The petitioner is a private company which undertake civil contract works of Government of Kerala, Government of India and that of private parties and also transportation of goods by road in relation to the contract works undertaken. Ext.P1 is the Certificate of Incorporation of the Company. According to the petitioner, for undertaking contract works, it has got a Ready Mix Concrete unit at Kumbalam. The petitioner has to transport ready mix concrete from Kumbalam to various construction sites and also carry construction materials to different sites. The petitioner is in possession of 25 lorries, out of which 14 are under the category heavy goods vehicles and the remaining 11 are light goods vehicles. The registration numbers of the said vehicles are furnished in paragraph 2 of the Writ Petition. 2. The petitioner submits that its employees have already been enrolled under Employees Provident Fund and Miscellaneous Provisions Act, 1952, under Code No.KR/KC/19309, which has been alloted to the petitioner vide Ext.P2 proceedings dated 10/11/2000 of the Assistant Provident Fund Commissioner, Kochi. In order to substantiate the fact that, from 01/7/2000 onwards the petitioner is regularly remitting the employees as well as the employer's contribution towards Provident Fund, Employees Pension Scheme, Employees Deposit linked Insurance Scheme, etc., the petitioner has produced Exts.P3 and P4 challan and Ext.P5 monthly returns in Form No.12-A. Based on the above facts the petitioner is claiming exemption from remitting contributions to the Kerala Motor Transport Workers Welfare Fund relying on the proviso to Sub-section (1) of Section 4 of the said Act.
3. Ext.P6 produced along with the Writ Petition is the certificate of registration issued to the petitioner by the Superintendent of Central Excise, Service Tax Range, Kathrikkadavu, as per which the nature of the work undertaken by the petitioner is civil contract work and construction of bridges, roads and residential complexes and transportation of goods by road. According to the petitioner, it will not fall under the definition of Motor Transport undertaking, defined under Clause (h) to Section 2 of the Kerala Motor Transport Workers Welfare Fund Act, as it is not carrying goods by road for hire or reward. Ext.P7 produced along with the Writ Petition is the certificate issued by the Superintending Engineer, PWD Roads and Bridges Central Circle, Aluva, to the effect that the petitioner is a construction contractor registered as Civil A Class Contractor.
4. According to the petitioner, it has remitted contributions towards the Kerala Motor Transport Workers Welfare Fund, as directed by the 3rd respondent, at the time of payment of motor vehicles tax. Such payments were made, as the 3rd respondent used to insist that only after remitting contributions towards the Kerala Motor Transport Workers Welfare Fund he will accept the motor vehicle tax. In such circumstances, the petitioner remitted contributions for the period October, 2007 to September, 2009. Since the demand for contribution under the Welfare Fund from an institution covered by the Employees Provident Fund Act is patently illegal, the petitioner has submitted Ext.P8 representation before the 2nd respondent, which was followed by Ext.P9 representation before the 3rd respondent. Thereafter the petitioner has approached this Court in this Writ Petition seeking a writ of mandamus directing the 3rd respondent to receive motor vehicle tax payable under the Kerala Motor Vehicles Taxation Act without insisting payment of contribution under the Kerala Motor Transport Workers Welfare Fund Act, in respect of the 25 vehicles mentioned in paragraph 2 of the Writ Petition. The petitioner has also sought a declaration that, the vehicles owned by the petitioner for carrying out civil construction contract works will not constitute a motor transport undertaking as provided under the Kerala Motor Transport Workers Welfare Fund Act and to refund the contributions made by the petitioner towards the welfare fund for the period from October, 2007 to September, 2009. By an interim order dated 28/10/2009 this Court has directed the 3rd respondent to receive the motor vehicle tax with respect to the vehicles belonging to the petitioner without insisting production of No Objection Certificate from the 2nd respondent.
5. A counter affidavit has been filed by the 1st respondent contending that, as per Section 4 of the Kerala Motor Transport Workers Welfare Fund Act, the provisions under the said Act is not applicable in the case of motor transport undertakings to which the provisions of the Employees Provident Funds and Miscellaneous Provisions Act shall apply. The petitioner has not produced any proof of remittance of Employees Provident Fund dues or its membership details to the District Executive Officer concerned and no document whatsoever has been produced before the District Executive Officer concerned to substantiate the claim that it is an establishment covered under the Employees Provident Funds and Miscellaneous Provisions Act. As the petitioner failed to produce the documents regarding its membership in the Employees Provident Fund, it is bound to remit the contributions towards the Kerala Motor Transport Workers Welfare Fund. Therefore, according to the 1st respondent, in the absence of any materials, the claim for exemption is devoid of merit.
6. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1 and 3 and the learned Standing Counsel appearing for the 2nd respondent.
