Kalliani vs Kerala Shops and Commercial Establishment Workers Welfare Fund Board

K. Surendra Mohan

This Writ Petition is filed seeking the following reliefs.

Call for the records connecting Exts. P-1 to P-4 and declare that the petitioner''s establishment namely ""New India Talkies, Iritty"" and New

India Paradise DTS Cine House, Iritty"" are not liable to pay contribution under the Kerala Shops and Commercial Establishment Workers Welfare

Fund Act, in view of the coverage under the Employees Provident Funds and Miscellaneous Provisions Act, 1952.

Issue a Writ of Mandamus or any other appropriate Writ, Direction or Order, directing the 1st respondent not to insist the petitioner''s

establishments to remit contribution under the Kerala Shops and Commercial Establishment Workers Welfare Fund Act.

Grant such other reliefs as this Hon''ble Court may deem fit and proper in the circumstances of this case.

According to the petitioner, she had been remitting contributions under the Employees Provident Funds and Miscellaneous Provisions Act, 1952,

(hereinafter referred to as ''the EPF Act'' for short). Since the petitioner''s theatres are covered by the provisions of the EPF Act, it is contended

that the respondents are not entitled to demand any contribution under the Kerala Shops and Commercial Establishment Workers Welfare Fund

Act (hereinafter referred to as ''the Welfare Fund Act'' for short). The learned counsel appearing for the petitioner places reliance on the Division

Bench decision in Hymavathi K.V. Vs. Spl. Dy. Tahsildar and Others, . According to the counsel, a similar question had arisen before the Division

Bench where the establishment of the appellant therein was sought to be covered by the provisions of the Kerala Motor Transport Workers

Welfare Fund Act, 1985. After considering the question, this Court has held that the law passed by the State Legislature applies only to those

establishments not covered by the provisions of the Central Act.

The said decision has considered the issue in paragraph 13 thereof, as follows:-

The learned Single Judge, in our considered view, has proceeded on the wrong assumption that it was never the intention of the State Legislature

by enacting the proviso to S. 4(1) of the Welfare Fund Act, to permit employers and majority of the employees to voluntarily go under the net of

Provident Fund Act and thereby depriving the employees of more beneficial provisions available under the Welfare Fund Act. This, in our view, is

an assumption, and this wrong assumption has led the learned Judge to reject the Writ Petition. It is no doubt true that, there are two legislations,

one framed by the Central Government and the other by the State Government. Both legislations are made with the avowed object of assisting the

employees working in an establishment. If not for the proviso introduced by the State Legislature under the Welfare Fund Act, we think that, the

learned Judge would have been justified in coming to the conclusion, that, both these legislations would operate simultaneously in their respective

areas of operation, since both these provisions are meant for the welfare of the employees working of an establishment working in an

establishment. In our view, even this proposition may be difficult to accept, but we refrain to comment on this and this can be kept as a weapon in

the armory for a better case. However, we hasten to add, that, the conclusion reached by the Learned Judge is contrary to the statutory provisions

and also the observations made by the Division Bench of this Court in Unni Mammu Haji Vs. State of Kerala, where this Court has specifically

observed, that, the Welfare Fund Act passed by the State Legislature applies to such establishments to which Central Act does not apply. In the

present case, as the provisions of the Central Act is made applicable, may be at the instance of the employer and majority of the employees of the

establishment, the employer is exempted from paying contribution under the Motor Transport Workers Welfare Fund Act, 1985.

In view of the above dictum, the petitioner is entitled to succeed. This Writ Petition is accordingly allowed. It is declared that the petitioner''s

establishments namely ""New India Talkies, Iritty"" and ""New India Paradise DTS Cine House, Iritty"" are not liable to pay contribution under the

Kerala Shops and Commercial Establishment Workers Welfare Fund Act in view of the coverage under the Employees Provident Funds and

Miscellaneous Provisions Act, 1932. It therefore follows that it is not open to the 1st respondent to demand that the petitioner should pay the

contribution under the said Act.