Bhageerathan v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **FRIDAY, THE 27TH DAY OF MARCH 2015/6TH CHAITHRA, 1937** ## **WP(C).No. 26809 of 2013 (A)** **----------------------------** **PETITIONER:** - **-------------------** **BHAGEERATHAN, S/O.KARATTA KUMARAN, AGED 54 YEARS, THE SECRETARY ALL KERALA ABKARI LICENCY ASSOCIATION(TODDY), ALATHURE TALUK, SLN RICE MILL, CHANDPARA P.O, KUZHALMANNAM, PALAKKAD.** ## **BY ADV. SRI.P.R.SHAJI** **RESPONDENT(S): -------------------------** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. SECRETARY TO GOVERNMENT, LABOUR AND REHABILATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVNANTHAPURAM - 695 001.** **3. ALL KERALA TODDY WORKERS WELFARE FUND BOARD, REP. BY ITS CHAIRMAN, ULLOOR, THIRUVANANTHAPURAM - 695 011.** **4. A.K.VASUDEVAN, ANDEZHATHU HOUSE, SUDEVAN COLONY, PALAKKAD - 678 001.** **R1 & R2 BY GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL R3 BY ADV. SRI.K.D.BABU,SC,** **R4 BY SRI.T.A.SHAJI (SENIOR ADVOCATE) ADV. SRI.M.A.ASIF** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-03-2015 , THE COURT ON 27-03-2015 DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 26809 of 2013 (A)** ## **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **-------------------------------------** **EXHIBIT P1: TRUE COPY OF THE NOTIFICATION WITH NO.(RD) NO 1025/2013/LBR DATED THIRUVANANTHAPURAM 7TH JUN 2013 ISSUED BY LABOUR AND REHABILITATION(B) DEPARTMENT OF THE GOVERNMENT OF KERALA.** **EXHIBIT P2: TRUE COPY OF THE REPRESENTATION SUBMITTED ON 16.8.2013 TO THE RESPONDENT.** **EXHIBIT P3: TRUE COPY OF THE LETTER DATED 04-07-2013 OF THE WELFARE FUND INSPECTOR PALAKKAD ISSUED TO ONE SRI.RAGAVAN, UNDER THE RIGHT TO INFORMATION ACT,TO SHOW THAT SRI.A.K.VASUDEVAN IS CURRENTLY NOT AN ABKARI LICENCEE IN WHATEVER MANNER.** **RESPONDENT(S)' EXHIBITS:** ## **NIL** **---------------------------------------** ## **/TRUE COPY/** **P.S. TO JUDGE** **mbr/** ## **A.V.RAMAKRISHNA PILLAI, J** --------------------------------------------- WPC No.26809 of 2013 --------------------------------------------Dated this the 27[th] day of March, 2015 ## **JUDGMENT** The petitioner, who is the Secretary and member of an association by name “All Kerala Abkari Licensy Association (Toddy)”, has approached this Court seeking the following reliefs: i) to issue a writ, order or direction calling for the records leading to the issuance of Ext.P1 and quash the same, if any, of the persons nominated to the board by the government are not eligible to be nominated as a director of the respective category. ii) to declare that the petitioner has all right to have their representative to properly represent them. 2. The petitioner alleges that the first respondent reconstituted the Toddy Workers Welfare Fund Board in the year 2013 in exercise of the powers conferred under sub section (1)(3) and (5) of Section 6 of the Kerala Toddy Workers Welfare Fund Act, 1969 nominating 7 persons as Directors representing the WPC No.26809/2013 2 Government and next 7 persons as Directors representing the employees and another 7 persons as Directors representing the employees. The petitioner alleges that among these Directors nominated by the Government represented by the employers, most of them are not eligible to be nominated as Directors representing the employers. The petitioner submitted Ext.P2 representation to rectify the anomaly, especially, pointing out that the 4[th] respondent was currently not an abkari licensee and therefore, he is not entitled to be selected as the Director. But it did not evoke any positive response. Hence, he has approached this Court. 3. In the counter affidavit filed by the State, it was specifically contended that the reconstitution of the Board was in accordance with law and the Government was fully satisfied on the functioning of the Director Board. It was submitted that the 4[th] respondent Director representing the employer of the Board also discharges his functions in accordance with WPC No.26809/2013 3 the provisions contained in the Act and scheme. 