Kerala Construction Workers'' Welfare Fund Board vs Govindan Kutty Kurup and Others

P. Shanmugam, J.—The Constitutional validity of certain provisions of the Kerala Construction Workers'' Welfare Fund Act, 1989 (20 of 1989) (hereinafter 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 filed challenging the provisions of the Act which were directed to be posted along with the Writ Appeals.

The preamble of the Act says that the Act is intended to provide for the constitution of a Fund to grand 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 Section 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 1st January 1990.

The main challenge is to Sections 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 findings 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 u/s 8 of the Act only in respect of works awarded and commenced after 7th August 1990.

(d)Electrical contractors and contractors for doing painting and fabrication works are not liable to pay contributions under the Act.

(e)The findings heiein relate to the ''employers'' as defined in Clause (i) of Section 2(g). I have not dealt with the cases 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.

In so far as the upholding of the validity of Sections 2(g) and 8(2) of the Act and clauses 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 Section 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 u/s 8 of the Act only in respect of works awarded and commenced after 7th August 1990 are concerned, the Board has filed the appeal W.A. No. 399/1994.

We have heard counsel for the Petitioners, the Board and the Government Pleader.

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.

The Supreme Court in Mangalore Ganesh Beedi Works and Others Vs. Union of India (UOI) and Others, 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 tine 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 is regulation of conditions of employment in the beedi and cigar industry that these matters are regulations of conditions of employment in the industry and the industrial relations between the employer and the employee and that entries 22 to 24 in List III are wide enough to cover this piece of labour welfare measure.

The Scheme of the Act under challenge is to promote the welfare of the unorganised construction workers and the fund is intended for the purposes set out u/s 14 viz. for payment of pension to a member who is unable to work due to permanent disablement or who has completed the age of sixty years, payment of gratuity to the members of the fund, payment of immediate assistance to members of the Fund in case of accidents, for giving financial assistance for the funeral expenses of the members and family members, for sanctioning loans and advances to members for construction of houses for their residence, for giving financial assistance for the education of the children of the members, for meeting medical expenses of the members or their dependents, for payment of family pension, for payment of maternity benefits, for payment of financial assistance to members, to meet expenses of the marriage of their children, etc. All these would definitely take in the welfare of labourers including conditions of work, provident fund, employers'' liability, workmen''s compensation, invalidity and old age pension and maternity benefits under Entry 24, List III.

Discrimination and wrong classification.- The contention on behalf of the Petitioners in this regard is that the definition of ''employer'' u/s 2(g) read with Section 8(1) and (2) imposes an obligation on the employer to contribute 1 per cent of the cost of construction work undertaken by him to the fund. The definition of employer would, mean a contractor who has taken construction work for the State or for the Local Authority, etc. and it would exclude the contractors who have registered themselves with the Central Government for doing any construction work for the Central Government. The definition of ''construction work'' has also excluded the construction work undertaken by the Government of India or any of its establishments or institutions. This exclusion of the contractors registered with the Central Government and the construction work undertaken by the Government of India, according to the learned Counsel for the Petitioners is violative of Article 14, discriminatory and illegal. Learned Counsel submits that the classification has no reasonable nexus with the object.

We do not agree with the contentions raised on behalf of the Petitioners in this regard. The construction work undertaken by the Government of India as well as the construction work done on behalf of the State of Kerala formed a distinct class. The learned Single Judge has also found that the contractors who have registered with the State Government are also registered contractors of the Central Government. Therefore, the construction workers working under the contractors would be benefitted irrespective of whether a particular contractor is a registered contractor with the Central Government or not. We fully agree with the findings of the learned Single Judge. That apart we hold that the exclusion is based on a reasonable classification.

Another contention of the learned Counsel for the Petitioners is that the Act has excluded the contractors in so far as they are working for individuals for whom the construction work is done. That is, in case of a builder for whom the construction work is done they become the principal employer and the contractors are not liable. The contention is that the contractors who are doing work for private individuals are excluded while the contractors who are doing the work for the Government are made liable.

