- (1.) The petitioner has sought to challenge an order passed by the Deputy Labour Commissioner, NOIDA Region, District Gautam Budh Nagar raising a demand in the amount of Rs.12,03,432/- under the provisions of the Building And Other Construction Workers Welfare Cess Act, 19961. The Act provides for the remedy of an appeal under Section 11(1) of the Act. The petitioner has sought to question the constitutional validity of the provisions of Rule 14(2)(b) of the Building and Other Construction Workers' Welfare Cess Rules, 19982. Rule 14 provides as follows: "14. Appeal.- (1) An employer aggrieved by an order of the assessment made under Rule 7 or by an order imposing penalty made under Rule 12 may appeal against such order, within three months of the receipt of such order to the Appellate Authority. (2) The appeal shall be accompanied with- (a) the order appealed against; (b) a certificate from the Cess Collector to the effect that the amount of cess or penalty or both, as the case may be, relating to such appeal has been deposited; (c) a fee equivalent to one per cent of the amount in dispute or penalty or both, as the case may be, under such appeal; (d) a statement of points in dispute; (e) documentary evidence relied upon. (3) On receipt of the appeal the Appellate Authority may call from the Assessing Officer a statement on the basis of his assessment order appealed against, as such Appellate Authority may consider necessary for the disposal of such appeal. (4) The Appellate Authority shall give the appellant an opportunity of being heard in the matter and dispose of the appeal as expeditiously as possible. (5) On being satisfied on the quantum of cess the Appellate Authority shall confirm the order of the Assessing Officer or if in his opinion the assessment was wrong or on the higher side shall modify the order of assessment or if in his opinion the assessment is on the lower side or if the basis of assessment is wrong, it shall remand back the assessment order to the Assessing Officer along with his observations to rectify the wrong. (6) An order remanded back under sub-rule (5) shall be disposed of by the Assessing Officer within one month in view of the observation made by the Appellate Authority: Provided that if the amount of cess is proposed to be enhanced the assessee shall be given an opportunity of being heard. (7) No appeal shall lie against the order of the Appellate Authority under this rule."
(2.) The submission which has been urged is that the requirement of a pre deposit under Rule 14(2)(b) of the Rules is ultravires the provisions of Section 11(1) of the Act on the ground that no requirement to that effect is contained in the statute. Moreover, it has been submitted that under Clause (g) of sub section (2) of Section 14 of the Act which defines the rule making power of the Central Government, the Act has only made provision for the fees which shall accompany an appeal and hence it was not open to the Government while framing subordinate legislation to stipulate a requirement of making a deposit.
(3.) Sub section (1) of Section 11 of the Act which provides an appellate remedy against an order of assessment under Section 5 or against an order imposing a penalty under Section 9 stipulates that the employer may file an appeal to the Appellate Authority 'in such form and in such manner as may be prescribed'. The expression 'prescribed' is defined by Section 2(c) of the Act to mean prescribed by the Rules. The manner in which an appeal can be filed is therefore to be governed by the Rules which are framed in exercise of the rule making power under Section 14 of the Act. Sub section (1) of Section 14 of the Act is a general provision by which the Central Government is empowered to make Rules for carrying out the provisions of the Act. Sub section (2) is illustrative of the ambit of the rule making power and Clauses (a) to (g) are indicative of matters upon which Rules can be framed. Sub section (2) is prefaced by the words 'without prejudice to the generality of the foregoing power' meaning thereby that the illustrations contained in Clauses (a) to (g) are not exhaustive of the rule making power as generally framed in sub section (1) of Section 14 of the Act. In fact Clauses (a) to (g) of sub section (2) of Section 14 also contemplate that Rules can be framed in regard to any other matter which has to be or which may be prescribed. While formulating the Rules it was open to the Central Government to regulate the manner in which an appeal can be filed. A requirement that the appeal shall be accompanied by a certificate of the Cess Collector that the amount of cess or penalty or both have been deposited regulates the manner in which an appeal has to be filed and is, therefore, referable to the provisions of Section 11(1) read with Section 14 (1) of the Act. The imposition of a requirement of deposit of the cess and of the production of a certificate from the Cess Collector to that effect is hence not ultravires. Besides, the remedy of a writ petition under Article 226 is always available in the facts and circumstances of each case though, having due regard to the provisions of Rule 14(2)(b) of the Rules, the Court would be circumspect in granting relief in the facts of a particular case. The requirement of a pre-deposit is not violative of Article 14.;