IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 1ST JULY, 2008 / 10TH ASHADHA, 1930 WA.No. 835 of 2008 (AGAINST THE JUDGEMENT/ORDER IN WPC.32904/2007 Dated 18/02/2008) .................... APPELLANT/4TH RESPONDENT: -------------------------------------- THE DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, PUNALUR, KOLLAM. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENTS/RESPONDENTS 1 TO 3 & PETITIONERS: ------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, TRANSPORTS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE TRANSPORT COMMISSIONER, TRANSPORT COMMISSIONERATE, TRANS TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM. 3. THE REGIONAL TRANSPORT OFFICER, PUNALUR. 4. THE SABARIGIRI EDUCATION & CULTURAL SOCIETY, REPRESENTED BY ITS SECRETARY, DR.JAYAKUMAR, ANCHAL, KOLLAM. 5. THE PRINCIPAL, SABARIGIRI RESIDENTIAL SCHOOL, ANCHAL, KOLLAM. R1 TO R3 BY GOVT. PLEADER SRI.TEK CHAND. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2008, ALONG WITH W.A.NO.752 /2008 AND OTHER CONNECTED CASES, COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. --------------------------------------------------------- W.A.No.835 of 2008 & W.A.Nos. 752,763,765,778,783,836,837, 838, 839,848,850,855,856,858, 870,891,900,1136,1137,1139,1143, 1145,1156,1157,1161,1214 of 2008 & W.P(C) Nos. 2823,2826,2880,3271,3822,3888, 4147,4532,5282,5318,5402,12956, 13082,13500,13685,13748,14184, 14277, 14379,14522,14547,14553,14554,14559, 15105,15260,15271,15326,15561, 15619, 15653,15758,16011,16075,16181,16238, 16395,16406,16413,16414,16521, 16530, 16899,17113,17481,17489,17490,17491, 17493,17730 17733,17747,17832,18157, 18277, 18526,18968,19046,19102,19178, 19266 of 2008 -------------------------------------------------------------- Dated this the 1st day of July, 2008 J U D G M E N T Ramachandran Nair,J: The question arising in these connected writ appeals and the referred writ petitions is whether educational institutions are liable to pay contribution under the Kerala Motor Transport Workers' Welfare Fund Act,1985 (hereinafter called 'the Act) for the employees engaged in the vehicles operated by them for transport of students and staff. In fact, adjudication orders WA No.835 of 2008 and connect.cases :-2-: determining welfare fund liability of educational institutions are not issued in the case of any of the petitioners before us. However, petitioners approached this Court for a direction to the Registering Authority to receive the motor vehicle tax for the educational institution vehicles without requirement of remittance of motor workers welfare fund contribution in terms of Section 8A of the Act. The Single Judge of this Court allowed the prayer by following an earlier decision of this Court on the same point in the case of an educational institution, reported in Toc'H Public School v. District Executive Officer (1992(1) KLT SN 37 Case No.49). 2. We have heard counsel appearing for the educational institutions and the Government Pleader. 3. We notice that the first decision rendered by this Court referred above was based on a clarification issued by the Government in favour of an educational institution and without considering the statutory provisions. In the judgment under appeal, WA No.835 of 2008 and connect.cases :-3-: the learned Single Judge had followed the earlier judgment and here again, relevant provisions are not considered. We have to therefore consider the case with reference to the statutory provisions. The relevant clauses defining 'employee', 'employer' and 'motor transport undertaking' under Sections 2(d),(e) and (h) of the Act are as follows:- “2(d) “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. (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 WA No.835 of 2008 and connect.cases :-4-: agent or by any other name, such other person;” (h) “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.” The liability to pay contribution is covered by Section 4 of the Act. While Section 8 provides for determination of contribution payable by employers, Section 9 provides for provisional determination of liability for recovering advance contribution. These provisions read with the definition clauses provide that contribution is payable only for persons employed for wages in a “motor transport undertaking”. Admittedly, the drivers, cleaners etc. employed in the educational institution buses are paid wages and the only question to be considered is whether the educational institutions like colleges, schools etc. are “motor transport undertakings” within the meaning of the definition clause above referred. Counsel for the Welfare Fund Board specifically referred to the WA No.835 of 2008 and connect.cases :-5-: inclusive definition of motor transport undertaking covered by clause(h) of Section 2 of the Act, which covers 'private carrier' also. He relied on the decision of the Supreme Court reported in The Municipal Council, Raipur and another v. The State of Madhya Pradesh (AIR 1970 SC 1923) wherein the Supreme Court held that a Municipality engaged in transport of garbage through vehicles is operating private service vehicle and the employees engaged in such vehicles are covered by the Motor Transport Workers Act. However, counsel appearing for the educational institutions contended that the decision of the Supreme Court is not applicable to the facts of this case because the educational institution buses are used for transport of students and staff and such vehicles are not covered by the expression 'private carrier' contained in clause 2(h) of the Act. We find force in this contention because by virtue of clause 2 (l) of the Act which states that 'all other words and WA No.835 of 2008 and connect.cases :-6-: expressions used but not defined in this Act and defined in the Motor Vehicles Act, 1939 (Central Act 4 of 1939) shall have the meanings respectively assigned to them in that Act'. The 'private carrier' referred to in Section 2(h) of the Act is defined in Section 2(22) of the Motor Vehicles Act, 1939 as follows:- “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.” Obviously, school bus is not a “private carrier” as defined under the Motor Vehicles Act,1939. The next question to be considered is whether educational institution would fall within the meaning of 'motor transport undertaking' as contained in Section 2(h) of the Act. It is clear from this clause that the two categories of motor transport undertakings covered WA No.835 of 2008 and connect.cases :-7-: by the definition are those engaged in transport of passengers and goods. Even though educational institutions are transporting students and staff to the institution and back, it cannot be said that they are engaged as transport