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Wednesday, May 19, 2021

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; UPPTCL has no power and authority and or jurisdiction to realize labour cess under the Cess Act in 42 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.

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;

UPPTCL has no power and authority and or jurisdiction to realize labour cess under the Cess Act in 42 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.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NO. 8630 OF 2020

UTTAR PRADESH POWER TRANSMISSION

CORPORATION LTD. AND ANR. …...Petitioners

versus

CG POWER AND INDUSTRIAL SOLUTIONS

LIMITED AND ANR. …….Respondents

J U D G M E N T

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 letters dated

2

nd 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

1

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

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

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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.;

(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.”

3

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 manual,

supervisory, technical or clerical work for hire or reward, whether the

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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;

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(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;

(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.

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.

6

xxx xxx xxx

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.

xxx xxx xxx

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.

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.

xxx xxx xxx

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;

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(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.

xxx xxx xxx

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-

(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.

xxx xxx xxx

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.

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(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:

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.

xxx xxx xxx

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.

xxx xxx xxx

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.

xxx xxx xxx

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 for ensuring

their safety, health and protection, during such employment.

(2) In particular, and without prejudice to the generality of the foregoing

9

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 n5, fran1e 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 (my 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.

xxx xxx xxx

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;

(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 subsection (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.”

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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

12

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 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. Power of Entry – Any officer or authority of the State Government

specially empowered in this behalf by that Government may--

(a) with such assistance, if any, as he or it may think fit, enter at any

reasonable time any place where he or it considers it necessary to enter for

carrying out the purposes of this Act including verification of the

correctness of any particulars furnished by any employer under section 4;

(b) do within such place anything necessary for the proper discharge of his

or its duties under this Act; and

(c) exercise such other powers as may be prescribed.

8. Interest payable on delay in payment of cess. – If any employer

fails to pay any amount of cess payable under section 3 within the time

specified in the order of assessment, such employer shall be liable to pay

interest on the amount to be paid at the rate of two per cent. for every

month or part of a month comprised in the period from the date on which

such payment is due till such amount is actually paid.

9. Penalty for non-payment of cess within the specified time.—If

any amount of cess payable by any employer under Section 3 is not paid

within the date specified in the order of assessment made under Section

5, it shall be deemed to be in arrears and the authority prescribed in this

behalf may, after making such inquiry as it deems fit, impose on such

employer a penalty not exceeding the amount of cess:

13

Provided that, before imposing any such penalty, such employer shall be

given a reasonable opportunity of being heard and if after such hearing

the said authority is satisfied that the default was for any good and

sufficient reason, no penalty shall be imposed under this section.

10. Recovery of amount due under the Act.—Any amount due under

this Act (including any interest or penalty) from an employer may be

recovered in the same manner as an arrear of land revenue.”

18. In exercise of power conferred by Section 14 of the Cess Act, the

Central Government has by Notification GSR 149(E) dated 26th March 1998

published in the Gazette of India, Extra; part 2, Section 3(1), dated 26th

March 1998, enacted the Building and Other Construction Workers’

Welfare Cess Rules, 1998. Rules 3, 4, 5, 6, 7, 8, 9, 12, 13 and 14 of the

Cess Rules, provide:

“3. Levy of cess.—For the purpose of levy of cess under sub-section (1)

of Section 3 of the Act, cost of construction shall include all expenditure

incurred by an employer in connection with the building or other

construction work but shall not include—

— cost of land;

— any compensation paid or payable to a worker or his kin under the

Workmen's Compensation Act, 1923.

4. Time and manner of collection.—(1) The cess levied under subsection (1) of Section 3 of the Act shall be paid by an employer, within

thirty days of completion of the construction project or within thirty days

of the date on which assessment of cess payable is finalised, whichever is

earlier, to the Cess Collector.

(2) Notwithstanding the provisions of sub-rule (1), where the duration of

the project or construction work exceeds one year, cess shall be paid

within thirty days of completion of one year from the date of

commencement of work and every year thereafter at the notified rates on

the cost of construction incurred during the relevant period.

(3) Notwithstanding the provisions of sub-rule (1) and sub-rule (2), where

the levy of cess pertains to building and other construction work of a

Government or of a Public Sector Undertaking, such Government or the

Public Sector Undertaking shall deduct or cause to be deducted the cess

payable at the notified rates from the bills paid for such works.

14

(4) Notwithstanding the provisions of sub-rule (1) and sub-rule (2), where

the approval of a construction work by a local authority is required, every

application for such approval shall be accompanied by a crossed demand

draft in favour of the Board and payable at the station at which the Board

is located for an amount of cess payable at the notified rates on the

estimated cost of construction:

Provided that if the duration of the project is likely to exceed one year,

the demand draft may be for the amount of cess payable on cost of

construction estimated to be incurred during one year from the date of

commencement and further payments of cess due shall be made as per

the provisions of sub-rule (2).

(5) An employer may pay in advance an amount of cess calculated on the

basis of the estimated cost of construction along with the notice of

commencement of work under Section 46 of the Main Act by a crossed

demand draft in favour of the Board and payable at the station at which

the Board is located:

Provided that if the duration of the project is likely to exceed one year,

the demand draft may be for the amount of cess payable on cost of

construction estimated to be incurred during one year from the date of

such commencement and further payment of cess due shall be made as

per the provisions of sub-rules (2).

(6) Advance cess paid under sub-rules (3), (4) and (5), shall be adjusted

in the final assessment made by the Assessing Officer.

5. Transfer of the proceeds of the cess to the Board.—(1) The

proceeds of the cess collected under Rule 4 shall be transferred by such

Government office, Public Sector Undertakings, local authority, or Cess

Collector, to the Board along with the form of challan prescribed (and in

the head of account of the Board) under the accounting procedures of the

State, by whatever name they are known.

(2) Such government office or Public Sector Undertakings may deduct

from the cess collected, or claim from the Board, as the case may be,

actual collection expenses not exceeding one per cent of the total amount

collected.

