Kurian Joseph, J.
1. An accident to a workman not only upsets the victim and his family but affects the employer as well. If the victim is a headload worker, who is the affected employer and how to meet the liability of compensation are the issues arising for consideration in these cases.
2. The validity of paragraph 29 A of the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme 1983 providing for Accident Relief Fund for headload workers is under challenge in these writ petitions. The said paragraph was introduced by way of an amendment to the Scheme with effect from November 2002. The impugned paragraph reads as follows:-
29A. Accident Relief Fund.--
(1) Apart from the welfare levy as a contribution payable to the general welf are fund under paragraph 29 every employer who employs or engages a headload worker in or for an establishment shall pay a contribution at the rate of 2% of the wages actually payable to the headload workers on completion of work for a day as additional welfare levy towards the accident relief fund to be maintained and administered by the Board. The particulars thereof shall be furnished in 'Form B' or in such other manner as may be specified by the Board from time to time.
(2) Every employer who fails to pay additional welfare levy on the due dates as provided in such paragraph (1) shall be liable to pay a penalty at the rate of 1.5% of the amount due from him per month till it is actually paid to the Committee.
(3) The additional welfare levy amount received by the Committee shall be transferred and credited to the Accident Relief Fund to be maintained by the Board, at the end of each month in the manner specified by the Board,
(4) Failure to make contribution in time to the Accident Relief Fund shall render the employer concerned liable to pay the compensation under the Workmen's Compensation Act, 1923 (Central Act 8 of 1923) by himself as usual and the Board or Committee shall not in any way be liable or accountable to pay compensation in such cases.
(5) The accumulation of the fund may be expended for all or any of the following purposes:-
(a) Formeeting the liabilities arising out of the claims under the Workmen's Compensation Act, 1923 (Central Act 8 of 1923) in respect of headload workers registered with the Committee as per provisions of this Scheme on the basis of the orders of the appropriate authorities under that Act including those settled otherwise under intimation to and in consultation with the proper authority in the proper manner.
(b) For meeting the legal and incidental charges incurred by the Board or Committees for defending orconducting cases underthe Workmen's Compensation Act, 1923 or such other purposes as may be specified by the Board from time to time.
(6) The Board shall be competent to revise the rate of additional welfare levy payable after considering its financial obligations and other relevant matters, once in every three years with the concurrence of the Government.
(7) Every employer who has to get the loading or unloading work carried out for their trade or business in or for an establishment shall be bound to engage or employ the headload workers registered under the Rules or this Scheme as the case may be and shall pay the additional welfare levy or penal contribution wherever necessary to the accident relief fund in respect of the headload workers registered as per this Scheme in the manner specified by the Board.
(8) Thedetails of the accidents thatoccurto headload worker registered under the Scheme in or for an establishment or the place where the loading and unloading work is being carried out shall be reported by that employer in writing immediately to the Committee concerned in the manner specified by the Board and shall also render such further details or records as may be called upon without delay.
3. The main contention of Sri.U.K. Ramakrishnan and Sri Jaju Babu learned Counsel appearing for the petitioners is that the additional welfare levy by the Board is impermissible. Such matters do not fail within the duties and functions of the Board. It has no nexus to the object of the Act. Under the Scheme of the Act it is for the Committee constituted under Section 18 of the Act to take care of the matter. Such Committee is the employer of the headload worker and the liability is of that employer. There is also a contention that it is only the Committee which is competent to collect any levy. Still further it is contended that being a welfare measure it is for the Committee to provide for the compensation in the event of any expenditure and the Board which is not the employer has no jurisdiction to deal with such matters. Learned Government Pleader Smt. Rajasree and the learned Standing Counsel Sri.Sathish Kumar contend that the amendment is within the scheme of the Act and introduced only to safeguard the interests of the employers as well, in the unlikely event of any accident.
4. To appreciate the rival contentions, it is necessary to refer to the object of the Act and the Schemes and also the power of different bodies under the Act. The Kerala Headload Workers Act is intended 'to regulate the employment of headload workers in the State of Kerala and to make provision for their welfare, for the settlement of disputes in respect of their employment or non-employment and for matters connected therewith'. The Board constituted under Section 14 and the Committees constituted under Section 18 in respect of specified areas are the two bodies through which the provisions of the Act are implemented. Both bodies are bodies corporate with specified names and having perpetual succession and common seal with power to acquire, hold and dispose of property. Section 14(8) provides that 'the Board shall exercise such powers and perform such functions and shall follow such procedure as may be specified in the scheme or in the rules made under this Act.' The Committee constituted under Section 18 is mainly to look after the welfare of the headload workers in the specified area. Sub-section (8) of Section 18 deals with the functions of the Committee. Under Section 18(8)(g) it is the function of the Committee 'to realise and credit into the fund such contributions or welfare levy or any other amount due from an employer or headload worker as may be specified in the Scheme'. As far as the Board is concerned it is provided under Section 14(8) that 'the Board shall exercise such powers and perform such functions and shall follow such procedure as may be specified in the scheme or in the rules made under this Act'.
