The Jharkhand Building And Other ... vs Jharkhand Bijli Vitran Nigam Limited
2025 Latest Caselaw 1073 Jhar

Jharkhand High Court

The Jharkhand Building And Other ... vs Jharkhand Bijli Vitran Nigam Limited on 22 July, 2025

Author: Sujit Narayan Prasad

Bench: Rajesh Kumar, Sujit Narayan Prasad

                                                          2025:JHHC:20358-DB


    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 L.P.A No.131 of 2025
                         ----

The Jharkhand Building and Other Construction Workers Welfare Board [constituted under Section 18 of Building and Other Construction Workers Act, 1996 (hereinafter called as BOCW Act)], having its office at Shram Bhawan, behind Ashoka Hotel, P.O & P.S-Doranda, District-Ranchi, through its Secretary namely, Rakesh Prasad aged about 59 years, S/o Late Krishna Prasad R/o Belbagan, Samlong, P.O & P.S.Namkum, Ranchi .... .... Appellant

-Versus-

1. Jharkhand Bijli Vitran Nigam Limited, through its Managing Director, having its office at Engineering Building, HEC Dhurwa, P.O & P.S-Dhurwa, District- Ranchi, Jharkhand-834002.

2. General Manager (IT) Jharkhand Bijli Vitran Nigam Limited, having its office at Engineering Building, HEC Dhurwa, P.O & P.S-Dhurwa, District-Ranchi, Jharkhand-834002.

... ... Review petitioners/ Respondents

3. M/s Genus Power Infrastructure Limited, through its Senior Engineer, Mr. Praveen Gupta, S/o Mr. Surendra Prasad Gupta, R/o Hatia, Singhmore, P.O. Hatia and P.S. Hatia, 834003

--- --- Writ petitioner/Respondent

4. State of Jharkhand through the Secretary Department of Labour, Employment & Training, having its office at Shram Bhawan, Doranda, P.O & P.S.-Doranda, District-Ranchi, Jharkhand,834002.

5. Labour Commissioner, Department of Labour, Employment & Training, having its office at Shram Bhawan, Doranda, PO & PS-Doranda, District-Ranchi, Jharkhand-834002.

6. Assistant Labour Commissioner-cum-Cess Assessment Officer (Building and Other Construction Workers Welfare Cess Act, 1966) having its office at Shram Bhawan, Doranda, P.O & P.S-Doranda, District-Ranchi, Jharkhand, Jharkhand- 834002.

                                   ....    .... Opposite parties/Respondents
                      ----
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
       HON'BLE MR. JUSTICE RAJESH KUMAR
                      ----
For the Appellant                  : Mr. Krishna Murari, Advocate
                                     Mr. Raj Vardhan, Adv.
For the Respondent-JUVNL           : Mr. Sachin Kumar, Sr. S.C.
                                     Mr. Gaurav Raj, A.C to Mr. Sachin Kumar,
For the Respondent Nos.4, 5 & 6    : Mr. Piyush Chitresh, AC to AG


                                                            2025:JHHC:20358-DB


                              ----
                           nd
Order No.02/Dated: 22 July, 2025

1. This interlocutory application has been preferred under Section 5 of the

Limitation Act for condoning the delay of 36 days in preferring the instant

appeal.

2. Heard the parties.

3. Considering the sufficient cause as has been referred in the

interlocutory application and having no objection on the part of the

respondents, the delay of 36 days in preferring the appeal is hereby condoned.

4. I.A. No. 991 of 2025 stands allowed.

5. The instant intra-court appeal, under clause 10 of the Letters Patent, is

directed against the order/ judgment dated 09.08.2024 passed by learned

Single Judge of this Court in Civil Review No.78 of 2024, whereby and where

under the learned Single Judge has modified the order dated 04.12.2023

passed in W.P(C) No.241 of 2023.

6. The factual aspect of the matter is as under:-

The Writ Petitioner namely M/s Genus Power Infrastructure Limited

was awarded contract for supply, installation, operation and FMS of AMI

system (Advanced Metering Infrastructure or 'Smart Meters') in electric

supply circle of Ranchi. In pursuant to the contract, the work was executed

and the bills for supply of materials and for installation service, were

separately raised. The main grievance of the petitioner is that at the time of

making payment of the bills, the labour cess @ 1% of the gross bill amount

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was levied on the bills issued for installation service and also for supply of the

materials.

Being aggrieved petitioner preferred W.P.(C) No. 241 of 2023. The

learned Writ Court vide order dated 04.12.2023 allowed the writ petition by

setting aside the levying of labour cess upon the writ petitioner and the

respondent no.4 - Managing Director, JBVNL was directed to refund the

labour cess to the petitioner within eight weeks of the order along with simple

interest @ 6% per annum on the said amount.

However, the respondent - JBVNL filed Civil Review No. 78 of 2024

for modification of the order dated 04.12.2023 passed in W.P.(C) No. 241 of

2023 since the amount to be paid to the petitioner, after deduction, has been

remitted back to the Board (Jharkhand Building and Other Construction

Workers Welfare Board), therefore it was prayed that Labour Department

authorities be directed to make the repayment.

