IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 8034 of 2002(F)
1. T.M.LUKA, S/O. MATHAI,
... Petitioner
Vs
1. TODDY WORKERS WELFARE FUND INSPECTOR-II,
... Respondent
2. SECRETARY, LABOUR AND
3. K.J.MANI, S/O. JOHN, KAITHAKKAL,
For Petitioner :SRI.P.RAVINDRA BABU
For Respondent :SRI.K.K.BABU
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :02/01/2007
O R D E R
S. SIRI JAGAN, J.
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O.P. No. 8034 OF 2002 F
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Dated this the 2nd day of January, 2007
J U D G M E N T
The petitioner, who died during the pendency of this original petition,
challenged Ext.P2 final determination order and Ext.P3 appellate order
passed by the 1st and 2nd respondents respectively under the Kerala Toddy
Workers’ Welfare Fund Act by which the petitioner was assessed to welfare
fund contributions under the Act. His widow and children have impleaded
themselves as additional petitioners 2 to 5 in the original petition by virtue of
orders in I.A. No.3108 of 2005. Their contention is that although the 1st
petitioner was a licensee of the toddy shops in question namely, T.S.
Nos.134, 135, 136, 137, 138, 147, 150, 151, 161 and 162 of Pala Excise
Range in Kottayam district, for the year 1998-99, he was not the licensee for
the year 1999-00, for which year Ext.P2 final determination order has been
passed. The petitioner submits that the 3rd respondent, Sri.K.J.Mani, was
admittedly the licensee and the petitioner did not have any connection
whatsoever with the shops in question for that year. For that reason, the
petitioner submits that Exts.P2 and P3 orders are liable to be quashed.
2. I have heard counsel on both sides. The learned standing
counsel appearing for the 1st respondent as well as the Government Pleader
stoutly opposes the contention of the petitioner. They would submit that there
was sufficient evidence before the 1st respondent to conclude that the 1st
OP.8034/02
2
petitioner was the de facto employer and, therefore, he would liable to pay the
contributions under the Act for which alone Exts.P2 and P3 orders have been
issued.
3. I have considered the submission on both sides.
4. Ext.P2 is the final determination order. It is not disputed before
me that the 3rd respondent is the licensee of the shop. In fact, the 3rd
respondent himself admits that fact and he has not even chosen to appear
before this court to dispute his liability although he has been made a party to
the writ petition, and notice was served upon him. In the above
circumstances, I have to examine on what material on record the 1st
respondent has come to the conclusion that the 1st petitioner is the de facto
employer. From Ext.P2, I find that he has come to this conclusion on the
basis of the deposition of workers of the toddy shop. He himself has
summarized the deposition of these workers in Ext.P2 itself. Going by the
same, the evidence available with the 1st respondent is as follows. WW1
deposed that the shop Nos.134, 135 and 136 were conducted by a company
and that the 3rd respondent licensee and the 1st petitioner together were
conducting the toddy shops. He also deposed that when bonus was not paid
he went to the office of the 1st petitioner. WW2 deposed that the 1st petitioner
used to come to these shops sometimes. WW3 deposed that the 1st
petitioner was the contractor of shop No.147. WW5 deposed that the
contractor of shop No.138 was the petitioner but he never came to the shop.
WW6 deposed that the contractor of the shops for the year 1999-00 was the
1st petitioner. The 1st respondent came to the conclusion that the 1st petitioner
OP.8034/02
3
was the de facto employer solely based on this depositions. I am not
satisfied that such a conclusion can be arrived on the basis of these
deposition because on the very face of these deposition are contradictory in
nature and the admitted fact that the petitioner was not the
contractor/licensee for the year 1999-00. In fact, some of the witnesses
would go to say that the 1st petitioner never came to the shop at all and some
other would say that he used to come to the shop at times. The 1st
petitioner’s contention was that he used to go to the shop only in his capacity
as the office bearer of contractors association. The fact that when the 3rd
respondent himself categorically admits that he himself was the licensee and
employer, I do not think that this evidence is sufficient to rope in the 1st
petitioner as the de facto employer of the toddy shops in question so as to
mulct him with the liability to pay contributions under the Toddy Workers’
Welfare Fund Act. As such, I am of opinion that Exts.P2 and P3 as against
the 1st petitioner is unsustainable and liable to be quashed. I do so.
However, this shall not prejudice the right of the 1st respondent to recover the
contributions from the 3rd respondent who was the licensee and employer of
the toddy shops in question.
The original petition is disposed of as above.
(S. SIRI JAGAN, JUDGE)
aks
S. SIRI JAGAN , J.
OP No.8034/02 F
J U D G M E N T
2nd January, 2007