Kerala High Court
Antony Joseph vs State Of Kerala on 27 March, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 27TH DAY OF MARCH 2024 / 7TH CHAITHRA, 1946
WP(C) NO. 15390 OF 2015
PETITIONER:
ANTONY JOSEPH
PATTASSERY HOUSE, SOUTH ARYAD, AVALUKUNNU P.O.,
ALAPPUZHA DISTRICT.
BY ADVS.
SRI.N.RAGHURAJ
SMT.K.AMMINIKUTTY
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
LABOUR & SKILLS DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE KERALA TODDY WORKERS WELFARE FUND BOARD
OFFICE OF THE KERALA TODDY WORKERS WELFARE FUND BOARD,
ULLOOR P.O., THIRUVANANTHAPURAM-695011,
REPRESENTED BY ITS CHAIRMAN.
3 THE DISTRICT TODDY WORKERS' WELFARE FUND INSPECTOR
KERALA TODDY WORKERS' WELFARE FUND BOARD,
ALAPPUZHA-688001.
BY ADVS.
SANTHOSH KUMAR G
SRI.KOSHY GEORGE
SRI.T.K.VIPIN DAS - SR. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.01.2024, THE COURT ON 27.03.2024 DELIVERED THE FOLLOWING:
WP(C) NO. 15390 OF 2015
2
JUDGMENT
1. Petitioner, licencee in respect of toddy shops in Group
No.I of Kuttanad Excise Range for the year 2008-2009
comprising of Toddy shop Nos.1, 2, 6, 7, 96 & 97, has
approached this Court for claiming following reliefs:
i. Issue a writ in the nature of certiorari calling for the
records leadings to (60) Ext-P9, P9(a), P11, P12 &
P12(a) and to quash the same;
ii. to issue a writ in the nature of Mandamus or such
other writ direction or order commanding the
respondents to refrain from initiating any action to
recover the amounts determined as per Exts-P9 &
P9(a) orders from the petitioner;
iii. to issue a writ in the nature of Mandamus or such
other writ direction or order declaring that the
petitioner is not liable to remit the amounts
determined as per Exts-P9 & P9(a) orders;
iv. to issue a writ in the nature of Mandamus or such
other writ direction or order commanding the 2nd
respondent to conduct a proper enquiry under Sec.8 of
the Kerala Toddy Workers Welfare Fund Act to
determine the contribution of the petitioner towards
Toddy Workers Welfare Fund in respect of the
T.S.Nos.1 & 2/08-09 of Group No.I of Kuttanad Excise
Range afresh, after affording due opportunity to the
petitioner to adduce evidence;
V. award to the Petitioner the costs of these proceedings
WP(C) NO. 15390 OF 2015
and;
vi. to grant such other and further reliefs as are just,
proper and necessary or may be prayed for."
2. The relief aforementioned is sought on the premise
that he was declared successful grantee of the privilege in
respect of the Toddy shops but could not find suitable
sites/buildings to locate Toddy shop Nos.6, 96 & 97 and
accordingly were not licensed. The licence was issued on
25.09.2008 for other shops vide communication Ext.P1.
T.S.No.1 Naduvilemuri had seven (7) registered workers on its
rolls, T.S.No.2 had five (5) workers and T.S.No.7 had nine (9)
workers on its rolls during 2008-2009. All the aforementioned
workers were members of the Kerala Toddy Workers Welfare
Fund (hereinafter called 'the Fund' for short). Provisions of
Kerala Abkari Shops Disposal Rules, 2002, imposes a condition
upon a licencee for the purpose of vending toddy to remit,
among other, three (3) months contribution as fixed by the
Toddy Workers Welfare Fund Inspector, to the Fund as
advanced contribution and remaining to be in nine (9) equal
monthly instalments. Though contribution in respect of workers
WP(C) NO. 15390 OF 2015
in T.S.Nos.1, 2 & 7 were tendered but of others could not be on
account of non issuance of licence.
3. Respondent No.2 - the Kerala Toddy Workers Welfare
Fund Board conducted an enquiry as per the provisions of
Section 8 of the Kerala Toddy Workers Welfare Fund Act, 1969,
for the purpose of determining the employer's contribution.
Petitioner submitted representations containing particulars of
contributions vide Exts.P2, P2(a) & P2(b). Likewise, the
registered workers attached to Toddy Shop Nos.1, 2 and 7,
through their unions had also submitted their representations
regarding the amounts due to them from the employer towards
the Fund vide Exts.P3, P3(a) and P3(b). On 15.12.2010,
pre-assessment notices were issued in respect of Toddy Shop
Nos.1, 2 & 7. But the assessment proceedings were not
completed and after lapse of three (3) years ie., in 2013, again
issued pre-assessment notices under Section 8A of the Act
wherein the names of certain persons, who were not workers at
any point of time, were included.
4. In the meantime, in the year 2014-2015, when
WP(C) NO. 15390 OF 2015
conducting Toddy shops in Group No.I of Kuttanad Excise
Range, had to face an illegal strike by two trade unions. The
complaint Ext.P5 was submitted and conciliation proceedings
were initiated but union deliberately abstained from the
conciliation proceedings.
