ALL KERALA DISTRIBUTORS ASSOCIATION, KOTTAYAM UNIT, REPRESENTED BY ITS SECRETARY v. THE STATE OF KERALA & ANR.

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A similar benefit even in cases where review petition is filed within the prescribed time. The fact remains that no prejudice whatsoever is caused to the permit-holder who intends to pursue remedy under the 1985 Act against the demand received by him relating to the contribution of the Welfare Fund.

38Copy pinpoint38. Reverting to the 1985 Act enacted by the State Legislature, indisputably, it is a welfare legislation constituting a fund to promote the welfare of motor transport workers in the State of Kerala. This Act is ascribable to Entries 23 and 24 of List III – Concurrent List. Entry 23 deals with social security and social insurance; employment and unemployment and Entry 24 deals with welfare of labour including conditions of work, provident funds, employers’ liability, workmen’s compensation, invalidity and old age pensions and maternity benefits. Ostensibly, it may appear that the liability arising from the obligations under the 1985 Act have nothing to do with the subject of vehicle tax. However, the 1985 Act has been enacted with the objects and reasons noted. As a vast number of employees were being engaged in Motor Transport Industry in the State in the private sector, the Government thought it necessary to provide for the constitution of a Fund to promote the welfare of such of the motor transport workers in the private sector who are not covered by the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 and the Payment of Gratuity Act,

E 1972. In other words, this Act came into being to ameliorate the difficulties encountered by the motor transport workers in the State of Kerala. In due course, it came to the notice of the Government that the system of determination and assessment of contribution from employers and adjudication of disputes, etc., as provided for in the 1985 Act had certain F loopholes resulting in loss of welfare fund contribution. In that, the bus operators set forth a defence by creating bogus partnerships and showing relatives as employees to evade payment of contribution. Another device was to keep on changing the employees frequently. Thus, to check this mischief, an amendment was effected to the 1985 Act vide Act 23 of 2005 including to reduce the arbitrariness in fixing the contribution. The G activities of motor transport workers are directly linked to the use and operation of the motor transport vehicles having permit issued under the 1988 Act in that regard. Under the said Act, the permit-holder is obliged to ensure that the vehicle tax is paid regularly. The law clearly provides for action to be taken against the motor transport vehicle for failure to H pay vehicle tax including to reject renewal of the permit. The stipulation

ALL KERALA DISTRIBUTORS ASSN., KOTTAYAM UNIT, REP. BY 1009 ITS SECY. v. THE STATE OF KERALA [A. M. KHANWILKAR, J.]

in the 1985 Act is in the nature of ensuring that the vehicle owner/permit- A holder discharges both the liabilities and does not commit default in contributing to the welfare fund as also pay vehicle tax on time. Non- payment of vehicle tax may entail in stopping of motor vehicle by the Officers of Police or Motor Vehicles Department in exercise of power under Section 10 of the 1976 Act including to seize and detain the same pending production of proof remittance of tax as predicated in Section 11 of the Act. Additionally, the vehicle owner may have to suffer penalty under Section 1653 and face prosecution under Section 1754, besides the permit being rendered ineffective if tax is not paid by virtue of Section 15.

39Copy pinpoint39. Considering the scheme of the State legislations, it is incomprehensible to countenance the argument that the two provisions (of 1988 Act on the one hand and of 1976 Act and 1985 Act on the

16. Penalties.- Whoever contravenes any of the provisions of this Act or any rule made thereunder shall, on conviction, if no other penalty is elsewhere provided in this D Act or the rules for such contravention, be punishable with fine which may extend to one hundred rupees and, in the event of such person having been previously convicted of an offence under this Act or any rule made thereunder with fine which may extend to two hundred rupees. 54

17. Offences by companies.- (1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, E the company for the conduct of the business of the company, as well as the company, shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1) where an offence under this F Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation:- For the purpose of this section- (a)”company” means a body corporate, and includes a firm or other association of G individuals; and (b) “director”, in relation to - (i) a firm, means a partner in the firm., (ii) a society or other association of individuals, means the person who is entrusted under the rules of the society or other association with the management of the affairs of the society or other association, as the case may be. H

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A other) are inconsistent in any manner whatsoever. Whereas, the State enactments are complementary and can be given effect to without any disobedience to the Central legislations. As aforementioned, the 1988 Act does not cover the field of the manner of levy of vehicle tax and collection thereof. The same is covered by the State legislations.