(3) The amount collected shall be transferred to the Board within thirty

days of its collection.

6. Information to be furnished by the employer.—(1) Every

employer, within thirty days of commencement of his work of payment of

cess, as the case may be, furnish to the Assessing Officer, information in

Form I.

(2) Any change or modification in the information furnished under sub-rule

(1) shall be communicated to the Assessing Officer immediately but not

later than thirty days from the date of affecting the modification or

change.

7. Assessment.—(1) The Assessing Officer, on receipt of information in

Form I from an employer shall make a scrutiny of such information

furnished and, if he is satisfied about the correctness of the particulars so

furnished, he shall make an order of assessment within a period not

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exceeding six months from the date of receipt of such information in

Form I, indicating the amount of cess payable by the employer and

endorse a copy thereof to the employer, to the Board and to the Cess

Collector and despatch such order within five days of the date on which

such order is made.

(2) The order shall inter alia, specify the amount of cess due, cess already

paid by the employer or deducted at source and the balance amount

payable and the date, consistent with the provision of Rule 4, by which

the cess shall be paid to the Cess Collector.

(3) If on scrutiny of information furnished, the Assessing Officer is of the

opinion that employer has undercalculated or miscalculated the cost of

construction or has calculated less amount of cess payable, he shall issue

notice to the employer for assessment of the cess.

(4) On receipt of such notice the employer shall furnish to the Assessing

Officer a reply together with copies of documentary or other evidence in

support of his claim, within fifteen days of the receipt of the notice:

Provided that the Assessing Officer may, in the course of assessment,

afford an opportunity to the assessee to be heard in person, if he so

requests to substantiate his claim.

(5) If the employer fails to furnish the reply within the period specified

under sub-rule (4), or where an employer fails to furnish information in

Form I, the Assessing Officer shall proceed to make the assessment on

the basis of available records, and other information incidental thereto.

(6) The Assessing Officer may, at any time while the work is in progress,

authorise such officer to make such enquiry at the work site or from

documentary evidence or in any other manner as he may think fit for the

purpose of estimating the cost of construction as accurately as possible.

8. Return of overpaid cess.—(1) Where the Assessing Officer has

passed an order of assessment and the employer decides to withdraw

from or foreclose the works or modifies the plan of construction thereby

reducing the cost of construction undertaken or has been forced by other

circumstances to call off the completion of the work undertaken, he may

seek revision of the assessment order by making an information in Form II

to the Assessing Officer giving details of such reduction or stoppage of

work.

(2) Revision of order of assessment shall be made by the Assessing

Officer, in the same manner as the original order, within thirty days of

receipt of such information in Form II.

(3) Following the revision of assessment as per sub-rule (2), the Assessing

Officer shall, wherever necessary, endorse a copy of the revised

assessment to the Board or Cess Collector, as the case may be, for

making the refund of excess cess as ordered in the revised assessment.

(4) The Board shall, within thirty days of recepit of the endorsement from

the Assessing Officer under sub-rule (3), refund the amount specified in

the order to the employer through a demand draft payable at the station

where the establishment is located.

16

(5) Where the Appellate Authority has modified the order of assessment

reducing the amount of cess, refund shall be made within such time as

may be specified in that order.

9. Exemption.—(1) Any employer or class of employers in a State

seeking exemption under Section 6 of the Act may make an application

to the Director-General of Labour Welfare, Ministry of Labour,

Government of India, stating the details of works undertaken, names of

the Act or corresponding law in force in that State under which he is

liable to pay cess for the welfare of the construction workers and amount

of cess actually paid along with the date of such payment and proof

thereof. A copy of such application shall be endorsed to each of the

Assessing Officer and the board concerned.

(2) On receipt of such application, the Central Government may, if it

feels necessary, seek a report from the State Government concerned.

(3) On examining the grounds, facts and merits of such application the

Central Government may, by notification in the Official Gazette, issue an

order exempting the employer or class of employers, as the case may

be, from payment of cess payable under the Act where such cess is

already levied and payable under such corresponding law.

(4) Assessment proceedings shall be stopped by the Assessing Officer for

a period of thirty days commencing from the date of the receipt of a

copy of the application under sub-rule (1) to him, or till the order of the

Central Government under sub-rule (3) is conveyed to an employer or

class of employers who made the application under sub-rule (1),

whichever is earlier.

12. Penalty for non-payment.—(1) An Assessing Officer, if it appears to

him that an employer has not paid the cess within the date as specified in

the assessment order or has paid less cess, including the cess deducted

at source or paid in advance, shall issue a notice to such employer that it

shall be deemed to be in arrears and such Assessing Officer may, after

such inquiry as it deems fit, impose on such employer, a penalty not

exceeding such amount of cess:

Provided that before imposing any such penalty, such employer shall be

given a reasonable opportunity of being heard and if after such hearing

the Assessing Officer is satisfied that the default was for any good and

sufficient reason, no penalty shall be imposed on such employer.

13. Recovery of overdue amount.—For the purpose of recovery of

sums due on account of unpaid cess, interest for overdue payment or,

penalty under these rules, the Assessing Officer shall prepare a certificate

signed by him, specifying the amount due and send it to the Collector of

the district concerned who shall proceed to recover from the said

employer the amount specified thereunder as if it were an arrear of land

revenue.

14. Appeal.—(1) An employer aggrieved by an order of the assessment

made under Rule 7 or by an order imposing penalty made under Rule 12

may appeal against such order, within three months of the receipt of such

order, to the Appellate Authority.

(2) The appeal shall be accompanied with—

17

(a) the order appealed against;

(b) a certificate from the Cess Collector to the effect that the amount of cess

or penalty or both, as the case may be, relating to such appeal has been

deposited;

(c) a fee equivalent to one per cent of the amount in dispute or penalty or

both, as the case may be, under such appeal;

(d) a statement of points in dispute;

(e) documentary evidence relied upon.