5. Jurisdiction of this Court vide W.P.(C)No.11532/2014
for police assistance was sought which was granted vide order
dated 13.05.2014 Ext.P7. This fact was also brought to the
notice of the Welfare Fund Board. In 2014, respondent No.2
again posted enquiry proceedings but the petitioner had go to
the office of the District Labour Officer. Request was made for
deferring the hearing but of no avail, resulting into final
determination vide Exts.P9 and P9(a). Statutory appeals
Exts.P10 and P10(a) have been dismissed vide Ext.P11 and
recovery notices were issued vide Ext.P12 and P12(a). It was
contended that petitioner is not liable to pay towards the fund of
Toddy tapping workers who are/were not registered workers
attached to Toddy shop Nos.1 and 2. The petitioner had to
attend the hearing before the District Labour Officer who seized
WP(C) NO. 15390 OF 2015
off the matter of labour dispute.
6. On the other hand, respondent No.1-State contested
the case and objected to the averments of the petition with
regard to non-affording of opportunity. It was stated that
enquiry was held on different dates ie., 11.12.2012,
16.04.2013, 10.12.2013, 11.12.2013, 07.05.2014, 21.05.2014
and 27.05.2014. After having issued the pre-assessment notice
in 2010 again pre-assessment notices were issued. Petitioner
failed to comply and repeated adjournments were sought. On
enquiry, it was found that no other case was pending before the
District Labour Officer wherein the petitioner was directed to
appear, as informed by him, as a reason for seeking
adjournment. Enquiry initiated in 2011 got prolongated on
account of the fault of the petitioner. Non contribution entailed
into recovery action which has rightly been initiated.
7. I have heard the learned counsel for the parties and
appraised the paper book.
8. The counter affidavit of the respondent No.1 would
reveal that the assessment order could not be issued in respect
WP(C) NO. 15390 OF 2015
of the employee of the Toddy shops on 19.07.2014 on account
of non co-operation of the petitioner as he deliberately tried to
prolong Section 8(1) enquiry envisaged under the Kerala Toddy
Workers Welfare Fund Act, 1969. Paragraphs 7 and 8 of the
counter affidavit reads as under:
"7. The welfare fund determination procedure of
Group I toddy shops of Auttanad range for the period 2008-
09 and 2009-10 was started as early in with of pre-
assessment dated 18.08.11 by notice on 21.03.11. Then
also, the petitioner filed objections about the functioning of
the shops and wages of workers. This shows that from the
very beginning itself the petitioner was trying to delay the
issuance of determination order. The petitioner was the
licensee of Group I toddy shops from the year 2008-09
onwards. Assessment orders could not be issued in respect
of the employees of these toddy shops till 19.07.14 due to
the non co- operation of the petitioner as he deliberately
tried to prolong the Section 8(1) enquiry as envisaged under
the Kerala Toddy Workers' Welfare Fund Act, 1969 and
related procedures citing one reason or other. The Trade
Union leader had protested against the callous attitude of
the petitioner and informed the 3rd respondent that the
reasons cited for adjournment of enquiries were far from
truth. In order to determine the welfare fund contribution of
workers engaged in Toddy shops in Group-I of Kuttanad
Range for the year 2008-09, the 3rd respondent scheduled
Section (8) inquiries on 11.12.12, 16.04.13, 10.12.13,
11.12.13, 07.05.14, 21.05.14 and 27.05.14.
WP(C) NO. 15390 OF 2015
8. It is submitted that in order to determine the
Welfare Fund of workers of the respective shops of Group-I
of Kuttanad range for the year 2008-09, Section (8) inquiry
was conducted on 16.04.13 and pre-assessment notice was
issued on 14.05.13 by the Welfare Fund Inspector. The
licensee raised objection against the pre-assessment notice
and hearing on Inquiry was scheduled on 10.12.13. The
petitioner sought adjournment for the same on 09.12.13. On
account of this the inquiry was postponed to 11.12.13 on
which date also petitioner did not attend. Again inquiry was
posted on 07.05.14, 21.05.14 & 27.05.14. But on all
occasion, petitioner evaded the Section (8) the indifferent
attitude of the petitioner, it is submitted that, when the
Inquiry was scheduled on 27.05.14, the petitioner sought
adjournment on 24.05.14, stating that he has to attend a
hearing before the District Labour Officer, Alappuzha on the
same date and at the same time. Having got information
from reliable sources that the request from licensee is fake,
the 3rd respondent Officer ov contacted the District Labour
Cicer)780/2014 and the District Labour Officer, made it
clear, that there were no inquiries in connection with labour
problems of toddy shops in Group I of Kuttanad range
scheduled on 27.05.14. Realising that the petitioner was
trying to delay the Section (8) inquiry proceedings
indefinitely, the scheduled inquiry was conducted by Welfare
Fund Inspector as noticed earlier. The Welfare Fund
determination proceedings of Group-I toddy shop of
Kuttanad Range for the period 2008-09 which was started
early in 2011 with the inquiry dated 18.08.11. Then also, the
petitioner filed objection about the shop functioning and
wages. This shows that from the very beginning itself the
WP(C) NO. 15390 OF 2015
petitioner was trying to delay the issue of Exhibit P9 and
P9(a)."
