Applicability of The Building & Other Construction Work 1996 on Factories - CiteHR
Umakanthan53
Labour Law & Hr Consultant
Anil Kaushik
Chief Editor,businessmanager
Kaushik_IR
Senior Executive - Hr
+1 Other

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Dear Sir,
Request your expert opinion with relevant judgments on the following query.
Whether The BOCW Act 1996 is applicable to the Factories having registered under The Factories Act 1948 and possess a valid Factory license? The manufacturing process of the Factory is in continuation.
Regards,
Kaushik Ahir
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Dear Kaushik,
Please go through the definition of the term " Building and other construction work " u/s 2(1)(d) of the BOCW Act,1996. Any construction work undertaken inside the premises which has been earmarked either under the Factories Act,1948 as a "factory" or under the Mines Act,1952 as a "mine" has been specifically excluded from the definition.
When your very post itself is self-explanatory, I am unable to understand why are you seeking case law on this.
Dear Sir,
Thanks for your response.
Gone through the definition of " Building and other construction work ".
My query is - If there is any new construction/renovation/repair work within the premises to which the Factories Act applicable, whether BOCW is applicable for that particular construction/renovation/repair work?
Regards,
Kaushik Ahir
Dear Kaushik,
Please read my answer once again. Any construction work after the commencement of the factory or mine whether done by way of modification or repair or extension WITHIN the area of the approved premises as such will not attract the BOCW Act.
Dear Friend,
I think, what you are looking for, should get here:
https://www.businessmanager.in/helpine-category.php
regds
Dear Kaushik Ahir,
Whether The BOCW Act 1996 is applicable to the Factories having registered under The Factories Act 1948 and possess a valid Factory license? The manufacturing process of the Factory is in continuation.
The answer to your question is "NO" : The B&OCW is not applicable
Dear Mr. Kaushik and Umakanthan.M and other members,
You are posting this query in BOCW thread but talking of Factories Act. I presume that you want to say that if you have a factory licence to operate the building as a factory but there are certain building and other constructions activities have also been started for example extension of factory building or something like this, then I am sorry to say that what what Mr. Umakanthan is saying is not true.
It has already been held by the Hon'ble Supreme Court and even many other High Courts of this Country that whenever, there is any construction activity within the meaning of 'building and other construction' as defined under the BOCW Act, 1996, even in an existing factory, the BOCW Act, 1996 including Cess Act, 1998 would be applicable. My earlier posts as jparatap written at this forum long back may kindly be referred to in this regard.
I will give you citations of the Hon'ble Courts, if so desired.
I would like to express my view as follows:-
The recent landmark judgement of the Hon'ble Supreme Court (SC) in Lanco Anpara Power Limited v State of Uttar Pradesh & Ors rendered in Civil Appeal No 6223 of 2016 has put to rest the long contested issue of the applicability of the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (BOCW Act) and the Building and other Construction Workers Welfare Cess Act, 1996 (Welfare Cess Act). The issue arose in a batch of special leave petitions along with a series of writ petitions filed before several High Courts questioning the applicability of the BOCW Act and the Welfare Cess Act to those premises which are registered under the Factories Act, 1948 (Factories Act).
The Hon'ble SC, based on the facts of the case, held that the establishments / premises registered under the Factories Act employing construction workers in the construction of factory premises were not excluded from the application of the BOCW Act in terms of the aforementioned exclusion clause. The SC reasoned that an establishment / premise would become a factory under Section 2(m) of the Factories Act only when the manufacturing process as defined under Section 2(k) of the Factories Act commenced. Consequently, the provisions of the Factories Act would apply only when the manufacturing process commences, and even upon commencement of the manufacturing activity, it only covered those workers who are engaged in such manufacturing activity under the Factories Act and not construction workers. Further, the Hon'ble SC held that workers constructing a factory would not be understood as workers within Section 2(l) of the Factories Act and hence would not be entitled to the benefits of the Factories Act. This leads to a clear conclusion that a premise / establishment registered under the Factories Act would not constitute a factory by itself in the absence of any manufacturing activity. A corollary to this conclusion being that construction activities carried out in relation to establishments / premises registered / licensed under the Factories Act would not automatically trigger the exclusion clause of the BOCW Act by itself and such premises cannot be understood to be outside the ambit and scope of the BOCW Act.
A copy of the judgement is attached herewith.
Regards
P S Lakshmanan

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File Type: pdf SC Judge,emt on BOCW Act.pdf (300.6 KB, 24 views)

Dear Mr.Jacob Pratap and Mr Lakshman,
Our laws and acts are so designed it fits to everysituation. The opinion given on the above querry is based on substance. The case citation is given; WPC2636 of 2010 order passed on 16/02/2018 by the High Court of Chatishgarh at Bilaspur decided two cases belong to SAIL, Bhilai and BALCO, Korba. That, factory is a "factory" and applicable law is Factories Act not B&OCW Act. This order came well after the order passed in Lanco, Anpara by the apex court. The difference was a factory under construction (Lanco, Anpara) and SAIL,Bhilai & BALCO, Korba are running factory.
Dear Mr. Kaushik
I had written an article on the issue of applicability of BOCW Act, 1996 viz-a-viz Factories Act, 1948 which was published in 2017 (155) FLR Journal Section at page 73. The same is attached. You may go through the same to satisfy yourself on the issue.
Thanks
S. Sensharma
Industrial Law Consultant, Meerut

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File Type: docx BOCW and Factories Act.docx (21.5 KB, 27 views)


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