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Thursday, August 27, 2015

The Building and Other Construction Workers’ Welfare Cess Act, 1996 The appellants are engaged in the business of construction of buildings etc. In the present matters their grievance is against demand of cess under The Building and Other Construction Workers’ Welfare Cess Act, 1996 (Act 28/96) (hereinafter referred to as ‘the Cess Act’) in the following factual premise. Their agreements or contracts for construction of projects belonging to departments and instrumentalities of Government of Madhya Pradesh were finalized and work orders were issued to contractors (the appellants) between December 2002 to March 2003. Since the Madhya Pradesh Building and Other Construction Workers’ Welfare Board (hereinafter referred to as ‘the Board’) came to be constituted only on 9.4.2003 followed by gazette publication on 10.4.2003, there could be no provision in the contracts as to who shall bear the burden of paying cess under the Cess Act. On that as well as several other grounds the appellants, being aggrieved with the demand of cess made upon them, challenged such demand by preferring writ petitions which have been dismissed by the impugned common judgment dated 21.6.2004 of the Division Bench following an earlier judgment dated 17.3.2004 in LPA no. 169 of 2003. We are of the considered view that after the Cess Act and the Rules came into effect and the Board was constituted, with the notification specifying the rate of cess to be levied upon the cost of construction incurred by the employer already in place, the respondents were duty bound to collect the cess by raising the demands in respect of the on going construction works if the workers in such construction activities were eligible for benefits under the BOCW Act.- Such beneficial measures for the welfare of workers are applicable even to the construction activity which may have commenced before coming into force of the BOCW Act and the Cess Act, if they are subsequently covered by the provisions of these Acts. There can be no legal obstacle in ignoring the construction cost incurred before the cess became leviable by distinguishing it from the cost of construction incurred later, from a date when the Board is available to render service to the Building and other construction workers. Levy of cess in these facts and circumstances cannot be faulted for any reason. Demand of cess in the given facts cannot amount to retrospective application of the Cess Act. Hence the appeals must fail. 14. Before parting with the judgment, it is made clear that the appellants did not press their contention that if cess is found leviable, its liability should be borne by the principal, i.e, Government of Madhya Pradesh. They have sought liberty that they be permitted to raise such contention in an appropriate proceeding, in accordance with law. This liberty is granted. 15. The appeals are dismissed but without costs. If any dues of cess payable by the appellants to the respondents has remained unpaid on account of interim orders, all such lawful dues should be paid by the appellants as per law at the earliest and in any case within eight weeks.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 375 OF 2006


A. Prabhakara Reddy & Co.                      …..Appellant

      Versus

State of Madhya Pradesh & Ors.                      …..Respondents


                                   W I T H


                          C.A.Nos. 376-379 of 2006



                               J U D G M E N T



SHIVA KIRTI SINGH, J.


