IMPORTANT POINT
Deductions for Labour Cess are valid only if the cess is included in the contract estimates, as per the Building and Other Construction Workers Cess Act, 1996.

ORDER :

Gannamaneni Ramakrishna Prasad, J.

Heard Ms. Mahathi Saaveri, learned Counsel for the Writ Petitioner and Sri K. Arjun Chowdary, learned Assistant Government Pleader for Finance and Planning.

2. Prayer made in the Writ Petition is as under:-

“…..issue a writ, order or direction more particularly one in the nature of WRIT OF MANDAMUS declaring the action of the respondents in not including the 1% towards Labour Cess in respect of the various works allotted to the petitioner and payments made after 26.06.2007 by revising the estimates as per U.O. Note No.4763/PES.F8/(A1)/08-4 dated 28.02.2008 as illegal, arbitrary and unconstitutional and consequently direct the respondents to include the 1% Labour Cess in the various works entrusted to the petitioner for all the payments made after 26.06.2007 as per U.O. Note dated 28.02.2008 and also release the amounts which were already recovered in this regard to the petitioner and pass…”

3. The Writ Petitioner is a registered contractor carrying out Infrastructure Projects and construction works in various Government Departments. The Writ Petitioner is presently doing works which are under the control of the Government of Andhra Pradesh (Respondent No.3) with regard to improvements to Elwinpeta – Ramannaguda Road to Eguvu Tadikonda from k.3/0 to 6/180 in Vizianagaram District. The Government of Andhra Pradesh has issued Memo dated 28.02.2008 bearing U.O.Note No.4763/PFS. F8 (A1)08-4 (Ex.P.3), (Impugned Memo). Vide the Impugned Memo dated 28.02.2008, the following demands are made :

i. In respect of ongoing works, wherever agreements do not contain the clause relating to the condition of the Building and other construction Workers Cess Act, an amount of @ 1% of the amount will be added to the estimates and the estimates revised accordingly for all payments made after 26.06.2007.

ii. In respect of agreements which provide that the Contractor shall pay Cess at the rate not exceeding 2% of the cost of Construction under the Building and other Construction Workers Cess Act, 1996, the Contractor has no option but to pay Cess by way of deduction at source effect from 26.06.2007.

4. It is the contention of the Writ Petitioner herein that in respect of present contract, there is no provision made-out in the estimates of the tender notice and the agreement executed do not cover the Labour Cess. It is further submitted that the Irrigation Department unilaterally cannot authorise to recover the Labour Cess from the Contractors bills, without consent of the contractor or entering into supplemental agreement by including suitable provision of 1% Labour Cess in the revised estimate. It is, therefore, submitted that the direction issued by the Finance and Planning Department is wholly without jurisdiction, and it is therefore arbitrary and violative of Article 14 of the Constitution of India.

5. Learned Counsel for the Writ Petitioner has furnished a copy of the Order passed by the Learned Single Judge of this Court in CH.V.V. Subba Rao Vs. Government of Andhra Pradesh, represented by its Principal Secretary and Others (W.P.No.11269 of 2009 & batch dated 22.10.2009) and submitted that this issue is no more res integra and the law, as settled by this Court in the above judgment, has become final.

6. This Court has perused the Order passed by the Learned Single Judge in CH.V.V. Subba Rao Vs. Government of Andhra Pradesh, represented by its Principal Secretary and Others (W.P.No.11269 of 2009 & batch dated 22.10.2009). The relevant portion of the Judgment is usefully extracted hereunder:

“Independent of the said note, the departments of the Government are expected to recognize their obligation under 1996 Act. Assuming that there existed any justification for their omission to include the amount payable towards cess in the estimates, they cannot be permitted to deduct that amount while making payments to the contractors. In a way, it would amount to either penalizing the contractor or affecting the levy contrar