The Supreme Court in Budhan Choudhry and Others Vs. The State of Bihar, while discussing the scope and effect of Article 14 of the Constitution, held as follows:

It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from Ors. left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. He classification may be founded on different bases; namely, geographical, or according to objections or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.

In Hindustan Paper Corpn. Ltd. Vs. Government of Kerala and Others, the Supreme Court held that the provision u/s 6 granting exemption in favour of the Government Companies and Co-operative Societies is not unconstitutional.

In Viklad Coal Merchant, Patiala and Others Vs. Union of India (UOI) and Others, the Supreme Court held that the priority allotment to Central or State Government for transport of coal by Railways was held not violative of Article 14 of the Constitution.

In Unni Mammu Haji v. State of Kerala 1989 (1) KLT 729 while upholding the Motor Transport Workers'' Welfare Fund Act, 1985 (Kerala) this Court held that the differential liability of the employers would not be violative of Article 14.

In Prabhakaran Nair and Others Vs. State of Tamil Nadu and Others, the Supreme Court referring to the earlier judgment held as follows:

In a classification for governmental purposes there cannot be An exact exclusion or inclusion of persons and things. It is important to bear in mind the constitution 1 command for a State to afford equal protection of the law sets a goal not attainable by the invention and application of a precise formula. Therefore, a large latitude is allowed to the States for classification upon any reasonable basis.

(Emphasis added)

The Supreme Court also held that the classification depends on the particular State and, appreciation of the need and problem at a particular point of time by that State concerned.

In S. Ganapathraj Surana and Others Vs. State of Tamil Nadu and Others, the Supreme Court held that:

With a view to secure social and economic Justice, the matter has to be examined from the standpoint of the interest of the general public and as has been pointed out by this Court earlier, the standard of reasonableness will vary from age to age and be related to the adjustments necessary to solve the problems which communities face from time to time. The unfortunate plight of that section of the people who, placed socially and economically at a disadvantage, land themselves in debt trap is well known for ages. The State legislatures by enacting the laws under consideration are only fulfilling their obligation by extending social justice to them.

It was further stated that:

The legislature is presumed to be in a position to appreciate the reeds of the people and to judge as to what remedial reforms are called for. It has been held in Pathumma and Others Vs. State of Kerala and Others, that in interpreting the constitutional provisions for judging the impact of an enactment on the fundamental rights of the citizens, the court has to take into account the social setting of the country, the increasing needs of the nation, the burning problems of the day and the complex issues facing the people which the legislature in its wisdom seeks to solve through beneficial legislation; and the judicial approach in this should be dynamic rather than static, pragmatic rather than pedantic and elastic rather than rigid. The temper of the times and the living aspirations and the feelings of the people must be taken into consideration while striking a just balance between the fundamental rights and the larger and broader interests of society.

In the same judgment the Supreme Court held that the cardinal rule of interpretation that words should be read in their ordinary, natural and grammatical meaning is subject to this rider that while construing a constitutional document conferring legislative power the most liberal construction should be put upon the words so that; the same may have effect in their widest amplitude.

In Regional Executive, Kerala Fishermen''s Welfare Fund Board Vs. M/s. Fancy Food and another etc. etc., the Supreme Court held in reference to construing the definitions in a welfare legislation as follows:

The objective of the Act being in furtherance of directive principles of Constitution under Article 39 its provisions have to be construed so as to advance the objective of enactment.

The contention on behalf of the learned Counsel for the Respondents is that the Act is intended to promote the welfare of the construction workers and that it is, in furtherance of the directive principles of the Constitution under Article 39(b), (c) and 43 of the Constitution. By referring to the decisions set out above they contend that the definitions u/s 2(t), (d), (e) and (g) read with Section 8 are not unreasonable and are not discriminatory. The classification of the contractors is reasonable.

In M/s Gasket Radiators Pvt. Ltd. v. E.S.J. Corpn. 1985 S.C. 790 while upholding that there need not be any quid pro quo the Supreme Court held that it was not considered fair that only employers of those regions to which the benefit provisions were extended should alone make contributions and thereby help to set up a corporation. The benefit provisions will sooner or later be extended to all areas.

