Kerala High Court
Cochin Yacht Club vs State Of Kerala on 9 June, 2006
Equivalent citations: 2006(3)KLT67, (2006)IIILLJ427KER
Author: Kurian Joseph
Bench: Kurian Joseph
JUDGMENT Kurian Joseph, J.
1. The question to be decided is whether a Club is an establishment under the provisions of the Kerala Labour Welfare Fund Act, 1975. The Kerala Labour Welfare Fund Act was introduced mainly "...to provide for the constitution of a Fund for promoting the welfare of labour... in the State of Kerala". Under Section 2(d) an employee means any person who is employed for hire or reward to do any work, skilled or unskilled, manual, supervisory, clerical or technical, in an establishment. Establishment is defined at Section 2(f) of the Act. It is seen that it is an inclusive definition and among other establishments it includes any commercial establishment coming within the meaning of Section 2 of the Kerala Shops and Commercial Establishments Act 1960, an establishment including a society registered under the Societies Registration Act, 1860 or the Travancore Cochin Liberary, Scientific and Charitable Societies Registration Act, 1955, which carries on any business, or trade or any work in connection therewith or ancillary thereto and which employs, or on any working day during the preceding twelve months employed, more than twenty persons; but does not include an establishment (not being a factory) of the Central or any State Government.
2. It is the contention of the petitioners that it is a society registered under the provisions of the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 and it is an association of persons accepted as members of the club as per the provisions of the Memorandum of Association and Bye-laws of the Club. It is submitted that the facilities are extended only to the members of the Club. There is no business, trade or profession whatsoever. However, it is admitted that "for the benefit of the members, apart from other recreational facilities the Club runs a kitchen for catering to the needs of the members during their presence at the Club for recreational purposes...." The objects of the Club are "the diffusion of knowledge in yachting, seamanship, navigation and the promotion of all water and other sports and social activities." The Bye-laws of the Club also show that there is provision for systematic and organised activity in the Club.
3. Commercial establishment and shop are defined under Section 2(4) and (15) respectively of the Kerala Shops and Commercial Establishments Act, 1960. These provisions read as follows:-
2(4) Commercial establishment" means acommercial or industrial or tradingorbanking or insurance establishment, an establishment or administrative service in which the persons employed are mainly engaged in office work, hotel, restaurant, boarding or eating house, cafe or any otherrefreshment house, a theatre or any other place of public amusement or entertainment and included such other establishments as the Government may, by notification in the Gazette, declare to be a commercial establishment for the purposes of this Act, but does not include a factory to which all or any of the provisions of the Factories Act 1948 (Central Act 63 of 1948) apply.
(15) Shop means any premises where any trade or business is carried on or where services are rendered to customers, and includes offices, store rooms, godowns or warehouses, whether in the same premises or otherwise, used in connection with such trade or business but does not include a commercial establishment or a shop attached to a factory where the persons employed in the shop are allowed the benefits provided for workers under the Factories Act. 1948 (Central Act 63 of l948).
It is fairly clear from a reading of the above provisions that where there is any organised activity rendering material services, whether it be industrial, trading, banking or recreational, such establishments are covered under the definition "commercial establishment". It is also pertinent to note that where the Kerala Shops and Establishments Act, 1960 defined the expression commercial establishment and shop, the Kerala Labour Welfare Fund Act used an inclusive definition making it clear that being a piece of welfare legislature, the legislature intended to give wider scope for the "establishment" under the said Act. It has also been clearly provided that such establishments included societies also whether they are registered under the Societies Registration Act, 1860 or the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, in case such societies carry on any organised activity in connection with the objects of the society and in the process employ the prescribed number of employees. Thus the contention that for the only reason that the petitioner is an association of members, the Club does not come under the provisions of the Act cannot be accepted. Similarly, the other contention that since the petitioner is registered as a society under the provisions of the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act 1955 it is not covered, cannot be accepted in view of the position as above. The only test is whether in connection with the work of the Club there is employment of the prescribed number of workmen. That is a question of fact.
This Writ Petition is hence disposed of declaring that the first petitioner Club, in the admitted facts and circumstances of the case referred to above is an establishment coining under the provisions of the Kerala Labour Welfare Fund Act, 1975. Whether the petitioner has employed the prescribed number of workmen is a question of fact and it is to be resolved by the second respondent. It is for the petitioner to submit the statement and documents as required in Ext.P3. There will be a direction to the second respondent to consider the matter with notice to the first petitioner as to the factual dispute referred to above within a period of three months from the date of production of a copy of the judgment. The interim order passed by this Court will continue till such time.