Building & Other Construction Workers’ Welfare Cess [BOCWW Cess] is a means to provide health and welfare measures for the workers engaged in building and other construction works.

Building and other construction workers are one of the most numerous and vulnerable segments of the unorganized labour in India. The building and other construction works are characterised by their inherent risk to the life and limb of the workers. The work is also characterised by its casual nature, temporary relationship between employer and employee, uncertain working hours, lack of basic amenities and inadequacy of welfare facilities.

That is why; a need has been felt for a comprehensive statute for regulating their safety, health, welfare and other conditions of service.

In the truest sense, there is no cess called Labour Cess.

It is the Building & Other Construction Workers’ Welfare Cess [BOCWW Cess] which is often referred as labour cess by certain section/ individual.

Building & Other Construction Workers’ Welfare Cess [BOCWW Cess] is administered under the Building and Other Construction Workers’ Welfare Cess Act, 1996 read with relevant sections of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996.

The Building & Other Construction Workers’ Welfare Cess [BOCWW Cess] under the provisions of the Building and Other Construction Workers’ Welfare Cess Act, 1996 is a levy covered under Entry 97 of List – I, Union List, read with Entry at serial 23 and 24 of List III in Schedule VII.

The same has been upheld in the case of Dewan Chand Builders and Contractors v. Union of India and Other [(2012) 1 SCC 101] where the Hon’ble Supreme Court has said that the levy under the Building and Other Construction Workers’ Welfare Cess Act, 1996 is a “fee” referable to Schedule VII of List I Entry 97 of the Constitution of India.

No. The levy of Cess on the cost of construction incurred by the employers on the building and other construction works is a means for ensuring sufficient funds for the Welfare Boards to undertake social security schemes and welfare measures for building and other construction workers.

In this connection, the Hon’ble Supreme Court in the case of Dewan Chand Builders and Contractors v. Union of India and Other [(2012) 1 SCC 101] has said that:

“The fund, so collected, is directed to specific ends spelt out in the BOCW Act. Therefore, applying the principle laid down in the aforesaid decisions of this Court, it is clear that the said levy is a `fee' and not `tax'. The said fund is set apart and appropriated specifically for the performance of specified purpose; it is not merged in the public revenues for the benefit of the general public and as such the nexus between the Cess and the purpose for which it is levied gets established, satisfying the element of quid pro quo in the scheme. With these features of the Cess Act in view, the subject levy has to be construed as `fee' and not a `tax'.

In the case of State of WB vs. Kesoram Industries Ltd. & Ors. [(2004) 10 SCC 201], the Constitution Bench of the Supreme Court, was faced with a challenge to the Constitutional validity of the levy of Cesses on coal-bearing lands, tea plantation lands and on removal of bricks earth.

Relying on the decision in Hingir Rampur Coal Co. Ltd (AIR 1961 SC 459), speaking for the majority, R.C. Lahoti, J. (as His Lordship then was), explained the distinction between the terms `tax' and `fee' in the following words: "…The term cess is commonly employed to connote a Tax with a purpose or a tax allocated to a particular thing. However, it also means an assessment or levy. Depending on the context and purpose of levy, cess may not be a tax; it may be a fee or fee as well.

It is not necessary that the services rendered from out of the Fee collected should be directly in proportion with the amount of Fee collected.

It is equally not necessary that the services rendered by the Fee collected should remain confined to the person from whom the fee has been collected.

Availability of indirect benefit and a general nexus between the persons bearing the burden of levy of fee and the services rendered out of the fee collected is enough to uphold the validity of the fee charged."

The Welfare Boards constituted under Section 18(1) of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 are entrusted with the task of ensuring the provision of health and welfare measures to the workers engaged in building and other construction works of the Building and other construction Workers.

In West Bengal, such functions are carried out by the West Bengal Building and Other Construction Workers’ Welfare Board (WBBOCWW Board) constituted vide Notification No. 1182-I.R/ EIL/ 1A-18/ 2004(Pt) Dt. 20.09.2005 of the Labour Department, Govt. of West Bengal.

Reconstituted latest by Notification No. Labr/895/ (LC-IR)/LW/3A-1/16 Dt. 31.08.2016.

The “Building and Other Construction Workers’ Welfare Fund” created under the provisions of Section 24 of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 provides for health and welfare measures to the workers engaged in building and other construction works.

In the State of West Bengal, the same functions are carried out through the “West Bengal Building and Other Construction Workers’ Welfare Fund”.

The source of this Fund is the Building & Other Construction Workers’ Welfare Cess [BOCWW Cess] levied and collected on the cost of construction incurred by employers, under Section 3 of the Building and Other Construction Workers’ Welfare Cess Act, 1996. This Cess augments the resources of the Building and Other Construction Workers’ Welfare Boards constituted by the Government (Central, State & Union Territory).

No, there is no registration process associated to BOCWW Cess Act, 1996.

However, under Sec. 7 of the Building & Other Construction Workers’ (Regulation of Employment & Condition of Service) Act, 1996 there lies a provision for registration of establishment where the employer employs, or had employed on any day of the preceding twelve months, ten or more building workers in any building or other construction work. The employer shall apply for registration within a period of sixty days from commencement of such construction work.

Thus, it is evident that this is a liability on the part of an employer (i.e. contractor) and not that of the Govt. Dept. engaging a contractor for building & other constructions.