SMT JUSTICE KONGARA VIJAYA LAKSHMI WRIT…
The writ petition is disposed. The 3rd respondent is directed to issue a fresh notice of hearing to both parties and consider documents before passing appropriate orders.
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HON’BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI
WRIT PETITION No.10479 OF 2021
ORDER:
The writ petition is filed questioning the notice dated 24.5.2018 issued by the 3rd respondent insisting the petitioner to pay 1% as labour cess out of total estimated cost of construction of Rs.65,31,71,000/- and consequently to set aside the said notice.
Case of the petitioner is that, the petitioner’s company has floated a tender and accepted the bid filed by the 4th respondent and entered into an agreement dated 04.1.2013 to construct the entire factory. As per the agreement, the petitioner was described as 'owner' and the 4th respondent was described as 'contractor'. In order to avoid unnecessary delays the petitioner has paid an amount of Rs. of Rs.8,43,300/- towards labour cess, even though the said amount has to be paid by the 4th respondent. The 3rd respondent issued the impugned notice dated 24.5.2018 treating the petitioner as an employer under the A.P. Building and other Construction Workers’ (Regulation and Employment and Conditions of Service) Act, 1996 (For short ‘the Act, 1996’) and directed the petitioner to pay labour cess of 1% from the estimated cost in favour of the 2nd respondent. As the estimated cost is erroneously mentioned, a revised notice was given on the same day and inspite of the reply of the petitioner, the 3rd respondent is sending reminder notices. The petitioner in his reply stated that he should not be treated as an ‘employer’ as the construction work is
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being carried out by the contractor and that the contractor alone is liable to pay the labour cess under the Act, 1996 and that the assessment of the amount in the said notice is not correct as the estimated cost of construction should not include the cost of the land and machinery. The Hon’ble Supreme Court held that the owner of the construction shall not be treated as an employer and the contractor of such construction should be treated as an employer and he has to pay the labour cess. Hence, the writ petition.
Learned Government Pleader passed on instructions dated 19.6.2021 issued by the Joint Commissioner of Labour, stating that the petitioner neither after the receipt of notice dated 02.6.2018, nor in the subsequent hearings held on 13.6.2018, 23.4.2019, 06.9.2019, 13.9.2019, 06.11.2019, 21.11.2019, 6.12.2019, 20.12.2019, 07.3.2020 and 24.3.2021 intimated the 3rd respondent that they had entrusted the construction work of the company to the 4th respondent and the same was intimated after a lapse of two years nine months and twenty days on 30.3.2021 and as per Section 2(1) (i) of the Act, 1996 both the petitioner and the 4th respondent are liable to pay the said cess amount and that the cost of plant and machinery is inclusive of cost of construction and the cost of land is excluded from the construction and that the petitioner never submitted documents in support of the cost of the land to the 3rd respondent and copy of the agreement dated 04.1.2013 submitted through their letter dated 30.3.2021 regarding endorsement of the work to the 4th respondent by the petitioner is not clear, legible and not attested
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by the competent authority and hence the 3rd respondent issued notice, dated 06.4.2021 directing both the petitioner and 4th respondent to attend the hearing on 09.4.2021 and the Senior Officer of the petitioner has attended the hearing and that the 4th respondent did not attend. Hence, the matter was adjourned to 16.4.2021, on which date, neither the petitioner nor his representative were present.
Mr.Sunkara Rajendra Prasad, learned counsel, appeared for the 4th respondent.
As the impugned proceeding is only a notice, dated 24.5.2018 and as the 3rd respondent has not yet come to a conclusion with regard to the subject issue, this Court is not inclined to interfere with the matter at this stage. As the date of hearing is already over on 09.4.2021 and 16.4.2021, the 3rd respondent is directed to give a fresh notice of intimation of hearing to both the petitioner and the 4th respondent and that the 3rd respondent is directed to consider the documents produced by both the petitioner and unofficial respondent and pass appropriate orders thereon after dealing with the contentions raised by the petitioner and unofficial respondent strictly in accordance with law and communicate the same to both of them.
Accordingly, this Writ Petition is disposed of. There shall be no order as to costs. As a sequel, miscellaneous petitions, if any, pending in this writ petition shall stand closed.
KONGARA VIJAYA LAKSHMI, J.
Date: 24.07.2021 GR
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1 issue framed by the court
Whether the High Court can interfere with the notice issued by the 3rd respondent to demand labour cess from the petitioner at this stage of the proceeding.
1 provisions across 1 enactments
Petitioner's Company
Commissioner of Labour
2nd Respondent
4th Respondent
KONGARA VIJAYA LAKSHMI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