7. As born out from the documents on record, the petitioner is engaged in civil construction works and transportation of goods by road in connection with the said business. The petitioner is in possession of 25 goods carriage vehicles. As evident from Ext.P2, the employees of the petitioner are covered under the Employees Provident Fund and Miscellaneous Provisions Act and as born out from Exts.P3 and P4, the petitioner is remitting contributions towards Provident Fund, Employees Pension Scheme, Employees Deposit linked Insurance Scheme, etc.
8. The learned counsel for the petitioner raised two contentions. The first contention is that, since the petitioner is a civil contractor engaged in construction activities and plying goods vehicles not for hire or reward, it cannot be classified as a motor transport undertaking as defined under Clause(h) to Section 2 of the Motor Transport Workers Welfare Fund Act. The second contention is that, since the petitioner is already covered under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, the provisions under the Motor Transport Workers Welfare Fund Act cannot be made applicable to it, in view of the exemption granted in the proviso to Section 4 of the Act.
9. As far as the first contention raised by the petitioner is concerned, Clause (h) to Section 2 of the Kerala Motor Transport Workers Welfare Fund Act, 1985, which defines “motor transport undertaking” reads thus:-
“(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.”
10. Going by the definition of motor transport undertaking in Clause (h) to Section 2, “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. From the above definition it is clear that a private carrier is also covered under the Act. The Kerala Transport Workers Welfare Fund Act, came into force in 1985 when the Motor Vehicles Act, 1939 was in force. Clause (l) to Section 2 of the Act says that, all other words and expressions used but not defined in the Act and defined in the Motor Vehicles Act, 1939 (Central Act 4 of 1939) shall have the meanings respectively assigned to them in the 1939 Act. The definition of “private carrier” as contained in Sub-section (22) of Section 2 of the Motor Vehicles Act,1939 reads thus:-
“Private carrier” means an owner of 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-s.(2) of Section 42.”
From the above, it is clear that an industry transporting goods in their private vehicle is covered by the above definition. Consequently, even though appellant is not mainly a motor transport undertaking, it becomes liable to pay contribution by virtue of inclusive definition covering private carrier under Clause (h) to Section 2 of the Act.
11. The Apex Court in the decision in Municipal Council, Raipur Vs. State of M.P. [AIR 1970 SC 1923] held that, municipality engaged in transport of garbage in their own truck is covered by the Act even though it is not a motor transport undertaking by virtue of inclusive definition under Clause (h) to Section 2 of the Act. A Division Bench of this Court in George Antony Vs. State of Kerala [2008(4)KLT 119] has held that an industry transporting goods in their private vehicle is covered by the definition, even though it is not mainly a transport undertaking. In the light of the principle laid down by the Apex Court and this Court in the judgments referred to above, I find no merit in the contention raised by the learned counsel for the petitioner that the petitioner’s undertaking will not fall under the definition of 'motor transport undertaking' defined under Clause (h) to Section 2 of the Act. Following the aforesaid judgments, it has to be concluded that, the petitioner's undertaking will fall under the definition of 'motor transport undertaking' defined under Section 2(h) of the Act.
12. The second contention raised by the petitioner is that, since its employees are covered by the provisions under the Employees Provident Fund and Miscellaneous Provisions Act, the establishment will not come under the purview of the Kerala Motor Transport Workers' Welfare Fund Act. The proviso to Section 4 of the said Act reads thus:-
4. Contributions to the Fund.-
(1) xxxxxx xxxxxxx xxxxxx
(2) xxxxxx xxxxxxx xxxxxx
(3) xxxxxx xxxxxxx xxxxxx
(4) xxxxxx xxxxxxx xxxxxx Provided that nothing in this sub-section shall apply to a motor transport undertaking to which the provisions of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (Central Act 19 of 1952), or the Payment of Gratuity Act, 1972 (Central Act 39 of 1972) apply.”
13. Therefore going by the proviso to Section 4 of the Act, a motor transport undertaking covered by the provisions of the Employees Provident Fund and Miscellaneous Provisions Act cannot be made liable for payment of contribution to the motor transport workers welfare fund. In Hymavathi Vs. Special Deputy Tahsildar [2008(3)KLT 807], a Division Bench of this Court has held that a transport undertaking covered by Employees Provident Fund and Miscellaneous Provisions Act is kept out of Motor Transport Workers Welfare Fund Act.
