IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 OP.No. 36550 of 2002(A) ----------------------- PETITIONER(S) :- ------------------------ M.S. MATHEW, THRISSUR AUTO CENTRE, HPC DEALER, MARATHAKARA, THRISSUR, RESIDING AT MENNUMMEL HOUSE, KANDASSAMKADAVU, THRISSUR. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENT(S) :- -------------------------- 1. THE DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WELFARE FUND BOARD, THRISSUR. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LABOUR AND REHABILITATION DEPARTMENT, TRIVANDRUM. 3. SHRI.P.V. DAVIS, THRISSUR AUTO CENTRE, MARATHAKARA, THRISSUR. ADV. SMT. I.SHEELA DEVI FOR R1 GOVERNMENT PLEADER MR.I.V.PRAMOD THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt OP.No. 36550 of 2002 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of Order No.ER-1161/FDO/93-2000 dated 11.10.2001 issued by the 1st respondent. Ext.P2 :- Copy of Appeal submitted by the petitioner before the Secretary to Govt., Labour Department dated 15.11.2002. Ext.P3 :- Copy of affidavit submitted by the 3rd respondent dated 6.11.2001. Ext.P4 :- Copy of Order No.G.O.(Rt.)No.3330/2002/LBR dated 1.11.2002 issued by the 2nd respondent. Respondent's Exhibits :- NIL //True Copy// P.A. to Judge ANTONY DOMINIC, J. ----------------------------- O.P. No.36550 of 2002 --------------------------------- Dated this the 7th day of June 2011 J U D G M E N T Petitioner is a dealer of petroleum products of the Hindustan Petroleum Corporation, having his outlet at Marathakara in Thrissur District. For the purpose of transportation of petroleum products, petitioner originally had two lorries bearing Reg.Nos.KL 8B 8145 and KL 8B 8100. The former vehicle was sold subsequently. 2. According to the petitioner, Ext.P1 is the Final Determination Order issued by the first respondent exercising his powers under the Kerala Motor Transport Workers Welfare Fund Act and the scheme framed thereunder demanding contribution in respect of the three employees mentioned therein for the period from 1993-'94 to 1999-2000. Aggrieved by Ext.P1, the petitioner filed Ext.P2 appeal before the 2nd respondent. Along with the appeal, petitioner also O.P. No.36550 of 2002 -: 2 :- produced Ext.P3, affidavit filed by the 3rd respondent, one of the employees in respect of whom, contribution was ordered to be paid. The Government heard the matter and passed Ext.P4 order exonerating the petitioner from paying contribution in respect of two employees and ordering that contribution shall be paid in respect of 3rd respondent. It is this order which is challenged by the petitioner. 3. According to the petitioner, though the 3rd respondent was an employee of his retail outlet and was engaged for driving the lorry, he is not liable to be covered under the Act for the reason that he is covered by the provisions of the Kerala Shops and Commercial Establishments Act. It is also the case of the petitioner that since the 3rd respondent did not claim any benefit under the Welfare Fund Act he is not liable to pay the contribution. 4. However, I am unable to accept the contention of the petitioner. 'Employee' has been defined under Sec.2(d) of the Act as a person who is employed for wages in a motor transport undertaking. Even before the Government, O.P. No.36550 of 2002 -: 3 :- petitioner did not have a case that his establishment is not a motor transport undertaking or that the 3rd respondent did not satisfy the requirements of an employee as defined under the Act. Therefore, I should proceed on the basis that the 3rd respondent is an employee of a motor transport undertaking for the purpose of Welfare Fund Act. 5. Sec.4 of the Act provides for contributions to the fund and the only provision which provides for exemption from payment is the proviso which states that nothing in the section shall apply to a motor transport undertaking to which the provisions of the EPF Act apply. Petitioner has no case that the 3rd respondent or his establishment is covered by the provisions of EPF act. If that be so, he cannot absolve himself of the liability for payment of contribution under the Welfare Fund Act. 6. Even though it is true that the petroleum outlet is a 'shop' for the purpose of Kerala Shops and Commercial Establishment Act, the applicability of the Shops Act can have no impact on the liabilities under the Welfare Fund Act, for O.P. No.36550 of 2002 -: 4 :- the reason that latter Act does not exclude motor transport undertaking to which Shops Act apply for the provisions of the Welfare Fund Act. That apart, these enactments operates in different fields and therefore, one Act does not exclude the operation of the other. So far as the plea of the petitioner that the 3rd respondent did not claim the benefit under the Welfare Fund Act is concerned, the said plea also does not merit acceptance for the reason that the Act applies to all motor transport undertakings and the applicability does not depend upon the choice of either the employers or the employees. 7. In such circumstance, the contentions raised by the petitioner against Ext.P4 do not merit acceptance and are rejected. The original petition fails and is accordingly dismissed. ANTONY DOMINIC, JUDGE. Jvt