P.S.Mohan vs The Welfare Fund Inspector
2021 Latest Caselaw 21030 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
    WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
                        WP(C) NO. 11826 OF 2008


PETITIONER:

          P.S.MOHAN
          SIVAPRIYA, TC 11/1937-3,
          PLAMOODU, PATTOM.P.O., THIRUVANANTHAPURAM.

          BY ADV. MEENA.A.



RESPONDENTS:

    1     THE WELFARE FUND INSPECTOR,
          KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD,
          THIRUVANANTHAPURAM.

    2     THASILDAR (REVENUE RECOVERY), EAST FORT
          THIRUVANANTHAPURAM.

    3     THE DISTRICT COLLECTOR, COLLECTORATE,
          THIRUVANANTHAPURAM.

    4     M.PANKAJAKSHY KAMALA COTTAGE
          VAZHUTHACAUDU, THIRUVANANTHAPURAM.

    5     S.SHAJI, SUKUMARA SADANAM, MUTTOM.P.O
          HARIPPAD. (NAME OF THE 5TH RESPONDENT IS DELETED AS PER
          ORDER DATED 24/02/2012 IN IA 8133/08 FROM THE PARTY
          ARRAY AT THE PETITIONER'S RISK).

          BY ADVS.
          SRI.PRATHEESH.P, SC
          SRI.D.SAJEEV BABU, SC, KMTWWFB


    THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO.11826/2008
                                          2


                  P.V.KUNHIKRISHNAN, J
            -------------------------------
                W.P.(C)No.11826 of 2008
           --------------------------------
      Dated this the 20th day of October 2021

                                JUDGMENT

The above writ petition is filed with

following prayers:

"i) issue a writ of certiorari and quash Exhibit P5 series final determination orders for the period 1988-1997.

ii) issue a writ of mandamus or order or direction directing the 1st respondent to pass fresh final determination orders for the period 1988 to 1997 after conducting proper enquiry as contemplated under Section 8(1) of the Act.

iii) issue an order or direction directing the 1st respondent to produce the identity card of assessed employees of Velayudhan and K.Velukkutty Nair.

iv) such other writ, direction or order this Honourable Court deem fit and proper for the circumstances in this case."

2. The grievance of the petitioner is that

he has no way connected with stage carriage

operation. According to the petitioner, he is WP(C) NO.11826/2008

doing sanitary business under the name and style

"Kochin Sanitary Wares". It is the specific case

of the petitioner that, he has never been the

owner or operator of the Stage carriage bus

bearing registration No.KLV 5612 and KRA 3726.

It is the further case of the petitioner that the

registered owner of the bus bearing registration

No.KLV 5612 is the 4th respondent, which was

dismantled in 1988 and the registered owner of

the stage carriage bus bearing registration No.

KRA 3726 is the 5th respondent. It is stated in

the writ petition that, on 10.03.2008, the 2 nd

respondent came to the house of the petitioner

and informed him that an amount of Rs.1,84,653/-

plus interest is due to the Kerala Motor

Transport Workers Welfare Fund Board. The

petitioner submitted an application before the 1st

respondent under the Right to Information Act,

2005 for furnishing the copies of the final

determination orders for the period from 1988 to

1996. Ext.P5 series are the final determination WP(C) NO.11826/2008

orders passed u/s.8 of the Kerala Motor Transport

Workers Welfare Fund Act 1985(for short 'the Act

1985'). In Ext.P5 series final determination

orders, the 2nd respondent assessed contribution

for the period from 1988 to 1996. The case of

the petitioner is that the impugned orders were

passed without giving an opportunity of hearing

to the petitioner. It is also the definite case

of the petitioner that he has no connection with

the stage carriage bus bearing registration

No.KLV 5612 and KRA 3726.

3. Heard the learned counsel for the

petitioner and the learned Standing Counsel for

the 1st respondent.

4. A statement was filed by the learned

Standing counsel on behalf of the 1 st respondent.

In the statement it is stated that, even though

in the writ petition it is stated that the

petitioner has no connection with the stage

carriage operation, it is stated in the cause

title of the earlier case filed by the petitioner WP(C) NO.11826/2008

as evident by Ext.P3 judgment that the petitioner

is a transporting contractor. The learned

Standing counsel submitted that, this itself

shows that the petitioner has connection with the

vehicle. The learned Standing counsel also takes

me through Section 2(e) of the the Act 1985 in

which the term 'employer' is defined. The

learned Standing counsel submitted that, even

though the petitioner was given notice, he

refused to appear and that is why the final

determination order was passed based on the

available materials. The learned Standing

counsel also submitted that, as evident by

paragraph No.2 of the writ petition, the

petitioner already challenged the final

determination order for the period 1993 - 1994

and 1994 - 1995 before the Government under

Section 8(5) of the Act, 1985. That order is not

produced in this writ petition.

5. On the other hand, the learned counsel

for the petitioner reiterated his contentions in WP(C) NO.11826/2008

the writ petition and submitted that the final

determination order is passed without giving an

opportunity of hearing to the petitioner and it

is in violation of Section 8(4) of the Act, 1985.

