construction workers are not covered by the Factories Act and, therefore, welfare measures specifically provided for such workers under the BOCW Act and Welfare Cess Act cannot be denied.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6223 OF 2016

|LANCO ANPARA POWER LIMITED                 |…..APPELLANT(S)           |

|VERSUS                                     |                            |

|STATE OF UTTAR PRADESH & ORS.              |…..RESPONDENT(S)          |

W I T H

CIVIL APPEAL NO.                   OF 2016

(ARISING OUT OF SLP (C) NOS. 29105-29106 OF 2011)

W.P. (C) NO. 64 OF 2012

W.P. (C) NO. 848 OF 2013

W.P. (C) NO. 385 OF 2014

CIVIL APPEAL NO. 6569 OF 2014

T.P. (C) NO. 342 OF 2014

T.C. (C) NO. 29 OF 2015

W.P. (C) NO. 174 OF 2016

W.P. (C) NO. 311 OF 2016

CIVIL APPEAL NO. 6571 OF 2014

T.C. (C) NO. 38 OF 2016

CIVIL APPEAL NO.                   OF 2016

(ARISING OUT OF SLP (C) NO. 26363 OF 2016)

W.P. (C) NO. 698 OF 2016

AND

CIVIL APPEAL NO.                   OF 2016

(ARISING OUT OF SLP (C) NO. 26330 OF 2016)

J U D G M E N T

A.K. SIKRI, J.

Leave granted in SLP (C) Nos. 29105-29106 of 2011,  SLP  (C)  No.  26363  of

2016 and SLP (C)  No.  26330  of  2016.   Since  pure  question  of  law  is

involved, we allow the transfer petition and transfer cases  and  also  take

up, along with these appeals, the writ petitions  which  were  filed  before

the respective High Courts.

These appeals are filed by the appellants challenging the orders  passed  by

different High Courts i.e. High Court of Allahabad, High  Court  of  Orissa,

High Court of Madhya Pradesh  and  High  Court  of  Karnataka.   These  High

Courts, however, are unanimous in their approach and have reached  the  same

conclusion.  In all these cases, appellants were issued show  cause  notices

by the concerned authorities under the provisions of the Building And  Other

Construction Workers (Regulation of Employment and  Conditions  of  Service)

Act, 1996 (hereinafter referred to as ‘BOCW Act’) and  Buildings  And  Other

Construction Workers Welfare Cess Act,  1996  (hereinafter  referred  to  as

‘Welfare Cess Act’).  They had  challenged  those  notices  by  filing  writ

petitions in the High Courts on the ground that the provisions of  BOCW  Act

or Welfare Cess Act were not applicable to them because of the  reason  that

they were registered under the Factories Act, 1948.   It  may  be  mentioned

that at the relevant time no manufacturing operation had  commenced  by  the

appellants.   In  fact,  all  these  appellants  were  in  the  process   of

construction of civil works/factory buildings etc. wherein they had  planned

to set up their factories.  As the process of construction  of  civil  works

was   undertaken  by  the  appellants  wherein  construction  workers   were

engaged, the respondent authorities took the view  that  the  provisions  of

the  aforesaid  Acts  which  were  meant  for  construction  workers  became

applicable and the appellants were supposed to pay the cess for the  welfare

of the said workers engaged in the construction work.   The  appellants  had

submitted that Section 2(d) of the  BOCW  Act  which  defines  ‘building  or

other construction work’ specifically states that it does  not  include  any

building or construction work to which the provision of the  Factories  Act,

1948 or the Mines Act, 1952 apply.  Since the  appellants  stood  registered

under the Factories  Act,  they  were  not  covered  by  the  definition  of

building or other construction work as contained in Section 2(d) of the  Act

and, therefore, said Act was not applicable to them  by  virtue  of  Section

1(4) thereof.  All the High Courts have negated the aforesaid  plea  of  the

appellants on the ground that the appellants would not  be  covered  by  the

definition of factory defined under Section 2(m) of  the  Factories  Act  in

the absence of any operations/ manufacturing process  and,  therefore,  mere

obtaining a licence under Section 6 of the Factories Act would  not  suffice

and rescue them from their liability to pay  cess  under  the  Welfare  Cess

Act.  This is, in  nutshell,  the  subject  matter  of  all  these  appeals.

However, in order to understand the full implication of the  issue  involved

and to answer the said issue, it would be apt to take note of certain  facts

from one of these appeals.  This factual canvass is  suitably  available  in

the events that have occurred leading to the  filing  of  Civil  Appeal  No.

6223/2016.

In this appeal, the appellant proposed to set up a 2X600  Megawatt  capacity

coal-based thermal power project namely “Anpara C”  at  Anpara  in  District

Sonebhadra, Uttar Pradesh (“the Project”), pursuant to being selected  in  a

tariff-based competitive  bidding  initiated  by  the  Uttar  Pradesh  Rajya

Vidyut Utpadan Nigam Ltd. (UPRVUNL) on behalf of  the  Uttar  Pradesh  Power

Corporation Ltd.  (UPPCL).   The  project  consists  of  two  Steam  Turbine

Generators (STG) each having capacity of 600  MW  and  two  pulverised  coal

fired steam generators and the balance of plant.  The appellant, in  respect

of the aforesaid project, made an application to the Director of  Factories,

Uttar Pradesh, submitting the layout/drawings of  the  proposed  plants  and

requesting  for  registration  of  the  project  as  a  factory  under   the

provisions of the Factories  Act,  1948  and  the  Uttar  Pradesh  Factories

Rules, 1950.  The appellant  was  granted  registration  and  licence  under

Section 6 of the Factories Act,  1948  read  with  Uttar  Pradesh  Factories

Rules, 1950 for the said Project, as a factory.  Respondent No.  1  notified

the Uttar Pradesh Building and other  Construction  Workers  (Regulation  of

Employment and Conditions of Service) Rules, 2009 (for short  ‘BOCW  Rules’)