(3) On receipt of the appeal the Appellate Authority may call from the

Assessing Officer a statement on the basis of his assessment order

appealed against, as such Appellate Authority may consider necessary for

the disposal of such appeal.

(4) The Appellate Authority shall give the appellant an opportunity of

being heard in the matter and dispose of the appeal as expeditiously as

possible.

(5) On being satisfied on the quantum of cess the Appellate Authority

shall confirm the order of the Assessing Officer or if in his opinion the

assessment was wrong or on the higher side shall modify the order of

assessment or if in his opinion the assessment is on the lower side or if

the basis of assessment is wrong, it shall remand back the assessment

order to the Assessing Officer along with his observations to rectify the

wrong.

(6) An order remanded back under sub-rule (5) shall be disposed of by the

Assessing Officer within one month in view of the observation made by the Appellate

Authority:

Provided that if the amount of cess is proposed to be enhanced the assessee

shall be given an opportunity of being heard.

(7) No appeal shall lie against the order of the Appellate Authority under this rule.

(8) If the Appellate Authority is of the opinion that the quantum of penalty

imposed is on the higher side or not correctly made it shall suitably modify or set

aside the order of the Assessing Officer, as the case may be.

(9) The appeal under this rule shall be disposed of by making a speaking order

and a copy of such order shall be sent to each of the appellant, the Assessing Officer

and the Board within five days of the date on which such order is made.

(10) An order in appeal reducing the amount of cess shall also ask the Board to

refund the excess cess.

(11) An order in appeal reducing, enhancing or confirming the orders of penalty,

as the case may be, shall also specify the date by which the amount of penalty

should be paid/refunded.”

18

19. The Respondent No.1, M/s CG Power and Industrial Solutions Limited

(formerly known as M/S Crompton Greaves Limited) entered into a

Framework Agreement with UPPTCL for construction of 765/400 KV

Substations, at Unnao, Uttar Pradesh.

20. By a letter No. 130/ESD-765/2/CGL dated 5th March 2010, the

Superintending Engineer, UPPTCL, Unnao placed a detailed order on the

Respondent No.1 for construction of 765/400 kV Substation at Unnao on

single source responsibility turn-key basis. The scope of the work as

stated in the said letter was as follows:-

“1. Scope

1.1 The scope of this contract, hereinafter called “FIRST CONTRACT”,

covers all works related to design, engineering, manufacturing, testing at

works, supply of all required equipment and material with accessories and

auxiliaries, as detailed in Schedule of Quantities & Prices (Annexure-IV) to

sub-station site. The scope shall also include supply of any other item

necessary for completing the scope of work without any extra cost, if not

specified in above Schedule.

1.2 The “SECOND CONTRACT” shall cover unloading, handling at

site, erection, testing and commissioning of all the equipment and

material to be supplied by the contractor under first contract and any

other work require to complete the scope for commissioning and handing

over the entire sub-station.

1.3 the “THIRD CONTRACT” shall cover all civil works including material to

complete the scope for commissioning and hading over of the entire substation.

1.4 The proposed sub-station shall be constructed as per scope of

work (Doc. No.017806-47ES-0100) under the technical specification

(Volume-II) and the specification drawings enclosed with the REP

document.

1.5 The proposed sub-station will be comprised of following works:

1.5.1 765kV switchyard (one & a half breaker scheme)

a) Two (2), 765kV feeder bays along-with 1x330MVAR shunt reactor in

each bay

b) Two (2), 765kV bays for 2x1000MVA Tranformer Bank

c) One (1), 765kV bay for 189MVAR Bus Reactor Bank

19

d) 3 nos. spare 765kV bays

1.5.2 400kV switchyard is to be modified to accommodate Two (2),

400kV bays of 2x1000MVA, 765/400kV Transformer Bank in Double Main &

Transformer Bus arrangement.

1.5.3 Electrical / Mechanical Auxiliaries & other Major Misc. works

a) 2x1000kVA, 33/0/4kV Transformers

b) D.G Set

c) Air conditioning Plant for each building

d) Lighting system for complete switchyard, buildings, streets and stores

etc.

e) SDH communication system & PLCC communication

f) AC & DC Auxiliary Power supply system including Batteries, Battery

charges, AC & DC distribution boards

g) Fire Fighting equipment

h) Any other work necessary for completion of sub-station”

Sub-para 5 of the said letter under the sub-heading “Nature of

Contract” clearly provided that the work for the 765kV sub-stations on

single source responsibility, turn-key basis shall be awarded through

following four separate contracts:-

FIRST CONTRACT “Supply and Delivery of Equipment & Material”

SECOND CONTRACT “Handling, Erection, Testing and Commissioning Works”

THIRD CONTACT “Civil Works”

FOURTH CONTRACT “Three years O & M”

21. In terms of the said Framework Agreement, the work was split, and

covered by four separate contracts. The first contract was for design,

engineering, manufacture, testing at works and supply of all required

equipment and materials with accessories and auxiliaries, as detailed in

the said contract; the second contract covered erection, testing and

commissioning at site including unloading, handling etc.; the third

contract covered all civil works including materials for commissioning and

20

handing over of the Substations and the fourth contract covered

operations and maintenance for three years.

22. In sub-clause 5 of the said Frame Work Agreement, under the head

“Nature of Contract”, it was clearly stated that the first and second contract shall

cover all works other than civil works required to be completed. The first

contract covered supply and delivery of all equipment and materials as per

schedule of prices as contained in the concerned contract and any other item

required to complete the scope of work for completion of sub-station including

their performance and guarantees; the second contract covered unloading,

handling at site, erection, testing and commissioning of all the equipment and

material supplied by the contractor under the first contract and any other work

required to complete the scope for commissioning and handing over of the entire

sub-station. The third contract would cover all civil works including required

materials under its scope.

