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2001 DIGILAW 628 (KER)

VALASAMMA THOMAS v. STATE OF KERALA

2001-11-05

B.N.SRIKRISHNA, M.RAMACHANDRAN

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JUDGMENT : B.N. Srikrishna, J.—This appeal is directed against the order of the learned single Judge dismissing the original petition summarily. 2. The original petition challenges the constitutional validity of Section 9 of the Kerala Agricultural Workers Act, 1974. The Kerala Agricultural Workers Act, 1974 is an Act to provide for the welfare of agricultural workers in the State of Kerala and to regulate the conditions of their work, as indicated in its preamble. It is a well known fact that agricultural workers are mostly unorganised and form the most neglected sector of the working class. It is fortunate that in the State of Kerala atleast their interests are taken care of by the Kerala Agricultural Workers Act, 1974. 3. Section 9 of the parent Act provides for contributions to the Agricultural Workers Provident Fund contributed u/s 8. 4. When it was enacted in the year 1974, Section 9 reads as under: "9. Contributions to the Fund:- (1) The landowner shall pay contribution to the Fund at the rate of five per cent of the wages paid by him to each agricultural worker employed by him. (2) Each agricultural worker shall also pay contribution to the Fund of an amount equal to the amount of contribution payable by the landowner under Sub-section (1). (3) Where the wages are payable in kind, the amount of contribution for the purposes of Sub-sections (1) and (2) shall be calculated at such commutation rate as may be notified by the Government in that behalf from time to time." 5. This Section was amended by the Kerala Agricultural Workers Act, 1990 (by Section 5 of the Act 6 of 1990). The amended Section 9 reads as under: "Contributions to the Fund- (1) Every land owner holding more than half a hectare but less than one hectare in extent of agricultural land shall pay contribution to the Fund at the rate of rupees ten per annum for the land held by him and those holding one hectare and in excess thereof in extent of agricultural land shall contribute fifteen rupees per annum per hectare of land or part thereof held by him in the manner prescribed. (2) Every registered agricultural worker shall pay contribution to the Fund at the rate of two rupee per mensem. (2) Every registered agricultural worker shall pay contribution to the Fund at the rate of two rupee per mensem. (3) Any loan, grant or advance made by the Government of India, the State Government, a local body, or any other institution shall be credited to the Fund. The loan, grant or advance made by any authority or institution shall be utilised for no purpose other than the purpose for which it was given." 6. The contention of Mr. Ashok B. Shenoy, learned counsel for the appellant, is that contribution to the Fund is required to be made by every land owner holding more than half hectare and less one hectare of land at the rate of Rs. 10 per annum, and at Rs. 15 per annum per hectare of land or part thereof held, irrespective of whether he employs any agricultural workers or not. Sub-section (2) of Section 9 also requires every registered agricultural worker to pay contribution to the Fund constituted u/s 8 of the Act at the rate of Rs. 2 per mensem. The Act makes detailed provisions for dealing with disputes arising out of discharge, dismissal or termination of service of agricultural workers, for appointment of Inspectors to inspect the conditions of service of agricultural workers, establishment of Workers' Provident Fund and contributions to the Fund. The Fund has to be administered by the Workers' Provident Fund Board. There are detailed provisions as to how the Board is to function. 7. A conspectus of the provisions of the Act leaves one in no doubt that the Act is a statutory social welfare measure intended to alleviate the oppressive and depressing conditions of service to which the agricultural workers are subjected. Any challenge to the provisions of the Act must, therefore, be judged from that perspective. Article 41 of the Constitution of India makes it a directive principle of State policy that the State shall, within the limits of its economic capacity land development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. The Act appears to be a measure enacted for implementation of the directive principle of State policy contained in Article 41 and other provisions in Part IV of the Constitution. 8. The Act appears to be a measure enacted for implementation of the directive principle of State policy contained in Article 41 and other provisions in Part IV of the Constitution. 8. It is contended that the levy on the land owners u/s 9(1) of the amended Act and is in the nature of a fee for which there is no quid pro quo in that the land owner has to fork out the contribution amount u/s 9(2) irrespective of whether he employs any agricultural workers. If a land owner employs agricultural workers, then, perhaps, it may amount to quid pro quo in that the conditions of the agricultural workers are regulated to some extent by the Act; if the land owner does not, it is pure and simple a fee for which there is no quid pro quo. In our view, the contention cannot be accepted. The contribution can be looked at from two perspectives. Either on the footing that what is levied u/s 9 is a tax, which is intended for the general welfare of the agricultural workers, for relief from the distress to which they are subjected in old age and upon cessation of their employment. Or, in the alternative, even assuming it is a fee, it is a fee of regulating nature in which case there need not be an element of quid pro quo at all for the fee is charged not for any service to the person on whom the levy falls, but only for the purpose of meeting the expenses of implementing the regulative measure. In either case, the challenge has no basis. 9. We were referred to a judgment of the Division Bench of this Court in Kerala Construction Workers Welfare Fund Board v. State of Kerala 1995 (2) KLT 724 . That was a case where similarly placed legislation, namely, the Construction Workers Welfare Fund Act, 1989, intended for the benefit of construction workers, was challenged. It was also challenged on the ground that some of the employers not employing construction workers would yet be liable to pay the levy under the Act. That was a case where similarly placed legislation, namely, the Construction Workers Welfare Fund Act, 1989, intended for the benefit of construction workers, was challenged. It was also challenged on the ground that some of the employers not employing construction workers would yet be liable to pay the levy under the Act. The challenge was negatived and levy was upheld on the ground that it was intended for the general welfare and benefit of the construction workers, overturning the judgment of the learned single Judge who had declared Section 9 of the said Act as unconstitutional and void on the ground that there was no quid pro quo for the levy of 'fees' and that it would amount to unreasonable restriction under Article 19(1)(g) of the Constitution. In repelling the contention, this Court pointed out, at paragraph 37 of the judgment, as under: "It is to be noted that the Act is a welfare legislation and is intended to implement the social security measures contemplated under the directive principles of State policy. We have already seen that the benefits given to the employers are also indirectly benefiting the employers also. It is a common knowledge that a healthy and a satisfied employee is an asset to the employer and ultimately to the common good of the nation. Therefore, the question of quid pro quo would not arise in the case of levy of fees on the contractors. The fees levied are ultimately credited to the fund. The contribution is also requested from the workers as well as from the employers and the fee from the contractors." 10. In our case, the legislation is of a similar nature and is intended for the benefit of the agricultural workers. The reasoning in the above judgment would equally apply here. 11. Learned counsel for the petitioner relied on a judgment of the Supreme Court in Kewal Krishan Puri and Others Vs. State of Punjab and Another, (1980) 1 SCC 416 , particularly the observations in paragraphs 8 and 9, where the distinction between tax and fee is made. In our view, the distinction between the two concepts is by now well settled. In our view, irrespective of whether the contribution to the Fund constituted u/s 9 of the impugned Act is a tax or a regulating fee, it is beyond challenge. In our view, the distinction between the two concepts is by now well settled. In our view, irrespective of whether the contribution to the Fund constituted u/s 9 of the impugned Act is a tax or a regulating fee, it is beyond challenge. It is trite law that in order to amount to unreasonable restriction under Article 19(2) of the Constitution the regulating fee should not be unreasonably high or extortionate. The amount of Rs. 15 per hectare per annum can hardly be described as unreasonable or extortionate. There is no challenge to the legislative competence to enact the legislation. Nor is there any other fundamental right alleged to have been abridged. 12. In the result, we find no substance in the appeal. We uphold the order of the learned single Judge and dismiss the appeal.