Judgment :- J.B. Koshy, J. Clause 29A introduced with effect from 18-11-2002 of the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 (hereinafter referred to as ‘the Scheme’) framed under the Kerala Headload Workers Act (hereinafter referred to as ‘the Act’) is questioned in this case as unconstitutional and ultra vires of the provisions of the Act. Kerala Headload Workers Act, 1978 (Act No.20 of 1980) is a unique legislation to regulate the employment of headload workers in the State and to make provision for their welfare, settlement of disputes in respect of their employment or non-employment and other connected matters. There is no such legislation in any other States in India. There were many disputes in the State of Kerala regarding engagement/employment of headload workers. Because of the powerful unions organized by the headload workers, the workers used to charge exorbitant rates for each headload they carry. There were inter-union rivalries also. Since headload workers were engaged as and when necessary, there was no security of employment or retrial or medical benefits. Therefore, this legislation was enacted. Even though the Act is applicable to the whole State of Kerala, the Scheme made under the Act for the welfare of headload workers and health and safety measures are applicable only in the areas notified. In the scheme covered area only headload workers registered under the scheme and allotted by the committee can do the work of loading and unloading work except the attached permanent workers of an establishment. Even they need registration as attached workers. Whenever headload workers are needed, the establishment has to request the Committee constituted under the Scheme for sending headload workers and it is for the committee to send the workers to the establishment according to the need. 2. Section 13 of the Act reads as follows: “13. Scheme:- (1) The Government may, by notification in the Gazette, make one or more scheme or schemes for any employment or group of employments in one or more area or areas specified in the notification, and by similar notification add to amend or vary any such scheme or substitute another scheme for any such scheme; Provided that no such notification shall come into force unless a draft therefore is published in the Gazette and unless it is finalized after considering objections and suggestions received within one month of the publication of such draft in the Gazette. (2) Subject to the provisions of this Act and the rules made thereunder, a scheme made; under sub-section (1) may provide for all or any of the following matters, namely: (a) for the welfare of headload workers; (b) for health and safety measures for headload workers: (c) for the constitution of any fund or funds including provident fund for the benefit of headload workers, the vesting of such funds, the payment of contributions to be made to such funds and all matters relating thereto; (d) for regulating the recruitment and entry into the scheme of headload workers, and the registration of headload workers and employers including the maintenance of registers, removal either temporarily or permanently, of names from the registers and the imposition of fee for registration; (e) for regulating the employment of headload workers and the terms and conditions of such employment, including maternity benefit, leave with wages, provision for gratuity and conditions as to weekly and other holidays and pay in respect thereof; (f) for pooling of headload workers who are not employed under any employer or contractor; (g) for the manner in which, and the persons by whom the cost of operating scheme is to be defrayed including any contribution or welfare levy to be paid by employers and headload workers and the rate of such contribution or welfare levy; (h) for appointing persons and authorities who or which are to be responsible for the administration of the scheme and for the administration of funds constituted for the purposes aforesaid; (hh) rate of penal interest payable by an employer in case of default in payment of wages, contribution of welfare levy; (i) for such incidental and supplementary matters as may be necessary or expedient for giving effect to the purposes of the scheme; (j) generally for making better provision as regards the terms and conditions of employment of headload workers.” (Sub sections 3 to 5 are not relevant for this case.) In view of the above provisions, even the recruitment of the headload workers was the obligation of the Committee. In Headload Workers Welfare Fund v. Moidutty (2000 (3) KLT 523), a Division Bench of this Court, in which one of us (J.B. Koshy, J.) was a party, held that liability to pay compensation under the Workmen’s Compensation Act is on the statutory committee and not on the establishment were the workman was employed at the time of accident as there is no roll for the appointment or enrollment of appointment by the establishments and the real employer is the Committee itself. Every registered employer has to deposit an amount equal to the wages payable to such workers on an actual weekly basis and they are also liable to pay 25% levy for the administration of the scheme and for the welfare fund. Under the Scheme, the Committee was liable to do all the welfare measures and the Committee has to pay the wages and workmen’s compensation and other benefits. Even though the above judgment was accepted by the State, it was found out that 25% levy paid by the establishments over and above wages required were not able to meet the workmen’s compensation liabilities also as the committee has to provide for various welfare measures of the employees including retrial, medical benefits etc. apart from incurring of expenditure for administration of the Scheme. The scheme was amended and clause 29A of the Scheme Accident Relief Fund was included under the Scheme. 3. Clause 29A of the Scheme introduced from 18-11-2002 is as follows: “29A. Accident Relief Fund:- (1) Apart from the welfare levy as a contribution payable to the general welfare fund under paragraph 29 every employer who employs or engaged a headload worker in or for an establishment shall pay a contribution at the rate of 2% of the wages actually payable to the headload workers on completion of work for a day as additional welfare levy towards the accident relief fund to be maintained and administered by the Board. The particulars thereof shall be furnished in ‘Form B’ or in such other manner as may be specified by the Board from time to time. (2) Every employer who fails to pay additional welfare levy on the due dates as provided in such paragraph (1) shall be liable to pay a penalty at the rate of 1.5% of the amount due from him per month till it is actually paid to the Committee. (2) Every employer who fails to pay additional welfare levy on the due dates as provided in such paragraph (1) shall be liable to pay a penalty at the rate of 1.5% of the amount due from him per month till it is actually paid to the Committee. (3) The additional welfare levy amount received by the Committee shall be transferred and credited to the Accident Relief Fund to be maintained by the Board, at the end of each month in the manner specified by the Board. (4) Failure to make contribution in time to the Accident Relief Fund shall render the employer concerned liable to pay the compensation under the Workmen’s Compensation Act, 1923 (Central Act 8 of 1923) by himself as usual and the Board or Committee shall not in any way be liable or accountable to pay compensation in such cases. (5) The accumulation of the fund may be expended for all or any of the following purposes:- (a) For meeting the liabilities arising out of the claims under the Workmen’ Compensation Act, 1923 (Central Act 8 of 1923) in respect of headload workers registered with the Committee as per provisions of this Scheme on the basis of the orders of the appropriate authorities under that Act, including those settled otherwise under intimation to and in consultation with the proper authority in the proper manner. (b) For meeting the legal and incidental charges incurred by the Board or Committees for defending or conducting cases under the Workmen’ Compensation Act, 1923 or such other purposes as may be specified by the Board from time to time. (6) The Board shall be competent to revise the rate of additional welfare levy payable after considering its financial obligations and other relevant matters, once in every three years with the concurrence of the Government. (7) Every employer who has to get the loading or unloading work carried out for their trade or business in or for an establishment shall be bound to engage or employ the headload workers registered under the Rules or this Scheme as the case may be and shall pay the additional welfare levy or penal contribution wherever necessary to the accident relief fund in respect of the headload workers registered as per this Scheme in the manner specified by the Board. (8) The details of the accidents that occur to headload worker registered under the Scheme in or for an establishment or the place where the loading and unloading work, is being carried out, shall be reported by that employer in writing immediately to the Committee concerned in the manner specified by the Board and shall also render such further details or records as may be called upon without delay.” The above would show that to meet the liability under Workmen’ Compensation Act, the establishments wherein headload workers are employed have to pay 2% of wages actually payable to the headload workers in addition to the welfare levy. It is further provided that if the amount is not paid, the Committee will not be liable to pay workmen’s compensation to such workers. Then, the liability will shift to the establishment wherein headload workers were actually employed. Levy of 2% wages paid to the headload workers is imposed to meet the workmen’s compensation liability cannot be termed as exorbitant or arbitrary. In fact, considering the scheme of the Act in ESI Corporation v. Babu Rao (2003 (3) KLT 805), a Division Bench of this Court held that the headload workers are not liable to be covered under the ESI Act as the provisions of the Welfare Fund Scheme are more beneficial than the ESI Scheme. It is true that under the ESI Act, both employer and employee have to contribute. Here, with regard to headload workers sent by the Committee, employer is not liable to pay ESI contribution or other levies. The learned single Judge, after going through the entire provisions, found that the scheme is constitutionally valid. Apart from the benefits payable under paragraph 32 of the Scheme like benefits on retirement, death, disability etc., the Committee has to meet the requirement of the Workmen’ Compensation Act and after the amendment of the Workmen’ Compensation Act, if an accident happens, huge sums would have to be shelled down for paying compensation. Section 13 of the Act makes it obligatory for the Committee to provide welfare measures and Section 13 of the Act is not challenged. In fact, before introduction of paragraph 29A(5) (b), it was published in the gazette calling for objection and no objection was filed by the petitioner or none of the registered establishments in the State wherein headload workers are employed through the statutory committee. In fact, before introduction of paragraph 29A(5) (b), it was published in the gazette calling for objection and no objection was filed by the petitioner or none of the registered establishments in the State wherein headload workers are employed through the statutory committee. Rule 13 of the Headload Workers Rules, 1981 also gives power to the Board constituted under Section 14 of the Act to deal with administration of the fund as specified in the Scheme or Schemes. Considering the provisions of the Act and Scheme, the learned single Judge found that paragraph 29A of the Scheme introduced with effect from 18-11-2002 is not at all unconstitutional. The appellants failed to show that how the scheme is unconstitutional or ultra vires of Act. The learned single Judge also held as follows: “There is no lack of jurisdiction. It is only a general welfare measure which the Government is competent to provide for under Section 13 of the Scheme. The Committees are constituted for each area; whereas the Board is for the whole State. Being a matter of general welfare and in order to have uniform principles, Government thought in its wisdom to entrust the matter with the Board. The Board by virtue of its powers and functions under section 124 read with Rule 13 and paragraph 15 of the Scheme is liable to be entrusted with the levy and administration of the Accident Relief fund as introduced by paragraph 29A of the Scheme.” We fully agree with the observations of the learned single Judge and there is no merit in the writ appeal. The writ appeal is dismissed.