IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929 OP.No. 2620 of 2003(J) ---------------------- PETITIONER: ------------ T.OOMMEN PANICKER, MANAGING PARTNER, TOP CONSTRUCTIONS, TOP'S MANOR, PANAVELI P.O. KOTTARAKKARA. BY ADV. SRI.S.ABDUL RAZZAK RESPONDENTS: ------------- 1. THE ADDL. DISTRICT EXECUTIVE OFFICER, KERAL MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, KOLLAM 2. THE EXECUTIVE ENGINEER, HARBOUR ENGINEERING DIVISION, KANNUR. 3. THE GOVERNMENT OF KERALA, REPRESENTED BY ITS SECRETARY, LABOUR AND REHABILITATION (R) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM 4. DEPUTY TAHSILDAR, (R.R) TALUK OFFICE, KOTTARAKKARA, KOLLAM. 5. V.M.ROY, DRIVER C/O. SIJU MATHEW, TOP CONSTRUCTIONS, PANAVELI P.O., KOTTARAKKARA. 6. A.N.SAJEEVAN, DRIVER, ATTOOR VEEDU, MEKKADAMBU P.O., MUVATTUPUZHA 682316 7. SIJU MATHEW, DRIVER, TOP CONSTRUCTIONS, PANAVELI P.O., KOTTARAKKARA. 8. A.ANOOP, DRIVER, C/O. SIJU MATHEW, TOP CONSTRUCTIONS, PANAVELI P.O., KOTTARAKKARA. 9. P.T.MATHEW, DRIVER, C/O. SIJU MATHEW, TOP CONSTRUCTIONS, PANAVELI P.O., KOTTARAKKARA. *10. THE CONSTRUCTION WORKERS WELFARE FUND BOARD, THIRUVANANTHAPURAM. (*IMPLEADED AS ADDITIONAL 10TH RESPONDENT IN THE ORIGINAL PETITIONER AS PER ORDER DATED 24/01/2003 IN O.P.NO. 4720/2003. BY ADV. SRI.C.R.SYAMKUMAR, SC, KCWWF BOARD SRI.C.R.SYAMKUMAR, SC, KCWWF BOARD SRI.P.RAMAKRISHNAN, SC SMT.SMITHA SUKUMAR, GOVERNMENT PLEADER THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO. 2620/2003 ORDER ON CMP NO. 4720/2003 IN O.P.NO. 2620/2003 & CMP NO.11625/2003 IN CMP NO.4720/2003 IN O.P.NO. 2620/2003 DISMISSED. 11/01/2008 SD/- (C.N.RAMACHANDRAN NAIR, JUDGE) APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF FINAL DETERMINATION ORDER NO.B-4-EQ-562/95-97 DATED 31/12/97. P2 : COPY OF FINAL DETERMINATION ORDER NO.B-4-EQ-562/97-98 DATED 24/02/99. P3 : COPY OF GO(RT)NO.2699/99/LBR DATED 10/08/99. P4 : COPY OF CERTIFICATE ISSUED BY R2. P5 : COPY OF GO(RT) NO.3188/96/LBR DATED 03/12/96. P6 : COPY OF JUDGMENT DATED 04/07/2002 IN O.P.NO. 24442/1999 I. P7 : COPY OF RR NOTICE NO.D-3-2186/99 DATED 16/03/1999. RESPONDENT'S EXHIBITS R2(a) : COPY OF SPECIAL CONDITION. // TRUE COPY // PA TO JUDGE. jg C.R. C.N.RAMACHANDRAN NAIR, J. ----------------------------------- O.P. No. 2620 of 2003 ------------------------- Dated, this the 11th day of January, 2008 J U D G M E N T Petitioner is a contractor engaged in civil construction work. Petitioner owns tipper lorries for transport of goods for construction purposes. Petitioner is called upon to pay Motor Transport Workers Welfare Fund contribution for the drivers engaged in the tipper lorries. Petitioner’s case is that construction workers welfare fund contribution under the Kerala Construction Workers Welfare Fund Act 1989 is recovered from petitioner’s bills @1% for all the employees engaged by him. According to petitioner, the drivers engaged in the tipper lorries are also construction workers as they are engaged in supply of materials and, so much so, the deduction of contribution from work bills covers the benefit payable to drivers also. Even though petitioner has not furnished particulars, learned counsel for petitioner contended that all the drivers engaged by petitioner are registered as construction workers before the Construction Workers Welfare Fund Board. Ignoring the above claim of the petitioner, 1st respondent, in this case, has demanded welfare fund contribution payable under the Kerala Motor Transport O.P.NO. 2620/2003 -2- Workers Welfare Fund Act 1985 for all the drivers engaged in the tipper lorries vide Ext.P2. Petitioner’s appeal against the final determination order is rejected by the Government vide Ext.P3 order, which is under challenge in this original petition. 2. I heard learned counsel for petitioner, learned standing counsel for Motor Transport Workers Welfare Fund Board and learned Government Pleader. 3. Petitioner has relied on Ext.P5, which is an order in appeal issued in the case of another party, wherein the drivers were stated to be covered under the Construction Workers Welfare Fund Act. 4. Question to be considered is whether the drivers engaged in the tipper lorries, owned by petitioner, for the transport of materials for construction work, answer the description of “construction worker” as defined under Section 2(d) of the Construction Workers Welfare Fund Act or whether the drivers engaged in the tipper lorries, answer the description of employees, as defined under Section 2(d) of the Motor Transport Workers Welfare Fund Act. For easy reference the relevant definition clauses in both the Acts are extracted hereunder. O.P.NO. 2620/2003 -3- Section 2(d) of Construction Workers Welfare Fund Act. “Construction Worker” means any person who is employed for wages to do any work in connection with a construction work and who gets his wages directly or indirectly from an employer or from a contractor and includes a person engaged in any work connected with the supply of materials for construction works and a