9. The aforementioned averments have not been
rebutted by any material or record. I am of the view that on
failure of compliance of the statutory provisions, amount is
liable to be paid by the petitioner. However, contents of Ext.P12
and P12(a) reveals the demand of 2008-2009 is Rs.25,539/-
(Rupees twenty five thousand five hundred thirty nine only) and
5,111/- (Rupees five thousand one hundred eleven only) plus
element of 18%. I am of the view that 18% interest is on a
higher side, which should be not more than 6%.
With the aforementioned modification, all the orders are
upheld. Respondents shall issue a fresh recovery notice with 6%
interest on the amount. Petitioner shall pay the same in
accordance with law, failing which, necessary action shall be
taken by the respondents. Writ petition stands disposed off.
Sd/-
AMIT RAWAL
JUDGE
nak
WP(C) NO. 15390 OF 2015
APPENDIX OF WP(C) 15390/2015
PETITIONER EXHIBITS
TRUE PHOTOCOPY OF THE COMMUNICATION
EXHIBIT-P1: BEARING NO.KC1/09 DATED 24.02.2009.
TRUE PHOTOCOPY OF THE STATEMENT IN
RESPECT OF THE T.S.NO.1 SUBMITTED BY
EXHIBIT-P2:
THE PETITIONER.
TRUE PHOTOCOPY OF THE STATEMENT IN
RESPECT OF THE T.S.NO.2 SUBMITTED BY
EXHIBIT-P2(A):
THE PETITIONER.
TRUE PHOTOCOPY OF THE STATEMENT IN
RESPECT OF THE T.S.NO.7 SUBMITTED BY
EXHIBIT-P2(B):
THE PETITIONER.
TRUE PHOTOCOPY OF THE STATEMENT IN
RESPECT OF THE T.S.NO.1 SUBMITTED BY
EXHIBIT-P3:
THE UNIONS.
TRUE PHOTOCOPY OF THE STATEMENT IN
RESPECT OF THE T.S.NO.2 SUBMITTED BY
EXHIBIT-P3(A):
THE UNIONS.
TRUE PHOTOCOPY OF THE STATEMENT IN
RESPECT OF THE T.S.NO.7 SUBMITTED BY
EXHIBIT-P3(B):
THE UNIONS.
TRUE PHOTOCOPY OF THE PRE-ASSESSMENT
NOTICE DATED 15.12.2010 IN RESPECT OF
EXHIBIT-P4:
THE T.S.NOS.1.
TRUE PHOTOCOPY OF THE PRE-ASSESSMENT
NOTICE DATED 15.12.2010 IN RESPECT OF
EXHIBIT-P4(A):
THE T.S.NOS.2.
TRUE PHOTOCOPY OF THE PRE-ASSESSMENT
EXHIBIT-P4(B): NOTICE DATED 15.12.2010 IN RESPECT OF
THE T.S.NOS.7.
WP(C) NO. 15390 OF 2015
TRUE PHOTOCOPY OF THE COMPLAINT DATED
EXHIBIT-P5: 05.04.2014.
TRUE PHOTOCOPY OF THE NOTICE DATED
EXHIBIT-P6: 24.04.2014.
TRUE PHOTOCOPY OF THE NOTICE DATED
EXHIBIT-P6(A): 08.05.2014.
TRUE PHOTOCOPY OF THE ORDER DATED
EXHIBIT-P7: 13.05.2014 IN W.P.(C) NO.11532/2014.
TRUE PHOTOCOPY OF THE REPRESENTATION
DATED 10.04.2014 SUBMITTED BY THE
EXHIBIT-P8:
PETITIONER.
TRUE PHOTOCOPY OF THE DETERMINATION
ORDER NO.S3/KTD/GR1/TS NO.1/08-09 DATED
EXHIBIT-P9:
15.07.2014.
TRUE PHOTOCOPY OF THE DETERMINATION
ORDER NO.S3/KTD/GR1/TS NO.2/08-09 DATED
EXHIBIT-P9(A):
18.07.2014.
TRUE PHOTOCOPY OF THE STATUTORY APPEAL.
EXHIBIT-P10:
TRUE PHOTOCOPY OF THE STATUTORY APPEAL.
EXHIBIT-P10(A):
TRUE PHOTOCOPY OF THE G.O.
EXHIBIT-P11: (RT)NO.397/2015/LBER DATED 23.03.2015.
TRUE PHOTOCOPY OF THE REMINDER NOTICE
NO.S3/KTD/GRP I/TS NO.1/08-09/8 DATED
EXHIBIT-P12:
01.04.2015.
TRUE PHOTOCOPY OF THE REMINDER NOTICE
EXHIBIT-P12(A): NO.S3/KTD/GRP I/TS NO.2/08-09/8 DATED
01.04.2015.
