Madras High Court
Salem Mavatta Salai Pokkuvarathu vs The State Of Tamil Nadu on 30 January, 2024
W.P. No. 26733 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.01.2024
CORAM
THE HON'BLE MRS. JUSTICE N. MALA
W.P. No. 26733 of 2022
&
W.M.P. No. 25787 of 2022
Salem Mavatta Salai Pokkuvarathu
Motor Thozhilalar Sangam
(Reg.No. 1177/s/m)
rep. by its General Secretary,
No.29E-1, VPC Street,
Cinema Nagar, Salem – 636 009. ..Petitioner
Vs.
1. The State of Tamil Nadu,
rep. by Secretary to Government,
Labour Department,
Fort St. George, Chennai – 600009.
2. The Secretary to Government,
Government of Tamil Nadu,
Transport Department,
Fort St. George, Chennai – 600009.
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3. The Commissioner of Labour,
DMS compound,
Teynampet,
Chennai – 600 006.
4. The Director General of Police,
Opp. Light House,
Kamarajar Salai,
Chennai – 600 004. ..Respondents
Prayer: Petition under Article 226 of the Constitution of India praying
for issue of a Writ of Mandamus directing respondents 1 and 3 to delete the
“Transport Badge Number”column in the online application format so as to
enable the members of the petitioner union holding LMV driving licence to
become members of the Tamil Nadu Unorganized Drivers Welfare Board.
For Petitioner :: Mr.S. Ayyathurai
For Respondents :: Mrs. Rajarajeswari,
Govt. Advocate for R1 & R3
Mr.Yogesh Kannadasan,
Special Govt. Pleader for R2
Mr.L.S.M. Hasan Fizal,
Addl. Govt. Pleader for R4
O RDE R
The writ petition is filed for issue of a Writ of Mandamus
directing respondents 1 and 3 to delete the “Transport Badge Number”
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column in the online application format so as to enable the members of the
petitioner union holding LMV driving licence to become members of the
Tamil Nadu Unorganized Drivers Welfare Board.
2. The petitioner Union will be referred to as the petitioner and
the respondents as respondents.
3. The gist of facts, which led to the filing of this writ petition, are
as under:
(i) The members of the petitioner are Drivers driving light motor
vehicles like Cars, Autos, Tempos, Load Autos, Mini Passenger Vans, Load
Vans, etc., Cleaners and Mechanics. While some of the members of the
petitioner are self-employed, most of them are employed under private
employers with valid driving licences. The petitioner has a membership of
about 1208 drivers, cleaners and mechanics.
(ii) The petitioner's case is that for providing benefits such as
marriage assistance, assistance for children's education, etc, to workers in
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unorganized sectors and self-employed people, several welfare boards have
been created by the 1st respondent and one such Board is the Tamil Nadu
Unorganized Drivers' Welfare Board. Any driver, either privately employed
or self-employed, desirous of becoming a member of the Board could make
an application through online mode and not physically for Membership.
(iii) While so, when the Members of the petitioner, who were
drivers possessing light motor vehicle (LMV) licence, tried to submit online
applications for membership, the same was not accepted because they were
required to furnish “Transport Badge Number” in the column provided for
the same. According to the petitioner, Transport Badge Number was
required only for drivers who drive heavy motor vehicles weighing 7500 kg
and above.
(iv) According to the petitioner, its members are harassed by the
Traffic Police for not wearing the Badge though it is known to them that
light motor vehicle drivers are given only licences and not badges and no
endorsement is made on the licences. The petitioner would also state that
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the insistence on obtaining Badge for driving light motor vehicle was
against the dictum of the Hon'ble Supreme Court, in the judgment rendered
in Mukund Dewangan V. Oriental Insurance Company Limited reported
in AIR 2017 SC 3668. In spite of the same, the online application form for
getting enrolled as a member of the Welfare Board still contains the column
“Transport Badge Number” and because of it, the petitioner's members
possessing light motor vehicle (LMV) licences were not able to submit their
applications for Membership. The non-acceptance of the application forms
of the members of the petitioner was brought to the notice of the
respondents orally and the respondents had also assured that the problem
would be rectified. As no steps were taken despite the said assurance, the
petitioner submitted a written representation on 16.09.2021 to the 2nd
respondent. Even thereafter, as no action was taken, the present writ
petition was filed with the prayer as aforesaid.
4. A detailed counter was filed on behalf of respondents 1 to 3
stating that the Tamil Nadu Unorganized Drivers and Automobile
Workshop Workers Welfare Board was formed under Tamil Nadu Manual
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Workers (Regulation of Employment and Conditions of Work) Act, 1982
(Tamil Nadu Act 33 of 1982) (herienafter referred to as “the Act” in short)
in order to provide social security to the registered workers of the said
board. The manual workers engaged in driving Autorickshaw, Taxi, Van,
Tempo, Lorries and Buses other than those owned by Government
Departments are registered in the said Board and now, the manual workers
employed in Automobile workshops are also registered in the said Board.
The counter affidavit states that the column with regard to badge
endorsement in the driving licence was inserted in the online application
form for registration to verify whether the applicant, who applies for
membership of the Board through online, has valid driving licence to drive
the transport vehicle carrying passengers or goods by road as stated in sub-
clause (b) of Section 8-B of the Act. Further, Rule 10 of the Tamil Nadu
Motor Vehicles Rules, 1989, mandates the endorsement of badge and that it
was only in conformity with the aforesaid Rules, the column for badge
endorsement was added in the online application form. Referring to the
judgment of the Hon'ble Supreme Court in Mukund Dewangan's case (AIR
2017 SC 3668), it was stated in the counter affidavit that in compliance to
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W.P. No. 26733 of 2022
the orders of the Hon'ble Apex Court, the Joint Secretary (T) of Ministry of
Road Transport and Highways, Government of India, issued necessary
clarification to the Principal Secretaries (Transport) and DGPs of all States
that the requirement under the Motor Vehicles Act, 1988 (Central Act 59 of
1988) to obtain transport licence was under consideration. The Ministry
had also requested to issue appropriate instructions to the Licensing
Authorities and the Enforcement Authorities for compliance of the
directions of the Hon'ble Supreme Court. However, according to
respondents 1 to 3, as per Tamil Nadu Motor Vehicles Rules, 1989, it was
mandatory to obtain badge endorsement for public transport vehicles which
includes Autorickshaws, Taxis and all other light motor vehicles and
therefore, there was no statutory violation in insisting on the same. Further,
according to respondents 1 to 3, in order to identify eligible workers, to
avoid any fraudulent registration in the Board and to ensure the funds be
utilised for the well-being of eligible registered workers, the badge
endorsement was mandated. In short, the stand of respondents 1 to 3, as
stated in the counter affidavit was that, insistence on providing the
“Transport Badge Number” was in strict compliance with the provisions of
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Tamil Nadu Motor Vehicles Rules, 1989, in particular, Rules 7, 8, 9 and 10
of the said Rules and also the clarification issued by the Ministry of Road
Transport and Highways, Government of India that the issue of obtaining
transport licence was under the consideration of the Government of India.
5. Learned counsel for the petitioner submitted that in exercise of
the powers conferred by Section 4 read with Section 3 of the Act, the
Government of Tamil Nadu framed a Scheme called "Tamil Nadu
Unorganised Drivers Social Security and Welfare Scheme, 2006" and under
the said Scheme "Tamil Nadu Unorganized Drivers Welfare Board" was
created. According to the learned counsel for the petitioner, the Act is a
special enactment and therefore, the provisions of General Enactment
cannot override a Special Enactment. He would also submit that the Hon'ble
Apex Court, in the judgment rendered in Mukund Dewangan's case (AIR
2017 SC 3668) has clarified that badge endorsement for Light Motor
Vehicle licence was not mandatory and therefore, the insistence on
furnishing "Transport Badge Number" by the respondents was against the
judgment of the Hon'ble Supreme Court. Referring to Section 9 of the
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W.P. No. 26733 of 2022
aforesaid Scheme read with Form I, the learned counsel for the petitioner
submitted that when the Scheme as well as the Form do not contemplate
obtaining the badge number, the column for "Transport Badge Number"
ought not to have been inserted in the online application. The learned
counsel would, therefore, submit that the mandamus prayed for be issued to
respondents 1 to 3.
6. Per contra, learned Government counsels for respondents 1 to 3
submitted that the furnishing of "Transport Badge Number", which the
respondents 1 to 3 were insisting upon was in accordance with the
provisions of Tamil Nadu Motor Vehicles Rules,1989. They would further
submit that the judgment of the Hon'ble Supreme Court in Mukund
Dewangan's case (AIR 2017 SC 3668) has now been referred to a
Constitution Bench in a batch of appeals in Civil Appeal No. 841 of 2018
etc and the matters are likely to be taken up during the second week of
April, 2024. Therefore, the learned Government counsels submitted that
until the Constitution Bench decides the issue one way or the other, the
judgment rendered in Mukund Dewangan's case (AIR 2017 SC 3668) cannot
be applied.
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7. I have heard the learned counsels on either side and also
perused the materials placed on record.
8. The Government of Tamil Nadu has created several Welfare
Boards for workers in unorganized sectors with a view to provide them
various benefits like marriage assistance, children’s education assistance
etc. One such Welfare Board is the Tamil Nadu Unorganized Drivers and
Automobile Workshop Workers Welfare Board created by the Government
of Tamil Nadu, pursuant to the Scheme framed, namely, the Tamil Nadu
Unorganized Drivers Social Security Scheme, 2006, exercising its powers
under Section 4 read with Section 3 of the Act, with the avowed object of
providing social security and the benefits specified supra. The Scheme was
made applicable to all manual workers engaged in driving Auto Rickshaws,
Taxi, Van, Tempo, Lorries and Buses other than those owned by the
Government Departments. The Scheme mandates registration for
Membership of manual workers for the purpose of receiving the benefits
provided thereunder. It covers both employed as well as self-employed
persons.
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9. At the outset, it would be relevant here to refer to the
definitions of certain terms and the provisions of the said Scheme for better
understanding.
10. Section 2(g) of the said Scheme defines a “manual worker” as
“ any person who has completed 18 years of age but has not completed 60
years of age and who is engaged to do any manual work in the employment
of Driving Auto Rickshaws, Taxi, Van, Tempo, Lorries and Buses other
than those owned by the Government Departments specified in item 24 in
the Schedule to the Act.
11. Section 2(i) defines a “self employed person” as “any person
who has directly engaged himself in Driving Auto Rickshaws, Taxi, Van,
Tempo, Lorries, and Buses other than those owned by the Government
Departments for his livelihood.”
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12. Section 9(1) of the Scheme deals with “ Registration of
Manual Workers” and the said provision reads as follows:
“9. Registration of Manual Workers: (1) Any manual
worker who has completed the age of 18 years but not
completed 60 years, may register his name with the Board
1
[through the Labour Officer (Social Security Scheme) of the
respective district] to become a member of the Scheme. “
[1. Inserted by G.O.Ms.No. 122 Labour and Employment I1) Dept., Dt.
24th October, 2008] .
13. Section 13 of the said Scheme deals with “Contributions” and
the said provision is reproduced hereunder:
“13. Contributions: (1) The contribution
payable under this scheme shall comprise contribution
payable to the Board by an employer (hereinafter
referred to as the “employer's contribution”), and the
grant made to the Board by the Government, from time
to time as contribution to the Fund which shall form
part of the Fund.
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(2) All remittances payable to the fund shall
be rounded off to the nearest rupees.
(3) Every employer shall pay to the Board a
sum equivalent to 3% of the wages payable by him to
the manual workers, employed by him, before the 15th
day of every month by means of a demand draft drawn
in favour of the “Secretary, 1 [Tamil Nadu
Unorganised Drivers Welfare Board”] Payable at
chennai accompanied by a statement in FormV.
(4) Every officer enjoyed to collect
Contribution under sub-section (2) of the Section 8-B
of the Act shall collect the same by cash or by means of
a Demand draft drawn in favour of the “Secretary,
2 [Tamil Nadu Unorganised Drivers Welfare Board”,]
payable at Chennai and remit the same to the Board
within thirty days from the date of such collection
accompanied by a statement in Form VI.”
[1,2 Substituted vide Notification G.O.(Ms) No. 49,
Labour and Employment (I1) Dept. Dated.12th June,
2014.]
It is seen from a reading of the aforesaid provisions that the Scheme
covers manual workers aged between 18 to 60 years, who are either
employed or self-employed. To avail the benefits under the Scheme,
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registration is mandated. Fund is created with contributions from the
Government and the employer. The various benefits to the members of the
Scheme are Personal Accident Benefit (Section 17), Pension Scheme
(Section 18), Assistance on Natural Deaths (Section 20), Education
Assistance (Section 21), Marriage Assistance (Section 22) and Delivery or
Miscarriage of Pregnancy Assistance (section 23). In short, the Scheme is
Social Security and Welfare Scheme for manual workers (Drivers) in the
Unorganized Sector.