40Copy pinpoint40. Concededly, the appellants have not disputed their liability to pay the vehicle tax levied under the 1976 Act as well as to pay contribution towards the workers’ welfare fund under the 1985 Act. So understood, the real grievance in these appeals by the motor transport vehicle owners/ permit-holders is about compelling them to pay the welfare contribution dues as a precondition for collection of vehicle tax. We have no hesitation in taking the view that such dispensation cannot be construed as unconstitutional. Further, such a plea cannot be countenanced at the instance of someone who otherwise concedes liability to pay both the dues towards welfare fund contribution and vehicle tax. It is beyond comprehension that the vehicle owner/permit-holder can be heard to argue that he would not pay the dues under the 1985 Act and, yet, would continue with the business of motor transport as usual in the State of Kerala by exploiting the workers on the specious plea that the validity of the permit to operate transport vehicle cannot be interdicted under a State legislation. The provision in the form of Section 15 of the 1976 Act is in the nature of restating the consequences flowing from Sections 10 E and 11 of the same Act to stop motor vehicle and to seize and detain the same if being used or operated without payment of vehicle tax. When action is taken by the competent authority under Sections 10 and 11 of the Act, inevitably, the transport vehicle in question for which permit has been taken is rendered unusable due to non-payment of vehicle tax. The F liability of the vehicle owner/permit-holder to pay welfare fund contribution as well as to pay vehicle tax arises under the legislation enacted by the State Legislature. As such, there is nothing wrong in State Legislature making it compulsory to pay outstanding welfare fund contribution first before accepting the vehicle tax which had become due and payable. In this view of the matter, it would be unnecessary to G dilate on the argument regarding validity of Section 15 of the 1976 Act because of lack of Presidential assent after coming into effect of the 1988 Act.

41Copy pinpoint41. We cannot be oblivious about the legislative intent for enacting the 1985 Act and the amendment effected thereto in 2005. The same is H

ALL KERALA DISTRIBUTORS ASSN., KOTTAYAM UNIT, REP. BY 1011 ITS SECY. v. THE STATE OF KERALA [A. M. KHANWILKAR, J.]

a beneficial legislation with avowed objective to ensure strict compliance of payment of welfare fund contribution to protect the workers of the commercial operations undertaken by the vehicle owners/permit-holders pursuant to a permit issued under the 1988 Act, and is to reach out to such workers who are typically unorganised and a part of informal workforce. Neither the provisions of the 1985 Act or the 1976 Act have the effect of interdicting the permit issued under the 1988 Act. The real intent and purpose behind these provisions is to restate the mandate stated in the 1988 Act that the vehicle cannot be used on road without a valid permit and payment of vehicle tax up to date.

42Copy pinpoint42. A priori, we have no hesitation in concluding that the provisions of the 1976 Act and the 1985 Act, enacted by the State Legislature, are only intended to ensure that the vehicle owner/permit-holder does not remain in arrears of either the welfare fund contribution or the vehicle tax both payable under the State enactments. These provisions are in no way in conflict with the law made by the Parliament (1988 Act). The State enactments do not create any new liability or obligation in relation to the permit issued under the 1988 Act (Central legislation), but it provides for dispensation to ensure timely collection of the welfare fund contribution as well as vehicle tax payable by the same vehicle owner/permit-holder.

43Copy pinpoint43. While parting, we must note that the writ petitioners through their counsel had fairly accepted during oral argument that after the E 2005 amendment, for all these years they have been following the dispensation provided under the State legislations without exception. In that sense, the challenge has become academic. Be that as it may, we have negatived the stand taken by the writ petitioners regarding the validity of the amended provisions being repugnant to the law made by the Parliament. F

44Copy pinpoint44. In view of the above, these appeals must fail and the same are dismissed with costs. Pending application(s), if any, stands disposed of. G Divya Pandey and Amarendra Kumar Appeals dismissed. (Assisted by : Pragya Samal, LCRA)