C.N. Ramachandran Nair, J.
These connected appeals are filed by the registered owners cum permit holders of auto rickshaws given on hire to operate the same on daily rental basis. The appellants' case is that they are giving on hire their auto rickshaws to auto drivers with licence and badge for operation of the vehicle at the discretion of the drivers on payment of daily rent of a fixed sum. Since different drivers take on hire the same auto rickshaw, such drivers are not employees of the auto owner and therefore, the registered owner is not liable to register the hirers as motor workers or remit contribution payable under the Kerala Auto Rickshaw Workers' Welfare Fund Scheme 1991 (hereinafter referred to as the 'Scheme') or under the Kerala Motor Transport Workers' Welfare Fund Act 1985 (hereinafter referred to as "the Act") is the specific case put forward by the appellants. No assessment or demand for welfare fund is made against the appellants either under the provisions of the Act or under the Scheme. However, their grievance is that in order to remit the Motor Vehicle Tax under the Kerala Motor Vehicle Taxation Act, the taxation officer demands receipt of payment of Motor Workers Welfare Fund up to the previous month for acceptance of tax which is a requirement of Section 4(7) r/w Section 4(8) of the Kerala Motor Vehicles Taxation Act. When confronted with the situation of inability to remit the tax without payment of welfare fund to operate the auto rickshaws, the appellants approached this Court challenging the requirements of Sections 4 (7) and 4 (8) of the Taxation Act and also for a declaration that the provisions of the Welfare Fund Act and Scheme for payment of contribution towards workers welfare fund do not apply to them. The learned Single Judge clearly upheld the appellants claim that they are registered owners of auto rickshaws with permits giving on hire the auto rickshaws to auto rickshaw drivers, who cannot be treated as appellants' employees. However, the learned Single Judge did not direct acceptance of tax without payment of Workers Welfare Fund. Consequently, the grievance continues for the appellants and therefore they have filed these writ appeals. We have heard Advocate Sri. Sudheesh R. appearing for the appellants, Government Pleader for the State and Sri. P. Ramakrishnan, standing counsel appearing for the Motor Workers Welfare Fund Board.
2. The counsel for the appellants contended that by being owners and permit holders of auto rickshaws kept for letting on hire, they don't become "employer" within the definition of Section 2(e) of the Act r/w Clause 2(p) of the Scheme. Clause 2(p) of the Scheme adopts the definition of "employer" contained in Section 2(e) of the Act which we extract hereunder for easy reference.
Clause 2(P) of the Scheme:
"Employer" means the employer defined in sub-section (e) of Section 2 of the Kerala Motor Transport Workers' Welfare Fund Act, 1985."
Section 2(e) of the Act:
"Employer" means in relation to any motor transport undertaking the person who, or the authority which, has the ultimate control over the affairs of the motor transport undertaking and where the said affairs are entrusted to any other person whether called a manager, managing director, managing agent or by any other name, such other person;"
3. The contention of the appellants is that the hirer - drivers cannot be treated as employees of the appellants who have no control over the hirers in regard to the operation of the autorickshaws. Eventhough the terms of hire by itself do not involve any control over the operations of the auto rickshaw carried on by the hirer, what is seen from clause (e) is that if the ultimate control over the motor transport undertaking is with the registered owner, he still answers the description of 'employer'. The autorickshaws are permitted to operate within limited areas and therefore, the permit condition cannot be violated even by the hirer. Further, the hirer must have the driving licence, badge and other requirements to qualify him to drive the auto rickshaw. So much so, the hire arrangement between the registered owner and the hirer are such that the owner retains atleast some broad controls in regard to the operation of auto rickshaw in as much as the hirer should not violate at least permit conditions. So much so, we feel that even under the arrangement of hiring out, the control of affairs of transport undertaking ie. operation of the auto rickshaw continues with the registered owner who alone will be responsible for violation of permit conditions. Therefore, in our view, the registered owner hiring out the auto also answers the description of "employer" within the meaning of Clause 2(p) of the Scheme.
4. We find force in the contention of the appellants that when the same auto rickshaw is hired to different persons on different days, it is not possible for the registered owner to register every worker and pay contribution in respect of every such hirer. Of course, this is a matter between the appellants and the hirers because hirers themselves can voluntarily opt to register as workers under the Scheme and arrange for payment of contribution. More over, self employed persons are covered by the provisions of the Act and the Scheme as provided under Section 2(j)(a) of the Act read with Clause (2)(i)(a) of the Scheme. Further, there is a clear answer to petitioners' problem contained in Clause 6(i)(b) of the Scheme which provides for payment of a fixed sum of Rs. 50/- as of now on a monthly basis towards contribution for each auto rickshaw whether a passenger carrier or goods carrier, irrespective of the number of hirers or employees engaged. So much so, on payment of Rs. 50/- or revised rate as applicable every month, appellants will be entitled to get receipt of payment of contribution for remittance of tax. It is for the hirers to apply for registration as motor workers if they are regular auto rickshaw drivers operating vehicles as self employed persons under clause 2(i)(a) of the Scheme and get the benefit from the Welfare Fund. The writ appeals are accordingly disposed of by modifying the judgment of the learned Single Judge as above with specific direction to the Welfare Fund Board to issue receipts of payment of contribution under clause 6(1)(b) to the appellants for each auto rickshaw for them to remit the tax. If the auto drivers taking the appellants' vehicles on hire apply for registration under the Scheme they will be registered after verifying the genuineness of the claim and identity and on collection of corresponding employees contribution they will be given benefits under the Scheme.