Lourdes Hospital vs State Of Kerala
2023 Latest Caselaw 1375 Ker

Citation : 2023 Latest Caselaw 1375 Ker
Judgement Date : 20 January, 2023

Kerala High Court

Lourdes Hospital vs State Of Kerala on 20 January, 2023

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE AMIT RAWAL
     FRIDAY, THE 20TH DAY OF JANUARY 2023 / 30TH POUSHA, 1944
                       WP(C) NO. 35352 OF 2015
PETITIONER:

          LOURDES HOSPITAL
          ERNAKULAM, COCHIN, KERALA,
          REPRESENTED BY ITS DIRECTOR REV.FR.SABU NEDUNILATHU.

          BY ADVS.
          SRI.BECHU KURIAN THOMAS (SR.)
          SRI.ENOCH DAVID SIMON JOEL



RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY THE SECRETARY, DEPARTMENT OF LABOUR,
          GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695 001.

    2     KERALA SHOPS & COMMERCIAL ESTABLISHMENTS
          WELFARE FUND BOARD
          FIRST FLOOR, CHERUNNIYOOR TOWERS, VANCHIYOOR,
          THIRUVANANTHAPURAM -695 001, REPRERSENTED BY ITS CHIEF
          EXECUTIVE OFFICER.

    3     THE DISTRICT EXECUTIVE OFFICER
          DISTRICT OFFICE, KERALA SHOPS & COMMERCIAL
          ESTABLISHMENTS WELFARE FUND BOARD, KALOOR-KADAVANTHRA
          ROAD, KALOOR, KOCHI - 682 017.

          BY ADV SRI.T.P.PRADEEP, SC, KERALA SHOPS AND COMMERCIAL
          ESTABLISHMENT WORKERS WELFARE FUND BOARD
          SRI.JUSTIN JACOB, SR.GOVERNMENT PLEADER




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C)No.35352/2015                                 2




                                        JUDGMENT

The petitioner challenges Ext.P1 notice dated 27.10.2015

issued under the provisions of Section 12 of the Kerala Shops and

Commercial Establishments Workers' Welfare Fund Act, 2006

(Hereinafter referred to as 'the Act').

2. The short point involved in this case is, whether the

notice Ext.P1 under Section 12 in the absence of the initiation of

the enquiry as envisaged under Section 4 of the Act, would be

sustainable in the eyes of law. Concededly notice Ext.P1 do not

reflect that at any point of time any notice under Section 4 was

issued. This fact is reinforced from the contents of the counter

affidavit, wherein in paragraph 6, it has been stated as under :

"6. The issuance of notice under Section 12 of the Kerala Shops and Commercial Establishments Workers' Welfare Fund Act, 2006, is not a bar for the petitioner to submit his explanation before the Board. As per Section 11(4) of the Kerala Shops and Commercial Establishment Workers' Welfare Fund Act, 2006, if any person is aggrieved by an order under sub section (1) of Section 11 regarding the payment of contribution, may within 30 days from the date of receipt of the order prefer an appeal before the Labour Commissioner or an officer, not below the rank of the District Labour Officer of the Labour Department authorised to by him in this behalf. It is pertinent to note that the writ petitioner has not complied with this Section. Therefore, the contention of the petitioner to set aside Ext.P1 notice is not sustainable either in law or on facts."

3. Learned counsel for the respondents do not deny the

fact that no notice was issued under Section 4.

4. Sections 4 and 12 of the Act read as follows :

"4. Contribution to the Fund :- (1) Every member shall contribute to the Fund fifty rupees per month. (2) Every employer shall contribute to the Fund rupees fifty per month, in respect of each worker employed by him.

(3) A self employed person shall pay rupees twenty every month in addition to the contribution to the Fund as per sub-section (1).

(4) The 'Government shall contribute to the Fund by way of grant, an amount of rupees five per month paid by each member under sub-section (1) or twenty five per cent of the employee's contribution whichever is higher.

(5) The amount of contribution to be remitted as such shall be deposited in a Co-operative Bank recognised by the Board, or Nationalized Banks or any institutions decided by the Government; for collecting such amount.

(6) The Government may, by notification in the Gazette, revise the rate of contribution specified in sub-section (1) and (2) and the rate of grant specified in sub-section (4), once in every three years taking into account the expenses required for the implementation of the scheme.

(7) Every notification under sub-section (6) shall be laid, as soon as may be, after it is issued, before the Legislative Assembly while it is in session for a total period of fourteen days, which may be comprised in one session or in two successive sessions and if, before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assembly makes any modification in the notification or decides that the notification should not be issued, the notification shall, thereafter, have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that notification."

"12. Provisional assessment and collection of contribution.--(1) Every employer liable to pay

contribution under section 4 shall, pending determination of amount due from him under section 11, pay on or before the fifth day of each succeeding month, an amount equal to one-twelfth of the amount payable annually by him as determined for the last time under the said section, in the manner as specified in the scheme. -

(2) Where the contribution is not paid by the employer, worker or self employed person on or before the due date, any officer of the Board authorised by the Board in this behalf shall issue a notice, showing the amount in arrears and if the amount is not paid within fifteen days of the receipt of such notice, that amount may be recovered with twelve per cent interest per annum in the same manner as arrears of public revenue due on land.