on 04.02.2009.  Immediately thereafter, the appellant received a  notice  of

even date issued by respondent No. 2, intimating that the  Chief  Secretary,

Government of Uttar Pradesh had directed that  “establishments”  engaged  in

construction activities were required to  get  themselves  registered  under

the provisions of the BOCW  Act  and  the  BOCW  Rules.   Simultaneously,  a

letter  of  even  date  was  also  received  from  the  District  Collector,

Sonebhadra, Uttar Pradesh, calling upon  the  appellant  to  get  itself/its

contractors registered under the provisions of the BOCW  Act  and  the  BOCW

Rules.  The appellant,  vide  its  letter  of  even  date,  replied  to  the

aforesaid  communication  dated  19.04.2010  of  the   District   Collector,

Sonebhadra, stating that the  appellant  was  undertaking  the  construction

activity of the Project under the provisions of the  Factories  Act  and  as

such, in view of Section 2(1)(d) of the BOCW Act, the Project  was  exempted

from the application of the BOCW Act, and consequently the Welfare Cess  Act

and BOCW Rules inasmuch as the provisions of the Factories Act apply to  the

Project.

The respondents were not satisfied with the aforesaid  stand  taken  by  the

appellant.   Thus,  show  cause  notice  dated  17.02.2011  was  issued   by

respondent No. 2 as to why action be not taken  against  the  appellant  for

failing to get itself registered under BOCW Act. It was followed by  another

notice of even date stating that the appellant had not  furnished  requisite

information  relating  to  construction  activities  undertaken  by  it   as

required under Section 4 of the Welfare Cess Act read with  Rule  6  of  the

Welfare Cess Rules.  Some more notices were issued  to  the  similar  effect

with regard to the construction activities in respect  of  the  township  in

Anpara, undertaken by the appellant.   Insofar  as  township  is  concerned,

appellant got itself registered  through  its  principal  contractors  under

Welfare Cess Act and started  paying  the  cess.   However,  in  respect  of

construction activity and factory premises,  the  appellant  reiterated  its

stand that by virtue of Section 2(1)(d) of the BOCW  Act,  it  was  excluded

from the coverage thereof.  The contention of the appellant was rejected  by

the respondents which led to issuance of further notices demanding cess.

At this juncture, the appellant filed the writ petition in  the  High  Court

of Judicature  at  Allahabad  challenging  the  validity  of  notices  dated

14.03.2011 and 02.04.2011  demanding  payment  of  cess,  on  the  following

grounds:

(i)   That the appellant is not amenable to assessment  of  liability  under

the Welfare Cess Act inasmuch as the Factories  Act  is  applicable  to  the

Project, and the Project is as such, exempt from the  applicability  of  the

said Act by virtue of the exclusionary cause contained  in  Section  2(1)(d)

of the BOCW Act.

(ii)        That respondent No. 2, vide impugned  notice  dated  02.04.2011,

was proceeding to calculate the alleged cess payable  by  the  appellant  on

the basis of the cost of the Project, and not on the  cost  of  construction

of the said Project, whereas under the scheme  of  the  Cess  Act,  cess  is

payable only on the cost of construction incurred annually, and not  on  the

entire project cost, which includes  several  other  components  apart  from

civil construction works.

The respondents filed  their  counter  affidavit  contesting  the  petition.

After hearing, the writ petition has been dismissed by the High  Court  vide

judgment dated 28.04.2015, gist whereof  has  already  been  taken  note  of

above.

Emphatic submissions were made  by  Mr.  Sundaram,  learned  senior  counsel

appearing in some of these appeals, questioning the approach and  conclusion

reached by the High Court.  Other senior counsel Mr. Gaurab Banerji and  Mr.

Akhil Sibal supplemented those submissions lending  their  candour  thereto.

These  submissions  were  further  supplemented  by  M/s.  Prashant  Shukla,

Arunabh Chowdhury and  K.  Raghava  Charyulu,  Advocates.   It  may  not  be

necessary to take note of individual  submissions  made  by  these  counsel.

Instead, for the sake of brevity, we  are  reproducing  the  submissions  of

these counsel in consolidated form hereinafter.

These counsel have led two prong  attacks  on  the  demands  raised  by  the

respondents for payment of cess under BOCW Act read with Welfare  Cess  Act,

which is as under:

i)    In the first instance, it is argued that BOCW Act does  not  apply  to

those undertakings  which  are  registered  under  the  Factories  Act.   To

support this submission, emphasis was laid on the  definition  of  “building

or other construction work” as contained in Section  2(1)(d)  of  BOCW  Act,

which reads as under:

“Section  2(1)(d)  :  “building  or  other  construction  work”  means   the

construction, alternation, 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.

(emphasis added)”

(ii)  Second submission, which in fact flows  from  first  submission  noted

above, was that the approach of the High Court in dealing  with  the  matter

was contrary to law.  In this behalf, it  was  pointed  out  that  the  High

Court has rejected the case of the appellants  herein  on  the  ground  that

even if the appellants had obtained a licence under the  Factories  Act  for

registration to work a factory, the appellants were still not excluded  from

the provisions of Welfare Cess Act as no manufacturing  process  or  factory

operation had started by the appellants and, therefore, appellants  did  not

answer the description of ‘factory’ within the  meaning  of  Factories  Act.

As per the High Court, since the appellants had only undertaken the  process

of construction of premises which are to be ultimately  used  as  factories,

and since such power project has not started and there was no operation  for

which the licence was obtained under the Factories Act till  the  production

commences, it could not be said that “factory” has come into existence  and,

therefore, the appellants were  not  entitled  to  take  advantage  of  mere

registration under the Factories Act.

Dubbing the aforesaid approach as erroneous, it was  the  argument  of

the appellants that the High Court ignored the pertinent  aspect  that  even

when the building was under  construction,  the  establishments  which  were

covered by  the  Factories  Act  stood  excluded  by  virtue  of  definition

contained in Section 2(d) of BOCW Act which  pertained  to  construction  of

building and, therefore, specifically  covered  the  stage  of  construction

itself.  It was argued that matter should have been seen  from  that  angle.

