Taxi Drivers' Co-operative Society Ltd., No. 412, Karakulam, Nedumangad, Thiruvananthapuram District, Rep. by its Secretary, Vijayakumar v. Regional Provident Fund Commissioner, Employees' Provident Funds, Bhavishyanidhi Bhavan, Pattom, Thiruvananthapuram; and Employees Provident Funds Appellate Tribunal, Skylark Building, Nehru Palace, New Delhi-19

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **TUESDAY, THE 1ST APRIL 2008 / 12TH CHAITHRA 1930** **OP.No. 9167 of 2000(N)** **--------------------------------** **PETITIONER:** **-----------------** **TAXI DRIVERS' CO-OPERATIVE SOCIETY LTD., NO. 412, KARAKULAM, NEDUMANGAD, THIRUVANANTHAPURAM DIST., REP. BY ITS SECRETARY, VIJAYAKUMAR.** **BY ADV. SRI.GOPAKUMAR R.THALIYAL** **RESPONDENTS:** - **----------------------** **1. THE REGIONAL PROVIDENT FUND COMMISSIONER, EMPLOYEES' PROVIDENT FUNDS, BHAVISHYANIDHI BHAVAN, PATTOM, THIRUVANANTHAPURAM.** **2. THE EMPLOYEES PROVIDENT FUNDS APPELLATE TRIBUNAL, SKYLARK BUILDING, NEHRU PALACE, NEW DELHI- 19.** **BY ADV. SRI.N.N.SUGUNAPALAN(SR.), SC, P.F.** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/03/2008, THE COURT ON 01/04/2008, DELIVERED THE FOLLOWING:** ## **ORDER ON CMP NO. 15267/2000 IN OP NO. 9167/2000 N.** ## **DISMISSED** **1/04/2008. SD/- T.R.RAMACHANDRAN NAIR, JUDGE.** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1. COPY OF THE CERTIFICATE DT. 6/11/97 ISSUED BY THE ASSISTANT REGISTRAR OF CO-OP SOCIETIES, NEDUMANGAD.** **EXT.P2. COPY OF THE RELEVANT EXTRACT OF THE BYE LAWS OF THE PETITIONER SOCIETY.** **EXT.P3. COPY OF THE COMMUNICATION DT. 19TH JAN. 1997 ISSUED BY THE R1.** **EXT.P4. COPY OF THE ORDER OF R1 DT. 30/3/99.** **EXT.P5. COPY OF THE ORDER NIL DT. 6/12/99 OF THE R3.** **EXT.P6. COPY OF THE NOTICE DT. 25/4/97 ISSUED BY THE OFFICE OF THE JOINT REGISTRAR OF CO-OP SOCIETIES TRIVANDRUM SENT TO THE PETITIONER.** ## **RESPONDENT'S EXHIBITS** **EXT.R1A. COPY OF THE LIST OF EMPLOYEES WHICH IS DULY SIGNED BY THE PRESIDENT OF THE SOCIETY.** _True copy_ _tga_ ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **O.P.NO.9167 of 2000-N** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 1st day of April, 2008.** ## **JUDGMENT** The petitioner is a co-operative society registered under the Kerala Co-operative Societies Act, 1969. The challenge is against the order passed by the first respondent under Section 7A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 (for short 'the Act') directing the society to comply with the provisions of the Act and the schemes. Even though an appeal was filed, the appellate tribunal also confirmed the order passed by the first respondent. 2. The petitioner society is governed by the bye-laws which have been produced as Ext.P2. Under clause 2(2), the society is empowered to operate services by purchasing various types of vehicles including car, autorickshaw, lorry, bus, etc. They are also empowered to conduct chitties and other financial transactions. For the purpose of operating stage carriage vehicles they availed of a loan of Rs.40 lakhs from the District Co-operative Bank, Trivandrum and a further amount of Rs.17 lakhs was collected from the members and thereafter purchased 8 buses. Apart from the Secretary, there are two Clerks, an Attender and four Bill Collectors employed in the 9167/2000 -2- office of the society. Thirty workers are employed for operating the bus services. 3. Ext.P3 is the notice by which the first respondent required the petitioner society to file objections, if any, on the proposal to extend coverage under the Act. The coverage was sought on the ground that it is an establishment, viz. a Road Motor Transport establishment and therefore comes within the purview of the Act. The petitioner contended that the conducting of bus service is only a subsidiary one and as the predominant business being the other ones, no coverage can be extended. Ultimately by Ext.P4 order, the Commissioner found that the contentions raised by the petitioner are not correct. 4. Learned counsel for the petitioner submitted that going by Section 16(1)(a) of the Act, the establishment run by the society cannot be roped in for the purpose of the coverage. The said provision is extracted below: “ **16. Act not to apply to certain establishments.-** -(1) This Act shall not apply-- (a) to any establishment registered under the Co-operative Societies Act, 1912 (2 of 1912), or under any other law for the time being in force in any State relating to co-operative societies, employing less than fifty persons and working without the aid of power.” It is pointed out by the learned counsel that going by the above provision, the Act will not apply to the establishment which is registered under the Kerala Co-operative Societies Act, since it is employing less than 50 9167/2000 -3- persons and is working without the aid of power. Learned counsel attacked the finding by the first respondent that the word 'power' is used in the sense that it includes electrical as well as mechanical power. According to the learned counsel, the word 'power' ordinarily mean only electrical power and as the society has not been using electrical power to run the business, it cannot be said that the coverage can be extended to the society. 