E.V.AJITHA v. THE GOVERNMENT OF KERALA

ANTONY DOMINIC, J.-------------------------W.P.(C.) No.12125 of 2004---------------------------------Dated, this the 8th day of June, 2009J U D G M E N TChallenge in the writ petition is against Ext.P1 finaldetermination order and Ext.P4 appellate order issued byrespondents 2 & 1 respectively, exercising their powers under theMotor Transport Workers Welfare Fund Act and the Scheme framedthereunder.2.The petitioner states that she is the registered owner ofstage carriage bearing Regn.No.KL-8 6018. According to thepetitioner, her husband Mr.Govindankutty and his two brothersMr.Anilan and Mr.Ajeevkumar are the co-owners of the vehicle andthe aforesaid three persons are also operating the vehicle. It isstated that they are operating the vehicle on profit sharing basis, and not for any wages. While so, proceedings were initiated againstthe petitioner demanding dues under the Motor Transport WorkersWelfare Fund Scheme for the period 2000-01. The petitionerobjected 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 notreceiving any wages to come within the definition of 'employee'under the Act. 3.The objection was over-ruled and Ext.P1 order waspassed, and the 2nd respondent held that the petitioner is liable topay contribution. Aggrieved by Ext.P1, the petitioner filed Ext.P2appeal before the 1st respondent resulting in Ext.P4 order rejectingthe appeal. A reading of Exts.P1 & P4 orders referred to above showthat the contention whether the aforesaid co-owners are employeesto come within the definition of the term 'employee' as containedunder the Kerala Motor Transport Workers Welfare Fund Act, has notbeen dealt with either by the 2nd respondent or by the 1strespondent. Since the contention raised in this behalf, has not beendealt with either by the original authority while passing finaldetermination order or the appellate authority while dismissing theappeal filed by the petitioner, I am inclined to set aside the saidorders, and direct the 2nd respondent to issue notice to the aforesaidpersons, 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 andthe aforesaid three persons, and decide the matter duly adverting tothe contentions raised by the parties. The writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE)jg