Advancing this argument further, it was also submitted that the  Legislature

is alive to the fact that the factory is  not  running  at  the  stage  when

building or other construction work is going on.  However,  it  still  chose

to  exclude  those  buildings  or  other  construction  work  to  which  the

provisions of Factories Act apply.

Expanding the aforesaid submissions, the appellants even gave the  rationale

in couching the definition of Section 2(d) of the BOCW Act in that  specific

manner by submitting that once the provisions of Factories  Act  apply,  all

the benefits which are admissible to the workers  under  the  BOCW  Act  and

Welfare Cess Act  are  granted  under  the  Factories  Act  as  well.   This

submission  was  buttressed  by  pointing  out   the   provisions/conditions

stipulated while granting the permission under the Factories  Act.   It  was

submitted that the safety measures and facilities which the appellants  were

obligated under those conditions were the same as stipulated in BOCW Act.

Taking support  of  interpretative  tools  to  support  the  aforesaid  twin

submissions, it was  submitted  by  the  counsel  for  the  appellants  that

Section 2(d) had to  be  given  literal  meaning,  in  the  absence  of  any

ambiguity in the said provision and number of judgments were cited  in  this

behalf. Some of those judgments are as under:

i)  In Punjab Land Development and Reclamation Corporation Ltd.,  Chandigarh

v. Presiding Officer, Labour Court, Chandigarh  and  Others[1],  this  Court

while interpreting the word ‘means’ observed  that  if  the  definition  has

used the word ‘means’, it shall include  certain  things  or  acts  and  the

definition has used the word ‘means’, it shall  include  certain  things  or

acts and the definition is a hard-and-fast definition and no  other  meaning

can be assigned to the expression than is  put  down  in  definition.   This

Court further observed that if the words of the statute  are  in  themselves

precise and unambiguous, then no more  can  be  necessary  than  to  expound

those words in their natural  and  ordinary  sense.   The  words  themselves

alone do, in such case, best declare the intention of the law.   This  Court

after making reference to its  judgment  in  B.N.  Mutto  v.  T.K.  Nandi[2]

observed that “the Court has to determine the intention as expressed by  the

words  used.   If  the  words  of  a  statute  are  themselves  precise  and

unambiguous, then no more can be necessary than to expound  those  words  in

their ordinary and natural  sense”.   It  was  further  observed  that  “the

cardinal rule of construction of statute  is  to  read  statutes  literally,

that is, by giving to the words  their  ordinary,  natural  and  grammatical

meaning.”

ii)   In Shri  Hariprasad  Shivshanker  Shukla  and  another  v.  Shri  A.D.

Divelkar and others[3], it was held that “there is no doubt  that  when  the

Act itself provides a dictionary for the words used, we must look into  that

dictionary first for an interpretation of the words  used  in  the  statute.

We are not concerned with any presumed intention  of  the  legislature;  our

task is to get at the intention as expressed in the statute”.

iii)  In Regional Director, Employees State Insurance  Corporation,  Trichur

v. Ramanuja Match Industries[4], the Court pointed out  that  “there  is  no

doubt that beneficial legislations should have liberal construction  with  a

view to implementing  the  legislative  intent  but  where  such  beneficial

legislation has a scheme of its own there is no warrant  for  the  Court  to

travel beyond the scheme and extend the scope of the statute on the  pretext

of extending the statutory benefit to those  who  are  not  covered  by  the

scheme”.

iv)   In Dadi  Jagannadham  v.  Jammulu  Ramulu  and  Others[5],  this

Court, while interpreting the provisions that fell for  consideration,  made

the following observations in paragraph 13:

“13.  …. The settled principles of interpretation are that  the  court  must

proceed on the assumption that the legislature did not make  a  mistake  and

that it did what it intended to do. The court  must,  as  far  as  possible,

adopt a construction which will carry  out  the  obvious  intention  of  the

legislature. Undoubtedly if there is a defect or an omission  in  the  words

used by the legislature, the court would not go to its  aid  to  correct  or

make up the deficiency. The court could not add words to a statute  or  read

words into it which are not  there,  especially  when  the  literal  reading

produces an intelligible result. The  court  cannot  aid  the  legislature’s

defective phrasing of an Act, or add and mend, and,  by  construction,  make

up deficiencies which are there.”

v)    In Shyam Sunder and others v. Ram Kumar  and  another[6],  this  Court

explained as to how to interpret the  provisions  of  an  enactment  in  the

following words:

“… when the words used in a statute are capable of only  one  meaning.  In

such a situation, the courts  have  been  hesitant  to  apply  the  rule  of

benevolent construction. But if it is found  that  the  words  used  in  the

statute give rise to more than  one  meaning,  in  such  circumstances,  the

courts are not precluded from applying such rule of construction. The  third

situation is when there is no ambiguity in  a  provision  of  a  statute  so

construed. If the provision of a statute is plain, unambiguous and does  not

give rise to any  doubt,  in  such  circumstances  the  rule  of  benevolent

construction has no application.”

vi)    Similarly  in  Grasim  Industries  Ltd.  v.  Collector  of   Customs,

Bombay[7], the Constitution Bench of this Court explained the  principle  of

literal interpretation as under:

“10.  No words or expressions  used  in  any  statute  can  be  said  to  be

redundant or superfluous.  In  matters  of  interpretation  one  should  not

concentrate too much on one word and  pay  too  little  attention  to  other

words. No provision in the statute  and  no  word  in  any  section  can  be

construed in isolation. Every provision and every word  must  be  looked  at

generally and in the context in which it is used.  It  is  said  that  every

statute is  an  edict  of  the  legislature.  The  elementary  principle  of

interpreting any word while considering a statute is to gather the  mens  or

sententia legis of the legislature. Where the words are clear and  there  is

no  obscurity,  and  there  is  no  ambiguity  and  the  intention  of   the

legislature is clearly conveyed, there is no scope for  the  court  to  take

upon  itself  the  task  of  amending  or  alternating  (sic altering)   the

statutory provisions. Wherever the language is clear the  intention  of  the

legislature is to be gathered from the language used. While doing  so,  what

has been said in the statute as also what  has  not  been  said  has  to  be

noted.  The  construction  which  requires  for  its  support  addition   or

substitution of words or which results in  rejection  of  words  has  to  be

avoided.  As stated by the Privy Council in Crawford v.  Spooner  [(1846)  6

Moore PC 1 : 4 MIA 179] “we cannot aid the legislature’s defective  phrasing

of an Act, we cannot add or mend and, by construction make  up  deficiencies

which are left there”. In case of  an  ordinary  word  there  should  be  no

attempt to  substitute  or  paraphrase  of  general  application.  Attention

should be confined to what is necessary for deciding  the  particular  case.