Similar welfare measures like Toddy Workers, Welfare Fund Act, 1969 and the Kerala Fishermen''s Welfare Fund Act, 1984 have been held not violative of Articles 14 and 19 of the Constitution. In Indian Trawlers Association, Ernakulam and Another Vs. The State of Kerala and Others, his Court held that the Act being a legislation comes under entries 20, 23 and 24 of List III of the VII Schedule of the Constitution and that there is no discrimination involved in the case as the Petitioners have not been taxed in a dual capacity as boat owners or as net owners. The contribution payable is fixed on the basis of the income earned and hence the basis for levy is also reasonable. The contribution under the Act is demanded for the welfare of the fishermen community which includes the Petitioners'' employees as well and the Act being a legislation coming under entries 20, 23 and 24 of List III of the VIII Schedule of the Constitution of India, cannot also be said to be violative of any of the rights under Articles 14 and 19 of the Constitution. The Act was held valid even without the aid of Article 31-C of the Constitution. Similarly the Toddy Workers, Welfare Fund Act, 1969 (Kerala) was upheld by this Court in Chellappan v. Stale of Kerala 1990 (1) KLT 254 following the Supreme Court decision in Gasket Radiators Pvt. Ltd. Vs. Employees'' State Insurance Corpn. and Another,

The learned Government Pleader submitted that the legislature has in its wisdom not extended the Act to the work done by the Central Government or any of its establishments or institutions. The exclusion of the construction work undertaken by the Central Government from the purview of the Act cannot be termed as arbitrary. He also submitted that in any event the workers registered with the contractors who are normally be registered contractors under the Central Government will be given the benefit and the discrimination sought to be made by the Petitioners is only artificial. Similarly the contention that the contractors undertaking work with the private builders are excluded, has no substance. The principal employer viz. the builder is made liable under Sub-clause (ii) of Clause (g) of Section 2. The Act has merely excluded construction work relating to places of public worship and construction of residence by persons for their own residential purposes costing not more than Rupees one lakh besides the construction work undertaken by the Government of India. Therefore, there is a distinct and conscious classification made by the State. We do not find any unreasonableness in the decision of the State. In any event, it is not open to the contractors to contend that for the exclusion of these categories they cannot be made liable. It is to be seen that the construction workers who are the most unorganised workers are without any benefits of any sort all these years. And this being a welfare measure brought by the State, it has to be liberally construed to subserve the common good. It would be in the interests of the contractors themselves such provisions are made. Therefore, we confirm the findings ot the learned Single Judge and hold that the provisions of the Act are not violative of Articles 14 and 19 of the Constitution.

The next main contention is that u/s 8 the employers are liable to contribute 1 per cent of the cost of construction work undertaken by them to the fund. According to the Petitioners, there is no definition of cost of construction work undertaken and that there is no manner of determination or appeal against such determination and therefore, these provisions are arbitrary. They also contend that while fixing the cost of construction the labour element involved in the cost of construction has to be considered. In other words, the submission is that in certain cases of construction the labour element involved in the cost of construction will be be very minimum compared to the total cost of construction. Therefore, it will be unreasonable to demand the amount on the basis of the cost of construction.

We are unable to appreciate this contention. It is true that in the case of certain constructions like excavation work the labour element will be more and in the case of erection of certain buildings there may be variations in the cost of labour. But the cost of construction as understood in the common parlance would have to be taken into account. As a matter of fact, there are other enactments like Building Tax Act, Municipalities Act, Income Tax Act and Wealth Tax Act where cost of construction is estimated and decided for the purpose of valuation and taxation. Therefore, it would not be difficult to determine the cost of construction. And wherever the construction work is involved as defined u/s 2(c) the liability for contribution to the fund would arise to an employer. The hardship that is visualised by the Petitioners is imaginery and does not stand for scrutiny by this Court.

In Unni Mammu Haji v. State of Kerala 1989 (I) KLT 729 this Court while dealing with the Motor Transport Workers'' Welfare Fund Act, 1985 held that the difference in the liability would not be a ground for violating Article 14. Similarly in some construction work the labour element will be more and in some Ors. it will be less. This will not invalidate the determination of cost of construction.

In P.P. Enterprises and Others Vs. Union of India (UOI) and Others, the Supreme Court held that in some given cases there may be some hardship but it cannot be said on that account that the impugned order is violative of Article 14 of the Constitution.

In Sunder v. State of Kerala 1975 KLT 867 (F.B.) this Court held that individual cases of hardship cannot be taken note of in considering whether the Act has violated Article 19.

In State of Maharashtra and Another Vs. Basantibai Mohanlal Khetan and Others, the Supreme Court held that the problems presenting difficulty of valuation will have to be faced. These are easily surmountable problems of valuation in relation to individual lands and do not reflect on the constitutionality of the impugned provisions. The concerned authorities entrusted with the function of making evaluation will doubtless resolve such problems as are likely to arise appropriately in accordance with law.

In Manchegowda and Others Vs. State of Karnataka and Others, the Supreme Court in reference to the contention that an Act should be held to be unjust and unreasonable since no provision has been made for any appeal against the order of the authority concerned, held that lack of provision for an appeal in an enactment of a welfare legislation may not make the Act unreasonable and would not affect the constitutional validity of the Act.

In State of Mysore v. M.L. Nagade and Gadag AIR 1983 S.C. 762 the Supreme Court held that even though there is no provision for notice before assessment the revenue authorities have ordinarily to hear the person affected by the order levying the assessment. But on this count the demand cannot be struck down. The Supreme Court stated that it cannot be said that the rule would be bad as it does not in here the principles of natural justice.

In T.M.H. Factoryy Madurai v. Regnl. P.F. Commr., Madras 1990 Lab. I.C. 2030 a Division Bench of the Madras High Court held that the mere absence of a provision for an appear or revision does not invalidate Section 7A of the Employees Provident Fund Act and that section is not ultra vires of the Constitution.

Section 36 of the Act enables the Government to remove the difficulties in giving effect to the provisions of this Act. The Act has been in force from 1st January 1990 and no such difficulty had been experienced in fixing the liability. In any event an appeal provision is provided under Sub-clause (5) of Section 4 in reference to registration of construction workers. The Kerala Construction Workers'' Welfare Fund Board which administers the welfare fund deals with the matters in relation to the contribution as well as the purposes for which the fund may be expended.

Yet Anr. contention raised on behalf of the Petitioners is that the Act came into force on 7th August 1990 and retrospective effect was given from 1st January 1990. The scheme was framed on 25th June 1990. But however, it was given effect from 1st January 1990. It is not authorised and hence it is illegal. Section 15 of the Act enables the Government by notification to add, amend or vary the scheme either prospectively or retrospectively. Section 9 also imposes a levy with effect on and from the commencement of this Act. As per Section 3 the Government is authorised to issue notification in the gazette framing a scheme. The Government has brought the scheme into existence by framing it on 7th August 1990 retrospectively from 1st January 1990 which is authorised by Section 15 of the Act. Similarly Section 37 enables the Government by notification in the official gazette to make rules either prospectively or retrospectively for the purpose of carrying into effect the provisions of the Act. Therefore, there is no substance in the contention that the scheme cannot be given effect retrospectively from 1st January 1990.

In Kerala Varna v. State of Kerala 1967 KLT 502 this Court upheld the notification by the Government under Rule 14 with retrospective effect holding that the power of the Government to issue the notification is in the nature of conditional legistation as understood in constitutional law. What the Government has done by the notification is to apply rules 15 to 17 to the service in question also. Conditional legislation does not involve delegation of legislative power and therefore no question of delegated legislation being given retrospective operation arises in this case. It follows that the Government had power to give retrospective operation to the notification.

The Supreme Court in the decision cited above viz. Gasket Radiators Pvt. Ltd. Vs. Employees'' State Insurance Corpn. and Another, held that the legislature evolves a scheme of socio-economic welfare, makes elaborate provisions in respect of which and leaves it to the Government concerned to decide when, how and in what manner the scheme should be introduced. In the light of the provisions and the decisions cited above under the Act, the Government is authorised to issue notification giving effect to the scheme retrospectively. The finding of the learned Judge in this regard is not correct.

Another contention made on behalf of the Petitioners is that no fund had been validly constituted u/s 3 of the Act. According to Section 3, the Government may, by notification frame a scheme to be called the Kerala Construction Workers'' Welfare Fund Scheme for the establishment of a fund under the Act for the welfare of the construction workers and there shall be established as soon as may be after the framing of the scheme, a fund in accordance with the provisions of the Act. The submission is that it is for the Government to issue a notification framing the scheme and it is also for the Government to establish the fund. In this case what has happened is that the fund has been constituted by a resolution of the Board. Therefore, there was no valid constitution of the fund u/s 3(1). We are unable to agree with the contentions made on behalf of the Petitioners in this regard. Section 16 contemplates the constitution of the Board. The Board will be in charge of the administration of the fund and will supervise or carry out the activities financed from the fund. Clause (6) of Section 16 says that the board shall administer the fund in the manner specified in the scheme. Clause (2) of Section 3 says that the fund shall vest in, and be administered by the Board. The Fund is defined under Clause 2(j) of the Scheme, 1990. According to the said definition, ''Fund'' means the Kerala Construction Workers Welfare Fund established u/s 3 of the Act and the scheme. Section 3 does not say that the fund should be created by the Government so that it could later be administered by the Board. Section 3 only says that there shall be established as soon as may be after the framing of the scheme, a fund in accordance with the provisions of the Act and the scheme. Accordingly the Board has constituted a fund and are administering the fund. There is no illegality or impropriety in the constitution of the fund.

The learned Single Judge has declared Section 9 of the Act as unconstitutional and void, mainly on two grounds viz. that there was no quid pro quo for the levy of fees and that it would amount to unreasonable restriction under Article 19(1)(g) of the Constitution. It is to be noted that the Act is a welfare legislation and is intended to implement the social security measures contemplated under the directive principles of State policy. We have already seen that the benefits given to the employees are also indirectly benefiting the employers also. It is a common knowledge that a healthy and a satisfied employee is an asset to the employer and ultimately to the common good of the nation. Therefore, the; question of quid pro quo would not arise in the case of levy of fees on the contractors. The fees levied are ultimately credited to the fund. The contribution is also requested from the workers as well as from the employers and the fee from the contractors.

The Supreme Court in M/s Gasket Radiators Pvt. Lid. AIR 1985 S.C. 7 referred to earlier held that even if the charge is to be construed as a fee, it is justifiable on that basis too. It is not disputed and indeed it is not capable of any controversy that services and benefits are indeed meant to be and are bound to be conferred on the employees and through them on the employer, in due course, when the scheme becomes fully operative in all areas. Merely because the benefits to be received are postponed, it cannot be said that there is no quid pro quo. It is true that ordinarily a return in present is generally present when fee is levied, but simultaneity or contemporaneity of payment and benefit is not the most vital or crucial test to determine whether a levy is a fee or not. In fact, it may often happen that the rendering of a service or the conferment of a benefit may only follow after the consolidation of a fund from the fee levied. The question of how soon a return may be expected or ought to be given must necessarily depend on the nature of the services required to be performed and benefits required to be conferred.

As held by the Supreme Court in Regional Executive, Kerala Fishermen''s Welfare Fund Board Vs. M/s. Fancy Food and another etc. etc., and S. Ganapathraj Surana and Others Vs. State of Tamil Nadu and Others, referred earlier, liberal construction should be put upon the words so that the same may have effect in their widest amplitude and provision must be construed to achieve the object of the Act. Therefore, the finding of the learned Judge that Section 9 is unconstitutional is not correct. Section 9 is valid and enforceable.

In W.A. No. 399/1994 the Board has challenged the judgment in O.P. No. 1261/91, etc., wherein the learned Judge allowed the O.Ps. holding that the Petitioners therein viz. electrical, painting and fabrication contractors are not liable to pay contribution. The said finding was rendered on the basis of the submission made by the learned Advocate General that such electrical contractors are not undertaking any construction work as defined in the Act and therefore, they are not liable to make contributions. Recording the same the learned Judge excluded those categories. Construction workers have been defined u/s 2(d) of the Act. It says that construction worker means any person who is employed for wages to do any work in connection with a construction work and who gets his wages directly or indirectly from an employer or from a contractor* and includes a person engaged in any work connected with the supply of materials for construction works and a worker specified in any categories in Schedule I. The explanation to the said clause says that if any doubt arises as to whether a person is or is not a construction worker the question will have to be referred to the Chief Executive Officer or an officer authorised by the Government in this behalf. Schedule I to the Act enumerates the categories of workers. If carpenters, fitters, blacksmiths, mosaic workers and other workers listed as construction workers are one by one excluded on the ground that they are not construction workers, ultimately it would be defeating the very object and purpose of the Act. The definition of construction worker is an inclusive definition. It includes a person engaged in any work connected with the supply of materials for construction works. It is impossible to imagine that an electrician, a painter and a fabricator would not come under construction work. A construction work as defined under the Act would not be possible and a building cannot be constructed completely without workers like painters, fabricators and electricians.

The Supreme Court in Sanjeev Coke Mfg. Co. v. M/s Bharat Coking Coal Ltd. AIR 1983 S.C. 2 held that:

We are not really to concern ourselves with the hollowness or the Self-condemnatory nature of the statements made in the affidavits filed by the Respondents to justify and sustain the legislation. The deponents of the affidavits filed into Court may speak for the parties on whose behalf they swear to the statements. They do not speak for the Parliament. No one may speak for the Parliament and Parliament is never before the Court. After Parliament has said what it intends to say, only the Court may say what the Parliament meant to say, None else. Once a statute leaves Parliament House, the Court''s is the only authentic voice which may echo (interpret) the Parliament. This the Court will do with reference to the language of the statute and other permissible aids. The executive Government may place before the Court their understanding of what Parliament has said or intended to say or what they think was Parliament''s object and all the facts and circumstances which in their view led to the legislation. When they do so, they do not speak for Parliament. No Act of Parliament may be struck down because of the understanding or misunderstanding of Parliamentary intention by the executive Government or because their (the Government''s) spokesman do not bring out relevant circumstances but indulge in empty and self- defeating affidavits. They do not and they cannot bind Parliament. Validity of legislation is not to be judged merely by affidavits filed on behalf of the State, but by all the relevant circumstances which the Court may ultimately find and more especially by what may be gathered from what the legislature has itself said. We have mentioned the facts as found by us and we do not think that there has been any infringement of the right guaranteed by Article 14.

According to us, the above statement of law squarely applies to the facts of the case. It is for this Court to interpret with reference to the language of the statute what the legislature has intened to sayi, after taking note of the facts and circumstances. We are very clear in our mind that construction workers would definitely include painters, fabricators and all Ors. included in the schedule and other workers as defined u/s 2(d) of the Act. Therefore, the finding of the learned Judge in this regard has to be set aside and the appeal filed by the Board viz. W.A. No. 399/1994 has to be allowed.

The appeal filed by the Board even though was in reference to only one O.P., the judgment being a common judgment, the finding rendered by us will be a judgment in rem and will cover the question of validity of the Act.

The Govt. Pleader has placed before us that he has got instruction to say that he is supporting the case of the Board in all respects.

The contention of the Petitioners in some other O.Ps. that they do not have any relationship with the construction workers and they are engaging the work through sub contractors and therefore they are not liable, cannot be accepted. The principal employer as well as the contractor who is an employer within the definition of Section 2(g)(i) and (ii) would be liable under the Act for the contribution. Simply because the work is undertaken through sub-contractors the liability cannot be removed.

