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2005 DIGILAW 539 (KER)

Aravindaksha Kurup v. Reghunathan Pillai

2005-08-11

THOTTATHIL B.RADHAKRISHNAN

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Judgment :- Thottathil B. Radhakrishnan, J. An order passed by the Labour Court, on an application under S.33-C(2) of the Industrial Disputes Act, 1947, hereinafter referred to as “the ID Act”, is under challenge. 2. The petitioner is the establishment, involved in processing and exporting of sea foods, registered under the Factories and Boilers Act, 1947. The activity of the petitioner includes procurement of raw fish from different sources, processing and preserving them for the purpose of export in accordance with orders. In the course of such activity, it utilises insulated vehicles for transporting the processed articles. It owns vehicles for such purpose. Respondents 1 to 4 were employed with the petitioner as drivers of such vehicles. They have, later on, left the services and are employed elsewhere. 3. According to the petitioner, the nature of its activity depends upon the international market and the insulated vehicles may not be put to use at all times and it would depend upon the work-load. Similar other exporters also have such type of activities. Depending upon the nature of the urgent requirements of the different persons in the said field of business, the petitioner as well as the other exporters often lend the insulated vehicles, among themselves, to meet the eventuality of emergent requirements. In such situations, to keep up the costs of maintaining the vehicle and other incidentals, certain hire charges are levied on fellow industrial establishments, as evidenced by Ext.P1 series. 4. Respondents 1 and 2 filed the application under S.33-C(2) of the ID Act, contending that they are entitled to the benefits of the Kerala Motor Transport Workers Payment of Fair Wages Act, 1971, hereinafter referred to as the “Transport Workers Fair Wages Act”. The petitioner contended, in defence, that the said Act does not apply to respondents 1 to 4 and that they are entitled only to the benefit of the Minimum Wages Act, 1948. The Labour Court over-ruled the objections and granted relief to respondents 1 to 4. It is the said order (Ext.P6) that is under challenge. 5. Those employed in fish peeling and fish canning, freezing and exporting of sea foods and frog legs in the State of Kerala as specified in the Schedule to S.R.O.282/98 are entitled to rate of wages fixed as per the said S.R.O., issued in exercise of the powers under the Minimum Wages Act, 1948. 5. Those employed in fish peeling and fish canning, freezing and exporting of sea foods and frog legs in the State of Kerala as specified in the Schedule to S.R.O.282/98 are entitled to rate of wages fixed as per the said S.R.O., issued in exercise of the powers under the Minimum Wages Act, 1948. So much so, the said notification under the Minimum Wages Act is one that is directly applicable to the industrial establishment of the petitioner. In the Schedule to the said S.R.O., heavy duty drivers and light duty drivers are enlisted as Items 1(ix) and 1(x). There is no dispute that respondents 1 to 4 have been paid their dues as per the Minimum Wages Act. 6. The claim that respondents 1 to 4, mooted before the Labour Court, was that they are entitled to the benefit of the Transport Workers Fair Wages Act since it provides better terms than the Minimum Wages Act. 7. Therefore, it has to be decided as to whether the Transport Workers Fair Wages Act applies to the petitioner’s establishment, thus entitling respondents 1 to 4 to the benefit of the said enactment. 8. S.2(a) of the Transport Workers Fair Wages Act defines an “employer” as follows: “2. Definitions.-- In this Act, unless the context otherwise requires,-­ (a) “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 agent or by any other name, such other person;” Clause (b) of S.2 defines “motor transport undertaking”. The said provision reads as follows: “(b) “motor transport undertaking” means a motor transport undertaking including a private carrier engaged in carrying passengers or goods or both by road for hire or reward;” Cl.(c) of S.2 of the Act provides that “motor transport worker” means “a person who is employed in a motor transport undertaking directly or through an agency, whether for wages or not, 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:” (emphasis supplied) This means that, for a person to be a motor transport worker, for the purpose of the said Act, he has to be employed in a motor transport undertaking as defined in that Act. The definition of “motor transport undertaking” in the Kerala Motor Transport Workers Payment of Fair Wages Act itself would show that the predominant activity of the motor transport undertaking will have to be the carrying on passengers or goods for hire or reward. 9. The predominant activity of the petitioner is indisputably one referable to the nature of activities enumerated in S.R.O.282/98. By no stretch of imagination, could be petitioner’s establishment be treated as a motor transport undertaking. The predominant purpose of the undertaking of the petitioner is not of a motor transport ­undertaking and in such circumstances, there is no reason why respondents 1 to 4 could be treated as motor transport workers for the purpose of the Kerala Motor Transport Workers Payment of Fair Wages Act, 1971. 10. In this context, it is apposite to refer to the Motor Transport Workers Act, 1961 which is a Central Act, wherein the term “motor transport undertaking” is defined by an in para materia provision as that contained in the Transport Workers Fair Wages Act. The decision of the Apex Court in Workmen of Tirumala Tirupathi Devasthanam v. Management & Anr. (1980) 1 SCC 583) can be profitably referred to, to notice the nature of considerations that has to be made in such situations. 11. The decision of the Labour Court apparently turned against the petitioner on the basis that the petitioner had been permitting its vehicles to be used for hire by other establishments. (1980) 1 SCC 583) can be profitably referred to, to notice the nature of considerations that has to be made in such situations. 11. The decision of the Labour Court apparently turned against the petitioner on the basis that the petitioner had been permitting its vehicles to be used for hire by other establishments. Having regard to the nature of the operations and the business relationships that could be maintained between similar establishments, the mere fact that the vehicles of the petitioner are put to use by other establishments, does not by itself lead to a conclusion that the petitioner is a motor transport undertaking. Hence, the findings in the impugned order was illegal and unsustainable. In the result, Ext.P6 is quashed. The Writ Petition is allowed.