IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 WP(C).No. 12125 of 2004(R) ------------------------------------ PETITIONER(S): ------------------------ E.V.AJITHA, MADATHIPARAMBIL HOUSE, MOORKKANIKKARA, THRISSUR. BY ADV. MR.DILIP J. AKKARA RESPONDENT(S): ---------------------- 1. THE GOVERNMENT OF KERALA, REP. BY ADDL. SECRETARY TO GOVERNMENT, LABOUR & REHABILITATION (S) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, THRISSUR. BY GOVT. PLEADER MR.I.V.PRAMOD BY ADV. SMT.I.SHEELADEVI, SC,KMTWF BOARD FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.12125/2004 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE FDO NO.ER-1165/FDO/2000-01 DT. 13.11.01. P2:- COPY OF THE APPEAL MEMORANDUM DT. 10.12.01. P3:- COPY OF THE JUDGMENT DT. 17.1.02 IN OP. 1996/02 P4:- COPY OF THE GO(RT) NO.3061/03 /LBR DT. 18.9.03. RESPONDENT'S EXHIBITS NIL TRUE COPY P.A. TO JUDGE TSS ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.12125 of 2004 --------------------------------- Dated, this the 8th day of June, 2009 J U D G M E N T Challenge in the writ petition is against Ext.P1 final determination order and Ext.P4 appellate order issued by respondents 2 & 1 respectively, exercising their powers under the Motor Transport Workers Welfare Fund Act and the Scheme framed thereunder. 2. The petitioner states that she is the registered owner of stage carriage bearing Regn.No.KL-8 6018. According to the petitioner, her husband Mr.Govindankutty and his two brothers Mr.Anilan and Mr.Ajeevkumar are the co-owners of the vehicle and the aforesaid three persons are also operating the vehicle. It is stated that they are operating the vehicle on profit sharing basis, and not for any wages. While so, proceedings were initiated against the petitioner demanding dues under the Motor Transport Workers Welfare Fund Scheme for the period 2000-01. The petitioner objected to the coverage contending that the aforesaid three WP(C) No.12125/2004 -2- persons are not employees, but co-owners, and that they were not receiving any wages to come within the definition of 'employee' under the Act. 3. The objection was over-ruled and Ext.P1 order was passed, and the 2nd respondent held that the petitioner is liable to pay contribution. Aggrieved by Ext.P1, the petitioner filed Ext.P2 appeal before the 1st respondent resulting in Ext.P4 order rejecting the appeal. A reading of Exts.P1 & P4 orders referred to above show that the contention whether the aforesaid co-owners are employees to come within the definition of the term 'employee' as contained under the Kerala Motor Transport Workers Welfare Fund Act, has not been dealt with either by the 2nd respondent or by the 1st respondent. Since the contention raised in this behalf, has not been dealt with either by the original authority while passing final determination order or the appellate authority while dismissing the appeal filed by the petitioner, I am inclined to set aside the said orders, and direct the 2nd respondent to issue notice to the aforesaid persons, conduct enquiry and decide the matter afresh. 4. For the aforesaid reasons, Exts.P1 & P4 will stand set WP(C) No.12125/2004 -3- aside. The 2nd respondent shall issue notice to the petitioner and the aforesaid three persons, and decide the matter duly adverting to the contentions raised by the parties. The writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg