The Kerala Motor Transport workers Welfare fund Board 1985 act 21 & Act 23 ,2005

1 ACT 21 OF 1985 THE KERALA MOTOR TRANSPORT WORKERS WELFARE FUND ACT, 1985 An Act to provide for the constitution of a Fund to promote the welfare of motor transport workers in the State of Kerala. Preamble:- WHERE AS it is expedient to provide for the constitution of a Fund to promote the welfare of motor transport workers in the State of Kerala. BE to enacted in the Thirty sixth Year of the Republic of India as follows:- 1. Short title, extent and commencement:- (1) This act may be called The Kerala Motor Transport Workers Welfare Fund Act, 1985 (2) It extends to whole of the State of Kerala. (3)It shall be deemed to have come into force from the 27th day of June, 1985 2. Definitions:- In this Act, unless the context otherwise requires,- (a) “Board” means The Kerala Motor Transport Workers Welfare Fund Board constituted under section 6; (b) “Chief Executive Officer” means the Chief Executive Officer appointed under sub-section (1) of section (7); (c) “contribution” means a contribution payable in respect of a member under the scheme; (d) “employee” means a person who is employed for wages in a Motor Transport undertaking directly or through an agency to work in a professional capacity on a transport vehicle or to attend to duties in connection with the arrival, departure, loading or unloading of such transport vehicle and includes a driver, conductor, cleaner, station staff, line checking staff, booking clerk, cash clerk, depot clerk, time keeper, watchman, or attendant, 2 *(e) “employer” means in relation to any motor transport undertaking, the registered owner or 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; (f) “Fund” means the Kerala Motor Transport Workers Welfare Fund established under the scheme; (g) “member’ means the member of the Fund and includes any person eligible to become a member of the Fund; (h) “motor transport undertaking” means a motor transport undertaking engaged in carrying passengers or goods or both by road for hire or reward and includes a private carrier; (i) “prescribed” means prescribed by rules made by this Act; *(ia) “quantum” means a fixed amount of welfare fund contribution payable to the fund by the employer, employee and self employed person as may be specified in the scheme; (j) “scheme” means the scheme framed under this Act; *(ja) “self employed person” means a person other than an employee who is engaged in the profession of a motor transport undertaking by actually operating the vehicle and depending mainly on such a motor transport undertaking for his lively hood; *omitted (l) all other words and expression used but not defined in this Act and defined in the Motor Vehicles Act, 1939 (Central Act 4 of 1939), shall have the meanings respectively assigned to them in that Act 3.Motor Transport Workers Welfare Fund;- (1) The Government may by notification in the Gazette, frame a scheme to be hold the Kerala Motor Transport workers Fund Scheme for the establishment of a Fund under this Act for employees and their shall be established, as soon as may be after the framing of the scheme, a fund in accordance with the provisions of this Act and the scheme. ………………………………………………………………………… * Amendment Act 2005 (No 13285/Leg. C2/05/Law dated 15.8.2005) 3 (2) The fund shall vest in, and be administered by, the Board (3) Subject to the provisions of this Act, the scheme may provide for all or any of the matters specified in the Schedule. * 4. Contribution to the Fund;- (1) The contribution payable by employee to the fund shall be such quantum of each type of motor transport undertaking as may be specified in the scheme. (2) The contribution payable by the employer and the self employed person shall be such quantum as may be specified in the Scheme. (3) The quantum under sub-sections (1) and (2) shall be fixed taking into account the average number of man power required for Operating the motor transport undertaking. (4) The contribution payable by the employer, employee and self Employed person shall be subject to revision from time to time. Provided that nothing in the section shall apply to a Motor Transport undertaking to which the provisions of Employees Provident Funds and Miscellaneous Provisions Act, 1952 (Central Act 19 of 1952) or the Payment of Gratuity Act, 1972 (Central Act 39 of 1972) apply. 5. Modification of scheme :- (1) The Government may, by notification in the Gazette, add to, amend or vary the scheme either prospectively or retrospectively …………………………………………………………………………… * Amendment Act 2005 (No 13285/Leg. C2/05/Law dated 15.8.2005) 4 (2) Every notification under sub – section (1) shall be laid, as soon as may be after it issued, before the Legislative Assemble while it is in session for a total period of fourteen days which may by comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assemble makes any modification in the notification or decides that the notification should not be issued, the notification shall thereafter have effect only in such modified from or be of no effect, as the case may be so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that notification. (6) Constitution of Board :- (1) The Government may, by notification in the Gazette, constitute with effect form such date as may be specified in such notification a Board to it be called the Kerala Motor Transport Workers’ Welfare Fund Board for the administration of the Fund and to supervise or carry out activities financed form the Fund. (2) The Board shall be a body corporate by the name aforesaid, having perpetual succession and a common seal and shall by the said name sue and be sued. (3) The Board shall consist of such number of Directors as my be appointed by the Government and they shall be chosen in such manner as may be provided for in the scheme. Provided that the Board shall include an equal number of Directors representing the Government, the employers and the employees. (4) One of the Directors of the Board shall be appointed by the Government to be its Chairman. (5) The Government shall publish the names of all the Directors of the Board in the Gazette. (6) The Board shall administer the Fund in such manner as may be specified in the scheme. (7) The Board may, with the previous approval of the Government, delegate to its Chairman or to the Chief Executive officer or to any officer appointed under sub section (1) of section 7 such or its powers and functions under this Act or the scheme as it may consider, necessary for the efficient administration of the Fund, subject to such restriction and conditions, if any, as it may specify: 5 Provided that no delegation shall be made under this sub section unless all the members present support such delegation; (7) Appointment of Officers ;- (1) The Government may appoint a Chief Executive Officer and such number of other officers and staff as they consider necessary to assist the Board in the discharge of its functions and duties under this Act. (2) The Chief Executive Officer and the other officers appointed under sub section (1) shall exercise such powers and discharge such duties as may be prescribed, (3) The method of recruitment, salary and allowances, discipline and other conditions of service of the Chief Executive Officer and the other officers and staff appointed under sub section (1) shall be such as may be prescribed. * 8 Determination of amount due :- (1) The Chief Executive officer any other officer appointed under sub section (1) of section 7 authorised by hin in this behalf may, by order, determine the amount due under the provisions of this Act or of the Scheme form the employer, Employee and self employed person and if the amount due is not paid on or before the due date, he shall issue a demand notice to the defaulter showing the amount of arrears. (2) Any person aggrieved by the determination of arrears under sub section (1) may file a review petition before the authority who had determined then arrears, showing detailed facts and reasons for reviewing the original determination within fifteen days of receipt of demand notice. …………………………………………………………………………… * Amendment Act 2005 (No 13285/Leg. C2/05/Law dated 15.8.2005) 6 (3) A review petition filed under sub section (2) shall be disposed of by the authority within a period of thirty days from the date of its receipt (4) Any person aggrieved by an order under sub section (3) may prefer are appeal before the District Labor Officer of the concerned district and it staff be disposed of by him within a period of sixty days form the date of its receipt. (5) If the amount of arrears in dispute exceeds rupees one lakh, any person aggrieved by an order under sub section (4) may prefer a second appeal before the Board and it shall be disposed of within a period of sixty days from the date of its receipt. (6) Every order passed under sub section (4) or sub section (5) as the case may be, shall be final. (7) No appeal under this section shall be entertained unless fifty per cent of the amount in accordance with the order against which the appeal has been preferred is paid; (8) If the appellate authority in an appeal decides that the amount paid is in excess of what is due from the appellant, it may by order, direct for the refund of the excess amount. (9) An officer or authority exercising the power of appeal under sub section (5) of section 8 of the Kerala Motor Transport Workers Welfare Fund Act 1985, immediately before the commencement of the Kerala Motor Transport Workers Welfare Fund (Amendment) Act 2005 shall continue to exercise such powers, in respect of the cases pending before such officer or authority. * 8 A Production of receipt of remittance of welfare fund contribution – Notwithstanding anything contained in any other law for the time being in force every registered owner or person having possession or control of a motor vehicle in respect of a motor transport undertaking liable to pay contribution ( other than auto rickshaws covered under the provisions of the kerala Auto rickshaw workers welfare Fund Scheme 1991) shall, at the time of making payment of the tax under the Kerala Motor Vehicles Taxation Act 1976 (19 of 1976) produce before the Taxation Officer the receipt of remittance of the contribution to the fund due up to the preceding month, …………………………………………………………………………… * Amendment Act 2005 (No 13285/Leg. C2/05/Law dated 15.8.2005) 7 *9. Remittance of monthly contribution :- (1) Every employer, employee and self employed person shall pay the contribution due from him every month as provided fro in the scheme. (2) The monthly contribution shall become payable on or before the 7th day of the succeeding month. *10. Mode of recovery of moneys due from the employer employee and self employed person – (1) The amount of arrears for which demand notice has been issued under sub section (1) of section 8 shall by recovered together with interest thereon at the rate of 9 per cent per annum in the same manner as an arrear of public revenue due on land. (2) Not with standing anything contained in any other provisions of this Act or in any other law for the time being in force, where an employer transfers his vehicle before paying any amount due under this Act in respect of the vehicle, the liability wherefore accrued before the date of the transfer, such amount shall be a charge on the vehicle so transferred. 