ORDER :

1. In this writ petition, the petitioner is seeking for a direction to the respondents not to deduct the Labour Welfare Cess from the bills of the petitioner unless it is included in the estimate of the work or in the tender notification and further to direct the respondents to refund the Labour Welfare Cess which is already collected from the bills of the petitioner as per Annexures-H, J and K.

2. The petitioner is a Class-I Civil Contractor. He has undertaken construction work in respondent’s departments. As per the provisions of the Building and Other Construction Workers’ Welfare Cess Act, 1996 (for short “the Cess Act”), the respondents have collected the cess from the bills of the petitioner. Being aggrieved by the same, the petitioner has approached this Court.

3. Sri. Basavarajaiah, the learned counsel for the petitioner submits that as per the provisions of Section 3(2) of the Cess Act, the respondents have to collect the cess from the employer and not from the petitioner-contractor. He further contented that as per the provisions of Section 3(2) of the Cess Act and Government Order vide Annexure-R-1 and corrigendum dated 28.2.2007, cess has to be deducted at the time of approval of construction work. If the cess is not deducted, it cannot be in the running bill. Hence, he sought for allowing the petition.

4. Per contra, the learned counsel for the respondents submits that definition of the “employer” has to be read as defined under Section 2(i) of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (for short “the Act”). As per the said definition, the contractor is also an employer. He further submits that as per Section 3(2) of the Cess Act, it is very clear that the respondent can collect cess at any stage including deduction at source in relation to a building or other construction work of a Government or of a public undertaking or advance collection through a local authority. In support of his contention, he has relied upon the Government Order No.LD 300 LET 2006 dated 18.1.2007, which reads as under:

“In the light of the decision taken by the Government to enforce the provisions of the Building and Other Construction Workers Welfare Cess Act, 1996, it is ordered that:-

(a) All Government Departments, public sector undertakings and other governmental agencies/bodies carrying out any building or other construction works which are covered under Section 2(d) of the main Act shall, in case the work is carried out through a Contractor deduct 1% of the amount of the cost approved as per the tender notification from the bill at the time of making payment to the contractors and such amount so deducted from the contractors’ bill shall be remitted by way of account payee cheque in favour of then Karnataka State Building and Other Construction Workers’ Welfare Board within 30 days of making such payment along with a forwarding letter addressed to the Secretary-cum-Chief Executive Officer, Karnataka State Building and other Construction Workers’ Welfare Board, 3rd Stage, Karmika Bhavan, Bannerghatta Road, Bangalore-29.”

5. Heard the learned counsel for the parties and perused the records.

6. Section 3(2) of the Building and Other Construction Workers’ Welfare Cess Act, 1996 is relevant and same is extracted hereunder:

3. Levy and collection of cess: (1) XXX

(2) The cess levied under sub-section (1) shall be collected from every employer in such manner and at such time, including deduction at source in relation to a building or other construction work of a Government or of a public sector undertaking or advance collection through a local authority where an approval of such building or other construction work by such local authority is required, as may be prescribed.”

2. Definitions: XXXX

(d) 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