K. V. George alias George Varghese v Sub Regional Transport Officer/Taxation Officer; The District Executive Officer, Kerala Motor Transport Workers Welfare Fund Board; The Regional Provident Fund Commissioner, Employees' Provident Fund Organisation

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV MONDAY,THE20[TH]DAYOFMARCH2023/29THPHALGUNA,1944 WP(C)NO.3709OF2023 ``` ``` PETITIONER: ``` ``` K.V.GEORGEALIASGEORGEVARGHESE AGED60YEARS PROPRIETOR,QUALITYFOODPRODUCTINDUSTRIES, PANAVALLYP.O.,CHERTHALA,ALAPPUZHADISTRICT, RESIDINGATKANNIKATTU,NITHINVIHAR,AROORP.O., - CHERTHALA,ALAPPUZHADISTRICT,PIN688536. ``` ``` BYADVS. B.ASHOKSHENOY P.S.GIREESH SALIHP.A. ARJUNRNAIK THEJALAKSHMIR.S. ``` ## `RESPONDENTS:` ``` 1SUBREGIONALTRANSPORTOFFICER/TAXATIONOFFICER OFFICEOFTHESUBREGIONALTRANSPORTOFFICER, MINICIVILSTATION,CHERTHALAP.O., - ALAPPUZHADISTRICT.,PIN688524. 2THEDISTRICTEXECUTIVEOFFICER OFFICEOFTHEDISTRICTEXECUTIVEOFFICER,KERALAMOTOR TRANSPORTWORKERS'WELFAREFUNDBOARD,FIRSTFLOOR, NAMANTOWERS,HARIPPADP.O., - ALAPPUZHADISTRICT,PIN690514. 3THEREGIONALPROVIDENTFUNDCOMMISSIONER EMPLOYEESPROVIDENTFUNDORGANISATION,REGIONALOFFICE, - BHAVISHYANIDHIBHAWAN,KALOOR,KOCHI,PIN682017. ``` 2 W.P.(C) No.3709 of 2023 ``` SMT.RESHMITHARCHANDRAN,GP SRI.KSMANU,SC SRI.ABRAHAMPMAECHINKARA,SC,EPF ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFOR ADMISSIONON20.03.2023,THECOURTONTHESAMEDAY DELIVEREDTHEFOLLOWING: ``` 3 W.P.(C) No.3709 of 2023 ## **JUDGMENT** The petitioner states that he runs an industrial unit, and for the transportation of raw materials and finished products, the petitioner has purchased 17 Goods Carriage vehicles covered by Exts.P1 to P17 registration certificates. According to the petitioner, the establishment run by the petitioner is covered by the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. It is stated that the petitioner has been regularly remitting the contribution, and reliance is placed on Ext.P18 Electronic Challan cum Return. According to the petitioner, the Kerala Motor Transport Workers Welfare Fund Act, 1985, has been enacted to provide for the constitution of a fund to promote the welfare of Motor Transport Workers in the State of Kerala. Under Section 4 of the Act, the employee and the employer are liable to pay contributions as may be specified in the scheme. However, the proviso to Section 4 states that the provision shall not apply to a motor transport undertaking to which the provisions of the Employees Provident Funds 4 W.P.(C) No.3709 of 2023 and Miscellaneous Provisions Act, 1952, or the Payment of Gratuity Act, 1972, apply. According to the petitioner, in view of the above provision, the establishment run by him is not bound to remit any amount by way of contribution to the Motor Transport Workers Welfare Fund. 2. The petitioner asserts that under Section 4(7) of the Motor Vehicles Taxation Act, every registered owner or person having possession or control of a Motor Vehicle in respect of a Motor Transport undertaking liable to pay a contribution under the Kerala Motor Transport Workers’ Welfare Fund Act shall, before effecting payment of tax shall produce before the Taxation Officer, the receipt of remittance of the contribution towards Welfare Fund due upto the preceding month. According to the petitioner, the above provision insists upon such production only in respect of Motor Transport Undertaking liable to pay contributions under the Kerala Motor Transport Workers’ Welfare Fund Act and not establishments like the one run by the petitioner herein, which are covered by the provisions of the EPF Act, 1952. It is contended that the jurisdictional Regional Transport Officer is refusing to accept the tax and are insisting on the production of documents showing the remittance of 5 W.P.(C) No.3709 of 2023 contribution to the 3rd respondent. It is on these assertions that this writ petition has been preferred. 3. I have heard Sri. B. Ashok Shenoy, the learned counsel appearing for the petitioner, Sri. Manu, K.S., the learned standing counsel appearing for the Board, Sri. Abraham Meachinikara, the learned standing counsel appearing for the EPF and Smt. Reshmitha R. Chandran, the learned Government Pleader. 4. I have considered the submissions advanced. 