UNNI MAMMU HAJI Vs. STATE OF KERALA

JUDGEMENT

(1.) This batch of writ appeals and writ petitions is by the owners of the motor transport undertakings in the State of Kerala. They challenge the validity of S.4 of the Kerala Motor Transport Workers Welfare Fund Act, 1985 (the Act for short) and the scheme issued by the Government under S.3 of the Act. A learned Single Judge of this Court has upheld the validity of S.4 and the scheme as per the common judgment in a batch of writ petitions. The writ appeals are against the judgment of the learned Single Judge reported in 1987 Lab, I.C. 796. The learned Judge has repelled the contention that the relevant provisions of the Act, especially S.4, are violative of Art.14 of the Constitution. The contention that the Act authorises excessive delegation of power to the Government is also negatived. The Act, according to the learned Judge, gets the protection of Art.31C of the Constitution and for that reason is immune from attack as violative of Art.14 and 19 of the Constitution.

(2.) A general conspectus of the Act and the Scheme is given in the judgment under appeal, and it is unnecessary to repeat the same in this judgment. The act replaced Ordinance 38 of 1985 that had come into force on 27-6-1985. The Government had on 11-7-1985 brought into force a scheme under S.3 of the Ordinance for the implementation of its provisions and the said scheme, by virtue of S.26(2) of the Act, is to be deemed to have been issued under the Act. The bill as passed by the Legislative Assembly of the State was reserved for the assent of the President, the President gave his assent on 12-8-1985 and the Act was published in the gazette dated 16-8-1985. The Preamble of the Act shows that it is to provide for the constitution of a fund to promote the welfare of motor transport workers in the State of Kerala. The Act shall be deemed to have come into force on 27th June, 1985 (S.1(3). S.3 of the Act provides for the framing of a scheme and for constitution of a fund in accordance with the Act and the Scheme. The expression "employee" is defined in S.2(d) as a person employed for wages in a motor transport undertaking. "Motor transport undertaking" as per its definition in S.2(h) means a motor transport undertaking engaged in carrying passengers or goods or both by road for hire or reward and includes a private carrier. S.2(e) defines the term "employer" as a person or the authority having ultimate control over the affairs of a motor transport undertaking. S.4 of the Act reads:

(3.) The Payment of Gratuity Act, 1972, by virtue of its provision contained in S.1(3), applies to shops and establishments in which 10 or more persons are employed. Under S.4 of the said Aa gratuity is payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years, on superannuation, retirement or resignation or on his death or disablement due to accident or disease. The first proviso to S.4(1), however, excludes the requirement of continuous service of five years with respect to termination of employment on death or disablement. Gratuity is payable by the employer at the rate of 15 days' wages for every completed year of service based on the rate of wages last drawn by the employee subject to a maximum of fifty thousand rupees . Sub-sec.(6) of S.4 provides for the forfeiture of gratuity to the extent of damage or loss caused to the employer for any act, wilful omission or negligence on the part of the employee and also in cases where the services of the employee had been terminated for riotous or disorderly conduct or any other act of violence on his part. The employee forfeits gratuity also in cases where his services have been terminated for any act constituting an offence involving moral turpitude committed in the course of his employment.