5. The Headload Workers Rules 1981 are issued under Section 43 of the Act. Rule 13 provides for the powers and functions of the Board. Rule 13(1) reads as follows:-
13(1). Powers and functions of the Board.--
(1) In addition to and without derogation of the powers conferred on the Board under the Act, Rules and the Scheme, the Board shall have the following powers and shall be responsible for-
(a) dealing with all matters connected with the administration of the fund as specified in the Scheme or Schemes.
(b) laying down general policies regarding welfare of the headload workers.
(c) the submission of annual budget of the Board to Government for approval.
(d) the submission of annual report to Government on the working of the Schemes;
(e) the annual audit of accounts of the fund in accordance with Government instructions:
(f) the collection of contribution from the Headload Workers and local committees and remittance thereof to the respective funds including such other charges under the Scheme or Schemes:
(g) the proper maintenance of account and speedy settlement of claims.
(h) the sanction of advances and timely recovery of the advances.
The Board is also entrusted with the power to supervise and co-ordinate all activities of the Committees. Under Rule 17 the Headload Workers General Fund is created and the same is administered by the Board. The administrative expenses are met out of the said fund.
6. Section 13 provides for the Schemes. Section 13(1) reads as follows:-
13(1). The Government may by notification in the Gazette, make one or more scheme or schemes for any employment or group of employments in one or more area or areas specified in the notification, and by similar notification add to amend or vary any such scheme or substitute another scheme for any such scheme:Provided that no such notification shall come into force unless a draft therefore is published in the Gazette and unless it is finalised after considering objections and suggestions received within one month of the publication of such draft in the Gazette.
The Scheme is to provide for, among other things, the welfare of headload workers and also the health and safety measures of the headload workers. Section 13(2)(c) reads as follows:-
For the constitution of any fund or funds including provident fund for the benefit of headload workers, the vesting of such funds, the payment of contributions to be made to such funds and all matters relating thereto:
7. The Kerala Headload Workers (Regulation of Employment and Welfare Scheme, 1983 is issued under Section 13 of the Act. Under paragraph 5 of the Scheme:
The Board shall be responsible for the general welfare of the headload workers, and for the said purpose, may incur expenditure on:
(a) housing for headload workers:
(b) education of children of headload workers: and
(c) such other items of welfare as may be formulated by the Board and approved by the Government.
8. Under paragraph 25 it is provided that 'it shall be the obligation of the Committee to provide all the benefits to registered headload workers arising out of statutory enactments'. Under paragraph 26 'the Committee may, taking into consideration the finances of the Committee and other relevant matters, decide on extension of non-statutory benefits to the registered headload workmen in that area, subject to the condition that all such decisions shall have the concurrence of the Board and the Government.' Under paragraph 29 'the Committee shall collect a levy, for the administration of the Scheme and the matters related thereto, from the employers and the headload workers respectively at the rate of 25% and 10% of the wages actually payable by the employer to the registered headload worker'. Under paragraph 30 'the Committee may revise the quantum of levy every year taking into consideration its finances, its obligations and other relevant matters and such decision shall have the concurrence of the Board and the Government'. Paragraphs 31 and 32 are also relevant which read as follows:-
31. Each Committee constituted under Section 18 of the Act shall arrange to contribute every month to the Headload Workers Welfare Fund a sum calculated at Rs. 1 per worker per month in respect of all registered workers on its rolls. In addition each Committee shall pay to the Board 2% of the total wages paid by them during the fi nancial year. Payment to the Board in this regard shall be made before 30th of June every year in respect of annual payment and before 15 th of every succeeding month in the case of monthly payment.
32. The Committee shall keep individual accounts in respect of each worker and credit into his account a sum equivalent to 10% of his total wages at the close of each financial year for payment towards his terminal benefit on retirement, superannuation, death, disability etc.
Under Section 24 of the Act the provisions of the Workmen's Compensation Act, 1923 and the Rules made thereunder applies mutatis mutandis to the headload workers and they are deemed to be workmen within the meaning of the said Act.
9. It is the contention of the learned Counsel for the petitioners that the obligation to meet the benefits arising out of statutory enactments being that of the Committee, constitution of the Accident Relief Fund by the Board and the administration thereof is without jurisdiction. It is also contended that the welfare measures are to be taken care of by the Committee and not by the Board.
