- (1.) HEARD Sri I. S. Tomar, learned counsel for the petitioners, who has filed a supplementary affidavit today. This petition raises a challenge to the liability of realisation of labour cess under the Building and Other Construction Workers Welfare Cess, Act 1996 read with the Rules of 1998 framed thereunder.
(2.) THE first contention of Sri Tomar is that the Act and the Rules were never enforced in the U.P. Jal Nigam up to 1.7.2012 and the petitioners having executed the work under contracts prior to that are not liable to pay the labour cess for that period. The second contention of Sri Tomar is that even otherwise the said terms and conditions were not incorporated in the bonds executed between the petitioners and the U.P. Jal Nigam for the said purpose prior to 1.7.2012, and if it is compared with the bonds, which have been executed thereafter makes it clear that even the U.P. Jal Nigam was not proceeding to realise any such cess from the contractors. The contention of the petitioners, therefore, appears to be that prior to 1.7.2012 neither the cess was chargeable nor was payable as the Rules framed were not enforced in the U.P. Jal Nigam and the petitioners even otherwise were not liable for the payment of such Cess. The documents, which have been filed on record, and are being relied upon included the letter dated 5.2.2011 as well as other documents Sri Tomar went to urge that the U.P. Jal Nigam itself has been stated that the provisions have to be complied with in the U.P. Jal Nigam with effect from 4.2.2009. He further submits that inspite of that, the U.P. Jal Nigam did not incorporate any such condition in the bonds, which were executed by the petitioners, therefore, the petitioners were not liable to be charged with any such cess or to deposit the same. He further submits that the petitioners upon being informed in 2012 about the same by the U.P. Jal Nigam have accordingly incorporated the same in their tender forms, which they had filed thereafter in respect of the works allotted and are making payment of the cess. He, therefore, submits that on all counts the claim now raised by the competent authority calling upon the petitioners to deposit the labour cess w.e.f. 2009 onwards, with retrospective effect, cannot be realised from the petitioners. Learned counsel for the respondent Jal Nigam submits that the Act has already been enforced and according to section 1(3) of the Act it is clear that the Act has come into force on 3.11.1995. The submission therefore, is that the Act has already been enforced and the Rules were framed thereafter, copies whereof have been filed along with the writ petition as Annexure nos. 2 and 2A.
(3.) WE have considered the submissions raised by the parties and we find that the liability of such Cess is amenable to the assessment on the basis of the information to be furnished by the employer as is prescribed by 1998 Rules. In the instant case the petitioners are contractors, who had employed labours. In the circumstances in our opinion the petitioners being the employers were under obligation to furnish the information under Rule 6 of the 1998 Rules and on that basis assessment has to be carried out. Once the assessment order is passed then the same can be challenged in an appeal under the provisions of the Act and the Rules.;