This principle is too well settled and reference to a few decisions of  this

Court would suffice. (See: Gwalior Rayons  Silk  Mfg.  (Wvg.)  Co.  Ltd.  v.

Custodian of Vested Forests [1990 Supp SCC 785 : AIR 1990  SC  1747],  Union

of India v. Deoki Nandan Aggarwal [1992 Supp (1) SCC 323 :  1992  SCC  (L&S)

248 : (1992)  19  ATC  219  :  AIR  1992  SC  96]  ,Institute  of  Chartered

Accountants of India v. Price Waterhouse [(1997) 6 SCC  312]  and  Harbhajan

Singh v. Press Council of India [(2002) 3 SCC 722 : JT (2002) 3 SC 21])”

vii)  In Deepal Girishbhai Soni and Others v.  United  India  Insurance  Co.

Ltd.,  Baroda[8],  while  interpreting  the   provisions   that   fell   for

consideration, the principle was applied even in the context  of  beneficial

legislation, when the language was plain, depicting clear intention  of  the

legislature, in the following terms:

“53.  Although the Act is a  beneficial  one  and,  thus,  deserves  liberal

construction with a view to implementing the legislative intent  but  it  is

trite that where such beneficial legislation has a scheme  of  its  own  and

there is no vagueness or doubt therein, the court would  not  travel  beyond

the same and extend the scope of the statute on  the  pretext  of  extending

the statutory benefit to those who are not covered  thereby.  (See  Regional

Director, ESI Corpn. v. Ramanuja Match Industries [(1985) 1 SCC 218  :  1985

SCC (L&S) 213 : AIR 1985 SC 278]).”

Relying  upon  all  the  aforesaid  judgments,   the   forceful

exhortation was to  follow  this  literal  construction  while  interpreting

Section 2(d) of BOCW Act in the manner appellants suggested to us.

Mr. Rana and Mr.  Srivastava  countered  the  aforesaid  submissions  giving

equally salubrious response.  Their fervent plea was that the view taken  by

the High Court while interpreting the provisions of  Section  2(d)  of  BOCW

Act was perfectly justified and any other  interpretation  as  suggested  by

the appellants would defeat the very purpose of these Acts.  It  was  argued

that mere registration under the Factories Act would be  of  no  consequence

inasmuch as definition of ‘factory’ contained in Section  2(m)  of  the  Act

unambiguously suggest that the provisions of the said Act would  apply  only

when  manufacturing  process  is  actually  carried  on.   It  was   further

submitted that the definition of ‘worker’ under the Factories Act  does  not

include construction workers and, therefore, construction workers would  not

be entitled to various benefits which are contained in different  provisions

of the Factories Act.  It is for this reason at the  stage  of  construction

of the  building,  which  is  to  be  ultimately  used  as  a  factory,  the

provisions of BOCW Act would be applied.  It was also emphasised that  while

interpreting the provisions of these two  Acts,  “superior  purpose”  behind

therein had to be kept in mind and this enactment which is for  the  welfare

of the weaker section,  i.e.  workers  of  unorganised  sector,  had  to  be

liberally construed by giving  that  construction  which  accords  them  the

benefit eschewing the other approach which would preclude them from  getting

the benefit under the Acts.  In  this  hue,  the  learned  counsel  strongly

urged upon this Court to invoke the principle of  purposive  interpretation,

which is in vogue, to do complete  justice  in  the  matter.   It  was  also

argued that exclusion provision contained in Section 2(d) of  BOCW  Act  had

to be construed narrowly as per the settled proposition of law.

We have bestowed our due and serious consideration to the  submissions  made

of both sides, which these submissions deserve.  The central  issue  is  the

meaning that is to be assigned to the language of Section 2(d) of  the  Act,

particularly that part which is exclusionary in nature, i.e. which  excludes

such building and construction work to which  the  provisions  of  Factories

Act apply.  Before coming to the grip of this  central  issue,  we  deem  it

appropriate to refer to the objectives with  which  the  Factories  Act  and

BOCW Act were enacted, as that would be the guiding path to answer the  core

issue delineated above.

Insofar as Factories Act is concerned, its Preamble mentions that it  is  an

Act to consolidate and amend the law regulating labour in factories.  It  is

enacted  primarily  with  the  object  of  protecting  workers  employed  in

factories against industrial and occupational hazards.  For that purpose  it

seeks to impose upon the owners or occupiers certain obligations to  protect

workers unwary as well as negligent and to secure  for  them  employment  in

conditions conducive to their health and safety.   This  Act  also  requires

that the workers should work in healthy  and  sanitary  conditions  and  for

that purpose it provides that precautions should be taken for the safety  of

workers and prevention of accidents.   Incidental  provisions  in  Factories

Act are made for securing information necessary to ensure that  the  objects

are  carried  out  and  the  State  Governments  are  empowered  to  appoint

Inspectors, to call for reports and  to  inspect  the  prescribed  registers

with a view to maintain effective supervision.  The  duty  of  the  employer

under this Act is to secure the health and safety of workers and extends  to

providing  adequate  plant,  machinery  and  appliances,  supervision   over

workers, healthy and safe premises, proper system of working and extends  to

giving reasonable restrictions.  Detailed provisions  are,  therefore,  made

in diverse chapters of the Act imposing obligations upon the owners  of  the

factories to maintain  inspecting  staff  and  for  maintenance  of  health,

cleanliness, prevention of overcrowding and provision for amenities such  as

lighting, drinking water, etc.  Provisions  are  also  made  for  safety  of

workers and their welfare, such as restrictions on working hours and on  the

employment of young persons and females, and  grant  of  annual  leave  with

wages.  In  Bhikusa  Yamasa  Kshatriya  (P)  Ltd.  v.  Union  of  India  and

another[9], this  Court  highlighted  the  necessity  and  rationale  behind

legislating this Act and the objectives which it sought to achieve,  in  the

following manner:

“9.  The Factories Act, as the preamble recites, is an  Act  to  consolidate

and amend the law regulating  labour  in  factories.   The  Act  is  enacted

primarily with the  object  of  protecting  workers  employed  in  factories

against industrial and occupational hazards. For that purpose  it  seeks  to

impose upon the owners or  the  occupiers  certain  obligations  to  protect

workers unwary as well as negligent and to secure  for  them  employment  in

conditions conducive to their health and safety.  The Act requires that  the

workers should work in healthy and sanitary conditions and for that  purpose

it provides that precautions should be taken for the safety of  workers  and

prevention  of  accidents.  Incidental  provisions  are  made  for  securing

information necessary to ensure that the objects are  carried  out  and  the

State Governments are empowered to appoint Inspectors, to call  for  reports

and to inspect the prescribed registers with a view  to  maintain  effective

supervision. The duty of the employer is to secure the health and safety  of

workers and extends to providing adequate plant, machinery  and  appliances,

supervision over workers,  healthy  and  safe  premises,  proper  system  of

working and extends to giving reasonable instructions.  Detailed  provisions

are therefore made in diverse chapters of the Act imposing obligations  upon

the  owners  of  the  factories  to  maintain  inspecting  staff   and   for

maintenance  of  health,  cleanliness,  prevention   of   overcrowding   and

provision  for  amenities  such  as  lighting,  drinking  water,  etc.  etc.

Provisions are also made for safety of workers and their  welfare,  such  as

restrictions on working hours and on the employment  of  young  persons  and

females,  and  grant  of  annual  leave  with   wages.   Employment   in   a

manufacturing process was at one time  regarded  as  a  matter  of  contract

between the employer and the employee and the State  was  not  concerned  to

impose any duties upon the employer. It is however now recognised  that  the

State has a vital concern  in  preventing  exploitation  of  labour  and  in

insisting upon proper safeguards for the health and safety of  the  workers.

The  Factories  Act  undoubtedly  imposes  numerous  restrictions  upon  the

employers to secure to the workers adequate safeguards for their health  and

physical well-being. But imposition of such restrictions is not  and  cannot

be regarded, in the context of the modem outlook  on  industrial  relations,

as unreasonable….”

Coming to BOCW Act, its Statement of  Objects  and  Reasons,  depicting  the

legislative intent, reads as under:

“(1)  It is estimated that about 8.5 million  workers  in  the  country  are

engaged in building  and  other  construction  works.   Building  and  other

construction workers are one of the most numerous  and  vulnerable  segments

of the unorganised labour in India.  The  building  and  other  construction

works are characterized by their inherent risk to the life and limb  of  the

workers.  The work is also characterised by  its  casual  nature,  temporary

relationship between employer and employee, uncertain  working  hours,  lack

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

adequate statutory  provisions,  the  requisite  information  regarding  the

number and nature of accidents is also not forthcoming.  In the  absence  of

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

corrective action.

(2)  Although the provisions of certain Central Acts are applicable  to  the

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

comprehensive Central  Legislation  for  regulating  their  safety,  health,

welfare and other conditions of service.  It had been  considered  necessary

to levy a cess on the cost of construction incurred by the employers on  the

building and other construction works for ensuring sufficient funds for  the

Welfare  Boards  to  undertake  the  social  security  schemes  and  welfare

measures.”

In the Statement  of  Objects  and  Reasons  of  this  Act  itself,  it  was

considered necessary to levy a cess on the cost of construction incurred  by

the employers while constructing  building  etc.  This  led  to  passing  of

Welfare Cess Act.  The Statement of Objects and Reasons behind this Act  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.

Scheme of BOCW Act came up for consideration by  this  Court  in  the  Dewan

Chand  Builders  and  Contractors  v.  Union  of   India   and   Others[10].

Recognising that the noble purpose behind the said Act is to ensure  welfare

of the building and construction workers in order  to  provide  basic  human

dignity enshrined in  Article 21 of the Constitution, the Court observed  as

under:

“10.  It is thus clear from the scheme of the BOCW Act that its sole aim  is

the welfare of building and  construction  workers,  directly  relatable  to

their constitutionally recognised right to live with  basic  human  dignity,

enshrined in Article 21 of  the  Constitution  of  India.   It  envisages  a

network of authorities at the Central and State levels to  ensure  that  the

benefit of  the  legislation  is  made  available  ‘to  every  building  and

construction worker, by constituting Welfare Boards and clothing  them  with

sufficient powers to ensure enforcement of the primary purpose of  the  BOCW

Act.  The means of generating revenues  for  making  effective  the  welfare

provisions of the BOCW Act is through the Cess  Act, which is questioned  in

these appeals as unconstitutional.

xx          xx         xx

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

Act and the Rules made thereunder that their sole object is to regulate  the

employment and conditions of service  of  building  and  other  construction

workers, traditionally exploited sections in the society and to provide  for

their safety, health and other welfare measures.  The BOCW Act and the  Cess

Act break new ground in that, the liability to pay cess falls  not  only  on

the owner of a building or establishment, but under Section 2(1)(i)(iii)  of

the BOCW Act

“in relation to a building or other  construction  work  carried  on  by  or

through a contractor, or by the employment of building workers  supplied  by

a contractor, the contractor”;

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

ensure that, if for any reason it is not possible to collect cess  from  the

owner of the building at  a  stage  subsequent  to  the  completion  of  the

construction, it can be recovered from the contractor.   The  Cess  Act  and

the Cess Rules ensure that the cess is collected at source  from  the  bills

of the contractors to whom payments are made by the owner.   In  short,  the

burden of cess is passed on from the owner to the contractor.”