Yet Anr. contention is that the definition of contractor has excluded a Corporation or a contractor registered outside the State of Kerala Section 2(e) defines contractor as including a person who is a registered contractor as well as a person carrying out construction work for consideration for a Government Company, for any Board, Corporation or Society owned or controlled by the Government of Kerala. Therefore, any contractor who is working for or on behalf of a Government Company, Corporation, Society or Board will be a contractor within the meaning of Section 2(e).

In O.P. Nos. 16087/1993 and 4032/1994 the contention is that they are only transporting goods and therefore their workers would not be construction workers. Section 2(d) includes a person engaged in any work connected with the supply of materials for construction work. Therefore, even transport workers for supply of consrtuction materials would be covered by the Act.

One of the Petitioners contended that the workers of the Petitioner-company are already covered by their own scheme. Section 4 of the Act provides for regisration of a construction worker who is not a member of any other Welfare Fund Scheme. The question whether the workers of a particular company or a particular person will be covered by this scheme or not is a matter to be looked into by the Board. In such cases the individuals are at liberty to move the Welfare Fund Board to decide about their liability under Clause (5) of Section 4.

In O.P. No. 820/1995 the contention raised is that the Petitioner-society is manufacturing electricity supply concrete poles. According to the Petitioner, they will not come under the definition ''construction work'' and the manufacture of poles cannot be termed as construction work. We are unable to agree with this contention. Any construction work will include construction of compound walls, well and the like, breaking of rocks, etc., and the construction workers will include the workers under the Schedule I viz. workers engaged in laying iron rods for concreting. In this case the manufacturing of concrete poles is by laying iron rods and therefore, they are construction workers and are liable to pay contribution under the Act.

O.P. No. 770/1993: In this petition the challenge is against Section 2(g)(ii) which is as follows:

Employer means,- in any other case, the person for whom the Construction work is done.

The learned Single Judge while dealing with the batch of cases held that he was not dealing with the cases which are covered by Section 2(g)(ii). The challenge before us is that the builder, who has employed contractors for whom construction work is done, says that there was no employer-employee relationship and he has done the work through the contractors and therefore, he cannot be held liable. The Act has made a distinction in reference to the registered contractors who have undertaken construction work for the State or for the local body. Therefore, in the case of an individual builder the person for whom construction work is done is the employer. He being the principal employer, he will be liable for the contribution. There is no substance in that contention that he has no direct relationship with the workers. He being the beneficiary of the workers, he is liable for the contribution. There is no substance in that contention that he has no direct relationship with the workers. He being the beneficiary of the workers, he is liable for the contribution.

The counsel for the Petitioners streneouslv pleaded that the Act and the Scheme have been ill-drafted and made in a hasty manner and require a thorough change. In support of this submission reference was made to the observation of the learned Judge that there are some grey areas in working of the Act which require elucidation. We do not agree with the contention. It is true that there is no machinery under the Act for the determination of disputed questions of fact like the construction work, cost of construction etc. No procedure is made for the assessment, notice or enquiiy on this matter. As we have held that this by itself cannot be a sufficient ground for invaliding other provisions. It is argued on behalf of the Board and by the learned Govt. Pleader that individual cases and hardship will be looked into by the Board. At the same time it is for the Government to frame relevant provisions for the smooth implementation of the Act in the light of their experience since 1990.

Another contention raised by one of the counsel is that the cost of his construction is less than Rupees One lakh and therefore, he cannot be made liable. This is a matter to be decided by the Board if the said question is raised by the Petitioner before the Board. Therefore, in this case we direct the Welfare Board to issue notice and hold an enquiry as to the claim of the Petitioner of his liability in the light of the findings rendered by us above.

For all these reasons we hold that Section 2(c), (d), (e), (g), (i) and (g)(ii) and Section 8 are valid and we confirm the findings of the learned Single Judge. We allow the appeal of the Board and hold Section 9 of the Act as valid.

We also set aside the findings of the learned Single Judge in reference to electrical, painting and fabrication contractors.

W.A. 399 of 1994 filed by the Board stands allowed and all other Writ Appeals and Original Petitions stand dismissed. No costs.