IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF AUGUST, 2019 BEFORE:
THE HON’BLE MR. JUSTICE B.VEERAPPA WRIT PETITION No.57338/2015 (GM – RES) BETWEEN:
M/s TOYOTA INDUSTRIES ENGINE INDIA PRIVATE LIMITED [FORMERLY KNOWN AS KIRLOSKAR TOYOTA TEXTILE MACHINERY PVT LTD.,] PLOT No.10-13, PHASE II JIGANI INDUSTRIAL AREA, JIGANI BANGALORE-560105 REP. BY ITS DEPUTY MANAGING DIRECTOR. …PETITIONER (BY SRI SUBRAMANYA, ADV. FOR SRI B.C.PRABHAKAR, ADV.) AND:
1. THE LABOUR OFFICER & CESS ASSESSMENT OFFICER KARMIKA BHAVANA, SUB-DIVISION No.6 BANNERGHATTA ROAD BANGALORE-560029.
2. SECRETARY GOVERNMENT OF KARNATAKA LABOUR DEPARTMENT M.S. BUILDING BANGALORE-560001.
[CAUSE TITLE AMENDED VIDE COURT ORDER DATED 17.12.2015] …RESPONDENTS (BY Ms. NILOAFER AKBAR, AGA FOR R-2; R-1 IS SERVED BUT UNREPRESENTED.) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS LEADING TO THE ISSUANCE TO THE SHOW CAUSE NOTICE DATED 03.12.2015 VIDE ANNEXURE-H; QUASH THE SHOW CAUSE NOTICE DATED 03.12.2015 ISSUED BY THE RESPONDENT IN DATED 03.12.2015 VIDE ANNEXURE-H.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner has filed the present writ petition to quash the show cause notice dated 03.12.2015 issued by the respondent at Annexure-H.
2. It is the case of the petitioner that on 15.09.2014, the petitioner submitted an application to the Directorate of Factories and Boilers in Form No.1 seeking permission to construct and extend or take in to use heavy building as a factory under the Factories Act, 1948. On 20.06.2014, the officials from the Directorate of Factories and Boilers had visited the petitioner’s factory for necessary inspection. Thereafter, on 20.10.2014, the respondent – Directorate of Factories and Boilers accorded final approval for construction of the building. The things stood thus, the petitioner received notice from the respondent demanding 1% Cess for construction of building [Engine Plant] on 29.05.2015. The petitioner sent a detailed reply on 18.06.2015 clarifying that the Construction Workers Welfare Cess Act is not applicable to the construction work undertaken by the petitioner-company in accordance with the provisions of the Factories Act, 1948 Read with Factories Rules 1969, in view of the decision of this Court made in W.P.No.29929/2011 dated 30.08.2011. Despite clarifying both the factual and legal position, the respondent issued one more notice to the petitioner on 13.11.2015 to furnish the details with regard to the construction of the factory. The detailed reply has been sent to the respondents clarifying that the Building and Other Construction Workers Act [BOCW Act] and Cess Act is not applicable to the petitioner. Therefore, the respondent has no jurisdiction to proceed against the petitioner. In spite of clarifying the same, till today, the respondents have not considered nor passed any orders. Therefore, the petitioner is before this Court for the relief sought for.
3. The respondents have not filed objections.
4. I have heard the learned counsel for the parties to the lis.
5. Sri.Subramanya learned counsel for the petitioner reiterating the grounds urged in the writ petition, has contended that the respondent being a quasi judicial Authority, exercising quasi judicial functions ought to have considered the detailed explanation of the petitioner both the factual and legal position and ought to have passed orders on the reply filed by the petitioner on the show cause notice. The same has not been done.
6. He further contended that the petitioner falls within the definition of term ‘Factory’ under Section 2[m] of the Factories Act, 1948 and pursuant to which the petitioner in order to put up construction of building applied and secured the approval from the Licensing Authority for extension under Section 6 of the Act. Therefore, the Factories Act, 1948 is very much applicable to the petitioner. The Authorities have no jurisdiction to issue show cause notice to the petitioner. Therefore, he sought to allow the writ petition by quashing the impugned notice.
7. Per contra, Ms.Niloufer Akbar, learned Additional Government Advocate submits that the very writ petition filed against the show cause notice dated 03.12.2015 is not maintainable. Admittedly, the petitioner filed objections to the show cause notice on 30.11.2015. It is for the Authorities to consider and pass appropriate orders. The very writ petition filed is liable to be dismissed as premature and therefore sought to dismiss the writ petition.
8. Having heard the learned counsel for the parties, it is the specific case of the petitioner that he filed an application under the Factories Act, 1948 in Form No.1 seeking permission to extent or take in to use heavy building as factory under the Factories Act, 1948. The authorities considering the application approved and accorded permission for construction of building. Thereafter, he received notice demanding 1% Cess for construction of the building. The same was apprised to the authorities that the Construction Workers Welfare Cess Act is not applicable to the construction work undertaken by the petitioner under the provisions of Factories Act, 1948 in view of the dictum of this Court made in W.P.No.29929/2011 dated 30.08.2011. In spite of the same, notice by the respondents, show cause notice issued on 03.12.2015, it is for the petitioner to file objections with reference to the dictum of this Court made in W.P.No.29929/2011 and the Hon'ble Supreme Court in the case of Lanco Anpara Power Limited V/s. State of Uttar Pradesh and Others [2016] 10 SCC 329 para 36 and 38.
9. It is also not in dispute that the petitioner has not filed objections to the show cause notice dated 03.12.2015 relying upon by the judgment of this Court and Hon'ble Supreme Court, it is for the petitioner to show cause by filing objections to the Annexure-H show cause notice dated 03.12.2015 and it is for the respondents to consider the objections and pass appropriate orders in accordance with law.
10. For the reasons stated above, writ petition is disposed off. The petitioner is permitted to file objections to the show cause notice dated 03.12.2015 within a period of four weeks along with the judgments if any. If such objections are filed, it is for the respondent authorities to consider and pass appropriate orders in accordance with law.
Till such consideration, respondents shall not take any precipitative action against the petitioner.
Ordered accordingly.
Sd/- JUDGE NC.