Judgment:
C.N. Ramachandran Nair, J.
1. The petitioners who are ice plant owners are questioning the constitutional validity of Section 4(5B) of the Keraia Fishermen's Welfare Fund Act 1985, hereinafter called 'the Act' which requires owners of ice plants supplying ice mainly for processing of fish to remit contribution to the Kerala Fishermen's Welfare Fund, at such rates as could be fixed by the Government from time to time on the recommendation of the Welfare Fund Board. The rate of contribution is prescribed by the Government vide G.O.(P) NO. 20/99/F&PD; dated 2-7-1999.
2. I heard counsel appearing for petitioners counsel appearing for KeralaFishermen's Welfare Fund Board, and the Government Pleader.
3. The provision of the Statute under Challenge ie. Section 4(5B) is extracted herein-below for easy reference:
4(5B). The owners offish markets or lessees or licensees of any person claiming, any right or interest, through such owners or the owners of the ice plants supplying ice, mainly for the processing offish and the vehicles engages, mainly for the transportation of fish, shall contribute to the fund, every year, at such rate, as may be fixed by the Government, from time to time, on the recommendation of the Board.
4. Petitioners are not employing any fishermen in the ice plants. In the counter affidavit filed by the Board it is stated that some of the fishermen do some work at the time of purchase of ice from the ice factories. Counsel for petitioners submitted that breaking of ice for transport is done by the purchaser and their workmen on their own interest and has nothing to do with the manufacture and sale of ice. So much so, the petitioners are not employing any fishermen as workers, is their case. Counsel for petitioners relied on the decision of the Supreme Court in Kolulhara Exports Ltd. v. State of Kerala 2002 (1) KLT 658 (SC) and submitted that the decision was rendered in the context of challenge against similar provisions of the same statute by MarineExporters, which squarely applied to the facts of the present case also. The Supreme Court in para 18 of the said judgment held as follows:.But in our view, the State cannot in an Act under Entry 23 of List III, place the burden of an impost by way of contribution for giving effect to the Act and the Scheme made there under for the social security and social welfare of a section of society upon a person who is not a member of such section of society nor an employer of a person who is a member of such section of society. The burden of the impost may be placed only when there exists the relationship of employer and employee between the contributor and the beneficiary of the provisions of the Act and the Scheme made there under.
From the above, it is clear that a law made under Entry 23 of List HI of the 7th Schedule to the Constitution can provide for payment of contribution only by beneficiaries of the Fund or by those employing the beneficiaries. The specific case of the petitioners is that they have nothing to do with fish workers, and petitioners are only engaged in manufacture and sale of ice with their workers. According to counsel for petitioners, even though ice sold by the petitioners is mainly consumed by fish industry, petitioners are not employing any fishermen, and are in any way connected with the fishermen.
5. Even though counsel for Welfare Fund Board submitted that the contributiondemanded under the notification is small, the highest demand being Rs. 800/- per annum,and that the ice sold by ice factories is mainly used for preservation of fish. 1 do notthink there is any scope for considering any of the contentions as this issue is virtuallycovered by the decision of the Supreme Court referred above.
6. Since petitioners are not engaging fishermen as their employees, Section 4(5B) ofthe Kerala Fishermen's Welfare Fund Act, providing for collection of contributionfrom the ice plant owners is unconstitutional by virtue of the decision of the SupremeCourt referred above. In the circumstances, Section 4(5B) of the Act, so far as its applicationagainst ice plant owners is concerned, is declared unconstitutional and beyond thepowers of the State Legislature. Consequently, the demands raised against thepetitioners' are quashed. Writ Petitions are allowed as above. No costs.