5. The Kerala Motor Transport Workers Welfare Fund Act, 1985, was enacted to provide for the constitution of a fund to promote the welfare of Motor Transport Workers in the State of Kerala. Section 3 of the Act provides that the Government shall frame a scheme for the establishment of a fund under the Act for employees. Section 4 provides for contributions to be made by the employer as well as the employee to the fund. Section 4, to the extent it is relevant, reads as under: “4. Contributions to the Fund.- (1) xxxxx xxxxxxxxxxx (2) xxxxx xxxxxxxxxxx - (3) xxxxx xxxxxxxxxxx (4) The contribution payable by the employer, employee and 6 W.P.(C) No.3709 of 2023 self employed person shall be subject to revision from time to time. Provided that nothing in the section shall apply to a Motor Transport undertaking to which the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (Central Act 19 of 1952) or Payment of Gratuity Act, 1972 (Central Act 39 of 1972) applied. 6. In this writ petition, the petitioner has raised a complaint that the 1st respondent is insisting on proof regarding the remittance of the amount to the Motor Transport Workers Welfare Fund in respect of their vehicles for the purpose of remittance of tax under Section 4 of the Motor Vehicles Taxation Act. It is his contention that as the Motor Transport undertakings are already covered by the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, the jurisdictional Regional Transport Officer is bound to accept the tax without insisting upon proof of contribution to the KMTWWF. 7. I find that the very same issue had come up for consideration before a Division Bench of this Court in **George Antony v. State of Kerala[1]** wherein this Court had occasion to observe as follows: The next question to be considered is appellant's claim of > 1 [2008 (4) KLT 119] 7 W.P.(C) No.3709 of 2023 exemption under the proviso to S. 4 which provides for exemption to those who are otherwise liable to pay contribution for the workers, if such workers are covered by Employees Provident Fund Act, Gratuity Act, etc. This is a matter to be proved before the adjudicating officer and not before this Court. In fact, learned single Judge has given freedom to the appellant to prove this fact before the R.T.O. for receiving tax without insisting on production of certificate by the appellant from the Welfare Fund Inspector under S. 8A of the Act. We feel that this matter has to be considered in adjudication proceedings by the Executive Officer of the Welfare Fund Board and not by the R.T.O. Writ Appeal is therefore disposed of directing the District Executive Officer to call for proof of coverage of employees under the Employees Provident Fund Act or Gratuity Act and on being satisfied about coverage and consequent eligibility for exemption, he will issue required certificate to the appellant for production before the R.T.O. for receiving tax. If appellant is not entitled to exemption there will be direction to the District Executive Officer to complete the adjudication upto date and issue orders determining contribution payable under the Act including an advance contribution for the appellant to make payment and on payment to issue certificate for production before the R.T.O. for receiving tax. 8. The Division Bench had held that the question as to whether the Motor Transport undertaking is entitled to the claim of exemption under the proviso to Section 4 is a matter to be proved before the adjudicating officer and not before the writ court. This Court had held that the matter had to be considered in adjudication proceedings by the 8 W.P.(C) No.3709 of 2023 Executive Officer of the Welfare Fund Board and not by the RTO. The District Executive Officer can call for proof of coverage of employees under the Employees Provident Fund or Gratuity Act, and on being satisfied with the coverage and consequent eligibility for exemption, the officer is bound to issue a certificate to the party concerned for production before the RTO for receiving tax. In case the establishment is not entitled to exemption, the District Executive Officer is bound to complete the adjudication up to date and issue orders determining the contribution payable under the Act, including advance contribution to enable the petitioner to make payment and on such payment to issue a certificate for production before the RTO for receiving tax. I am of the considered opinion that the petitioner is bound to follow the course suggested by the Division Bench. In that view of the matter, I am of the considered opinion that this writ petition can be disposed of by issuing general directions to ensure that the respondents carry out the duties cast upon them so as to enable the petitioner to expeditiously remit the motor tax dues in respect of their vehicles. This writ petition is disposed of by ordering as under: 9 W.P.