(emphasis supplied)

Keeping in view the aforesaid objective of the respective Acts, we now  deal

with the scope and ambit of Section 2(d) of BOCW Act. As noticed above,  one

of the submissions of the appellants is that  literal  interpretation  needs

to be given to  the  said  provision  as  it  categorically  excludes  those

building or construction work to which Factories Act apply.   In  this  very

hue, it is argued that as the benefit under the Factories  Act  are  already

given to the construction workers  who  are  involved  in  the  construction

work, there is no  need  for  covering  the  construction  workers  who  are

engaged in building or construction work of the appellants  under  BOCW  Act

or Welfare Cess Act.

Before dealing with the argument  predicated  on  literal  construction,  we

would like to deal with the second  aspect  as  the  answer  to  that  would

facilitate the  answer  to  this  aspect  as  well.   Section  2(m)  of  the

Factories Act defines ‘factory’ in the following manner:

“(m) “factory” means any premises including the precincts thereof-

(i) whereon ten or more workers are working, or were working on any  day  of

the preceding twelve months, and  in  any  part  of  which  a  manufacturing

process is being carried on with the aid  of  power,  or  is  ordinarily  so

carried on, or

(ii)  Whereon twenty or more workers are working, or  were  working  on  any

day  of  the  preceding  twelve  months,  and  in  any  part  of   which   a

manufacturing process is being carried on without the aid of  power,  or  is

ordinarily so carried on,-

but does not include a mine subject to the  operation  of  [the  Mines  Act,

1952 (35 of 1952)] or [a mobile unit belonging to the armed  forces  of  the

Union, a railway running shed or a hotel, restaurant or eating place].

[Explanation [I] – For computing the number of workers for the  purposes  of

this clause all the workers in [different groups and relays] in a day  shall

be taken into account;]

[Explanation II – For the purposes of this clause, the  mere  fact  that  an

Electronic Data Processing Unit or a  Computer  Unit  is  installed  in  any

premises or part thereof, shall not be construed to make it a factory if  no

manufacturing  process  is  being  carried  on  in  such  premises  or  part

thereof;]…”

Section 2(k) of the Factories Act defines  ‘manufacturing  process’  in  the

following manner:

(k) “manufacturing process” means any process for-

(i)  making, altering, repairing, ornamenting, finishing,  packing,  oiling,

washing, cleaning,  breaking  up,  demolishing,  or  otherwise  treating  or

adapting any article or substance with a view to its use,  sale,  transport,

delivery or disposal, or

[pumping oil, water, sewage or any other substance; or]

generating, transforming or transmitting power; or

[composing types  for  printing,  printing  by  letter  press,  lithography,

photogravure or other similar process or book binding;] [or]

constructing, reconstructing, repairing, refitting,  finishing  or  breaking

up ships or vessels;[or]

(vi)  [preserving or storing any article in cold storage;]

It is also necessary to take note of the definition of  ‘worker’,  which  is

contained in Section 2(l) of the Factories Act.  It reads as under:

“worker” means a person 8[employed, directly or by  or  through  any  agency

(including a contractor) with or without  the  knowledge  of  the  principal

employer, whether for remuneration or not], in  any  manufacturing  process,

or  in  cleaning  any  part  of  the  machinery  or  premises  used  for   a

manufacturing process, or in any  other  kind  of  work  incidental  to,  or

connected  with,  the  manufacturing  process,  or  the   subject   of   the

manufacturing process 7[but does not include any member of the armed  forces

of the Union];

On the conjoint reading of the aforesaid provisions, it becomes  clear  that

“factory” is that establishment where manufacturing process  is  carried  on

with or without the aid of power.  Carrying on  this  manufacturing  process

or manufacturing activity is thus a prerequisite.  It is  equally  pertinent

to note that it covers only those  workers  who  are  engaged  in  the  said

manufacturing  process.   Insofar  as  these   appellants   are   concerned,

construction of building is not their  business  activity  or  manufacturing

process.  In fact, the building is being constructed for  carrying  out  the

particular manufacturing process,  which,  in  most  of  these  appeals,  is

generation, transmission and distribution of power.  Obviously, the  workers

who are engaged in construction of the building also do not fall within  the

definition of ‘worker’ under the Factories Act.  On these two aspects  there

is no cleavage and both parties are at ad idem.  What follows is that  these

construction workers are not covered by  the  provisions  of  the  Factories

Act.

Having regard  to  the  above,  if  the  contention  of  the  appellants  is

accepted, the construction workers engaged in the construction  of  building

undertaken by the appellants which is to  be  used  ultimately  as  factory,

would stand excluded from the provisions of BOCW Act and  Welfare  Cess  Act

as well.  Could this be the intention  while  providing  the  definition  of

‘building and other construction work’ in Section 2(d) of BOCW  Act?   Clear

answer to this has to be in the negative.

We may mention at this stage that High Court  is  right  in  observing  that

merely because the appellants have obtained a licence  under  Section  6  of

the Factories Act for registration to work a factory, it  would  not  follow

therefrom that they answer the  description  of  the  “factory”  within  the

meaning of  the  Factories  Act.   We  have  reproduced  the  definition  of

‘factory’ and a bare reading thereof makes it abundantly clear  that  before

this  stage,  when  construction  of  the  project  is  completed  and   the

manufacturing process starts, ‘factory’ within the meaning of  Section  2(m)

of the Factories Act does not come into existence so as  to  be  covered  by

the said Act.

We now advert to the core issue touching upon the  construction  of  Section

2(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(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 third part  excludes  those  building  or  other

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

apply.

