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1995 Supreme(Ker) 242
Judges : M.M.PAREED PILLAY,P.SHANMUGAM
Kerala Construction W.W.F.Board - Appellant
Versus
State of Kerala - Respondent
Case No : W.A. Nos. 3019.861 etc.of 1994
Decided On : 09/15/1995
Advocates Appeared :
M. Abdul Aziz (Sr. Advocate). , Siby Mathew, Babu Karukapadath, Siby Monippally, For Petitioner K.P. Dandapani & Lai George (Govt. Pleader) For Respondents
The Act is a welfare legislation intended to implement the social security measures contemplated under the directive principles of State policy.
Headnote:
VALIDITY - Kerala Construction Workers Welfare Fund Act, 1989 - S.2(g), 8(2), 9, clauses 25, 26 - Sections 2(g) and 8(2) of the Act and clauses 25 and 26 of the Scheme are valid. Section 9 of the Act is unconstitutional and void. Contributions are payable under S.8 of the Act only in respect of works awarded and commenced after 7.9.1990. Electrical contractors and contractors for doing painting and fabrication works are not liable to pay contributions under the Act.
Fact of the Case:
The constitutional validity of certain provisions of the Kerala Construction Workers Welfare Fund Act, 1989 (20 of 1989) was challenged before the court.
Finding of the Court:
The court analyzed the provisions of the Act, the contentions, and the stand of the Government, and concluded on the validity of specific sections.
Ratio Decidendi: Sections 2(g) and 8(2) of the Act and clauses 25 and 26 of the Scheme are valid. Section 9 of the Act is unconstitutional and void. Contributions are payable under S.8 of the Act only in respect of works awarded and commenced after 7.9.1990. Electrical contractors and contractors for doing painting and fabrication works are not liable to pay contributions under the Act.
Result: The appeal of the Board is allowed, and all other Writ Appeals and Original Petitions are dismissed.
Shanmugam, J.
The constitutional validity of certain provisions of the Kerala Construction Workers Welfare Fund Act, 1989 (20 of 1989) thereinafter referred to as the Act) was challenged before the learned single judge. Aggrieved by the common judgment the above appeals are filed both by the petitioners in the O.Ps. as well as the Kerala Construction Workers Welfare Fund Board. The above O.Ps. are tiled challenging the provisions of the Act which were directed to be posted along with the Writ Appeals.
2. The preamble of the Act says that the Act is intended to provide for-the constitution of a Fund to grant relief to. to promote the welfare of and to pay pension to the construction workers in the State of Kerala and for-certain other matters incidental thereto. In exercise of the powers conferred by sub-section (1) of S.3 of the Act. the Kerala Construction Workers' Welfare Fund Scheme, 1990 was also framed. The Act and the Scheme were given retrospective effect from 1-1-1990.
3. The main challenge is to S.2(g),8(2) and 9 besides clauses 25 and 26 of the Scheme. The salient features of the provisions of the Act, the contentions and the stand of the Government in the counter-affidavit have been set out by the learned single Judge. After considering all aspects of the matter the learned single judge concluded and summarised his finding in para 34 which are as follows:
"(a) Sections 2(g) and 8(2) of the Act and clauses 25 and 26 of the Scheme are valid.
(b) Section 9 of the Act is unconstitutional and void.
(c) Contributions are payable under S.8 of the Act only in respect of works awarded and commenced after 7.9.1990.
(d) Electrical contractors and contractors for doing painting and fabrication works are not liable to pay contributions under the Act.
(e) The finding herein relate to the 'employers' as defined in clause (i) of S.2(g). I have not deal with the cause of those covered by clause (ii) of the said sub-section.
Accordingly O.P.Nos.1261, 2880, 3537, 10721, 11766 of 1991, 14601, 14697 and 15442 of 1992 are allowed and the petitioners therein are held not liable to pay contribution for the electrical, painting or fabrication works undertaken by them."
4. In so far as the upholding of the validity of S.1(g) and 8(2) of the Act and clans 25 and 26 of the Scheme is concerned, the petitioners in the O.Ps. have filed the above appeals. In so far as the conclusions of the learned single judge in holding S.9 as unconstitutional and excluding electrical contractors and contractors for doing painting and fabrication works from payment of contribution under the Act and the finding that contributions are payable under S.8 of the Act only in respect of works awarded and commenced after 7.8.1990 are concerned, the Board has filed the appeal W.A.No. 399/1994.
5. We have heard counsel for the petitioners, the Board and the Govt. Pleader.
6. We will take up the various contentions one by one. Legislative competency: One of the contentions raised on behalf of the petitioners is that the State Legislature lacks jurisdiction to pass the law and the subject-matter will not come under Entry 24, List III of the Seventh Schedule of the Constitution of India. According to the learned counsel, entry 24 relates only to welfare of labour and will not cover a law regulating employment. According to the petitioners, they are engaging the work through third parties /sub contractors and therefore, they are not employing any of the labourers. We are unable to agree with the learned counsel.
7. The Supreme Court in M.G. Beedi works v. Union of India (AIR 1974 SC 1832) repelling a similar contention that the legislature lacks competence held that the Act is for welfare of labour. It is not an Act for industries. The true nature and character of the legislation shows that it is for enforcing better conditions of labour amongst those who are engaged in the manufacture of beedis and cigars. The Supreme Court further held that the pith and substance of the Act