23. Four separate contracts were executed by and between UPPTCL and the

Respondent No.1. There can be no doubt that cess under the Cess

Act is payable in respect of the Third Contract, which covers all

civil works. The first and second contracts, which cover all works

other than civil works, and do not involve any construction, do

not attract cess under the Cess Act.

24. The penultimate paragraph of Clause 5 of the said Frame Work Agreement

provided:-

“Nature of Contract

…...

The Contractor shall be fully responsible for the works to be executed

21

under first three (3) Contracts and any breach or occurrence or default

under one Contract shall automatically be deemed as a breach or

occurrence or default of other Contracts, giving the Engineer absolute

right to take appropriate action under any/all the Contracts including right

to recover damages from any/all the Contracts or terminate any/all the

Contracts. Any such breach or default or occurrence in any of the

Contracts shall not relieve the Contractor of any of his

responsibility/obligation under the other Contracts and no time extension

shall be given to the Contractor on these grounds. The

equipment/material to be supplied by the Contractor under the first

Contract when installed and commissioned under the second Contract

shall give satisfactory performance in accordance with provisions of the

Contract. The signing of three (3) separate Contracts shall in no way

dilute the insurance responsibility and obligations of the Contractor.”

25. The total value of (i) the First Contract (Supply) was 2750933042.00

(Two Hundred and Seventy Five Crores Nine Lakhs, Thirty Three Thousand

and Forty Two), (ii) the Second Contract (Erection) was Rs.40129510.00

(Four Crores One Lakh, Twenty Nine Thousand Five Hundred and Ten), (iii)

the Third contract (Civil) was Rs. 193808465.00 (Nineteen Crores Thirty

Eight Lakhs Eight Thousand Four Hundred and Sixty Five) and (iv) the

Fourth contract (Operations and Maintenance) was Rs.35737200.00

(Three Crores, Fifty Seven Lakhs Thirty Seven Thousand and Two

Hundred).

26. In this context, it would be appropriate to refer to Clause 6 of the letter

dated 5th March 2010, extracted hereinbelow:-

“6. Aggregate Contract Value

The sum of Contract values of first, second, third and fourth Contracts for

765/400kV sub-station at Unnao shall be the aggregate Contract value.

The aggregate value of each contract shall be as under:-

i. Total value of First Contract

(Supply of Equipment & Material)

Rs.275,09,33,042.00

ii. Total value of Second Contract

(Handling, Erection, testing & commissioning

Works)

Rs.4,01,29,510.00

iii. Total Value of Third contract

(Civil Works)

Rs.19,38,08,465.00

iv. Total value of Fourth Contract

(Three Years O & M)

Rs.3,57,37,200.00

22

Aggregate Value of Contract Rs.302,06,08,217.00

 (Rupees three hundred two crore six lac eight thousand two hundred seventeen only)

27. Clause 13 provided that the contract would be governed by the conditions

given in the said letter read with:

(a) Special Conditions of Contract (Annexure-II)

(b) General Conditions for supply of Plant & the Execution of work

Form-A (Annexure-III),

(c) (i) Technical specification as per volume II, III & IV,

(d) Technical Data Schedule (Guarantee technical particulars, as per

volume -V).

28. Clause 1 of the Special Conditions of Contract relating to Scope of Work

provided:-

“The scope of work is defined in the technical specification No.017806-

47ES-0100 and comprises engineering, procurement and construction of

765/400 kV sub-station at Unnao on a turn-key basis.

The substation includes four (4) separate Contracts which are defined

in Clause 3.1 of the Special Conditions of Contract.”

29. Clause 3 of the Special Conditions of Contract relating to Nature of

Contracts specifically provides:-

“SCC 3 Nature of Contract

SCC 3.1 The work for the above 765kV sub-stations on single source

responsibility, turn-key basis shall be awarded through following four

separate contracts:-

FIRST CONTRACT “Supply and Delivery of Equipment &

Material”

SECOND CONTRACT “Handling, Erection, Testing and Commissioning

Works”

THIRD CONTACT “Civil Works”

FOURTH CONTRACT “Three years O & M”

The first and second Contracts shall cover all works, other than civil

works, required to complete total scope under these specifications. The

THIRD Contact shall cover all civil works including required materials

under its scope.

23

The first Contract shall cover supply and delivery of all equipments and

materials as per Schedule of Prices of respective Contract and any other

item required to complete the scope of work for completion of substation

including their performance and guarantees.

The second Contract shall cover unloading, handling at site, erection,

testing and commissioning of all the equipments and materials to be

supplied by the Contractor under first Contract and any other work require

to complete the scope for commissioning and handing over of the entire

substation.

The third Contract shall cover all Civil Works including materials to

complete the scope for commissioning and handing over of the entire

substation.

The Contractor shall be fully responsible for timely execution of all the

activities under above three (3) Contracts such that the substation is

commissioned and handed over within stipulated completion period.

The Contractor shall be fully responsible for the works to be executed

under first three (3) Contracts and any breach or occurrence or default

under one Contract shall automatically be deemed as a breach or

occurrence or default of other Contracts giving the Engineer absolute right

to take appropriate action under any/all the Contracts including right to

recover damages from any/all the Contracts or terminate any/all the

Contracts. Any such breach or default or occurrence in any of the

Contracts shall not relieve the Contractor of any of his responsibility

/obligations under the other contracts and no time extension shall be

given to the Contractor on these grounds. The equipment/material to be

supplied by the Contractor under the first Contract when installed and

commissioned under the second Contract shall give satisfactory

performance in accordance with provisions of the Contract. The

signing of three (3) separate Contracts shalt in no way dilute the

insurance responsibility and obligations of the Contractor.

Notwithstanding executing the separate Contracts and breakup of

Contract prices the Contracts shall at all times be construed as a single

source responsibility assignment, complete project management, overall

co-ordination between civil, electrical supply and erection works for timely

commissioning of Substation shall be the Contractor’s responsibility.

Clauses 3.2, 3.3, 3.4, 3.5 and 8.1 of the Special Conditions of Contract is

set out hereinbelow:-

SCC 3.2 Vetting of Documents

The Contractor shall bear all the charges in respect of vetting and

execution of Contract documents.

SCC 3.3 Aggregate Contract Vaue

The sum of Contract Values of first, second, third and fourth Contracts

shall be the aggregate Contract value. The limits for quantity variation

and penalties for delays shall be 10% of the respective Contract value as

under:

SCC 3.4 Quantity Variation

24

The quantities of individual works under any of the above Contracts may

very to any extent; however the total value of such variations shall not

exceed the 10% of the concerned Contract value.

Such variations in quantities/work, under any of the above Contracts, upto

10% of the concerned Contract value shall be allowed by concerned

Engineer of Contract. However if such variation is likely to exceed 10% of

the Contract value of any Contract, the variation shall be allowed by

concerned Engineer of Contract after taking prior concurrence of

competent authority.

SCC 3.5 Liquidated Damages for Delays in Completion Period

Damages for delay in completion under clause 32 of Form “A" shall be

applicable

with the condition that the ’liability of delay’ shall be increased from 10%

if the transformer for the first phase of Unnao sub-station do not reach

site up to December, 2010. tn view of turn-key nature of contract

liquidated damages shall be levied only in case of delay on contractual

completion period of that phase of sub-station.

SCC 8.1 The prices of imported items, if any, shall be inclusive of all

taxes, duties, license fees, import/custom duties etc. legally payable. Any

such taxes, duties and levies shall be Contractor’s account and no

separate claim on this account shall be entertained by the Purchaser.”

30. Pursuant to the said First Contract (Supply Contract) the Respondent

submitted two performance bank guarantees on 30th August 2012, that is

bank guarantee No. 2012/272 issued by Corporation Bank, Mumbai for an

amount of Rs.6092783.00 and bank guarantee No.2012/273 also drawn on

the Corporation Bank, Mumbai for an amount of Rs.71068130/-.

Respondent No.1 duly performed the first contract under the framework

agreement that is the contract for supply of equipment along with

accessories and auxiliaries and other related materials and the bills raised

were duly cleared.

31. Subsequently, there was an audit inspection of the 765 KV

Transmission Division, Unnao for the period from April 2012 to April 2016.

The audit inspection was conducted by the Audit Officer under the Senior

25

Accountant General during the period from 4th June 2016 to 9th June 2016.

32. In the Audit Report, the Accountant General pointed out the lapse on

the part of UPPTCL, in not deducting labour cess from the bills of the

contractor, that is Respondent No.1, in respect inter alia of the First

Conract, observing that every employer was required to levy and collect

cess at a rate not exceeding 2% and not less than 1% of the cost of

construction incurred by an employer and to deposit the same with the

Building and Other Construction Workers Welfare Board.

33. By a letter No.184 dated 2nd September 2016, the Executive

Engineer of the Petitioner, informed the Respondent No.1 of the objection

raised in the Audit Inspection Report regarding non deposit of Labour Cess

on the First Contract. It was contended that 1% Labour Cess was to be

collected from the contractor on the project cost, which would include

supply of equipment and materials as well as erection work. The

Respondent No.1 was also informed that simple interest was chargeable

on Labour Cess at the rate of 2% per month.

34. By a letter dated 14th September 2016, the Respondent objected to

the imposition of Labour Cess computed at 1% of the total cost of

construction, stating that for the purposes of the first contract, the

company was not covered under the definition of contractor under the

Act. Thereafter, by a letter dated 27th September 2016, the UPPTCL

advised the Respondent No.1 to seek opinion of the Labour Commissioner

on the applicability of Labour Cess.

26

35. By a letter dated 14th November 2016, the Respondent No.1 sought

the opinion of the Labour Commissioner on the applicability of Labour

Cess on the cost of supply of equipment and materials, contending that

Labour Cess was not payable under the Cess Act or the BOCW Act on

supply of equipment and materials.

36. The Respondents also made representations to the UPPTCL for

setting aside the demand for cess alleged to be outstanding, on the

ground that the first contract was exempted from cess under the BOCW

Act and the Cess Act 1996.

37. UPPTCL did not release the Performance Bank Guarantee of Rs.7

crore odd furnished by the Respondent No.1, to secure recovery of an

amount of Rs.2.6 crores towards cess. Later, the Respondent No.1

extended the validity of the bank guarantee until 30th November, 2018,

and further extended the bank guarantee till February 2019.

38. In the meanwhile, by a letter dated 1st June 2018, the

Superintending Engineer, UPPTCL informed the Respondent No.2

Corporation Bank that consequent upon successful performance of the

transformer and isolators supplied by the Respondent No.1, the bank

guarantees against the first (supply) contract were partly discharged as

detailed in the said letter. The Bank was instructed to retain an

amount of Rs.2,60,68,814/- from BG No. 2012/2 dated 30.8.2012 of

Rs.7,10,68,130/- and issue an amended Bank Guarantee extending its

validity.

27

39. By a letter dated 29th December 2018, the Superintendent Engineer

of the UPPTCL requested the Executive Engineer, Unnao to recover labour

cess for the supply part of the composite contract from the pending bills

of the Respondent No.1 and, in case any amount still remained

outstanding, to deduct such amount by encashment of the Performance

Bank Guarantee for Rs.2,60,68,814/- held to secure the payment of labour

cess.

40. On or about 3rd January 2019, the Respondent filed a Writ Petition

M/B No.125 of 2019 before the Lucknow Bench of the Allahabad High

Court, challenging the said communications. In or about February 2019,

while the writ petition was pending, the Executive Engineer, Unnao

purported to deposit Rs.38,38,104/- with the Building and other

Construction Workers Welfare Board (BOCWWB) as part payment towards

labour cess.

