The Chhattisgarh High Court in a case filed by Larsen and Toubro (L&T) held that buildings which are used for manufacturing would be governed by the Factories Act, 1948 instead of Buildings and Other Construction Workers (Regulation of Employment and Condition of Service) Act, 1996.
The question came before the court when two Writ petitions were filed in the court by Larsen & Toubro (L&T) Ltd. challenging the notice which was issued against them by Bharat Aluminum Company Limited-Vedanta and Steel Authority of India demanding to get register themselves under the provisions of Building and Other Construction Workers (BOCW) Act, 1996 and to contribute 1% cess charges of the contract value under BOCW Welfare Cess Act, 1996.
The two questions raised by the petition was firstly the nature of the work or the contract awarded to the petitioners is not one which is specified in the definition of Building and Other Construction Work defined under Section 2(d) of the BOCW Act. The second ground of challenge is on the ground that since the respondent No.3-Factory in the two writ petitions admittedly are factories defined under the provisions of the Factories Act 1948, the provisions of the BOCW Act gets excluded of its coverage as in both the establishments it is the provisions of the Factories Act, 1948, which applies.
The question that BOCW Act would be applicable to a factory where manufacturing process has started and Factories Act is already in force was answered by referring a Supreme Court judgment delivered in Lanco Anpara Powers Limited vs. State of Uttar Pradesh and Ors. (2016) 10 SCC 329
The Supreme Court held that held that the provisions of the Factories Act would apply “only when the manufacturing process starts for which the building/project is being constructed”
Apart from this the court observed that the judgment given by the apex court clearly indicates that before commencement of manufacturing process the building would be regulated by the Building and Other Construction Workers Act, 1996 and not by the Factories Act, 1948. But after the commencement of manufacturing process it would be regulated by the Factories Act, 1948 and would be excluded from the Section 2(1) (d) of Building and Other Construction Workers Act, 1996.
Taking the view of Supreme Court, the Chhattisgarh High Court held that Factories Act was already in force and does not make provisions of BOCW to be applicable and the notice issued are not valid.
Courtesy/By: Bhupendra Yadav
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17 Mar 2018