It is not in dispute that construction of the projects of the appellants  is

covered by the definition of “building or other  construction  work”  as  it

satisfies first two elements of the definition pointed out above.  In  order

to see whether exclusion clause applies, we  need  to  interpret  the  words

‘but does not include any building or other construction work to  which  the

provisions of the Factories Act ………… apply’.  The question  is  as  to

whether the provisions of the Factories Act apply  to  the  construction  of

building/project of the appellants.  We are of the firm  opinion  that  they

do not apply. The provisions of the Factories Act would “apply”  only   when

the manufacturing process starts for which  the  building/project  is  being

constructed and not to the activity of construction of  the  project.   That

is how the exclusion clause is to be  interpreted  and  that  would  be  the

plain meaning of the said clause.  This  meaning  to  the  exclusion  clause

ascribed by us is in tune with the approach adopted by this Court in  Organo

Chemical Industries v. Union of India[11].  Two  separate,  but  concurring,

opinions were given by Justice V.R. Krishna Iyer and Justice A.P.  Sen,  and

we reproduce here below some excerpts from both opinions:

“Justice A.P. Sen (para 23)

Each word, phrase or sentence is to be considered in the  light  of  general

purpose of the Act itself.  A bare mechanical interpretation  of  the  words

‘devoid of concept or purpose’ will reduce much of legislation to  futility.

It is a  salutary  rule,  well  established,  that  the  intention  of  the

legislature must be found by reading the statute as a whole.

Justice V.R. Krishna Iyer (para 241)

A policy-oriented interpretation,  when  a  welfare  legislation  falls  for

determination, especially  in  the  context  of  a  developing  country,  is

sanctioned by principle and precedent and is implicit in Article 37  of  the

Constitution since the judicial branch is, in a sense, part  of  the  State.

So it is reasonable to assign to ‘damages’ a larger, fulfilling meaning.”

The aforesaid meaning attributed to the exclusion clause of  the  definition

is also in consonance with the objective and purpose which is sought  to  be

achieved by the enactment of BOCW Act and Welfare Cess Act.  As pointed  out

above, if the construction of this provision as suggested by the  appellants

is accepted, the construction workers who are engaged  in  the  construction

of buildings/projects will neither get the benefit of the Factories Act  nor

of BOCW Act/Welfare Cess Act.  That could not have  been  the  intention  of

the Legislature. BOCW  Act  and  Welfare  Cess  Act  are  pieces  of  social

security legislation to provide for certain  benefits  to  the  construction

workers.

Purposive  interpretation  in  a  social  amelioration  legislation  is   an

imperative, irrespective of anything else.  This is  so  eloquently  brought

out in the following passage in the case of Atma Ram Mittal v. Ishwar  Singh

Punia[12]:

“9.  Judicial time and energy is more often than  not  consumed  in  finding

what is the intention of Parliament or in  other  words,  the  will  of  the

people. Blackstone tells us that the fairest and  most  rational  method  to

interpret the will of the legislator is by exploring his intentions  at  the

time when the law was made, by signs most natural and  probable.  And  these

signs are either the words, the context,  the  subject-matter,  the  effects

and consequence, or the spirit and reason  of  the  law.  (emphasis  by  the

court) See Commentaries on the Laws of England (facsimile  of  1st  Edn.  of

1765, University of Chicago Press, 1979, Vol. 1, p. 59).  Mukherjea,  J.  as

the learned Chief Justice then was, in Poppatlal Shah  v.  State  of  Madras

[AIR 1953 SC 274 : 1953 SCR 677 : 1953 Cri LJ 1105: (1953) 4 STC  188]  said

that each word, phrase or sentence was to  be  construed  in  the  light  of

purpose of the Act itself. But words must be construed with  imagination  of

purpose behind them said Judge Learned Hand, a long time  ago.  It  appears,

therefore, that though we are concerned with seeking of  intention,  we  are

rather looking to the meaning of the words that  the  legislature  has  used

and the true meaning of what words [Ed.: Lord Reid in  the  aforecited  case

had observed: (All ER p. 814) “We often say that  we  are  looking  for  the

intention of Parliament, but this is not quite accurate. We are seeking  the

meaning of the  words  which  Parliament  used.  We  are  seeking  not  what

Parliament meant but the true meaning of what they said.”] as  was  said  by

Lord  Reid  in Black-Clawson  International  Ltd.  v.  Papierwerke  Waldhof-

Aschaffenburg A.G [1975 AC 591, 613 : (1975) 1 All  ER  810:  (1975)  2  WLR

513] . We are clearly of the opinion that having regard to the  language  we

must find the reason and the spirit of the law.”

How labour legislations are to be interpreted has been stated  and  restated

by this Court time and again.   In  M.P.  Mineral  Industry  Association  v.

Regional Labour Commr. (Central)[13], this  Court  while  dealing  with  the

provisions of the Minimum  Wages  Act,  1948,  observed  that  this  Act  is

intended to achieve the object of doing social justice to  workmen  employed

the scheduled employments by prescribing minimum rates of  wages  for  them,

and so in construing the said provisions the  court  should  adopt  what  is

sometimes described as a beneficent rule  of  construction.     In  Surendra

Kumar Verma v. The Central Government Industrial  Tribunal[14],  this  Court

reminded that semantic luxuries  are  misplaced  in  the  interpretation  of

‘bread and butter’ statutes.  Welfare statutes must, of  necessity,  receive

a broad interpretation.   Where  legislation  is  designed  to  give  relief

against certain kinds of mischief, the Court  is  not  to  make  inroads  by

making etymological excursions.

We would also like to reproduce a passage from Workmen of  American  Express

v. Management of American Express[15], which  provides  complete  answer  to

the argument of the appellants based on literal construction:

“4. The  principles  of  statutory  construction  are  well  settled.  Words

occurring in statutes of liberal import such as social  welfare  legislation

and human rights’ legislation are not to  be  put  in  Procrustean  beds  or

shrunk to  Liliputian  dimensions.  In  construing  these  legislations  the

imposture of literal construction must be avoided  and  the  prodigality  of

its misapplication must be recognised and reduced. Judges ought to  be  more

concerned with the  “colour”,  the  “content”  and  the  “context”  of  such

statutes (we have borrowed the words  from  Lord  Wilberforce’s  opinion  in

Prenn v. Simmonds [(1971) 3  All  ER  237]  ).  In  the  same  opinion  Lord

Wilberforce pointed out that law is not to be left behind in some island  of

literal interpretation but is to enquire  beyond  the  language,  unisolated

from the matrix of facts in which they  are  set;  the  law  is  not  to  be

interpreted purely on internal linguistic considerations…”

In equal measure is the message contained in Carew and Co. Ltd. v. Union  of

India[16]:

“21.  The law is not “a brooding omnipotence in the  sky”  but  a  pragmatic

instrument of social order. It is an operational  art  controlling  economic

life, and interpretative effort must be imbued with the  statutory  purpose.

