IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 WP(C).No. 33852 of 2007(E) -------------------------- PETITIONERS: --------------- 1. SUNIL KUMAR P.P., AGED 40 YEARS, S/O. PUSHPAN, PALAPPURATHU HOUSE, ELOOR NORTH, UDYOGAMANDAL P.O. 2. P.T.RAVI, AGED 42 YEARS, S/O. PARAMESWARAN, PANACKAPARAMBIL HOUSE, MAKKANAVI, MANNAM P.O., NORTH PARAVUR. BY ADV. SRI.P.K.SAJEEV SRI.JACOB GEORGE (PARAVUR) RESPONDENTS: --------------- 1. THE DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKER'S WELFARE FUND BOARD, PALARIVATTOM, KOCHI. 2. THE DEPUTY TAHSILDAR (R.R.), TALUK OFFICE, NORTH PARAVUR. 3. RETHY BALAN, W/O. LATE BALAN, CHANDATHOPPIL HOUSE, VALLUVALLY, KOONAMMAVU, NORTH PARAVUR. ADV. SRI.P.RAMAKRISHNAN, SC,KMTWF BOARD FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.33852/2007 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE PARTNERSHIP DEED DTD. 3/6/1999. EXT.P2 TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE 2ND RESPONDENT DTD. 17/3/2007. EXT.P3 TRUE COPY OF HE DEMAND NOTICE DTD. 17/3/2007 ISSUED BY THE 2ND RESPONDENT. HARUN-UL-RASHID,J. --------------------------- W.P.(C).NO.33852 OF 2007 ---------------------------- DATED THIS THE 15TH DAY OF JANUARY, 2009 JUDGMENT The petitioners and late Balan were partners of the business of plying stage carriage in the permitted routes on a partnership basis. The lst petitioner is the brother-in-law and the 2nd petitioner is the brother of late Balan. Subsequent to the death of Balan, his wife continued as the partner. Ext.P1 is the partnership deed dated 3/6/1999. It is submitted by the learned counsel for the petitioner that the employees in the stage carriage are the partners themselves and therefore, there is no employer- employee relationship between them. No amount was paid as wages to the petitioners so as to bring them within the meaning of an employee as provided under Section 2(d) of the Act. In such circumstances, the demand of collection of contribution under the Motor Transport Workers' Welfare Fund Act is not legal. 2. Petitioner challenged Exts.P2 and P3 notices issued -2- W.P.(C)No.33852/2007 under the Revenue Recovery Act. The question whether the partners of the firm are covered under the Motor Transport Workers Welfare Fund Act was considered by this Court and this Court in Rajendran Nair v. State of Kerala (2002(3) KLT 76) held that the contribution is not payable in the case of the partners working as employees of the bus. So long as the petitioners will not come within the definition of 'employee' under the Act and that they are not receiving any wages from anybody, neither the Scheme nor the Act is applicable so that no liability can be fastened on them or other partners in respect of payment of contribution. Therefore, Exts.P2 and P3 notices cannot stand and accordingly, they are quashed. Writ Petition is allowed. HARUN-UL-RASHID, Judge. kcv. -3- W.P.(C)No.33852/2007