The questions of law in these appeals are same  and  arise  out  of  similar
factual matrix. Hence, they have been heard together and shall  be  governed
by this common judgment.
The appellants are engaged in the  business  of  construction  of  buildings
etc. In the present matters their grievance is against demand of cess  under
The Building and Other Construction Workers’ Welfare  Cess  Act,  1996  (Act
28/96) (hereinafter referred to as ‘the Cess Act’) in the following  factual
premise.  Their  agreements  or  contracts  for  construction  of   projects
belonging to departments  and  instrumentalities  of  Government  of  Madhya
Pradesh were finalized and work  orders  were  issued  to  contractors  (the
appellants) between December 2002 to March 2003. Since  the  Madhya  Pradesh
Building  and  Other  Construction  Workers’  Welfare   Board   (hereinafter
referred to as  ‘the  Board’)  came  to  be  constituted  only  on  9.4.2003
followed by gazette publication on 10.4.2003, there could  be  no  provision
in the contracts as to who shall bear the burden of paying  cess  under  the
Cess Act. On that as well as several other  grounds  the  appellants,  being
aggrieved with the demand of cess made upon them, challenged such demand  by
preferring writ petitions which have been dismissed by the  impugned  common
judgment  dated  21.6.2004  of  the  Division  Bench  following  an  earlier
judgment dated 17.3.2004 in LPA no. 169 of 2003.
The impugned judgment exhibits more than one ground to assail the demand  of
cess but before us the appellants have given up the other grounds  and  have
confined  their  challenge  on  the  ground  that   the   Assistant   Labour
Commissioner (ALC) in his letter to the  Chief  Engineer  of  the  concerned
project at Jabalpur had communicated that cess is  to  be  recovered  w.e.f.
1.4.2003. He also reminded the Chief Engineer that it was  expected  of  him
that he will “definitely stipulate the condition of payment of  1%  cess  in
each tender with effect from  above  date.”  On  the  basis  of  above,  the
submission on behalf of appellants is that no cess could be levied  for  the
tenders,  contracts  and  work  orders  for  construction  that  came   into
existence  before  the  Board  was  constituted  on  9/10.4.2003.   As   per
submissions of Mr. Sunil Gupta, learned Senior Advocate for the  appellants,
the cost of construction triggers the charging of cess under  Section  3  of
the Cess Act.  Such cost stands ascertained and determined when contract  is
executed and work order issued. This  cost  cannot  be  split  up  into  two
components, one for the pre-Board and the other for  the  later  period  for
levying cess on the cost incurred in the latter period only.
It is also the case of the appellants that if demand  of  cess  is  made  on
construction works undertaken or even contemplated on account  of  issue  of
work order before the constitution of the  Board,  then  such  demand  would
amount to making the Cess Act operate  retrospectively  and  that  would  be
unwarranted, illegal and unjust.
In view of such limited issues, it is not necessary for us  to  consider  at
length the factual details. Only some relevant dates and facts  have  to  be
noted  to  support  our  reasons  for  not  agreeing  with   the   aforesaid
contentions advanced on behalf of the appellants.
The  Union  of  India  was  evidently  concerned  with  the  sad  plight  of
construction workers  belonging  to  unorganized  sector.  With  a  view  to
regulate  employment  and  conditions  of  service  of  Building  and  other
construction workers and to  reduce  their  exploitation  by  providing  for
welfare  measures  related  to  their  safety,  health  etc,   the   Central
Government  promulgated  The  Building  and  Other   Construction   Workers’
(Regulation of Employment and  Conditions  of  Service)  Ordinance  1995  on
3.11.1995. It was succeeded by other Ordinances  bearing  nos.  3/96,  15/96
and 25/96. The last Ordinance dated 20.6.1996 was followed by  the  Building
and Other Construction Workers’ (Regulation of Employment and Conditions  of
Service) Act, 1996 (Act 27/96) (hereinafter referred to as ‘the BOCW  Act’).
It was published in the gazette on 19.8.1996  but  as  provided  by  Section
1(3), it was effective from 1.3.1996. For its effective working, a  cess  or
fee was necessary. For  that  the  Parliament  enacted  the  Cess  Act  (Act
28/96).
The Cess Act was published in the gazette on 19.8.1996. Under  Section  1(3)
it was enforced from still an earlier date, i.e, 3.11.1995. Under this  Act,
the Central Government framed The Building and Other  Construction  Workers’
Welfare Cess Rules, 1998 (hereinafter referred  to  as  ‘the  Rules’)  which
came into force on publication in the official gazette dated  26.3.1998.  As
noted earlier the Madhya Pradesh  Government  constituted  the  Board  after
considerable delay  by  a  notification  dated  9.4.2003  published  in  the
official gazette dated 10.4.2003.
It is relevant to note that the constitutionality of the Cess Act and  Rules
framed thereunder was challenged  before  the  High  Court  of  Delhi  which
upheld it. The matter came to this Court and by  judgment  in  the  case  of
Dewan Chand Builders and Contractors vs. Union of India & Ors.  reported  in
(2012) 1 SCC 101, this Court also dismissed the challenge and held that  the
levy is in fact a “fee” and not a “tax”.
The appellants have based their contention  noted  earlier  on  the  premise
that the cess chargeable under the Cess  Act  is  a  fee  and  therefore  it
cannot be levied from a retrospective  date  when  there  was  no  Board  to
render any service.  Mr.  Sunil  Gupta,  learned  senior  advocate  for  the
appellants placed reliance upon judgments of  this  Court  in  the  case  of
Khazan Chand & Ors. vs. State of Jammu and Kashmir & Ors, (1984) 2 SCC  456,
M/s Ujagar Prints & Ors. (II) vs. Union of India & Ors., (1989)  3  SCC  488
and Union of India & Ors. vs. Bombay Tyre International Ltd. & Ors.,  (1984)
1 SCC 467 to highlight  that  a  statute  for  compulsory  levy  or  tax  is
required to have provisions for charging of the levy/tax, for the  machinery
to make the assessment and lastly, provisions for  collection  or  recovery.
He also relied upon judgment in the case of Shyam  Sunder  &  Ors.  vs.  Ram
Kumar & Anr., (2001) 8 SCC 24 to buttress the well  established  proposition
of law that retrospective operation is not to be given  to  a  statute  when
the effect is to adversely affect existing right or obligation, (matters  of
procedure being an  exception)  unless  retrospective  operation  cannot  be
avoided on account of express language or necessary intendment flowing  from
the enactment.
Counsel for the State of Madhya Pradesh and other  respondents  pointed  out
that after the Union of India through a notification  bearing  SO  no.  2899
dated 26.9.1996 specified the rate of cess as 1% of  cost  of  construction,
the liability of  concerned  employers  under  the  Cess  Act  became  fully
ascertainable on the basis of Section 3 of the Cess Act  which  provides  as
follows:
“3 . Levy and collection of cess.—(1) There shall be levied and collected  a
cess for the  purposes  of  the  Building  and  Other  Construction  Workers
(Regulation of Employment and Conditions of  Service)  Act,  1996,  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.

(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.