No doubt,  grammar  is  a  good  guide  to  meaning  but  a  bad  master  to

dictate…”

The sentiments were echoed in  Bombay  Anand  Bhavan  Restaurant  v.  Deputy

Director,  Employees’  State  Insurance  Corporation  &  Anr.  [17]  in  the

following words:

“20.  The Employees’ State Insurance Act is a  beneficial  legislation.  The

main purpose of the enactment as the Preamble suggests, is  to  provide  for

certain benefits to employees of a factory in case  of  sickness,  maternity

and employment injury and to make provision for  certain  other  matters  in

relation thereto. The Employees’ State Insurance Act is  a  social  security

legislation  and  the  canons  of  interpreting  a  social  legislation  are

different from the canons of interpretation  of  taxation  law.  The  courts

must not countenance any subterfuge which would  defeat  the  provisions  of

social legislation and the  courts  must  even,  if  necessary,  strain  the

language of the Act in order to achieve the purpose  which  the  legislature

had in placing this legislation on the statute  book.  The  Act,  therefore,

must receive a liberal construction so as to promote its objects.

In taking the aforesaid view, we also agree with  the  learned  counsel  for

the respondents that ‘superior purpose’ contained in BOCW  Act  and  Welfare

Cess Act has to be kept in mind when two enactments – the Factories  Act  on

the one hand and BOCW Act/Welfare Cess Act on the other hand, are  involved,

both of which are  welfare  legislations.  (See  Allahabad  Bank  v.  Canara

Bank[18], which has been followed in Pegasus Assets Reconstruction  P.  Ltd.

v. M/s. Haryana Concast Limited & Anr.[19] in the context of  Securitization

and Reconstruction of Financial Assets and Enforcement of Security  Interest

Act, 2002 and Companies Act, 1956.  Here the  concept  of  ‘felt  necessity’

would get triggered  and  as  per  the  Statement  of  Objects  and  Reasons

contained in BOCW Act, since the purpose of this Act is to take  care  of  a

particular necessity i.e. welfare of unorganised labour  class  involved  in

construction activity, that needs to be achieved and not  to  be  discarded.

Here the doctrine of Purposive Interpretation also gets attracted  which  is

explained in recent judgments of this Court in  Richa  Mishra  v.  State  of

Chhattisgarh and Others[20] and  Shailesh  Dhairyawan  v.  Mohan  Balkrishna

Lulla[21].

We are left to deal with the argument of the appellants that while  granting

permission under the Factories Act, various  conditions  are  imposed  which

the appellants are required to fulfill and these conditions are  almost  the

same which are contained in BOCW  Act.   We  are  not  convinced  with  this

submission either.  It is already held that provisions of Factories Act  are

not applicable  to  these  construction  workers.   Registration  under  the

Factories Act becomes necessary in view of provisions contained  in  Section

6 of  the  said  Act  as  this  Section  requires  taking  of  approval  and

registration of factories even at preparatory stage i.e. at the  stage  when

the premises where factory is to operate has  to  ensure  that  construction

will be done in such a manner that it takes care  of  safety  measures  etc.

which are provided  in  the  Factories  Act.   This  means  to  ensure  that

construction is carried  out  in  such  a  manner  that  provisions  in  the

Factories Act to ensure health, safety and provisions relating to  hazardous

process as well as welfare measures are taken  care  of.   It  is  for  this

reason that even after the building is  completed  before  it  is  occupied,

notice under Section 7  is  to  be  given  by  the  occupier  to  the  Chief

Inspector of Factories so that a necessary  inspection  is  carried  out  to

verify  that  all  such  measures  are  in  place.   Therefore,   when   the

permissions  for  construction  of  factories  is  given,  the  purpose   is

altogether different.

It is stated at the cost of repetition that  construction  workers  are  not

covered by the Factories Act and, therefore, welfare  measures  specifically

provided for such workers under the BOCW Act and Welfare Cess Act cannot  be

denied.

We, thus, hold that all these appeals are bereft of any merit.  Accordingly,

these appeals, along with the writ petitions  filed  before  this  Court  as

also those which are  the  subject  matter  of  the  transfer  petition  and

transfer cases, are dismissed with cost.  We, however, make  it  clear  that

insofar as objection to the calculation of cess as  contained  in  the  show

cause notices is concerned, it would be open to the  appellants  to  agitate

the same before the adjudicating authorities.

No costs.

………………………………………J.

(A.K. SIKRI)

………………………………………J.

(N.V. RAMANA)

NEW DELHI;

OCTOBER 18, 2016

———————–

[1]

(1990) 3 SCC 682

[2]   (1979) 1 SCC 361

[3]   1957 SCR 121

[4]   (1985) 1 SCC 218

[5]   (2001) 7 SCC 71

[6]   (2001) 8 SCC 24

[7]   (2002) 4 SCC 297

[8]   (2004) 5 SCC 385

[9]   1964 SCR (1) 860

[10]  (2012) 1 SCC 101

[11]  (1979) 4 SCC 573

[12]  (1988) 4 SCC 284

[13]  AIR 1960 SC 1068

[14]  (1980) 4 SCC 443

[15]  (1985) 4 SCC 71

[16]  (1975) 2 SCC 791

[17]  (2009) 9 SCC 61

[18]  (2000) 4 SCC 406

[19]  2016 (1) SCALE 1

[20]  (2016) 4 SCC 179 at Page No. 197

[21]  (2016) 3 SCC 619 – Para 31

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