41. By an interim order dated 7th January 2020, the Hon’ble High Court

restrained the UPPTCL from encashing the bank guarantee. The question

of law as to whether cess would be payable in respect of supply of

equipment by the Respondent no.1 to UPPTCL was kept open.

42. UPPTCL filed a Counter Statement to the writ petition and the

Respondent filed a Rejoinder thereto contending that the provisions of the

BOCW Act were not applicable to the Supply Contract and levy and

deduction of labour cess in respect of the Supply Contract, was not

permissible in law. UPPTCL did not take any objection to the

maintainability of the writ petition on the ground of existence of an

28

alternative remedy, as is evident from its Counter Statement/Affidavit filed

in the High Court.

43. 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 demanding outstanding labour

cess amounting to Rs.2,60,68,814/- computed at the rate of 1% of the

contract value.

44. The High Court accepted the submission of the Respondent No.1

that in the absence of levy and assessment under the

Cess Act 1996 and the Rules made thereunder, 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.

45. 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

29

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.

46. Clauses 24, 25 and 26 of the General Conditions for Supply of Plant

and Execution of Works to the UPPTCL provide as follows:-

“24.Deduction from Contract Price :- All costs, damages or

expenses, which the Purchaser may have paid, for which under the

Contract, the Contractor is liable, may be deducted by the purchaser from

any money due or which may become due by him to the Contractor under

Contract or may be recovered by suit or otherwise from the Contractor.

Any sum of money due and payable to the Contractor (including

security deposit returnable to him) under this Contract may be

appropriated by the Purchaser and set off against any claim of the

Purchaser for the payment of a sum of money arising out of or under any

contract made by the Contractor, with the Purchaser.

25. Terms and Payment:- 21 (1) subject to deduction which the

Purchaser may be authorized to make under the Contract or subject to

any additions or deductions provided for under Clause 12, the Contractor

shall be entitled to payment as follows:-

(a)Eight percent of the F.O.R. Contract Value of the plant in rupees on

receipt by the Purchaser of the Contractor’s invoice giving the number

and date of railway receipt covering the dispatch of the plant from the

Indian Port and of the advise note giving case number and contents,

together with a certificate by the Contractor to the effect that the plant

detailed in the said advise note has actually been dispatched under the

said railway receipt and that the Contract value of the said plaint so

dispatched is not less than the amount entered in the invoice.

30

(b)Ten percent of the F.O.R. Contract value of the plant on satisfactory

completion of test an taking over of the plant.

(c)Ten percent of the F.O.R. Contract value of the plant at the end of

Twelve months from the date of taking over.

(d)For the erection of the plant and proportion of the progress of the work

on the receipt by the Purchaser of monthly invoices submitted by the

Contract supported by the certificates of the Engineer.

If at the time at which either of the instalments due under sub-clause

(b) and (c) of Clause (1) hereof become payable there are minor defects in

the plant which are not of such importance as to affect the full

commercial use of the plant then the Purchaser shall be entitled to retain

only such part of the instalment then due as represents the cost of

making good such minor defects and any sum so retained shall, subject to

the provisions of Clause 36, become due upon such minor defects being

made good.

If the Purchaser desires that the plant or any portion thereof should not

be dispatched by the Contractor when it is due for dispatch, the

Contractor shall store such plant or portion at his works and be

‘responsible’ for all risk. For such storage the Purchaser shall pay to the

Contractor at a rate to be mutually agreed upon between the parties, but

not exceeding 5s (five Shillings) per ton per week payable quarterly, plus

interest at one percent per annum above the current rate of the State

Bank of India on 80% of the Contract value of the plant or portion thereof

so stored, for the period from the date on which the said plant or portion

becomes, due and is ready for shipment upto the date on which it is

actually shipped.

(A) In the event of the Supplier/Contractor/Company not being able

to supply the materials or to carry out works in accordance with the terms

of this Contract, the Government/Purchaser/Owner shall have the right to

recover any sum advanced in accordance with the Clause 25 from the

Supplier/Contractor/Company and from his/its assets.

26. Provisional Sums :- In any case where the Contract price

includes a provisional sum to be provided by the Contractor for meeting

the expenses of extra work or for work to be done or materials to be

supplied by a sub-Contractor, such sum shall be expended or used, either

wholly or in part, or be not used at the discretion of the Engineer and

entirely as he may decide and direct. If no part or only a part thereof be

used, then the whole or the part not used, as the case may be, shall be

deducted from the Contract price. If the sum used is more than such

provision, the Contractor shall pay the excess. In the case of the

materials supplied or work done by a sub-Contractor, the total of the net

sum paid to the sub-Contractor on account of such materials or work and

a sum equal to 10 % of such net sum allowed as Contractor’s profit shall

31

be deemed to be sum used. None of the works or articles to which sum

of money refers shall be done or purchased without the written order of

the Engineer. The Contractor shall allow the sub-Contractors every facility

for the supply of materials or execution, of their several works

simultaneously with his own, and shall, within fourteen days after the

Engineer has requested him in writing to do so, pay the dues of such subContractors on account of such materials or work: PROVIDED ALWAYS

that the Contractor shall have no responsibility with regard to such works

or articles unless he shall have previously approved the sub-Contractor

and\or the material or plant to be supplied.”

47. 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 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), referred to above.

48. As observed above, 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.

49. In Dewan Chand Builders and Contractors vs. Union of India

reported in (2012) 1 SCC 101, this Court examined the object of the BOCW

Act of welfare of workers engaged in building and construction work, and

held:-

32

“The background in which the BOCW Act was enacted, is set out in the

Statement of Objects and Reasons appended to the Bill preceding its

enactment. To better appreciate the legislative intent, it would be instructive

to refer to the following extract from the Statement of Objects and Reasons:

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

unorganized labour in India. The building and other construction works are

characterized by their inherent risk to the life and limb of the workers. The

work is also characterized by its casual nature, temporary relationship

between employer and employee, uncertain working hours, lack of basic

amenities and inadequacy of welfare facilities. In the absence of adequate

statutory provisions, the requisite information regarding the number and

nature of accidents is also not forthcoming. In the absence of such

information, it is difficult to fix responsibility or to take any corrective

action.