worker specified in any categories in Schedule I. Explanation : If any doubt arises as to whether a person is or is not a construction worker for the purpose of this Act, the question shall be referred to the Chief Executive Officer or an officer authorised by the Government in this behalf whose decision thereon shall be final. Section 2(d) of Kerala Motor Transport Workers Welfare Fund Act. “Employee” means a person who is employed for wages in a motor transport undertaking directly or through an agency to work in a professional capacity on a transport vehicle or to attend to duties in connection with the arrival, departure, loading or unloading of such transport vehicle and includes a driver, conductor, cleaner, station staff, line checking staff, booking clerk, cash clerk, depot clerk, time keeper, watchman or attendant. From the above, it is clear that driver is specifically covered as a motor worker for the purpose of the Motor Transport Workers Welfare Fund Act. Therefore, the only question required to be considered is whether the driver of tipper lorry falls also within the description of “construction worker” as defined in Section 2(d) of O.P.NO. 2620/2003 -4- the Construction Workers Welfare Fund Act, and if so, whether petitioner can limit liability under one statute and if so which is the more appropriate statute that applies. Admittedly, drivers are not specifically covered by the definition clause of the Construction Workers Welfare Fund Act. However, according to petitioner, driver is connected with supply of materials for construction work and therefore driver also comes under the definition clause. No doubt, tipper lorries are used for transport of materials for the construction work. However, I am of the view that workers connected with supply of materials for construction work are such of the workers who are engaged for procuring materials like loading, carrying, unloading of materials etc. for the purpose of construction work. A driver, though drives the goods vehicle, is a professional and is not directly involved in the supply of materials. Besides this, there is nothing preventing the petitioner from engaging his tipper lorries for other work or even for his own personal use or even to give on hire the tippers for the purpose of other persons. 5. Petitioner's case is that his tippers are exclusively used for transport of goods for construction work undertaken by him as contractor. However, there are so many contractors taking on hire O.P.NO. 2620/2003 -5- tippers for transport of goods for construction work. However sicne the drivers of such tippers are not employees of the contractors, they are not covered by Construction Workers Welfare Fund Act. Such drivers will be naturally covered by Motor Transport Workers Welfare Fund Act. Therefore, if petitioner's drivers are treated as workers under Construction Workers Welfare Fund Act, then they stand on a different footing from drivers engaged in tipper lorries owned by other persons. I do not think the statute visualises such subjective or diverse application of it's provisions. More over, benefits to the beneficiaries under both the Acts are similar. Therefore, it is clear that same worker is not intended to be covered by both the Acts. In other words, same worker is not entitled to get benefit under Construction Workers Welfare Fund Act and under the Motor Transport Workers Welfare Fund Act. Therefore, what is required to be considered is, under which of the two statutes driver of tipper lorry engaged for transport of construction material is covered. I have no doubt that driver of tipper lorry is squirely covered by the definition clause contained in Motor Transport Workers Welfare Fund Act and this by itself excludes him from the wider definition of 'construction worker' under the Construction Workers Welfare Fund Act. O.P.NO. 2620/2003 -6- Further, I feel among others only those directly engaged in supply of materials for construction are covered under the Construction Workers Welfare Fund Act and that is probably why drivers are not covered by Schedule I of the said Act. 6. In the circumstances, petitioner’s challenge against Ext.P2 order confirmed by Ext.P3 is rejected. In so far as Ext.P5 is concerned, learned Government Pleader has clarified that the drivers in those cases were engaged essentially in handling of materials and they were occasionally engaged as drivers. In any case, the Government Order is not binding on this Court and if it is wrongly issued it is for the Government to correct it. However, if petitioner’s drivers have been wrongly registered under the Construction Workers Welfare Fund Act, then petitioner can request them to apply for cancellation of their registration. In any case, registration under the Motor Transport Workers Welfare Fund Act should be granted to them. This original petition is disposed of upholding the demand of Motor Transport Workers Welfare Fund contribution from petitioner. (C.N.RAMACHANDRAN NAIR, JUDGE.) jg