IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 WP(C).No. 25257 of 2009(B) -------------------------- PETITIONER(S): --------------- 1. USMAN K.K., KUREEKODE PARAMBU, VAZHAKKALA, KAKKANADU. 2. GEORGE J., VADAKKEKOLLAMPARAMBIL, THALAYOLAPARAMBU, VAIKOM. BY ADV. MR. PULIKOOL ABUBACKER MR. SUDHISH.A. MR. ZUBAIR PULIKOOL RESPONDENT(S): --------------- 1. CHIEF EXECUTIVE, KERALA MOTOR TRANSPORT WORKERS WELFARE BOARD, ERNAKULAM. 2. REGIONAL TRANSPORT OFFICER, ERNAKULAM, CIVIL LINES, KAKKANADU. ADV.MR.P.RAMAKRISHNAN, SC GOVT. PLEADER MR.MATHEW VADAKKEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2009, ALONG WITH WPC NO. 27588 OF 2009 THE COURT ON 08/04/2010 DELIVERED THE FOLLOWING: WP(C).25257/09 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- TRUE COPY OF REGN.CERTIFICATE OF 1ST PETITIONER'S VEHICLE EXT.P1(a):- TRUE COPY OF DO- DO- OF 2ND PETITIONER'S VEHICLE EXT.P2:- TRUE COPY OF REPRESENTATION DT.4.3.09 SUBMITTED BEFORE R2 EXT.P3:- TRUE COPY OF REMINDER DT.1.4.09 SUBMITTED BEFORE R2 EXT.P3(a):- TRUE COPY OF A/D CARD EVIDENCING RECEIPT OF Ext.P3. RESPONDENT'S EXHIBITS:- NIL OKB //TRUE COPY// P.A. TO JUDGE C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).Nos.25257 and 27588 of 2009 ------------------------------ Dated this the 8th day of April, 2010 J U D G M E N T ---------------------- 1. Petitioners in both these cases are registered owners of Autorickshaws, which are being driven by themselves as self-employment venture. Grievance of the petitioners is that, Motor Vehicle Tax due with respect to the vehicles are not being received by the 2nd respondent insisting on production of receipt evidencing payment of contributions to the Autorickshaw Workers Welfare Fund Scheme. The petitioners inter alia seek declaration to the effect that the Autorickshaw Workers Welfare Fund Scheme is illegal and also seeking directions to the 2nd respondent not to insist payment of contributions to the Scheme, as a condition precedent for accepting vehicle tax. 2. Sub-sections (7) and (8) of Section 4 of the Kerala Motor Vehicles Taxation (Amendment) Act, 2005 reads as follows:- “(7). Notwithstanding anything contained in any W.P.(C).25257/09 & 27588/09 -2- other provisions of this Act, every registered owner or person having possession or control of motor vehicle in respect of a motor transport undertaking liable to pay contribution under the Kerala Motor Transport Workers' Welfare Fund Act, 1985 (21 of 1985) shall, before effecting payment of tax, produce before the Taxation Officer the receipt of remittance of the contribution towards welfare fund upto the preceding month. (8). No tax under this Act shall be collected unless the receipt of remittance of contribution towards welfare fund mentioned in sub-section (7) is produced”. Similarly Section 8A of the Motor Transport Workers Welfare Fund Act,1985 reads as follows:- “S.8A: Production of receipt of remittance of welfare fund contribution:- Notwithstanding anything contained in any other law for the time being in force every registered owner or person having possession or control of a motor vehicle in respect of a motor transport undertaking liable to pay contribution (other than autorickshaws covered under the provisions of the Kerala Autorickshaw Workers' Welfare Fund Scheme, 1991) shall, at the time of making payment of the tax under the Kerala Motor Vehicles Taxation Act, 1976 (19 of 1976), produce before the Taxation Officer the receipt of remittance of the contribution to the fund due upto the preceding month.” 3. The definition of 'employer' under Section 2(c) and the definition of 'employee' under Section 2(d) of the Kerala Motor Transport Workers Welfare Fund Act will not include W.P.(C).25257/09 & 27588/09 -3- persons like petitioners who are the registered owners of the vehicle, operating such vehicles by themselves without employing any persons, is the foremost contention of the petitioners. It is pointed out that clause 27(1) of the Motor Transport Workers Welfare Fund Scheme insist registration of self-employed persons, only if they desires to be registered as a motor transport worker. Further contention is that an Autorickshaw cannot be considered as a 'motor transport undertaking' within the definition of Section 2(h) of the Motor Transport Workers Welfare Fund Act. It is also contended that there is express exclusion of Autorickshaws which are covered under the Autorickshaw Workers Welfare Fund Scheme, from the ambit of the Motor Transport Workers' Welfare Fund Scheme. Since the petitioners are self-employed persons plying Autorickshaws for hire by themselves, they are neither an 'employer' nor an 'employee' coming within the purview of the Act and the Scheme, is the contention. Clause 2(1)(a) of the Autorickshaw Workers Welfare Fund Scheme is also pointed out in support of the contention that the petitioners cannot be considered as a worker under the said Scheme. Since the petitioners are not liable to get registered themselves under both W.P.