STERLITE ENERGY LTD Vs. STATE OF ORISSA

JUDGEMENT

(1.) The sole question which falls for consideration in this writ petition is whether a factory under construction and in the process of being established, is excluded from the purview of Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, ("BOCW Act" for short).

(2.) Shri L. Nageswar Rao, learned senior counsel appearing for the Petitioner submits that the Petitioner company is engaged in construction of an Independent Power Plant for generation of 2400 M.W. of Thermal Power at Bhurkamunda in the district of Jharsuguda, for which it has obtained necessary approval of the layout plans and specifications and requisite permission from the concerned authority to carry out such constructions, as provided under Section 6 of the Factories Act, 1948, read with Rule 3 of the Orissa Factories Rules, 1950. Accordingly, it is submitted that as the construction activities carried on by the Petitioner are for the purpose of establishment of its Independent Power Plant, which constitutes a factory, as defined under the Factories Act and the Petitioner having obtained necessary permission from the concerned authority for carrying out such constructions, as required under the Factories Act and the Orissa Factories Rules, the provisions of BOCW Act and the Building and Other Construction Workers? Welfare Cess Act,1996 ("Cess Act" for short) are not applicable to the Petitioner?s establishment.

(3.) Shri Rao for the Petitioner has referred to the definition of "building or construction work", as given in Section 2(1)(d) of the BOCW Act and submits that the buildings and other construction works to which the provisions of the Factories Act apply, are specifically excluded from the purview of the BOCW Act. In this regard, it is submitted that the expression "building or other construction work to which the provisions of the Factories Act apply" postulates that such building and other construction work are governed by the provisions of the Factories Act, irrespective of whether a formal certificate by way of licence has been granted by the appropriate authority under the Factories Act or not. It is further submitted that both the Factories Act and the BOCW Act are concerned with welfare of the workman involved in building and construction work. In view of the beneficial provisions already available under the Factories Act, safeguarding the welfare of the workman involved in building and construction work of a factory, the BOCW Act has made specific exclusion through Section 2(1)(d) by which the said Act is made inapplicable to those building and constructions to which the Factories Act applies. It is accordingly submitted that the Factories Act envisages within its fold building and construction activities as well, which would be required to be done for construction of the factory building for which the Factories Act provides for permissions and approvals to be taken, which are mandatory, as any violations thereof are visited with penal consequences.