6. I considered the contentions of the

petitioner and the respondents. This writ

petition is pending before this Court from 2008

onwards. When this writ petition was admitted,

there was an interim order in favour of the

petitioner. Thereafter, the recovery proceedings

are kept in abeyance by the respondents because

of the pendency of this writ petition. It is

true that some of the final determination orders

produced as Ext.P5 series are challenged by the

petitioner by way of an appeal before the

Government and those orders are not produced

before this Court. But it is admitted in the

writ petition itself that the appeal was

dismissed for non prosecution because the lawyer

who was appearing in the appeal died in 2003. At

this distance of time, it will not be proper to WP(C) NO.11826/2008

relegate the petitioner to file an appeal against

Ext.P5 series especially when the contention of

the petitioner is that Ext.P5 series is an order

passed without giving an opportunity of hearing

to the petitioner. Admittedly, Ext.P5 series are

orders passed without giving an opportunity of

hearing to the petitioner. According to the

petitioner, he has no connection with the vehicle

mentioned in the impugned order. On the other

hand the Board has got a contention that the

petitioner is the employer. I don't want to make

any observation about the merit of the case.

Without making any observation on merit, I think

Ext.P5 series orders can be set aside and the

matter can be send back to the 1st respondent to

reconsider it afresh. I also make it clear that

I have not considered the matter on merit and I

am setting aside the impugned order only for the

reason that, admittedly these final orders were

passed with out giving an opportunity of hearing

to the petitioner. Moreover, the petitioner is WP(C) NO.11826/2008

ready to appear before the authority concerned to

submit his contentions on a day fixed by this

Court, without any further notice.

Therefore this writ petition is allowed in

the following manner:

i) Ext.P5 series orders are set aside.

ii) The 1st respondent is directed to

reconsider the matter and pass appropriate orders

in accordance to law, after giving an opportunity

of hearing to the petitioner, as expeditiously as

possible, at any rate, within four months from

the date of receipt of a copy of this judgment.

iii) The petitioner will appear before

the 1st respondent on 15.11.2021 along with a copy

of this judgment and with a copy of this writ

petition.

Sd/-

P.V.KUNHIKRISHNAN JUDGE

DM WP(C) NO.11826/2008

APPENDIX OF WP(C) 11826/2008

PETITIONER EXHIBITS:

EXHIBIT P1 TRUE PHOTOCOPY OF THE LETTER DATED 30.7.1990 BY THE R.T.O TO THE 4TH RESPONDENT.

EXHIBIT P2 TRUE PHOTOCOPY OF THE REGISTRATION CERTIFICATE OF VEHICLE NO.KRA 3726.

EXHIBIT P3 TRUE PHOTOCOPY OF THE JUDGMENT IN O.P.NO.8187 OF 1999 DATED 8.11.2005.

EXHIBIT P4 TRUE PHOTOCOPY OF THE RECEIPT ISSUED BY THE 1ST RESPONDENT DATED 19.3.2008.

EXHIBIT P5 TRUE PHOTOCOPY OF FINAL DETERMINATION ORDER DATED 18.10.1994 FOR THE PERIOD 1988-89.

EXHIBIT P5(A) TRUE PHOTOCOPY OF THE FINAL DETERMINATION ORDER DATED 18.10.1994 FOR THE PERIOD 1989-90.

EXHIBIT P5(B) TRUE PHOTOCOPY OF THE FINAL DETERMINATION ORDER DATED 18.10.1994 FOR THE PERIOD 1990-91.

EXHIBIT P5(C) TRUE PHOTOCOPY OF THE FINAL DETERMINATION ORDER DATED 18.10.1994 FOR THE PERIOD 1991-92.

EXHIBIT P5(D) TRUE PHOTOCOPY OF THE FINAL DETERMINATION ORDER DATED 18.10.1994 FOR THE PERIOD 1992-93.

EXHIBIT P5(E) TRUE PHOTOCOPY OF THE FINAL DETERMINATION ORDER DATED 21.6.1995 FOR THE PERIOD 1993-94.

EXHIBIT P5(F) TRUE PHOTOCOPY OF THE FINAL DETERMINATION ORDER DATED 21.6.1995 FOR THE PERIOD 1994-95.

WP(C) NO.11826/2008

EXHIBIT P5(G) TRUE PHOTOCOPY OF THE FINAL DETERMINATION ORDER DATED 26.2.1997 FOR THE PERIOD 1995-96.

EXHIBIT P6 TRUE PHOTOCOPY OF THE ORDER DATED 24.7.1999 ISSUED BY THE SECRETARY, R.T.A.THIRUVANANTHAPURAM.

EXHIBIT P7 TRUE PHOTOCOPY OF THE REVENUE RECOVERY NOTICE DATED 19.3.2008 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

RESPONDENTS EXHIBITS: NIL

//TRUE COPY//

PA TO JUDGE