4. The 4[th] respondent filed a separate counter affidavit refuting all the allegations in the petition. It is contended that it is the prerogative of the Government to nominate a person in the Welfare Board as representative of the employer in accordance with law and the petitioner has no _locus standi_ to challenge the same. 5. As directed by this Court, the third respondent has filed a statement wherein it is stated that the Government forwarded the representation to the Board and it was decided in the 538[th] Board meeting held on 31.8.2013 that it is the Government who nominates the representatives of the employer and the Board has nothing to do with the same and the facts have been communicated to the Government. It was further stated that as per the report of the Welfare Fund Inspector that though the 4[th] respondent is not a toddy shop licensee in the district at present, he was the licensee of the toddy shops at Palakkad WPC No.26809/2013 4 range during 1985-1986, 1988-1989, 1989-1990, 1991-1992, 1992-1993, 1993-1994, 1994-1995, 19961997, 1997-1998, 1998-1999, 2000-2001 and at Chittur range and Palakkad range during the period 1999-2000. 6. Arguments have been heard. 7. The learned counsel for the petitioner invited my attention to the definition of the _employer_ in Section 2(c) of the Toddy Workers' Welfare Fund Act, 1969 which states that an employer is the person who 'employs' workers is the society. The learned counsel for the petitioner also invited my attention to the decision of this Court reported in _**Suseelan**_ v _**state of Kerala**_ (2002 (1) KLT 226) and _**Joseph Joseph**_ v _**State of Kerala**_ (2002(1) KLT 827(SC). Those two decisions cannot be straight away applied to this case, because here, the validity of inclusion of persons in the Board of Directors as the representatives of the employees is under challenge. As per the scheme, equal number of representatives come to the Board as WPC No.26809/2013 5 representatives of the Government, of the employer and employees. Such a situation is envisaged to ensure that the interest of the groups which are represented are protected by their representatives. 8. As rightly pointed out by the learned senior counsel for the 4[th] respondent, the petitioner does not have a case that the 4[th] respondent do not possess any specific qualification prescribed in Section 6 of the Act for being appointed as a Director of the Board. Section 6 only envisages inclusion of equal number of members representing employers, employees and the Government to protect their respective interests in the Board. It is the prerogative of the Government to nominate a person in the Welfare Fund Board as representative of the employer or the employees as the case may be in accordance with law, if the Government is of the view that the representatives so selected would protect the interest of the group which the selected representatives. It cannot be said that the 4[th] respondent is not having any experience as WPC No.26809/2013 6 employer as he was the licensee of the toddy shops of Palakkad range during different periods as it can be seen from the statement submitted by the Ist respondent. The Government is satisfied that the 4[th] respondent can protect the interest of the employees. The said satisfaction is not justiciable in a proceeding under Article 226 of the Constitution. The Act or scheme never says that the representatives of the employer or employees in the Director Board shall continue as employee or employer during the continuance of the Board. Licensees may change every year as the license is normally for one year only. However, the Board is constituted for a particular period. Circumstances may occur where a licensee nominated as Director ceases to be a licensee during the next financial year. If the directorship of such a representative is invalidated on account of the change in circumstance, the Board will have to be reconstituted every year. Such a procedure is not envisaged by law. What is intended by the statute is WPC No.26809/2013 7 the protection of the groups represented by the Directors. Once the Government is satisfied that the interest of the particular group is protected by the persons nominated, the matter ends there. Therefore, on a consideration of the entire materials now placed on record, this Court is of the view that the petitioner is not entitled to get the reliefs as prayed for. In the result, this writ petition fails and accordingly dismissed. **JUDGE** css/ **true copy** **P.S.TO JUDGE**