11. Protection against attachment :- (1) The amount standing to the credit of any member in the fund shall not in any way be capable of being assigned or charged and shall not be liable to attachment under any decree or order of any court in respect of any debt or liability incurred by the member , and no receiver appointed under the Insolvency Act 1955 (II of 1956), Shall be entitled to or have any claim on any such amount. (2) Any amount standing to the credit of a member in the Fund at the time of his death and payable to his nominee under the scheme shall, subject to any deduction authorized by the scheme, vest in the nominee and shall be free from any debt or other liability incurred by the deceased or the nominee before the death of the member . …………………………………………………………………………… * Amendment Act 2005 (No 13285/Leg. C2/05/Law dated 15.8.2005) 8 12. Priority of payment of contribution of over other debts :- Where any employer is adjudicated insolvent or the employer is a company and an order for winding up of such company is made, the amount due from the employer under this Act or the scheme shall, where the liability therefore has accrued before the order for adjudication or winding up is made, be deemed to be included among the debts which under section 64 of the Insolvency Act, 1955 (II of 1956) or under section 530 of the Companies Act 1956 (Central Act 1 of 1956), are to be paid in priority to all other debts in the distribution of the property of the insolvent or the assets of the company being wound up as the case may be. *12 A Registration and membership :- Every employee or self employed person shall register himself with the Board as a member of the fund within six months of commencement of his service in a motor transport undertaking and obtain identity card in such manner as may be provide or in the scheme, Provided that every employee of self employed person who has bee already registered as a member of the fund as on the date of commencement of the Kerala Motor Transport Workers Welfare Fund (Amendment ) Act 2005 shall get himself re- registered with the Board as specified in the Scheme. 13. Employer not to reduce wages etc :- No employer shall by reason only of his liability or the payment of any contribution to the Fund reduce whether directly or indirectly, the wages of any employee to whom the scheme applies or the total quantum of benefits to which the employee is entitled under the terms of his employment express or implied 14. Directors of Board etc. to be public servants :- Every Director of the Board, the Chief Executive Officer and every officer appointed under sub section (i) of section 7 shall be deemed to be a public servant within the meaning of section 21 of the Indian penal code (Central Act 45 of 1860) *15. Penalties:- (1) Whoever for the purpose of avoiding any payment to be made by him under this Act or under the scheme or of enabling any other person to avoid any payment to be made under this Act or the scheme knowingly makes are causes to be made by any false statement or false fore representation shall be punishable with imprisonment fro a term which may extend to six months, or with fine which may extend to Five thousand rupees, or with both. 9 (2) Whoever contravenes or makes default in complying with any of the provisions of this Act or of the scheme shall if no other penalty is else where provided by or under this Act for such contravention or non compliance be punishable with imprisonment for a term which may extend to three months or with fine which may extend to Two thousand five hundred rupees or with both. (3) No court in fervor to that of a Judicial Magistrate of the First Class shall try any offence punishable under this Act. (4) No court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made with the pervious sanction of the Chief Executive Officer. 16. Enhanced punishment for default in payment of employees contributions already deducted :- (1) Whoever makes default in the payment of the employees share of the contribution to the Fund after having deducted it from the wages of the employees in accordance with the provisions of this Act or the scheme, shall be punishable with imprisonment for a term which may extend to one year, but which shall not be less than three months, and with fine which may extend to four thousand rupees; Provided that the court may, for any adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a tern of less than three months. (2) Not with standing anything contained in the Code of Criminal procedure 1973 ( Central Act 2 of 1974) an offence under sub section (1) shall be cognizable …………………………………………………………………………… * Amendment Act 2005 (No 13285/Leg. C2/05/Law dated 15.8.2005) 10 17. Enhanced punishment for second or subsequent offence: - Whoever, having been convicted by a court of an offence punishable under this Act, again commits the same offence shall be punishable for every such subsequent offence with imprisonment for a term which may extend to one year, but which shall not be less than three months, and with fine which may extend to four thousand rupees. Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months, 18. Offence by companies:- (1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Provided that nothing contained in this sub section shall render any such person liable to any punishment, if the proves that the offence was committed without his knowledge or that he has exercised all due diligence to prevent the commission of such offence. (2) Not with standing anything contained in sub section (1) where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company, such director manager secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation: - For the purposes of this section (a) “Company” means any body corporate and includes a firm or other association of individuals and (b) Director in relation to a firm means a partner in the firm 11 19. Directions by Government :- (1) The Government may, after consultation with the Board give to the Board general instructions to be followed by the Board. (2) In the exercise of its powers and performance of its duties under this act, the Board shall not depart form any general instruction issued under sub section (1), except with the previous permission of the Government. 