Although the provisions of certain Central Acts are applicable to the

building and other construction workers yet a need has been felt for a

comprehensive Central Legislation for regulating their safety, health,

welfare and other conditions of service."

5. A fairly long preamble to the BOCW Act is again indicative of its purpose. It

reads thus:

"An Act 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 matters connected therewith or incidental

thereto."

7. The Statement of Objects and Reasons to the BOCW Act explained that it had

been considered ‘necessary to levy a Cess on the cost of construction incurred

by the employers on the building and other construction works for ensuring

sufficient funds for tthe Welfare Boards to undertake the social security

Schemes and welfare measures.’ Simultaneously with the enactment of the

BOCW Act, the Parliament enacted the Cess Act. The Statement of Objects and

Reasons to the Cess Act noted that the intention was to ‘provide for the levy

and collection of a Cess on the cost of construction incurred by the employers

for augmenting the resources of the Building and Other Construction Workers'

Welfare Boards constituted by the State Governments under the Building and

Other Construction Workers (Regulation of Employment and Conditions of

Service) Ordinance, 1995.’

8. It is manifest from the overarching schemes of the BOCW Act, the Cess Act,

the Rules made thereunder that their sole object is to regulate the employment

and conditions of service of building and other construction workers,

traditionally exploited sections in the society and to provide for their safety,

health and other welfare measures. The BOCW Act and the Cess Act break new

ground in that, the liability to pay Cess falls not only on the owner of a building

33

or establishment, but under Section 2(i)(iii) of the BOCW Act ‘in relation to a

building or other construction work carried on by or through a contractor, or by

the employment of building workers supplied by a contractor, the contractor.’

The extension of the liability on to the contractor is with a view to ensure that,

if for any reason it is not possible to collect Cess from the owner of the building

at a stage subsequent to the completion of the construction, it can be

recovered from the contractor. The Cess Act and the Cess Rules ensure that

the Cess is collected at source from the bills of the contractors to whom

payments are made by the owner. In short, the burden of Cess is passed on

from the owner to the contractor.

50. In Lanco Anpara Power Limited v. State of Uttar Pradesh and

Ors. Repored in (2016) 10 SCC 329, this Court held:-

“37. We now advert to the core issue touching upon the

construction of Section 2(1)(d) of the BOCW Act. The argument of

the appellants is that language thereof is unambiguous and literal

construction is to be accorded to find the legislative intent. To our

mind, this submission is of no avail. Section 2(1)(d) of the BOCW Act

dealing with the building or construction work is in three parts. In the

first part, different activities are mentioned which are to be covered

by the said expression, namely, construction, alterations, repairs,

maintenance or demolition. Second part of the definition is aimed at

those buildings or works in relation to which the aforesaid activities

are carried out. The third part of the definition contains exclusion

clause by stipulating that it 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), applies”. Thus,

first part of the definition contains the nature of activity; second part

contains the subject-matter in relation to which the activity is carried

out and the third part excludes those building or other construction

work to which the provisions of the Factories Act or the Mines Act

apply.”

51. 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. Copies of the

KPTCL circulars dated 22.8.2012 and 28.8.2012 to this effect are annexed

to the Rejoinder of the Respondent no.1 in the High Court.

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52. 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.

53. 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

35

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.

54. 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 which states:

“The contract shall be a ‘Divisible Contract’ with single point

responsibility, hence no works Contract tax shall be payable and

the Purchaser shall not bear any liability on this account.”

55. Mr. Ramesh Singh appearing on behalf of the Respondent No.1

submitted and rightly, 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.

56. Mr. Singh pointed out that 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.

57. Mr. Singh argued 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

36

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.

58. As argued by Mr. Singh, the judgment of this Court in Lanco

Anpara Power Limited v. State of Uttar Pradesh and Other reported

in (2016) 10 SCC 329 cited on behalf of UPPTCL is of no assistance to

UPPTCL since the issues of whether cess under the Cess Act was leviable

on a Supply Contract or whether the cost of construction under Section 3

of the Cess Act read with Rule 3 of the Cess Rules included the cost of

supply of equipment were not adjudicated in the aforesaid case.

59. 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.

60. As observed above, UPPTCL demanded and partly realized cess on

the supply Contract, solely on the basis of report of the CAG. In our

considered view, 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.

61. In Centre of Public Litigation v. Union of India reported in

(2012) 3 SCC 1, this Court held that when CAG report was subject to

37

scrutiny of the Public Accounts Committee and the Joint Parliamentary

Committee, it would not be proper to refer to to findings and conclusions

contained therein. In this context, reference may also be made to the

decision of this Court in Arun Kumar Agrawal v. Union of India and

Others reported in (2013) 7SCC 1, where this Court held:-

“56. CAG may be right in pointing out that public monies are to be

applied for the purposes prescribed by Parliament and that

extravagance and waste are minimised and that sound financial

practices are encouraged in estimating and contracting, and in

administration generally.

xxx xxx xxx

67. The question that is germane for consideration in this case is

whether this Court can grant reliefs by merely placing reliance on

the CAG's Report. The CAG's Report is always subject to

parliamentary debates and it is possible that PAC can accept the

ministry's objection to the CAG Report or reject the report of the

CAG. The CAG, indisputably is an independent constitutional

functionary, however, it is for Parliament to decide whether after

receiving the report i.e. PAC to make its comments on the CAG's

Report.”

