IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35083 of 2003(B)
1. S.SEEMUN,
... Petitioner
Vs
1. THE KERALA LABOUR WELFARE FUND BOARD,
... Respondent
2. LABOUR WELFARE FUND INSPECTOR,
For Petitioner :SRI.P.RAMAKRISHNAN
For Respondent :SRI.K.ANAND (A.201)
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :21/08/2008
O R D E R
S.SIRI JAGAN, J
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W.P(C)No.35083 & 35084 of 2003
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Dated this the 21st day of August, 2008.
J U D G M E N T
In these writ petitions, the petitioners are disputing their
liability to be covered under the provisions of the Kerala
Labour Welfare Fund Act. In a connected writ petition –
W.P.(C)No.28545 of 2008, this court had passed the following
judgment:
“In these connected case, petitioners are small
planters having cardamom cultivation in 3-4 acres of land.
Petitioners are stated to be close relatives. Demand under
the challenge is contribution towards Labour Welfare Fund
under Kerala Labur Welfare Fund Act, 1975. According to
the petitioners; demand is raised by clubbing the employees
together and taking their number as above 10 in a day,
which attracts liability under the Act by virtue of definition
of establishment contained under Sec.2(f)(iii) of the Act,
which makes land owner, of tea, rubber, coffee, cardamom,
oil palm or cocoa, liable if 10 or more workers are employed
in any day of the preceding 12 months. The Standing
Counsel for the Welfare Fund produced inspection report in
one case, which shows that in the case of petitioner in WPC
28642/2003, when inspection was held on 20/08/2002, 17
workers were found engaged in the estate, though the estate
was only four acres.
2. The inspection report produced in Court shows that
when inspection was carried out petitioner was absent and
the supervisor who was present, refused to sign inspection
report or to accept the copy. I do not think refusal of the
employer to receive copy of inspection report, affects validity
of inspection. It is quite common that during crop season
large number of employees are required for plucking the
crop, which is inherent in the nature of the plantation.
Since the Act makes cardamom planter liable for
contribution if employees engaged on a single day in an year
W.P(C)No.35083 & 35084 of 2003 – 2 –
is above 10, the Welfare Fund Inspector is entitled to
demand contribution. However, since petitioners have not
been issued copy of inspection report ans were not heard
before final orders on demand of contribution are made,
WP(C)s are disposed of directing the Welfare Fund Inspector
to serve copy of the inspection report in the case of each of
the petitioners and complete the adjudication after hearing
them. It will be open to the welfare fund inspector to
conduct inspection at any time to determine the liability for
the current year or for future. RR proceedings will be kept
in abeyance for three months from now within which time,
the inspector will serve the revised orders and send copies of
the same to the recovery authorities to modify the demand
and to recover the actual amount payable, if payment is not
made in terms of revised demand.
These WP(C)s are disposed of as above.”
2. The petitioner has today produced before me a copy of
the order passed pursuant to that judgment which reads thus:
“The Labour Welfare Fund Inspector, Idukki issued
Shaw cause notice against the management ie. Sri.
Subramanian, Employer Arunavilas Cardamom Estate,
Vandiperiyar for remitting the Labour Welfare Fund
Contribution consequent to the inspection held on 28.2.02.
As the employer failed to remit the LWF Contribution
revenue recovery steps had been initiated against the
management of Arunavilas Estate. Then the management
filed unit petition before the Hon’ble High Court of Kerala
and the Hon’ble court Stayed the revenue recovery steps.
Now as per the judgment read as 2nd above the Hon’ble High
Court of Kerala disposed of the case directing the Labour
Welfare Fund Inspector, Idukki to serve copy of the
inspection Report in the case of each of the petitioners and
complete the adjudication after hearing them.
As per the above direction copy of the inspection
report served to each of the petitioners along with the
hearing notice under certificate of posting. As nobody
present as the hearing date on 26.6.07, an other notice
dated 26.6.07 were served to the petitioners posting the
hearing an 2.7.07 Sri. B.R. Aravindan, Advocate, Peermade
filed Vakkalath an behalf of the management for attending
the hearing subsequent hearing was also conducted on
16.7.07, 23.7.07 & 30.7.07. In the meanwhile some of the
W.P(C)No.35083 & 35084 of 2003 – 3 –
employees now working in the Arunavilas Cardamom Estate
were also summoned for taking evidence. The management
also filed the statement in this case the advocate requested
one month’s time for producing the wages register, muster
roll for the year 2001-02 and 2002-03 for verification. The
management produced the above registers for verification.
On going through the argument note, evidence of
records filed by the management, I found that the
Arunavilas cardamom estate is owned by 6 persons years
back and the registration was not done at the period in
question. As a part of evidence management have filed the
certificate of registration of a registered owner issued by
the tahsildar, Peermade Now the register submitted for the
period of inspection it is seen that the name of 3 employees
were written in the muster roll wages register maintained by
the employer Sri. K. Subramanian, 2 employees by Sri.
Murugan, 2 employees by Sri. Muraliu, 2, Employees by Sri.
Arunan, 2 Employees by Smt. P Sarala the management
informed that no time during the year they had employed 10
or more employees and they had not maintained the register
prescribed under casual, Temporary & Badali workers act.
The employees given the statement that only some workers
were engaged during the plucking season in addition to the
permanent workers. So it can not be proved either from the
statement nor the records that the employer employed 10 or
more workers in any day of the preceding 12 months as
envisaged in section 2(f) (iii) of the Kerala Labour Welfare
fund act 1975. In the inspection note also the number of
employees written as 16 in total considering only one
employer ie – Sri. S. Murali. After serving the inspection
order they pointed out that Arunavilas Cardamom Estate is
under the ownership of 6 persons. So it cannot be
determined from this that 10 or more workers were
employed by the owners of Arunavilas estate. Moreover
physical verification could not be done as the date of
inspection pertaining to the period 28.2.02. Hence the LWF
Inspector come to the conclusion that this plantation will
not come under the purview of the section 2(f)(iii) of the
Kerala Labour Welfar fund Act, 1975 on the inspection date
ie 28.2.02 and for remitting the contribution.
This order will not be a hindrance for determining the
liability, if any noticed in present or for future inspection
and the exemption is granted for the period in question
only.”
W.P(C)No.35083 & 35084 of 2003 – 4 –
3. In the above circumstances, it is only appropriate that
the 2nd respondent passes appropriate orders taking into
account the judgment and the order referred to above. This the
2nd respondent shall do, as expeditiously as possible, at any rate
within two months from the date of receipt of a copy of this
judgment, after affording an opportunity of being heard to the
petitioners.
These writ petitions are disposed of as above.
S.SIRI JAGAN, JUDGE
rhs