20. Power to order inquiry :- (1) The Government may at any time, appoint any person to inquire into the working of the Board and to submit a report to the Government (2) The Board shall give the person so appointed all facilities for the proper conduct of the inquiry and furnished to him such documents, accounts and information in the possession of the Board as the may require, 21. Power to supersede the Board:- (1) If, on consideration of the report under section 20 or otherwise the Government are of opinion that the Board has persistently made default in the performance of the duties imposed on it by or under the provisions of this act or the scheme or has exceeded or abused its powers, the Government may, by notification in the Gazette, supersede the Board for such period not exceeding six months as my be specified in the notification. Provided that, before issuing a notification under this sub section the Government shall give a reasonable opportunity to the Board to show cause why it should not be superseded and shall consider the explanations and objections, if any, of the Board. (2) Upon the publication of a notification under sub section (1) :- (a) All the Directors of the Board shall. As from the date of such publication vacate their offices as such directors (b) All the powers and duties, which may be exercised or performed by the Board shall, during the period of super session, be exercised or performed by such officer of officers as may be specified in the notification (c) All funds and other properties vested in the Board shall, during the period of super session, vest in the Government. (3) On the expiration of the period of super session the Government shall reconstitute the Board in the manner provided in section 6 22. Protection of action taken in good faith :- No suit or other legal proceeding shall lie against any director of the Board or the Chief Executive Officer or any other person in respect of anything which is in good faith done or intended to be done under this Act or any rule made there under or under the scheme 12 23. Bar of jurisdiction of civil courts :- No civil court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this act or the scheme required to be settled, decided or dealt with or to be determined by the government or the Board or the Chief Executive Officer or any other officer appointed under sub section (i) of section 7 24. Special provisions for transfer and vesting of welfare fund established by custom or agreement :- All welfare funds established either by custom or agreement before the date of commencement of this Act and standing to the credit of the employees on such date shall, not with standing anything to the contrary contained in any law for the time being in force or in any deed or other instrument, stand transferred to, and vest in the Fund established under section 3 and shall be credited to the accounts of the employees entitled there to the Fund. *25. Power to make rules :- (1) The Government may, by notification in the Gazette either prospectively or retrospectively make rules for the purpose of carrying into effect the provisions of this Act. (2) Every rule made under this Act shall be laid as soon as may be after it is made, before the Legislative Assembly while it is in session for a total period of fourteen day which may by comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assembly makes any modification in the rule or deciders that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule, …………………………………………………………………………… * Amendment Act 2005 (No 13285/Leg. C2/05/Law dated 15.8.2005) 13 *26. Repeal and saving :- (1) The Kerala Motor Transport Workers Welfare Fund Ordinance, 2005 (8 of 2005) except section 4 there of is hereby repealed . (2) Not with standing such repeal, anything done or any action taken under the principal Act as amended by the said Ordinance shall be deemed to have been done or taken under the principal Act as amended by this act. SCHEDULE [See reaction 3(3) 1] Matters for which provision may be made in the scheme 1. The time and manner in which contributions shall be made to the Fund by employers and by, or on behalf of employees (whether employed directly, or through an agency ) the contributions which an employee may make under section 4 and the manner in which such contributions may be recovered, 2. The payment by the employer of such sum of money as may be necessary to meet the cost of administering the Fund and the rate at which and the manner in which such payment shall be made; 3. The constitution of any committee for assisting the Board; 4. The manner in which account shall be kept, the investment of money belonging to the Fund in accordance with any directions issued or conditions specified by the Government, the preparation of the budget, the audit of accounts and the submission of reports to the Government. 5. The conditions under which withdrawals from the Fund may by permitted and any deduction or forfeiture may by made and the maximum amount of such deduction or for feaiure. 6. The fixation by the Government in consultation with the Board of the rate of interest payable to members. 7. The from in which an employee shall furnish particulars about himself and his family whenever required. 8. The nomination of a person to receive the amount standing to the credit of a member after his death and the cancellation or variation of such nomination, 9. The registers and records to be maintained with respect to employees and the returns to be furnished by the employers or agencies. * Amendment Act 2005 (No 13285/Leg. C2/05/Law dated 15.8.2005) 14 10. The form or design of any identity card, token or dices for the purpose of identifying any employee, and for issue custody and replacement thereof 11. The fees to be levied for any of the purposes specified in this schedule 12.The conditions under which a member may be permitted to pay premium on life insurance reform the Fund. 13.The further powers, if any, which may be exercised by the officers appointed under this Act. 14.The manner in which the Directors of the Board shall be chosen and appointed. 15. The manner in which any welfare fund vested under section 24 is to be brought and credited to the accounts of the employees entitled there to in the Fund. 16.* The rate of Welfare fund payable to members and the conditions for such payment 17.The conditions under which any amount due to the Board may be written off. 18. Any other matter which is to be provided for in the scheme or which may be necessary or proper for the purpose of implementing the scheme. …………………………………………………………………………… * Amendment Act 2005 (No 13285/Leg. C2/05/Law dated 15.8.2005)