Neutral Citation 2025:JHHC:36677-DB L.P.A. NO. 694 OF 2015 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 694 of 2015 ACC Limited, Sindri Cement Works, through its Director Plant- Mr. Manoj Jindal, S/o Mr. Ganesh Dutt Jindal, R/o A1, Bungalow, ACC Colony, ACC Limited, Sindri Cement Works, P.O. & P.S.- Dhanbad, Dist.- Dhanbad. ... Appellant Versus 1. State of Jharkhand through the Secretary, Department of Labour, Doranda, Jharkhand. 2. Asst. Labour Officer cum Cess Assessing Officer under the Building and Other Construction Workers’ Welfare Cess Act, 1996 Bartad, Dhanbad, P.O. & P.S.- Dhanbad, Dist.- Dhanbad. … Respondents ---- PRESENT HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA ---- For the Appellant : Mr. Kuldeep Bhargava, Adv. For the Respondent(s) : Mr. Sursh Kumar, S.C.(L&C)-II ---- CAV On : 10/09/2024 Pronounced On : 03/11/2025 JUDGMENT Per Rongon Mukhopadhyay, J. : 1. Heard Mr. Kuldeep Bhargava, learned counsel for the appellant and Mr. Suresh Kumar, learned S.C.(L&C)-II for the State. 2. This appeal is directed against the order dated 16.10.2015 passed by the learned Single Judge in W.P.(C) No. 2080/2015 whereby and whereunder, the writ application preferred by the appellant challenging the notice dated 19.11.2014 has been dismissed. Neutral Citation 2025:JHHC:36677-DB L.P.A. NO. 694 OF 2015 2 3. The factual aspects of the case reveal that the petitioner which is a public limited company owns a factory at Sindri, commonly known as Sindri Cement Works which manufactures portland cement. Since the petitioner was desirous of expanding the existing facility within the factory precincts, had applied for approval of the map as is required under the provisions of the Factories Act, 1948. The Inspector of Factories had inspected the premises and submitted a report. The queries were duly answered by the petitioner and thereafter, permission was accorded by the Chief Inspector of Factories, Government of Jharkhand after which construction work as per the approved map was done. It has been stated that the respondent no. 2 has demanded cess on such construction work under the Building and Other Construction Workers' Welfare Act 1996. The petitioner had submitted objection to the demand vide letter dated 10.12.2014 praying therein that since the said Act is not applicable to the construction within the factory premises, such demand be dropped. The factory of the petitioner at Sindri commenced its operation in the year 1997 and factory license is being renewed every year in terms of the Factory Act, 1948. 4. Based on the aforesaid factual premises, the petitioner had made the following prayer: “ a. For issuance of writ of certiorari or any other appropriate writ, direction or order under article 226 of the constitution of India to kindly quash the proceeding/demand of Cess initiated by Respondent No. 2 vide letter no. 1996 dated 19.11.2024 (Annexure P/1) under the Building and other constructions Workers Welfare Neutral Citation 2025:JHHC:36677-DB L.P.A. NO. 694 OF 2015 3 Cess Act, 1996 (for the sake of brevity hereinafter written as BOCW WC Act), holding that the provisions of BOCW WC Act, are not applicable to the construction activity so carried out by the petitioner and the respondent No. 2 be ordered to not to assess or demand Cess under the BOCW WC Act under the facts and circumstances of the case. b. For issuance of any other writ, direction or order which this Hon’ble court deems fit in the interest of justice may also kindly be issued in favour of petitioner.” 5. The show cause notice dated 19.11.2014 was also under challenge in the writ application. 6. It has been submitted by Mr. Kuldeep Bhargav, learned counsel for the writ petitioner/appellant that the Building and Other Construction Workers' Welfare Cess Act, 1996 do not define “Building and Other Construction Work”, though as per Section 2(d) of the said Act, the words and expressions used but not defined have been given the same meaning assigned to them under the Building and Other Construction Workers' Act 1996. The “Building and Other Construction Works” in the Building and Other Construction Workers' Act, 1996 has an exclusion clause excluding any “building or other construction work” to which the provisions of the Factories Act, 1948 and Mines Act, 1952 apply. It has been submitted that the Building and Other Construction Workers' Act, 1996 has been enacted for unorganized workers working in the unorganized sector. Mr. Bhargav, learned counsel for the appellant has referred to Neutral Citation 2025:JHHC:36677-DB L.P.A. NO. 694 OF 2015 4 Section 6 of the Factories Act which deals with the approval, licensing and registration of factories as well as Rule 3 of the Bihar Factories Rules, 1950 which envisages approval of plan as well as Form 34 of the Rules which is the form of Certificate of Stability and these provisions have been referred to by the learned counsel for the appellant to impress upon the Court that Building and Other Construction Workers' Act, 1996 will not be applicable and consequently, Building and Other Construction Workers’ Welfare Cess Act, 1996 will also be excluded. It has been submitted that without the Stability Certificate as at Form 34, the factory cannot start. Mr. Bhargava, therefore, has submitted that the notice issued to the petitioner dated 19.11.2014 is without jurisdiction and is, therefore, liable to be quashed. The learned Single Judge has not appreciated the contentions of the appellant and, therefore, the order dated 16.10.2015 passed in W.P.(C) No. 2080/2015 is liable to be set aside. 7. Mr. Suresh Kumar, learned S.C.