5. Learned Standing Counsel for the respondents submitted that the word 'power' should get a liberal meaning in the light of the fact that the Act is a beneficial piece of legislation which caters to the needs of the workmen and therefore an interpretation which should favour the objects and purpose of the Act has to be adopted. Reliance was placed on the decision in **E.S.I. Corporation v. Bhagatram & Sons** (2002 (2) KLT SN page 81, case No.95) to contend that the word 'power' means mechanical power also. 6. It is not disputed that the establishment running transport, etc. is notified under Section 1(3)(b) of the Act. Therefore, the only question is whether it is exempted under Section 16(1)(a) of the Act. It is clear from the provisions that if the establishment is working without the aid of power and is employing less than 50 persons, then the Act will not apply to such establishment. Herein, importance is to be given to the word 'power'. The same is not defined under the Act. In E.S.I. Corporation's case (2002 (2) 9167/2000 -4- KLT SN 81), the meaning of the word 'power' was examined in connection with Employees State Insurance Act, 1948 and Factories Act, 1948 which are Central Acts. Therein, after examining the question in detail, the Karnataka High Court held that the word 'power' under Section 2(g) may be electrical energy or any other form of energy, which is mechanically transmitted and is not generated by human or animal agency. The findings rendered by a learned Single Judge of the Karnataka High Court is extracted below: “The first respondent admittedly was carrying on the manufacture of sweets with the aid of gas. From the definition of “power” in S.2(g) of the Factories Act, 1948, it is clear that it may be electrical energy or any other form of energy, which is mechanically transmitted and is not generated by human or animal agency. Therefore, from the definition it makes clear, that if the energy is used in the form of heat for the purpose of manufacturing process, it comes within the meaning of “power”. It was common knowledge that for the manufacture of sweets only gas was commonly used and not electricity. “Energy” could be in the form of oil, gas and coal and the burning of these in the turbines generate electricity in power stations. The LPG, which was used for the preparation of sweets, was being transmitted through the tube to the stove that created heat, and hence would come within the meaning of transmitting power, and thereby, attract the provision of S.2(12) of the Employees' State Insurance Act. Therefore, “gas” was also one of the forms of “power” within the meaning of the Act and it need not be in the form of electrical energy. The establishment would, therefore, be liable to pay contribution determined under the Act.” 7. But learned counsel for the petitioner submitted that the said decision concerns the definition of “power” under the Factories Act and the said interpretation cannot be imported here. Reliance was placed on the 9167/2000 -5- decision of the Apex Court in **Lakshmikutty v. Mohandas** (1989 (2) KLT 539). Therefore, the said question has also to be examined. Learned counsel invited my attention to the principle that when the court is asked to interpret the meaning of a word, it can go only be the natural meaning and it is not safe to rely on the definition of the word in a different statute to understand the meaning of the same word in another statute. Herein, we are concerned with the meaning to be given to the word 'power' in the particular section. It cannot be disputed that the Act is a beneficial piece of legislation. The Act is mainly intended to provide provident fund, pension fund, etc. for employees in factories and other establishments. Going by Section 1(3)(b), the Act applies to the various establishments which the Central Government may, by notification in the Official Gazette, specify in this behalf. The Motor Transport establishment is indisputably one notified under Section 1(3)(b) of the Act. But as far as co-operative societies are concerned, Section 16(1)(a) puts certain restrictions in regard to the applicability of the Act. The two conditions to get the benefit of the section are: (a) the establishment should employ less than 50 persons; and (b) working without the aid of power. The word 'power is obviously not restricted to electrical power, otherwise, it would have been specified in the Act itself. Of course, under Section 2(g) of the Factories Act, the word 'power' is given a separate definition and meaning that the same is electrical 9167/2000 -6- energy or any other form of energy, which is mechanically transmitted and is not generated by human or animal agency. It is not therefore safe to rely upon the above meaning here. Since the word 'power' used in Section 16(1) (a) obviously refers to the working of the establishment with its aid, it can be easily said that it is not confined to electrical energy and it will definitely include mechanical power also. The word is clearly used in a wider sense and not in a restricted sense. In Ext.P4, the second respondent has noticed that there are many co-operative societies registered under the Co-operative Societies Act, operating such services which are covered under the provisions of the Act. It is finally concluded in Ext.P4 that being a social security legislation an interpretation promoting the object of the Act should be adopted. 8. In the light of the above, I find that Ext.P4 does not suffer from any infirmity. Hence, the challenge against Ext.P4 which is confirmed by Ext.P5, fails. 9. Learned counsel for the petitioner submitted that presently the cooperative society has run into trouble in running the bus services and huge liability arising under the Act will result in crippling the affairs of the society and it is already experiencing severe financial crisis and therefore it will be unable to pay any amount towards contribution. The remedy of the petitioner in such cases, is only to seek the exemption under the clauses 9167/2000 -7- provided under the Act and the Rules and this judgment will not be a bar in initiating such process by it. Subject to the above observations, the original petition is dismissed. **(T.R. Ramachandran Nair, Judge.)** **kav/** 9167/2000 -8- ## T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. No.9167 of 2000-N - - - - - - - - - - - - - - - - - - - - - - ## JUDGMENT 1[st] April, 2008.