14. In the case on hand, the documents produced along with the Writ Petition prima facie shows that the petitioner’s establishment is covered by the Employees Provident Fund and Miscellaneous Provisions Act and they are regularly remitting contributions in respect of their employees. In George Antony’s case (supra), the Division Bench of this Court has considered the claim for exemption under the proviso to Section 4, which provides for exemption to those who are otherwise liable to pay contribution for the workers, if such workers are covered by Employees Provident Fund and Miscellaneous Provisions Act. Paragraph 3 of the judgment is extracted hereunder:-
“3. The next question to be considered is appellant's claim of exemption under the proviso to S.4 which provides for exemption to those who are otherwise liable to pay contribution for the workers, if such workers are covered by Employees Provident Fund Act, Gratuity Act,etc. This is a matter to be proved before the adjudicating officer and not before this Court. In fact, learned single judge has given freedom to the appellant to prove this fact before the R.T.O. for receiving tax without insisting on production of certificate by the appellant from the Welfare Fund Inspector under S.8A of the Act. We feel that this matter has to be considered in adjudication proceedings by the Executive Officer of the Welfare Fund Board and not by the R.T.O. Writ Appeal is therefore disposed of directing the District Executive Officer to call for proof of coverage of employees under the Employees Provident Fund Act or Gratuity Act and on being satisfied about coverage and consequent eligibility for exemption, he will issue required certificate to the appellant for production before the R.T.O. for receiving tax. If appellant is not entitled to exemption there will be direction to the District Executive Officer to complete the adjudication upto date and issue orders determining contribution payable under the Act including advance contribution for the appellant to make payment and on payment to issue certificate for production before the R.T.O. for receiving tax.”
In George Antony’s case (supra), the Division Bench of this Court has directed the District Executive Officer of the Motor Transport Workers Welfare Fund Board to call for proof of coverage of the employees under the Employees Provident Fund Act or Gratuity Act and on being satisfied about coverage and consequent eligibility for exemption to issue the required certificate to the appellant therein for production before the Regional Transport Officer for receiving motor vehicles tax.
15. In the facts and circumstances of the case, I find considerable merit in the contention raised by the petitioner that, as its establishment is covered under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, it is not liable to pay the contributions under Section 4 of the Motor Transport Workers Welfare Fund Act, in view of the exemption contained in the proviso to Sub-section (1) of Section 4.
16. Now the next question to be considered is whether this Court can enter into a finding regarding the applicability of the proviso to Sub-section (1) of Section 4 of the Motor Transport Workers Welfare Fund Act, in relation to the petitioner's undertaking. It is well settled that, this Court while exercising jurisdiction under Article 226 of the Constitution of India would ordinarily not adjudicate on disputed questions of fact, which has to be left to be adjudicated in the first instance by the appropriate fact finding authority under the respective statutory mechanism. In this case the petitioner has submitted Ext.P8 representation before the 2nd respondent to grant exemption from contribution towards Kerala Motor Transport Workers Welfare Fund Act. He has also produced certificate of registration and the relevant documents under the Employees Provident Fund and Miscellaneous Provisions Act in order to substantiate his claim for exemption from payment of Welfare Fund Contributions. Therefore, it is for the 2nd respondent to consider Ext.P8 representation and find out whether the workers in the petitioner’s establishment, who are employed in the goods vehicles referred to in paragraph 2 of the Writ Petition are actually covered under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act or not. If, on enquiry, it is found that such employees are covered under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act the petitioner shall be entitled for exemption from payment of contributions under the Kerala Motor Transport Workers Welfare Fund Act and the 2nd respondent shall refund the contributions, if any, collected from the petitioner. In such a case, the 2nd respondent shall also issue a certificate to the petitioner certifying that it is a motor transport undertaking covered by the provisions of the Employees Provident Fund and Miscellaneous Act and hence exempted to pay contribution under the Motor Transport Workers Welfare Fund, as provided in the proviso to sub section (1) of Section 4 of the Act.
17. In the result, this Writ Petition is disposed of directing the 2nd respondent to take a decision, as directed above, within a period of two months from the date of production of a certified copy of this judgment along with a copy of the Writ Petition. It will be open to the petitioner to produce before the 2nd respondent any supporting documents in order to establish that its undertaking is covered by the Employees Provident Fund and Miscellaneous Provisions Act and that the contributions in respect of the employees in the goods vehicles referred to in paragraph 2 of the Writ Petition are being paid under the provisions of the said Act. The 2nd respondent shall give a reasonable opportunity of being heard to the petitioner before taking a decision as directed above.
18. By order dated 28/10/2009 this Court has directed the 3rd respondent to receive motor vehicles tax with respect to the petitioner's goods vehicles, without insisting production of NOC from the 2nd respondent. The said interim order shall continue till a decision is taken by the 2nd respondent on Ext.P8 as directed above. If it is ultimately found that the petitioner is not liable to pay contributions to the Kerala Motor Transport Worker's Welfare Fund, the 2nd respondent shall refund the contributions already collected from the petitioner, which the 2nd respondent shall do as expeditiously as possible, at any rate, within a period of 2 months from the date of such decision on Ext.P8.
The Writ Petition is disposed of as above.
skj ANIL K.NARENDRAN, JUDGE