High Court Kerala High Court

T.M.Luka vs Toddy Workers Welfare Fund … on 2 January, 2007

Kerala High Court
T.M.Luka vs Toddy Workers Welfare Fund … on 2 January, 2007
       

  

  

 
 
  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