IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 WP(C).No. 36017 of 2007(K) -------------------------- PETITIONER(S): --------------- 1. T.G. RAJESH, PROPRIETOR, VEENA MOTOR DRIVING SCHOOL, P.C. KAVALA P.O., PAIPADU, (VIA) CHANGANACHERRY, KOTTAYAM DISTRICT. 2. K.P. VIJAYAKUMAR, PROPRIETOR, TECHNO MOTOR DRIVING SCHOOL, KUNDOOR KIZHAKKETHIL, PEROOR, KOTTAYAM DISTRICT. BY ADV. SRI.G.HARIHARAN RESPONDENT(S): --------------- 1. JOINT REGIONAL TRANSPORT OFFICER, CHANGANACHERRY. 2. REGIONAL TRANSPORT OFFICER, KOTTAYAM. 3. DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND, KOTTAYAM. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY, TRANSPORT DEPARTMENT THIRUVANANTHAPURAM. ADV. SRI.P.RAMAKRISHNAN, SC,KMTWF BOARD FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/02/2009, ALONG WITH WPC NO. 19835 OF 2008 & WPC NO. 24664 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS: P1: TRUE COPY OF THE DRIVING SCHOOL LICENCE DT.25.9.2007 ISSUED IN THE NAME OF 1ST PETITIONER BY THE LICENCING AUTHORITY, KOTTAYAM. P2: TRUE COPY OF REGISTRATION CERTIFICATE RELATING TO VEHICLE NO.KL-7B- 277. P3: .DO. NO.KRO-1940. P4: TRUE COPY OF LICENCE NO.L1/17508/89 DT.25.11.1989 ISSUED BY THE LICENCING AUTHORITY, KOTTAYAM IN FAVOUR OF THE PETITIONER. P5: TRUE COPY OF REGISTRATION CERTIFICATE RELATING TO VEHICLE NO.KRO- 2110. P6: .DO. NO.KLQ-8452. P7: TRUE COPY OF RELEVANT PORTION OF THE NOTIFICATION RELATING TO AMENDMENT OF THE KERALA MOTOR VEHICLE TAXATION ACT VIDE NOTIFICATION DT.12.8.05. TRUE COPY PA TO JUDGE C.R. C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. .................................................................... W.P.(C) Nos.36017 of 2007 & 19835 & 24664 of 2008 .................................................................... Dated this the 27th day of February, 2009. JUDGMENT Ramachandran Nair, J. The connected writ petitions are referred to Division Bench by a learned Single Judge to consider the question whether workers engaged as Instructors by Driving Schools are employees for whom Welfare Fund contribution is payable by the employers under the Kerala Motor Transport Workers Welfare Fund Act, 1985 (hereinafter called "the Act"). A Single Judge of this court vide judgment in W.P.(C) No.3855/2008 dated 11.2.2008 held that the driving school is not entitled to exemption from payment of Welfare Fund as an educational institution based on judgment of this court in Toc'H Public School v. District Executive Officer [1992(1) KLT SN 49 Page 37]. When the same issue came up before another Single Bench, that learned Single Judge felt that petitioner is not liable under the statute, even if the driving school cannot be treated as an educational institution. He, 2 therefore, referred the matter for decision by a Division Bench. We have heard counsel appearing for the petitioners and Standing Counsel appearing for the Motor Transport Workers Welfare Fund Board. 2. Liability to pay contribution under the Act is on employers running "motor transport undertaking" as defined under the Act. The petitioners contend that a driving school does not answer the description of "motor transport undertaking" and so much so, they are not liable to pay contribution for Instructors engaged by them for teaching driving. The case of the Welfare Fund Board is that driving schools are commercial establishments employing Instructors and so much so, they are liable to pay contribution for their employees. The relevant definitions contained in the Act are the following: "S.2(e) "employer" means in relation to any motor transport undertaking the person who, or the authority which, has the ultimate control over the affairs of the motor transport undertaking, and where the said affairs are entrusted to any other person whether called a manager, managing director, managing agent or by any other name, such other person. (g) "motor transport undertaking" means a motor transport undertaking engaged in carrying passengers or goods or both by road for hire or reward, and includes a private carrier. (h) "motor transport worker" means a person who is employed in a motor transport undertaking directly or 3 through an agency, whether for wages or not, 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, but except in Section 8 does not include:- (i) any such person who is employed in a factory as defined in the Factories Act, 1948(63 of 1948). (ii) any such person to whom the provisions of any law for the time being in force regulating the conditions of service of persons employed in shops or commercial establishments apply." By virtue of clause 2(n) of the Act, words and expressions used but not defined in this Act have to be adopted from the definitions contained in the Motor Vehicles Act, 1939 which defines "private carrier" under Section 2(22) as follows: " 'Private carrier' means an owner of a transport vehicle other than a public carrier who uses that vehicle solely for the carriage of goods which are his property or the carriage of which is necessary for the purposes of his business not being a business of providing transport, or who uses the vehicle for any of the purposes specified in sub-section(2) of section 42." From the definition clauses it is clear that liability to pay contribution is only on motor transport undertaking, which by virtue of the definition means only vehicles owners operating vehicles for carrying passengers 4 or goods or both for hire or rewards. In other words, employees in goods vehicles or passenger vehicles only are covered by the provisions of the Act. Even though private carrier is also covered under the definition of motor transport undertaking, private carrier as defined under Section 2(22) of the old Act also do not cover vehicles owned or operated by driving schools. On the other hand, private carrier also is a goods carriage used for transport of goods by it's owner for personal or business purposes. Even though there is a reference in the definition clause to Section 42(2) of the old Act, on going through the said provisions we find that the Section does not deal with the vehicles operated by driving schools. Even though the learned Single Judge in the judgment abovereferred held that driving schools are not entitled to exemption from payment of contribution as educational institution, the court had no occasion to consider liability under the Act. So much so, the said decision does not bar the petitioners' claim that they are not covered by the statute. Standing Counsel for the Welfare Fund Board contended that the Instructors who are professional drivers are comparable with drivers engaged by motor transport undertakings for carriage of goods or passengers. We do not think coverage is there for similar employees covered by the Act. So 5 long as the statute specifically covers only motor transport undertaking which has a definite meaning and content, this court cannot permit recovery on the ground that employees in private vehicles are similarly placed as employees in motor transport undertaking. We, therefore, hold that the Act does not permit recovery of contribution for Instructors or employees engaged in motor driving schools. It is upto the Legislature to consider whether employees of motor driving schools have to be covered by the Act and if so, to make suitable amendment. Consequently we allow the Writ Petitions restraining the respondents from demanding payment of contribution from petitioners or making it a condition for receipt of motor vehicle tax for the vehicles owned by the driving schools. C.N.RAMACHANDRAN NAIR Judge K.SURENDRA MOHAN Judge pms