Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE19H DAY OF FEBRUARY201430TH MAGHA, 1935 OP.No. 8128 of 2002 (P) ---------------------------- PETITIONER: -------------- V.SOMARAJAN, AMBADIYIL VEEDU, KANIYAMTHODU, THRIKKOVILVATTOM VILLAGE DEECENT JUNCTION, KOLLAM. BY ADV. SRI.B.MOHANLAL RESPONDENTS: ----------------- 1. STATE OF KERALA REP. BY THE SECRETARY, LABOUR & REHABILITATION DEPT., SECRETARIAT, THIRUVANANTHAPURAM.
2. THE WELFARE FUND INSPECTOR, KERALA TODDY WORKERS WELFARE FUND, KOLLAM.
3. THE THASILDAR (RR), TALUK OFFICE, KOLLAM. R1, R3 BY SR. GOVERNMENT PLEADER SRI.P.M.SANEER R2 BY ADV. SRI.RENIL ANTO, SC, KTWWF BOARD THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON1902-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 8128 of 2002 (P) APPENDIX PETITIONER'S EXTS EXT.P1:- TRUE COPY OF THE ORDER
FOR PAYMENT OF COMPENSATION ISSUED BY THE KERALA ABKARI EMPLOYEES WELFARE FUND BOARD TO THE PETITIONER. EXT.P2:- TRUE COPY OF THE RELEVANT PAGES OF THE LICENSE OF TODDY SHOP NO.56/97-98 OF KOLLAM RANGE VIDE NO. 259/97-98. EXT.P3:- TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE2D RESPONDENT DATED1811-98. EXT.P4:- TRUE COPY OF THE DETERMINATION ORDER
PASSED BY THE2D RESPONDENT VIDE NO. E3/KOLLAMM-54-59, 1-4-97 TO249-97 DATED3112-2000/968. EXT.P4(a):- THE TRUE COPY OF THE ENGLISH TRANSLATION TO EXT.P4. EXT.P5:- TRUE COPY OF THE REVENUE RECOVERY NOTICE NO.D5-5083/2001 DATED611-2001 ISSUED BY THE3D RESPONDENT TO THE PETITIONER UNDER SECTION7OF THE REVENUE RECOVERY ACT. EXT.P5(a):- TRUE COPY OF THE DEMAND NOTICE NO.D5-5083/2001 DATTED611-2001 ISSUED BY THE3D RESPONDENT TO THE PETITIONER UNDER SECTION34OF THE REVENUE RECOVERY ACT. EXT.P6:- TRUE COPY OF THE JUDGMENT
OF THE HONOURABLE HIGH COURT OF KERALA IN OP NO.34740/2001 DT. 16-11-2001. EXT.P7:- TRUE COPY OF THE ORDER
OF THE1T RESPONDENT IN GO (RT) NO.230/2002/LBR DATED151-2002 ISSUED TO THE PETITIONER. ....... BABU MATHEW P. JOSEPH, J.
------------------------------------------------ O. P. No.8128 of 2002 ------------------------------------------------ Dated this the 19th day of February, 2014 JUDGMENT
This Original Petition has been filed for quashing Exts.P4 order passed by the second respondent Welfare Fund Inspector fastening liability on the petitioner to pay contribution in respect of the employees to the Toddy Workers Welfare Fund and Ext.P7 order passed by the Government rejecting the appeal preferred by the petitioner against Ext.P4 order. And also challenging the revenue recovery proceedings initiated against the petitioner for recovering the amount fixed by the second respondent.
2. Heard the learned counsel appearing for the petitioner, learned Senior Government Pleader appearing for the respondents 1 and 3 and the learned Standing Counsel appearing for the second respondent.
3. Learned counsel for the petitioner submits that the petitioner was an employee of the licensees of the toddy O. P. No.8128 of 2002 -2- shop numbers 54 to 59 of Kollam Excise Range during the year 1997-98. But, without considering the matter or properly applying the mind, the second respondent directed the petitioner to pay the amounts to the Welfare Fund Board. He has raised several contentions before the second respondent in order to substantiate his case that he was not an employer, but, only an employee of the licensees. In fact, the second respondent has not arrived at a conclusion that the petitioner was an employer in respect of the toddy shops during the relevant period, but, the petitioner was mulcted with the liability to pay the amount without any specific finding as to whether he was an employer as defined under the Kerala Toddy Workers Welfare Fund Act, for short, the Act. Moreover, the appellate authority namely, the first respondent, has not considered the various points raised by the petitioner challenging Ext.P4 order. Absolutely without any rhyme or reason, the first respondent referred the name of the petitioner as 'occupier' in Ext.P7 as found by the second respondent. In fact, there was no such finding at all O. P. No.8128 of 2002 -3- by the second respondent. The appellate authority did not go into the details of the contentions raised by the petitioner and without applying the mind, rejected the appeal filed by the petitioner upholding Ext.P4 order passed by the second respondent.
4. A mere perusal of Ext.P4 would go to show that the second respondent has only narrated the rival contentions in respect of the dispute as to whether the petitioner was an employer or not. But, the second respondent has not entered a finding that the petitioner was an employer in Ext.P4. Without doing so, he was mulcted with the liability to make the payment of amounts to the Toddy Workers Welfare Fund. Ext.P4 was purportedly considered by the first respondent in Ext.P7 order and, upholding Ext.P4, the appeal preferred by the petitioner was rejected. What was upheld by the first respondent appellate authority in Ext.P7? There was no finding entered by the second respondent in Ext.P4 that the petitioner was an employer as defined under the Act. In such a circumstance, the first respondent cannot enter a finding O. P. No.8128 of 2002 -4- in Ext.P7, upholding Ext.P4, that the petitioner was an employer as defined under the Act. So both the second respondent as well as the first respondent did not enter a finding in their orders as to whether the petitioner was an employer or not. Therefore, on this short ground alone, Exts.P4 and P7 are liable to be quashed.
5. In the result, Exts.P4 and P7 are quashed. The second respondent is directed to consider afresh the matter, after affording an opportunity of being heard to all the parties concerned including the petitioner, and enter a finding as to whether the petitioner was an employer or not as defined under the Act in respect of the toddy shops during the relevant period. This shall be done by the second respondent within a period of four months from the date of receipt of a copy of this judgment. The revenue recovery proceedings initiated against the petitioner shall be kept in abeyance till such consideration and passing orders on the matter by the second respondent. The petitioner is directed to produce a copy of this judgment before the second O. P. No.8128 of 2002 -5- respondent for compliance. This Original Petition is disposed of as above. Sd/- BABU MATHEW P. JOSEPH JUDGE kns/- //TRUE COPY// P.A. TO JUDGE