(L&C)-II has submitted that since the notice has been challenged, it has been premature on the part of the appellant to have approached this Court. Learned State Counsel has copiously referred to the impugned order passed by the learned Single Judge while submitting that Section 2(d) of the Building and Other Construction Workers Act cannot be excluded for the purposes of payment of cess under The Building and Other Construction Workers’ Welfare Cess Act, 1996. 8. The notice dated 19.11.2014 has been under challenge which is with respect to deposit of cess under the Building and Other Construction Workers’ Welfare Cess Act, 1996. “Building or other construction works” has not been defined in the Building and Other Construction Workers’ Welfare Cess Act, 1996 and in this context, we may refer to section 2(d) of the said Act which Neutral Citation 2025:JHHC:36677-DB L.P.A. NO. 694 OF 2015 5 reads as follows: “words and expressions used herein but not defined and defined in the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 shall have the meanings respectively assigned to them in that Act.” 9. In terms of Section 2(d) of the said Act we have noticed the provision of Section 2(d) of the Building and Other Construction Workers Act, 1996 which reads as under: “2(d) “building or other construction work” means the construction, alteration, repairs, maintenance or demolition of or, in relation to, buildings, streets, roads, railways, tramways, airfields, irrigation, drainage, embankment and navigation works, flood control works (including storm water drainage works), generation, transmission and distribution of power, waterworks (including channels for distribution of water), oil and gas installations, electric lines, wireless, radio, television, telephone, telegraph and overseas communications, dams, canals, reservoirs, watercourses, tunnels, bridges, viaducts, aqueducts, 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 Neutral Citation 2025:JHHC:36677-DB L.P.A. NO. 694 OF 2015 6 Mines Act, 1952 (35 of 1952), apply” 10. The said provision therefore excludes any building or other construction works to which the provision of the Factories Act, 1948 applies. The learned counsel for the appellant has sought to take recourse to this provision to impress upon the Court that once the factory was granted license under the Factories Act, 1948 and the production had commenced, mere expansion within the factory premises would not make it liable to pay cess under the provisions of the Building and Other Construction Works Welfare Cess Act, 1996. 11. In the case of Lanco Anpara Power Limited v. State of Uttar Pradesh & Ors. in Civil Appeal No. 6223/2016, it has been held as follows: “25. 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 Neutral Citation 2025:JHHC:36677-DB L.P.A. NO. 694 OF 2015 7 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. Two separate, but concurring, opinions were given by Justice V.R. Krishna Iyer and Justice A.P. Sen, and we reproduce here 11 (1979) 4 SCC 573 Page 26 27 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.” 26. 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 Neutral Citation 2025:JHHC:36677-DB L.P.A. NO. 694 OF 2015 8 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.” 12. Mr. Suresh Kumar, learned S.C.(L&C)-II has referred to the case of Union of India v. Kunisetty Satyanarayana reported in (2006) 12 SCC 28, wherein it has been held as under: “13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge-sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh [(1996) 1 SCC 327 : JT (1995) 8 SC 331] , Special Director v. Mohd. Ghulam Ghouse [(2004) 3 SCC 440 : 2004 SCC (Cri) 826 : AIR 2004 SC 1467] , Ulagappa v. Divisional Commr., Mysore [(2001) 10 SCC 639] , State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179 : (1987) 3 ATC 319 : AIR 1987 SC 943] , etc. 14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is Neutral Citation 2025:JHHC:36677-DB L.P.A. NO. 694 OF 2015 9 that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.” 13. On consideration of the rival submissions what would transpire is that the appellant has merely challenged the notice dated 19.11.2014 and the issue can only be only be decided after the petitioner furnishes related information to the authorities. The learned Single Judge has rightly held as under: “………….Whether the construction for new building for expansion of the existing factory would be covered under the provisions of the Factories Act, 1948, is a question of fact which, only after the petitioner furnishes relevant documents, can be decided. Merely Neutral Citation 2025:JHHC:36677-DB L.P.A. NO. 694 OF 2015 10 because the petitioner submitted application for grant of sanction of map and other plans for expansion and a licence has been issued, “the building or other construction work” for the said expansion project would not automatically cover the activities thereunder under the Factories Act, 1948. At this stage, mere assertion of the petitioner that construction and other related activities for expansion project is covered under the Factories Act, 1948 and thus, it is excluded from operation of Section 2(1)(d) of the Building and Other Construction Workers' Welfare Cess (Regulation of Employment and Conditions of Service) Act, 1996, is not sufficient.” 14. In view of the aforesaid circumstances, we do not find any reasons to interfere in the impugned order dated 16.10.2015 passed by the learned Single Judge in W.P.(C) No. 2080/2015 and consequently, we dismiss this appeal. 15. Pending I.A.s, if any, stands closed. (RONGON MUKHOPADHYAY, J.) (PRADEEP KUMAR SRIVASTAVA, J.) Jharkhand High Court, Ranchi Dated the 03rd Day of November, 2025 Preet/N.A.F.R. Uploaded on: 10 /12 /2025.