10. Inviting reference to two decisions of this Court -- Headload Workers Welfare Board v. Moidutty 2000 (3) KLT 523 and E. Section I. Corporation v. Babu Rao : (2004)ILLJ679Ker , it is contended that the employer of the headload workers is the Committee in the respective area and the liability to pay compensation under the Workmen's Compensation Act is that of the Committee. Both the decisions were dealing with the question as to who is the employer under the provisions of the Workmen's Compensation Act, as far as the headload worker is concerned and in unmistakable terms it has been held that it is the Committee. The point additionally considered in Babu Rao's case is that when the headload workers are engaged in an establishment by a Committee, the owner of the establishment in the capacity of employer has no liability to make any contribution to the ESI Corporation. It was also held that the welfare measures contemplated as per the claim are far superior to the welfare measures under the ESI Act. The former decision in Moidutty 's case was rendered prior to the introduction of paragraph 29A, before the constitution of the Accident Relief Fund.
11. To some extent true, there is an overlapping of the functions of the Board as well as the Committee. But the fact remains that the Board and the Committee stand for the welfare of the headload workers. The only slender distinction is that the Board is concerned with the general welfare of the headload workers, while the Committee takes care of the welfare of the headload workers in the concerned area. The accident Relief Fund is a measure of welfare to the headload worker. In a way it is a great relief to the owner employer. Paragraph 29A(4) clearly provides that in case there is failure to make contribution in time to the Accident Relief Fund, the de facto employer shall be liable to pay compensation under the Workmen's Compensation Act in the event of any such liability. The grievance of the petitioners is that they are already making sufficient contribution to the Committee and it is the liability of the Committee to provide for the benefits of the registered headload workers arising out of the statutory enactments. In case the contribution already made by the employers and the headload workers are insufficient paragraph 30 provides for the revision of the quantum of levy. As already stated above, be it the Board or the.Committee they stand for the welfare of the headload worker. Once a special fund as Accident Relief Fund is constituted, the Committee is relieved of its obligation under the provisions of the Workmen's Compensation Act. The obligation of the Committee under paragraph 32 of the Scheme is to provide for the benefits on retirement, death, disability etc. other than the compensation under the Workmen's Compensation Act. Of course nothing stands in the way of the Committee providing for any benefit in addition to the compensation paid by the Board. A reading of paragraph 29A would show that the Accident Relief Fund is intended only to meet the liability under the Workmen's Compensation Act and also the expenses connected therewith. The apprehension of the petitioners is that an additional fund is created by the Board only to siphon off the benefits to the headload workers which would have been otherwise given by the Committee. I am afraid the contention cannot be appreciated. In case the Committee is not in a position to meet its obligation at the current rate of levy, it is entitled to revise the rate. At the same time it has also to be noted that the Accident Relief Fund, in the scheme of the Act and they Scheme cannot be utilized for a purpose other than the purposes related to the accident relief including the expenses for conduct of cases before the Workmen's Compensation Commissioner. Sub paragraph 5 of paragraph 29A makes it clear that the fund is to be utilised only for meeting the liability of the claims including those settled under the Workmen's Compensation Act, 1923. The expression appearing at paragraph 29A(5)(b) - 'other purposes as may be specified by the Board from time to time' has to be given a contextual interpretation and has to be understood only as a purpose related to the accident relief to the registered headload worker, on the principle of ejusdem generis. In other words, the Accident Relief Fund shall not be utilised for any purpose other than accident relief to the registered headload worker, and matters related to the accident relief.
12. It may not also be out of context to refer to the explanatory note appended to the Government order introducing the amendment. It reads as follows:-
Explanatory Note.
(This does not form part of the notification, but is intended to indicate its general purport.)
The Government have decided to amend certain provisions of the Kerala Headload Workers (Regulation of Employment and Welfare) Scheme, 1983 and issued a draft notification for that purpose vide notification No. 30614H399LBR. dated 12th December,2000 in the Kerala Gazette Extraordinary dated 6th January, 2001. Having received no objection or suggestion whatever within one months tirneafter the sai notifications. Government now propose to issue necessary final notification.
Fairly being well aware of the risk otherwise involved, none of the de facto employers have objected to the constitution of the Fund. In terms of the objects of the Act and the powers and functions of the Board as appearing under the Act, Rules and the Scheme, Constitution and the administration of such a fund by the Board is only within the scheme of the Act Rules and the Scheme. There is no duplication. There is no lack of jurisdiction. It is only a general welfare measure which the Government is competent to provide for under Section 13 of the Scheme. The Committees are constituted for each area; whereas the Board is for the whole State. Being a matter of general welfare and in order to have uniform principles, Government thought in its wisdom to entrust the matter with the Board. The Board by virtue of its powers and functions under Section 14 read with Rule 13 and paragraph 5 of the Scheme is liable to be entrusted with the levy and administration of the Accident Relief Fund as introduced by paragraph 29A of the Scheme.
Thus there is no merit in the Writ Petitions and they are accordingly dismissed subject to the observations and clarifications regarding the administration of the Accident Relief Fund and the respective duties of the Committees and the Board.