undertaking. In fact, even though counsel for the Welfare Fund Board contended that the transport of students and staff also is covered by Section 2(h), we do not think, the transport of students and staff to the educational institution and back will justify calling the educational institution as a motor transport undertaking. In fact, the institution has to be identified with reference to it's main object and activity and there can be no doubt that the main activity of an educational institution is education and it cannot be called anything else except as an educational institution. In fact, in the course of imparting education, the institution is rendering various services to the students like transport, supply of books, uniforms, food etc. However, these WA No.835 of 2008 and connect.cases :-8-: activities are incidental to the main activity of the educational institution which is education and therefore, it cannot be termed as a transport undertaking as claimed by the Welfare Fund Board. Counsel appearing for the educational institutions brought to our notice clause (28) of the Kerala Motor Transport Workers' Welfare Fund (Amendment) Scheme, 2005 (for short 'the Scheme') which provides that contribution is to be paid at flat rate from various operators of various categories of vehicles. It is seen that the vehicles referred therein viz., stage carriage and goods vehicles both heavy and light vehicles, contract carriages and luxury buses, taxi cabs, autorickshaws, tractor, tiller or other similar type of vehicle do not include educational institution buses, which are specifically covered by Section 2(11) of the Motor Vehicles Act, 1988. Therefore, these vehicles are not covered by clause 28 of the scheme. Even though the scheme cannot control statutory provisions, it is clear that WA No.835 of 2008 and connect.cases :-9-: the Government which made the scheme does not understand the statute as covering the educational institutions. 4. Counsel appearing for the appellants referred to the two decisions of this Court reported in Unni Mammu Haji v. State of Kerala (1989 (1) KLT 729) and Hymavathi v. Spl.Dy.Tahsildar (2006 (2) KLT 438) and contended that the Act is a welfare legislation and is intended to cover all motor vehicle employees. However, we do not find any provision in the Act covering the entire motor workers but on the other hand, coverage is only for motor transport workers. In fact, it is not as if the legislature is unaware of the engagement of large number of employees in private vehicles as drivers, cleaners etc. However, the Act does not cover all motor workers, but covers motor transport workers who are engaged by the motor transport undertaking for transport of goods and passengers. Basically, contribution is payable by those engaged in motor WA No.835 of 2008 and connect.cases :-10-: transport business namely, carrying passengers or goods. In fact, it is pertinent to note that the categories of employees generally engaged in passenger transport vehicles are driver, conductor, cleaner, station staff, line checking staff and further category engaged in goods transport business are booking clerk, cash clerk, depot clerk, time keeper, watchman or attendant who are all specifically mentioned in the definition clause (d). Even though definition is only an inclusive one, it is indicative of the category of employees covered under the Act. When these provisions are read in the light of the definition of motor transport undertaking, it is clear beyond doubt that only motor vehicles covered are those engaged in transport of goods and passengers and only the exception is private carrier covered by the inclusive definition in clause (h) of the Act. Since the educational institution buses are specifically brought under separate category in Section 2(11) of the Motor Vehicles Act, 1988, such vehicles do not WA No.835 of 2008 and connect.cases :-11-: answer the definition of “private carrier” included in Section 2(h) of the Act. Counsel for the educational institutions pointed out that in some educational institutions, the vehicles are run without charging even cost and in other cases, moderate rates are charged to meet the cost. They have further stated that the tax incentive is given under the Kerala Motor Vehicles Taxation Act to educational institutions. Even though the contention of counsel for the appellants is that drivers and other workers of the educational institution buses are only motor workers and they have nothing to do with the educational activities of the institutions, we do not think, there is justification for demanding contribution because the statute limits liability to motor transport undertakings which the educational institutions are not. In fact, it is contended by some of the educational institutions that all of their employees including those employed in the educational institution buses are covered by the Employees WA No.835 of 2008 and connect.cases :-12-: Provident Fund and Miscellaneous Provisions Act. The Standing Counsel for the Welfare Fund Board contended that those educational institutions with below 20 employees are not covered by the said statute. Therefore, at least drivers and employees of the buses engaged in some of the educational institutions are not covered by any welfare fund measure is his contention. We do not know why private vehicles, educational institution buses etc. are not specifically covered under the Act. In fact, it was open for the legislature to make law to cover every motor worker instead of restricting liability to motor transport industry alone. However, in view of the above discussion, we hold that the driver, cleaner or other employees of the educational institution vehicles are not covered by the provisions of the Act. Consequently, there will be direction to the Regional Transport Officers and the Joint Regional Transport Officers to receive motor vehicle tax from educational institution vehicles without demanding payment of WA No.835 of 2008 and connect.cases :-13-: contribution. There will also be a direction to the Motor Transport Workers Welfare Fund Board to instruct the District Executive Officers not to assess and demand any welfare fund for motor workers engaged in the institution vehicles. Consequently, the writ appeals will stand dismissed and the referred writ petitions will stand allowed with the above directions. C.N.RAMACHANDRAN NAIR, Judge V.K.MOHANAN, Judge MBS/ WA No.835 of 2008 and connect.cases :-14-: C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. ---------------------------------------- ---- I.T.A.NO. 81 OF 2000 ------------------------------------ J U D G M E N T WA No.835 of 2008 and connect.cases :-15-: DATED:17-6-2008