(C) No.3709 of 2023 - a) If the petitioner has a contention that their motor transport undertaking is covered under the Employees Provident Fund and Miscellaneous Provisions Act, 1952, and that contributions have been duly remitted for the period in question, he shall produce the proof of payment of dues under the EPF Act in respect of the workers of vehicle. The Regional Provident Fund Officer shall, on request by the Motor Transport Undertaking, issue an authentic certificate to show the factum of payment of EPF dues, ideally with a QR Code or by other digital certification, so that the authenticity of the certificate can be checked online by the District Executive Officer concerned. - b) On submission of those records, the District Executive Officer shall consider the documents so produced and after conducting an expeditious enquiry and after getting satisfied with the coverage and the eligibility for exemption, shall issue a certificate of clearance, as expeditiously as possible, in any event, within four weeks from the date of 10 W.P.(C) No.3709 of 2023 submission of the proof of payment of dues. - c) On the petitioner producing a copy of the Certificate of Clearance issued by the District Executive Officer, KMTWWF, the petitioner may produce the same before the jurisdictional RTO who shall act upon the same and accept the Motor Tax dues in respect of the vehicles in question. Sd/- ## **RAJA VIJAYARAGHAVAN V JUDGE** ``` Sru ``` 11 W.P.(C) No.3709 of 2023 ## `APPENDIX OF WP(C) 3709/2023` ``` PETITIONEREXHIBITS ``` ``` ExhibitP1TRUECOPYOFTHECERTIFICATEOFREGISTRATION INRESPECTOFVEHICLEBEARINGREGISTRATION NO.KL-32R1263. ExhibitP2TRUECOPYOFTHECERTIFICATEOFREGISTRATION INRESPECTOFVEHICLEBEARINGREGISTRATION NO.KL-32E5939. ExhibitP3TRUECOPYOFTHECERTIFICATEOFREGISTRATION INRESPECTOFVEHICLEBEARINGREGISTRATION NO.KL-32E4483. ExhibitP4TRUECOPYOFTHECERTIFICATEOFREGISTRATION INRESPECTOFVEHICLEBEARINGREGISTRATION NO.KL-32Q3239. ExhibitP5TRUECOPYOFTHECERTIFICATEOFREGISTRATION INRESPECTOFVEHICLEBEARINGREGISTRATION NO.KL-32Q3463. ExhibitP6TRUECOPYOFTHECERTIFICATEOFREGISTRATION INRESPECTOFVEHICLEBEARINGREGISTRATION NO.KL-32R1824. ExhibitP7TRUECOPYOFTHECERTIFICATEOFREGISTRATION INRESPECTOFVEHICLEBEARINGREGISTRATION NO.KL-32S4086. ExhibitP8TRUECOPYOFTHECERTIFICATEOFREGISTRATION INRESPECTOFVEHICLEBEARINGREGISTRATION NO.KL-32S3682. ExhibitP9TRUECOPYOFTHECERTIFICATEOFREGISTRATION INRESPECTOFVEHICLEBEARINGREGISTRATION ``` 12 W.P.(C) No.3709 of 2023 ``` NO.KL-32S4032. ``` - `Exhibit P10 TRUE COPY OF THE CERTIFICATE OF REGISTRATION IN RESPECT OF VEHICLE BEARING REGISTRATION NO.KL-32 S 4027.` - `Exhibit P11 TRUE COPY OF THE CERTIFICATE OF REGISTRATION IN RESPECT OF VEHICLE BEARING REGISTRATION NO.KL-07 U 2624.` - `Exhibit P12 TRUE COPY OF THE CERTIFICATE OF REGISTRATION IN RESPECT OF VEHICLE BEARING REGISTRATION NO.KL-32 B 3079.` - `Exhibit P13 TRUE COPY OF THE CERTIFICATE OF REGISTRATION IN RESPECT OF VEHICLE BEARING REGISTRATION NO.KL-07 G 3349.` - `Exhibit P14 TRUE COPY OF THE CERTIFICATE OF REGISTRATION IN RESPECT OF VEHICLE BEARING REGISTRATION NO.KL-32 E 7079.` - `Exhibit P15 TRUE COPY OF THE CERTIFICATE OF REGISTRATION IN RESPECT OF VEHICLE BEARING REGISTRATION NO.KL-32 P 4691.` - `Exhibit16 TRUE COPY OF THE CERTIFICATE OF REGISTRATION IN RESPECT OF VEHICLE BEARING REGISTRATION NO.KL-04 P 3478.` - `Exhibit17 TRUE COPY OF THE CERTIFICATE OF REGISTRATION IN RESPECT OF VEHICLE BEARING REGISTRATION NO.KL-04 H 6500.` ``` ExhibitP18TRUECOPYOFTHELATESTELECTRONICCHALLAN CUMRETURN(ECR)FORTHEMONTHOFJANUARY 2023INPROOFOFREMITTANCEOFCOVERAGEOF THEPETITIONER'SINDUSTRIALUNITUNDER PROVIDENTFUNDACT. ``` 13 W.P.(C) No.3709 of 2023 |`Exhibit `|`P19`|`TRUE COPY OF ORDER DATED 25.01.2019 IN`| |---|---|---| |||`W.A.NO.150 OF 2019 PASSED BY THIS HON'BLE`| |||`COURT.`| |`Exhibit `|`P20`|`TRUE COPY OF ORDER DATED 02.08.2021 IN`| |||`W.P.(C) NO.15333 OF 2021 PASSED BY THIS`| |||`HON'BLE COURT.`|