62. In Pathan Mohammed Suleman Rehmatkhan v. State of

Gujarat and Others reported in (2014) 4 SCC 156, this Court held:-

“9. We heard Shri Y.N. Oza, the learned counsel for the petitioner

and perused the records, as well as counter-affidavit and replyaffidavit filed by the parties before the Gujarat High Court. The

entire case of the petitioner is based on the CAG report. The

applicability and the binding characteristics of such report were

considered by the High Court. In Arun Kumar Agrawal case [Arun

Kumar Agrawal v. Union of India, (2013) 7 SCC 1] this Court held as

follows: (SCC p. 24, para 68)

“68. We may, however, point out that since the report is from a

constitutional functionary, it commands respect and cannot be

brushed aside as such, but it is equally important to examine the

comments what respective Ministries have to offer on the CAG's

report. The Ministry can always point out, if there is any mistake in

38

the CAG's report or the CAG has inappropriately appreciated the

various issues.”

10. The CAG is a key figure in the system of parliamentary

control of finance and is empowered to delve into the economy,

efficiency and effectiveness with which the departmental authorities

or other bodies had used their resources in discharging their

functions. The CAG is also the final audit authority and is a part of

the machinery through which the legislature enforces the regulatory

and economy in the administration of public finance, as has been

rightly pointed out by the High Court. But we cannot lose sight of

the fact that it is the Government which administers and runs the

State, which is accountable to the people. The State's welfare,

progress, requirements and needs of the people are better

answered by the State, also as to how the resources are to be

utilised for achieving various objectives. If every decision taken by

the State is tested by a microscopic and a suspicious eye, the

administration will come to a standstill and the decision-makers will

lose all their initiative and enthusiasm. At hindsight, it is easy to

comment upon or criticise the action of the decision-maker.

Sometimes, decisions taken by the State or its administrative

authorities may go wrong and sometimes they may achieve the

desired results. Criticisms are always welcome in a parliamentary

democracy, but a decision taken in good faith, with good intentions,

without any extraneous considerations, cannot be belittled, even if

that decision was ultimately proved to be wrong.

xxx xxx xxx

12. Reference in this regard may also be made to the judgment

of this Court in Centre for Public Interest Litigation v. Union of

India [(2012) 3 SCC 1 : AIR 2012 SC 3725] , wherein it was held that

when the CAG report is subject to scrutiny by the Public Accounts

Committee and the Joint Parliamentary Committee, it would not be

proper to refer to the findings and conclusions contained therein.

The Court even went on to say that it is not necessary to advert to

the reasoning and suggestions made, as well.”

63. In this 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

39

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 of the First Contract has

been deducted only in view of the audit objection raised by the Office of

Comptroller and Auditor General (CAG).

64. The initial stand of UPPTCL will appear from the relevant portion of

the CAG report reproduced hereinbelow:-

“Management stated in its reply that the labour cess from

supply bills has not been deducted because there was not

involvement of labour in supply of material whereas labour cess

has been deducted from the erection bill. Reply is not tenable

as labour cess will be deducted from the cost of construction

wherein supply of material and erection of work were also

included.

 [Emphasis Supplied]”

65. It is true that the General Conditions contain an Arbitration Clause

which is set out hereinbelow:-

“Arbitration :- If any dispute, difference or controversy shall at any

time arise between the Contractor on the one hand and the U.P.

Power Transmission Corporation Limited and the Engineer of the

contract on the other hand, the contract, or as to the true

construction meaning and intent of any part or condition of, the

same or as to the manner of execution or as to the quality or

description of, or payment for the same, or as to the true intent,

meaning, interpretation, construction or effect of the clauses of

Contract, specifications or drawings or any of them, or as to

anything to be done, committed or suffered in pursuance of the

contract, or specification or as to the mode of carrying the contract

into effect, or as to the breach of alleged breach of the contract, or

as to any claims on account of such breach or alleged breach or as

to obviating or compensating for the commission of any such

breach, or as to any other matter or thing whatsoever connected

with or arising out of the contract and whether before or during the

progress of after the completion of the contract, such question

difference of dispute shall be referred for adjudication to the

40

Chairman, U.P. Power Transmission Corporation Limited or to any

other person nominated by him in this behalf and his decision in

writing shall be final, binding and conclusive. This submission shall

be deemed to a submission on arbitration within the meaning of the

Indian Arbitration Act, 1940 or any statutory modification thereof

The Arbitrator may from time to time with consent of the parties

enlarge the time for making and publishing the award.

Upon every or any such reference, the cost of an incidental to the

reference and award respectively shall be in the discretion of the

arbitrator, who shall be competent to determine the amount thereof

or direct the same to be taxed as between solicitor and clients or as

between party and party and to direct by whom and to whom and in

what manner the same shall be borne and paid.

Work under the contract shall, if reasonably, possible, continued

during the Arbitration proceedings and no payments due to payable

by the UPPTCL shall be withheld on account of such proceeding. In

case refusal/neglect by such nominee Chairman, UPPTCL may

nominate another person in his place.”

66. Even though there is an arbitration clause, the Petitioner herein 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.

67. 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 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. Reference may be made to Whirlpool Corporation v.

41

Registrar of Trade Marks, Mumbai and Ors. reported in AIR 1999 SC

22 and Pimpri Chinchwad Municipal Corporation and Ors. V.

Gayatri Construction Company and Ors, reported in (2008) 8 SCC

172, cited on behalf of Respondent No.1.

68. In Harbanslal Sahnia and Ors. v. Indian Oil Corporation Ltd.

reported in (2003) 2 SCC 107, this Court allowed the appeal from an order

of the High Court dismissing a writ petition and set aside the impugned

judgment of the High Court as also the impugned order of the Indian Oil

Corporation terminating the dealership of the Appellants, notwithstanding

the fact that the dealership agreement contained an arbitration clause.

69. It is now well settled by a plethora of decisions of this Court 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.

70. In this 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 Cess Act in

42

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.

71. 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.

72. In our considered opinion, the judgment and order of the High Court

impugned does not call for inference under Article 136 of the Constitution

of India. The Special Leave Petition is, therefore, dismissed.

 ...................................J.

 [ Uday Umesh Lalit ]

 ..................................J.

[ Indira Banerjee]

MAY 12, 2021

NEW DELHI

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