14. The issue involved in the present writ petition is whether the
respondents are justified in insisting on obtaining “Transport Badge
Endorsement” by Drivers possessing light motor vehicle licence in order to
register themselves as members of the Tamil Nadu Unorganized Drivers
Welfare Board. The Hon’ble Apex Court, in Mukund Dewangan’s case
(AIR 2017 SC 3668) held as follows:
.....“there is no requirement to obtain separate endorsement
to drive transport vehicle, and if a driver is holding licence to
drive light motor vehicle, he can drive transport vehicle of
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W.P. No. 26733 of 2022
such class without any endorsement to that effect.
Directions were also issued to all concerned stating that
no endorsement on the licence to drive light motor vehicle was
necessary. “
(emphasis supplied)
In view of the law laid down by the Hon’ble Supreme Court, the
insistence on furnishing “Transport Badge Number” by the respondents, on
the basis of the Rules framed by the State Government, is not sustainable.
The Hon’ble Supreme Court, in its judgment in the said case, had, on
consideration of the precedents, Central Act including Amendment Act and
the Rules concluded that endorsement was not necessary to drive a transport
vehicle, if the driver possessed licence to drive light motor vehicle and the
transport vehicle belonged to such class. Hence, the respondents insistence
on “Transport Badge Number” in the Membership Registration form cannot
be countenanced as it is against the dictum of the Apex Court. The
contention of the respondents that the matter has been now referred to a
Constitution Bench and therefore, the issue is at large cannot also be
accepted for the reason that even in the reference to the Constitution Bench,
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W.P. No. 26733 of 2022
the Hon’ble Apex Court has clarified that it has not expressed any opinion
on the merits of the referral or on the correctness of the decision in Mukund
Dewangan’ case (AIR 2017 SC 3668) and that it would await further
arguments once the considered view of the Union Government is placed
before the Court. Therefore, in my view, as of now, the law declared by the
Hon’ble Apex Court in Mukund Dewangan’s case would apply. Therefore,
the respondents cannot insist on separate endorsement in the licence for the
purpose of furnishing “Transport Badge Number” in the Form for
registration to get enrolled as a member of the Tamil Nadu Unorganized
Drivers Welfare Board.
15. Even the contention of the respondents that the Joint
Secretary(T), Ministry of Road Transport and Highways, Government of
India, issued necessary clarification to the Principal Secretaries (Transport)
and DGPs of all State that the requirement under the Motor Vehicles Act,
1988 (Central Act 59 of 1988) to obtain transport licence was under
consideration, in my view, cannot be accepted because the respondents have
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lost sight of the fact that in the very same communication dated 12.01.2024,
the Ministry requested all concerned to issue appropriate instructions to
Licensing Authorities and the Enforcement Authorities to comply with the
directions of the Hon'ble Supreme Court. When the Ministry has issued
directions to comply with the order of the Hon'ble Supreme Court, the
reliance placed by the respondents on Tamil Nadu Motor Vehicles Rules,
1989, for the purpose of insisting on badge endorsement is unsustainable. It
is further pertinent to note that even in the Form annexed to the Scheme,
there is no requirement of production of “Transport Badge Number”. When
the Scheme as also the Form II issued under Section 9(2) of the Scheme do
not mandate endorsement of transport badge in light motor vehicle (LMV),
it is not known as to how the column “Transport Badge Number” was
inserted in the online application. Therefore, I am in total agreement with
the submission of the learned counsel for the petitioner that it is not
necessary to obtain endorsement of transport badge and insisting to furnish
the same in the online application is unsustainable.
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W.P. No. 26733 of 2022
16. For all the above reasons, I am of the view that the direction
prayed for deserves to be issued. Accordingly, the respondents are directed
to receive the online applications of the members of the petitioner Union
without insisting on the “Transport Badge Number”. It is, however, made
clear that if the Hon'ble Supreme Court, in the reference made to the
Constitution Bench, decides that badge endorsement is necessary even for
light motor vehicle licenses, then the respondents are at liberty to insist on
the same.
17. The writ petition is disposed of accordingly. No costs.
Connected W.M.P. is closed.
30.01.2024
nv
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
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W.P. No. 26733 of 2022
To
1. The Secretary to Government,
Labour Department,
Fort St. George, Chennai – 600009.
2. The Secretary to Government,
Government of Tamil Nadu,
Transport Department,
Fort St. George, Chennai – 600009.
3. The Commissioner of Labour,
DMS compound,
Teynampet,
Chennai – 600 006.
4. The Director General of Police,
Opp. Light House,
Kamarajar Salai,
Chennai – 600 004.
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W.P. No. 26733 of 2022
N. MALA,J.
nv W.P. No. 26733 of 2022 30.01.2024 20\20 https://www.mhc.tn.gov.in/judis