KERALA TODDY WORKERS WELFARE FUND BOARD v. SECRETARY TO GOVERNMENT, LABOUR & REHABILITATION DEPARTMENT, THIRUVANANTHAPURAM & V.K. ASHOKAN

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **MONDAY, THE 21ST DAY OF MAY 2012/31ST VAISAKHA 1934** **WP(C).No. 13053 of 2007 (D) ---------------------------** ## **PETITIONER:** ## **----------** **KERALA TODDY WORKERS WELFARE FUND BOARD, REPRESENTED BY THE CHIEF WELFARE FUND INSPECTOR, THIRUVANANTHAPURAM.** **BY ADV. SRI.RENIL ANTO KANDAMKULATHY** **RESPONDENT(S):** **--------------** **1. THE SECRETARY TO GOVERNMENT, LABOUR & REHABILITATION DEPARTMENT, THIRUVANANTHAPURAM.** **2. V.K.ASHOKAN, VELAMPATH HOUSE, BENNAT ROAD, CHEMBUKKAVU, TRICHUR.** **R1 BY GOVERNMENT PLEADER SRI.VIJULAL R2 BY ADV. SRI.C.C.THOMAS (SR.)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VK** ## **WP(C).No. 13053 of 2007 (D)** **---------------------------** **APPENDIX ---------** **PETITIONER'S EXHIBITS ---------------------** **EXT.P1. COPY OF THE DEPOSITION OF EMPLOYEES AND TRADE UNION LEADERS.** **EXT.P2. COPY OF THE OBJECTION FILED BY THE 2ND RESPONDENT.** **EXT.P3. COPY OF THE FINAL DETERMINATION ORDER NO.A3/TCR/5596/01.1.199731.03.1998 DATED 17.12.2004.** **EXT.P4. COPY OF THE DEPOSITION OF EMPLOYEES AND TRADE UNION LEADERS.** **EXT.P5. COPY OF THE OBJECTION FILED BY THE 2ND RESPONDENT DATED 03.03.2004.** **EXT.P6. COPY OF THE FINAL DETERMINATION ORDER DATED 28.12.2004.** **EXT.P7. COPY of the LETTER DATED 21.02.2006** **EXT.P8. COPY OF THE LETTER DATED 30.10.2006.** **EXT.P9. COPY OF THE APPELLATE ORDER DATED 30.09.2005.** **EXT.P10. COPY OF THE LETTER DATED 30.11.2006.** **ET.P11. COPY of the RESOLUTION DATED 30.03.2007.** **RESPONDENT'S EXHIBITS : NIL** **---------------------** **/ TRUE COPY /** **P.A. TO JUDGE** **VK** ## **S. SIRI JAGAN, J.** ------------------------------------------- ## W.P.(C) No.13053 of 2007 ---------------------------------------------Dated this the 21[st] day of May, 2012 ## **JUDGMENT** The petitioner in this writ petition is the Kerala Toddy Workers' Welfare Fund Board, represented by the Chief Welfare Fund Inspector, Thiruvananthapuram. They are challenging Ext.P9 order passed by the Government in an appeal under the Kerala Toddy Workers' Welfare Fund Act, 1969, whereby the Government has set aside two final determination orders passed by the Welfare Fund Inspector demanding contributions under the Toddy Workers' Welfare Fund Act from the 2[nd] respondent in respect of the toddy shops allegedly conducted by him. According to the petitioner, the 2[nd] respondent was actually conducting the toddy shops, although the licences were in the names of M/s.Sukumaran and P.C. Chandran. A provisional determination order was issued to the said two persons as well as the 2[nd] respondent. Evidence was collected by the petitioner from the employees of the toddy shops, who gave evidence to the effect W.P.(C)No.13053/07 2 that the 2[nd] respondent was the person who was actually conducting toddy shop Nos.55 to 96 in Thrissur Excise Range during the period from 1.1.1997 to 31.3.2000. The workers also deposed that wages and other benefits due to them were actually paid by the 2[nd] respondent. According to the petitioner, the 2[nd] respondent did not choose to challenge the said evidence of the employees by cross examining them. The petitioner has produced the depositions of the witnesses as Ext.P1 series. It is submitted that the 2[nd] respondent did not also choose to adduce any evidence to controvert the evidence of the workers. Based on the evidence so collected, along with the licencees, the 2[nd] respondent also was made liable for the contributions during the period in question as he was the person, who was actually running the toddy shops, although the licences were in the name of M/s. M.V.Sukumaran and P.C. Chandran. The 2[nd] respondent filed appeals against the assessment orders before the 1[st] respondent. The 1[st] respondent allowed the appeals by Ext.P9 order and exonerated the 2[nd] respondent from liability, on the ground that the licence earlier issued to the 2[nd] respondent was cancelled from 26.9.1997 and thereafter, the 2[nd] respondent W.P.(C)No.13053/07 3 was actually prohibited from conducting any toddy shops. The petitioner contends that the fact that the earlier licence issued to the 2[nd] respondent was cancelled and that he was prohibited from conducting any toddy shops does not ipso facto absolve the 2[nd] respondent from liability once it is proved that the 2[nd] respondent actually conducted the toddy shops for the period in question, which has been amply proved by the evidence of the workers, which stands uncontroverted. The petitioner relies on two decisions of learned Single Judges of this Court in _**Welfare Fund Inspector**_ v. _**Mohanan**_ [2006(3) KLT (SN) 89 case No.126], _**Kelan**_ v. _**State of Kerala**_ [2007(2) KLT 933] and a decision of the Division Bench of this Court in W.A.No.1197/2006, which categorically hold that apart from the licencees, persons who were actually running the toddy shops are also liable to pay contributions. 