(C).25257/09 & 27588/09 -4- the above said Schemes, insistence for production of proof for payment of contribution for accepting motor vehicles tax, is illegal and unsustainable, is the argument. 4. Heard, Sri.Zubair Pulikool, learned counsel appearing for petitioners as well as Sri.P.Ramakrishnan, standing counsel appearing for the 1st respondent Board. The standing counsel had drawn my attention to the decision of this court in Dharmaratnam Vs. State of Kerala (2009(1) KLT 343). Dealing with a situation where Autorickshaws are let out to drivers under rental agreements, this court held that there is no employer-employee relationship or payment of wages. But it is held that persons actually operating the vehicles are self- employed persons and would be liable to make contributions under the Act and Scheme. It is found that, Section 4 of the Motor Transport Workers' Welfare Fund Act, 1985 insist for payment of contribution to the Fund. Section 4(2) says that the contribution payable by the 'employer' and 'self-employed persons' shall be at such quantum as may be specified in the Scheme. Sub-section (4) of Section 4 says that, the contribution payable by employer, employee and self-employed persons shall be subject to revision from time to time. The word “self- W.P.(C).25257/09 & 27588/09 -5- employed person” is defined under Section 2(ja), which means a person other than an employee who is engaged in the profession of a motor transport undertaking by actually operating the vehicle and depending mainly on such a motor transport undertaking for his livelihood. If a person owns an Autorickshaw and if he himself operates the Autorickshaw and if he is depending mainly on such motor transport undertaking for his livelihood, he would undoubtedly fall within the ambit of the definition of “self-employed person”, as defined under Section 2 (ja). Interpreting the wordings of clause 27 of the Scheme it is observed by this court that the said clause declares that “every employee and “self-employed person” who desires to be employed as a motor transport worker, must apply for membership. It does not say that an employee or the self- employed person who desires to be a member of the Fund, should apply. The words “desire to be employed” is relatable to the word “motor transport worker”, and not to registration as member of the Fund”. Therefore it is found that every employer or self-employed person of a motor transport undertaking is duty bound to contribute to the Fund a sum as defined under Section 4(2) of the Act. Or in other words, in a case where the vehicles W.P.(C).25257/09 & 27588/09 -6- being operated by the person who is not an 'employee' and if he falls within the definition of the wordings “self-employed person”, he is duty bound to contribute as specified in the Scheme. Therefore going by the provision contained in Section 7 (4) of the Motor Vehicles Taxation Act and Section 8A of the Motor Transport Workers Welfare Fund Act, insistence for production of proof regarding payment of contribution is purely legal and valid and any person coming within the definition of “self-employed person”, who is in actual possession and in control of the vehicle would also be said to be fulfilling the elements of Section 8A and thus be liable to pay the contribution payable as a condition precedent for receipt of motor vehicle tax, is the findings in the said decision. 5. Eventhough Sri.Zubair Pulikool made strenuous attempts to distinguish the case on facts to argue that the dictum laid down in Dharmaratnam's case (cited supra) is not appilcable in these cases, I do not find any clear distinction on the factual position in order to hold that the dictum is not applicable here. Persons who took Autorickshaws on the basis of rental or lease agreements and plying the same as a self-employed venture, as well as persons who are registered owners of Autorickshaws W.P.(C).25257/09 & 27588/09 -7- plying such vehicles as self-employment venture, are in identical footing with respect to the liability for payment of contributions, while interpreting the relevant provisions. Therefore in full endorsement and acceptance of the view taken in Dharmaratnam's case, it is held that registered owners of Autorickshaws who are plying the vehicles for hire as a self- employment venture will definitely come within the purview of “self-employed persons” as defined under Section 2(ja) and are definitely liable for payment of contributions as contemplated under Section 4 of the Kerala Motor Transport Workers' Welfare Fund Act. Therefore insistence for production of proof regarding payment of contribution for acceptance for tax, is legal and justified under the provisions of sub-sections (7) and (8) of Section 4 of the Kerala Motor Vehicles Taxation (Amendment) Act, 2005 and under Section 8A of the Kerala Motor Transport Workers' Welfare Fund Act. Hence I am of the considered opinion that these writ petitions deserve no merit, and are accordingly dismissed. C.K.ABDUL REHIM, JUDGE. okb