The learned Single Judge vide order dated 09.08.2024 passed in Civil

Review No. 78 of 2024 has modified the order dated 04.12.2023 passed in

W.P.(C) No. 241 of 2023 to the extent that amount to be paid to the petitioner

by JBVNL be refunded after getting the same from the Board i.e., Jharkhand

Building and Other Construction Workers Welfare Board .

Being aggrieved, the appellant- Jharkhand Building and Other

Construction Workers Welfare Board has preferred the instant appeal

challenging the order of review dated 09.08.2024 passed in Civil Review No.

78 of 2024.

7. Mr. Sachin Kumar, learned Senior Standing Counsel for the JUVNL

has submitted that the issue has already been decided by the co-ordinate

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Bench of this Court passed in L.P.A. No. 497 of 2024 and other analogous

cases vide judgment dated 09.05.2025. Since the issue in the instant appeal is

also similar, the same may be disposed of in terms of the judgment dated

09.05.2025 passed in L.P.A. No. 497 of 2024 and other analogous cases.

8. The aforesaid fact has not been disputed by the learned counsel

for the appellant.

9. We have gone through the factual aspect as well as legal issue involved

in L.P.A. No. 497 of 2024 wherefrom it is evident that the issue involved

herein has already been decided by the co-ordinate Bench of this Court vide

order dated 09.05.2025. for ready reference the relevant paragraph the order

dated 09.05.2025 are being quoted as under:

"39. Herein, the Labour Commissioner and the Chairman of the Board are the same individual and the same authority, has also filed counter affidavit raising all the issues, which is available to be agitated by the Chairman of the Board, has been agitated by the Labour Commissioner by virtue of original assignment. Hence, this Court is of the view that the ground which is being taken that the Board being the necessary party has not been impleaded as party, as such, the order passed by the learned Single Judge needs to be recalled, cannot be said to have any force due to the aforesaid reasons.

40. This Court, therefore, is of the view that it is not a case in the backdrop of the discussion made hereinabove to agitate the issue of non-impleadment of the necessary party, i.e., the Board, since, the highest hierarchy of the Board, i.e., Labour Commissioner who also happens to be Chairman was impleaded as party and he has also contested the case by filing counter affidavit.

41. This Court, therefore, is not hesitant in holding that merely because the reference of the Board, i.e., Jharkhand Building and Other Construction Workers Welfare Board has not been made party, then the order passed by the learned Single Judge will be said to be in absence of the Board, is not worth to be considered.

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43. We have considered the order passed by the learned Single Judge, wherein, the purport of the Labour Cess Act has been taken into consideration.

45. It is evident from the aforesaid paragraphs, wherein, it has been laid down by considering the purport of the Act that the Labour Cess cannot be deducted from the supply of material.

51. The question of unjust enrichment therefore will not be applicable if the amount has been deducted contrary to the statutory provision having no authority to deduct the same.

52. Adverting to the facts of the present case herein also the Labour cess has been deducted on the basis of audit report, while, the statute prohibits the same.

53. Therefore, applying the principle laid down in the case of S.J. Coke Industries Private Limited & Ors. (supra), this Court is of the view that in the facts and circumstances of the present case in a situation of Labour cess being held to be not applicable in the supply of material, the principle of unjust enrichment, will not be applicable.

55. This Court posed a pin-pointed question to the learned counsel for the appellant on the issue of refund of the amount in pursuance to the order passed by this Court in the case of W.P.(C) No.6262 of 2022 and W.P.(C) No.241 of 2023. The aforesaid fact has not been disputed.

56. Therefore, the question is that the Board being the statutory creation can be allowed to adopt the pick and choose policy.

57. The conduct of the Board itself suggests that they have chosen not to challenge the issue of refund of money which has been deducted by the JBVNL and transmitted to the account of the Board, then what authority they can be allowed to take the ground not to refund the amount.

58. Further, the JBVNL who is the party to the contract said to be concluded one and the JBVNL has accepted the order passed by the learned writ Court based upon the statutory command having been interpreted by the Hon'ble Apex Court in the case of Uttar Pradesh Power Transmission Corporation Limited & Anr. (supra), hence, the Board merely because the amount has been transmitted by the party to the contract, i.e., JBVNL in no stretch of imagination, can come with

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the plea that such amount even though has illegally been deducted is not to be refunded back in favour of the writ petitioner.

10. This Court, considering the fact that the issue has already been decided

by this Court in L.P.A. No. 497 of 2024 and other analogous cases vide

judgment dated 09.05.2025, as such the present appeal is dismissed in terms of

the judgment dated 09.05.2025 passed in the aforesaid L.P.A.

11. Pending I.As, if any, also stands disposed of.

(Sujit Narayan Prasad, A.C.J)

(Rajesh Kumar, J.) A.Mohanty/Raja Uploaded