2. The 1[st] respondent has filed a counter affidavit supporting the impugned order. Although no counter affidavit has been filed by the 2[nd] respondent, the 2[nd] respondent vehemently argues in support of the impugned order. He submits that he could not have conducted the toddy shops in question, since he was actually in jail for the period in question 4 W.P.(C)No.13053/07 in connection with offence committed under the Abkari Act. He also points out that the said M/s. M.V. Sukumaran and P.C. Chandran had admitted that they were the licencees of the toddy shops and they had collected the contributions in respect of the workers for the period in question. The learned counsel for the petitioner points out that the liability of the licencees and the person, who actually conducted the toddy shops is joint and several and therefore, simply because the licencees are also liable, the 2[nd] respondent cannot escape the liability from paying the contributions. It is submitted that as is evident from Ext.P10 communication from the petitioner to the Chief Welfare Fund Inspector, the amounts could not be recovered from the licencees, since they have no assets in their names. 3. I have considered the rival contentions in detail. At the outset I have no hesitation to hold that Ext.P9 order is unsustainable, in view of the decisions of this Court holding that apart from licencees the actual person conducting the toddy shops is also liable to pay contributions in respect of the employees of the toddy shops, under the Kerala Toddy Workers’ Welfare Fund Act. The only reason stated in Ext.P9 W.P.(C)No.13053/07 5 for allowing the 2[nd] respondent’s appeal is that license in favour of the 2[nd] respondent cancelled from 26.9.1997 and he was restrained from conducting the business of toddy and therefore, the 2[nd] respondent is not liable to remit the welfare fund contributions demanded by the petitioner. This Court had in the judgments relied upon by the petitioner categorically held that apart from licencees, the person defacto conducting the toddy shops is also jointly and severally liable for payment of contributions under the Act. The fact that the 2[nd] respondent was conducting the toddy shops for the period in question has been amply proved by the evidence of the workers of the toddy shops in question. In Ext.P1 series of the depositions of the witnesses in the proceedings before the Welfare Fund Inspector for determination of amounts due as contributions under the Act, the employees have categorically stated that the 2[nd] respondent was actually conducting the toddy shops and he was paying the wages and other benefits due to the employees. If wages were being paid by the 2[nd] respondent, then naturally the contributions would also have been deducted by the 2[nd] respondent from the wages due to the workers. The 2[nd] respondent has not chosen to challenge W.P.(C)No.13053/07 6 the evidence of the workers. He has not cross examined the witnesses. He has also not chosen to adduce any evidence on his own disclaiming any liability or controverting the evidence of the workers. Although the 2[nd] respondent now claims that he was in jail during the period in question, that contention is not referred to anywhere in the documents available with me. Of course, Ext.P9 order refers to an anticipatory bail, which the 2[nd] respondent claims is regular bail itself, there is no mention that for any part of the period in question the 2[nd] respondent was in jail. On the other hand, he had not chosen to bring that fact on record either before the Welfare Fund Inspector and the 1[st] respondent during the proceedings under the Act or before this Court in this writ petition. Therefore, that submission cannot be accepted on face value, insofar as there is ample evidence to show that the 2[nd] respondent was the person, who was actually conducting the toddy shops and by virtue of the judgments of this Court. It is settled law that the person, who was defacto conducting the toddy shops is also liable to pay contributions under the Act and therefore I have no hesitation to hold that Ext.P9 order is unsustainable. Accordingly, Ext.P9 order is quashed. Original final 7 W.P.(C)No.13053/07 determination orders holding the 2[nd] respondent is liable to pay contributions under the Act, which have been set aside by Ext.P9 order is restored. It would be open to the petitioner to recover the contributions assessed on the 2[nd] respondent by appropriate recovery proceedings. If the 2[nd] respondent has any case that the licencees are liable to make good the same to him, it would be open to the 2[nd] respondent to recover any amount recovered by the petitioner from the 2[nd] respondent, from the licencees namely, M/s. M.V. Sukumarn and P.C. Chandran. The writ petition is allowed as above. ## **S. SIRI JAGAN, JUDGE** acd W.P.(C)No.13053/07 8 W.P.(C)No.13053/07 9