement of the full commutation of a term. 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. The Court cannot add words to a Statute or read words into it which are not there, especially when the literal reading produces as intelligible result. Where the words are clear, plain, unambiguous and reasonably susceptible to only one meaning and intention of legislature is clearly conveyed, Court cannot take up the task of amending or altering the statutory provisions and give to the words that meaning, irrespective of the consequences. A construction which attributes redundancy to the legislature cannot be made. The object of the Act is a relevant factor for interpretation only when language is not clear.40. Applying the above principles and on a plain reading of definition in Section 2 (d) of Act 27 of 1996, that in clear and unambiguous terms excludes application of Act no.27 of 1996 to workers involved in “Building or other construction works” in a factory governed by Act, 1948, third respondent being a factory governed by Factories Act, 1948 and petitioners engaged workers to undertake obligations under the agreements entered with the third respondent for expansion of the factory, the said workers are excluded from the purview of Act 27 of 1996 and therefore no levy can be imposed on petitioners as per provisions of Act 28 of 1996.41. On an interactive analysis of various provisions of the Act, 1948 and Acts 27 and 28 of 1996, impugned orders of the respondents 1 and 2 in directing the petitioners to pay 1% of the contractual amount as cess under Acts 27 and 28 of 1996 are without jurisdiction and competence and are therefore liable to be set aside and the same are hereby set aside.42. Accordingly, the writ petitions are allowed. Sequel to the same, miscellaneous petitions, if any shall stand dismissed. No costs.
"2014 (1) ALT 341" == "2014 (2) ALD 638,"