Dilip B. Bhosale, ACJ.

1. These writ appeals, under Clause 15 of the Letter Patent, are directed against the order dated 28.11.2013 disposing of a batch of writ petitions whereby the question “whether the works executed by the petitioners in the 3rd respondent-factory (in W.P.No.9111 of 2010) are the works incidental to and/or connected with the works of the 3rd respondent-factory and thus exempted from the provisions of The Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Act, 1996 (27 of 1996) (for short “Act No.27”)” has been answered in the affirmative.

2. All writ appeals are preferred either by the Commissioner of Labour or Joint Commissioner of Labour, who were respondent No.1 or 2 in the writ petitions (for short “the Commissioner”). The writ petitions were filed by Infrastructural Development Companies/Contractors (for short “the contractors”) who were given contracts for erection or raising structures/constructions such as blast furnace within the campus of respondents-companies/corporations (for short “the Companies”).

3. The writ petitions were filed by the contractors basically challenging orders of the Commissioner, charging 1% (as cess) of the value of the contracts, executed between them and companies for designing, manufacturing, supplying, erecting, testing and commissioning of blast furnace, under The Building and Other Construction Workers’ Welfare Cess Act, 1996, (28 of 1996) (for short “Act No.28”).

Since the questions raised are common, W.P.Nos.28885 of 2009, 1596, 2901, 3959 and 9328 of 2010, 7349 and 7550 of 2013, 27460, 27935 and 29465 of 2014 and 13318 and 13460 of 2015 are also tagged with the Writ Appeals and by consent heard along with the Appeals. The writ petitions are also filed by the contractors.

4. Mr.C.R.Sridharan, the learned Senior Counsel appearing for the contractors in this batch of writ appeals/petitions, at the outset, submitted that though question “whether the structures raised or constructions made by the contractors, such as blast furnace, within the premises of factories of the companies are covered by the definition of ‘building or other construction work’?”, was raised, was not addressed by learned single Judge while disposing of the batch of writ petitions, perhaps, in view of the fact the principal question was answered in favour of the contractors. He submitted that this question also needs to be considered and decided in these appeals. The learned Advocate General appearing for the Commissioner did not oppose the submission of Mr.C.R.Sridharan. We, therefore, propose to consider and address both the questions in these appeals. Insofar as the first question is concerned, we reformulate the same as follows: Whether the Factories Act, 1948 (63 of 1948) would apply to the buildings, such as blast furnace within the premises of factories, constructed/erected by contractors? and if yes whether they are liable to pay 1% cess, being ‘employers’ under the provisions of Act No.28? In other words whether structures, such as blast furnace within the factory premises, are exempted from the provisions of Act No.27, that being the works incidental to and/or connected with the works of factory?

5. The factual matrix and questions raised in these appeals are similar. It is not in dispute that the contractors were not only required to design, manufacture, supply, erect, test and commission blast furnace, but they were also suppose to raise civil and structural works for its erection and commission. In this backdrop, we would like to refer to the facts, to the extent they are relevant, in the first writ petition (W.P.No.9111 of 2010) to understand the controversy better.

5.1 In this writ petition the company (Rashtriya Ispat Nigam Limited) had its factory registered under the Factories Act, 1948 (63 of 1948), (for short “Act of 1948”). In order to expand its operations and increase production capacity, the company after obtaining permission to es