(4) Notwithstanding anything contained in  sub-section  (1)  or  sub-section
(2), the cess leviable under this 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 on the basis of  the  quantum  of
the building or other construction work involved.”

11.   He highlighted the  provisions  in  the  Cess  Act  and  Rules  framed
thereunder such as Rules 3, 4, 5 & 7 providing for levy of cess;  time   and
manner of collection; transfer of the proceeds of the  cess  to  the  Board;
and assessment of the cess, to support  his  contention  that  there  is  no
basis under the  law  to  support  the  plea  of  the  appellants  that  the
contracts or work orders finalized before constitution  of   Board  must  be
made immune from levy of cess on the ground that cost of  construction  must
always be treated  as  a  single  entity  and  therefore  incapable  of  two
divisions, one pertaining to pre-Board period  and  the  other  relating  to
after the constitution of the Board. He supported  the  views  of  the  High
Court that there can be no estoppel against statute and  hence,  even  if  a
contract or work order does not provide for payment of recovery of  cess  by
the contractor or the principal,  the  statute  providing  for  cess  cannot
become ineffective. It is also the stand of the  respondents  that  had  the
cess been a tax, the liability to pay the same  would  be  coterminous  with
the entire cost, if construction was after coming into  force  of  the  Cess
Act but since it has been held to be  a  fee,  the  respondents  have  acted
reasonably and effected its levy by raising demands only to cover such  cost
of construction which coincides with and begins  from  the  constitution  of
the Board.
12.   Although learned senior  counsel  for  the  appellants  had  taken  us
through the entire scheme of the Main Act as well as the Cess Act  and  also
the Rules framed thereunder, but nothing helps the appellants’ case  and  in
view of limited issues arising from determination, we do not feel  persuaded
to go into details of the Cess Act and the Rules unnecessarily.  We  are  of
the considered view that after the Cess Act and the Rules came  into  effect
and the Board was constituted, with the notification specifying the rate  of
cess to be levied upon the cost of construction  incurred  by  the  employer
already in place, the respondents were duty bound to  collect  the  cess  by
raising the demands in respect of the on going  construction  works  if  the
workers in such construction activities were  eligible  for  benefits  under
the BOCW Act. The  fact  that  the  task  of  registering  the  workers  and
providing  them  the  benefit  may  take  sometime,  would  not  affect  the
liability to pay the levy as per the  Cess  Act.  Any  other  interpretation
would defeat the rights of the workers whose  protection  is  the  principal
aim or primary concern and objective of the BOCW Act as  well  as  the  Cess
Act. The Cess is a fee for  service  and  hence,  its  calculation,  as  per
settled law is not to be strictly in accordance with quid pro quo  rule  and
does not require any mathematical exactitude. The scheme of  the  BOCW  Act,
the Cess Act and the Rules warrant that the lawfully imposable  cess  should
be imposed, collected and put in the statutory welfare  fund  without  delay
so that the benefits may flow to the eligible workers at the  earliest.  The
scheme of the BOCW Act or the Cess Act does not warrant that unless all  the
workers are already registered or the welfare fund is duly credited  or  the
welfare measures are made available, no cess can be levied. In  other  words
the service to the workers is not required to be a condition  precedent  for
the levy of the cess. The rendering of welfare services  can  reasonably  be
undertaken only after the cess is levied,  collected  and  credited  to  the
welfare fund.
13.   We also find no merit in other submission advanced on  behalf  of  the
appellants that there is legal impediment in charging levy on  the  cost  of
construction incurred by the employer from a particular  period  on  account
of constitution of Board from a particular date or  for  any  other  reason.
This argument is fallacious. Such beneficial measures  for  the  welfare  of
workers are applicable even to the  construction  activity  which  may  have
commenced before coming into force of the BOCW Act  and  the  Cess  Act,  if
they are subsequently covered by the provisions of these Acts. There can  be
no legal obstacle in ignoring the  construction  cost  incurred  before  the
cess became leviable by distinguishing it  from  the  cost  of  construction
incurred later, from a date when the Board is available  to  render  service
to the Building and other construction workers. Levy of cess in these  facts
and circumstances cannot be faulted for any reason. Demand of  cess  in  the
given facts cannot amount to retrospective  application  of  the  Cess  Act.
Hence the appeals must fail.
14.    Before  parting  with  the  judgment,  it  is  made  clear  that  the
appellants did not press their contention that if cess  is  found  leviable,
its liability should be borne by the principal, i.e,  Government  of  Madhya
Pradesh. They have sought liberty that  they  be  permitted  to  raise  such
contention in an  appropriate  proceeding,  in  accordance  with  law.  This
liberty is granted.
15.   The appeals are dismissed but without  costs.  If  any  dues  of  cess
payable by the appellants to the respondents has remained unpaid on  account
of interim orders, all such lawful dues should be paid by the appellants  as
per law at the earliest and in any case within eight weeks.


                       …………………………………….J.
                       [VIKRAMAJIT SEN]


                       ……………………………………..J.
                             [SHIVA KIRTI SINGH]
New Delhi.
August 24, 2015
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