Lini Rajesh and Ishi Mathew v Welfare Fund Inspector, Kerala Toddy Workers Welfare Fund Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 25TH DAY OF MAY 2017/4TH JYAISHTA, 1939** ## **WP(C).No. 7403 of 2016 (A)** **---------------------------** ## **PETITIONER(S):** **-------------** **1.LINI RAJESH, W/O.RAJESH KURIAN (LATE), AGED 39 YEARS, RESIDING AT 'MUTHOLIL' HOUSE, LITTLE FLOWER SEMINARY ROAD, ALUVA.** **2.SMT.ISHI MATHEW, M/O.RAJESH KURIAN (LATE), AGED 65 YEARS, RESIDING AT 'MUTHOLIL' HOUSE, PALA-686 575.** **BY ADV. SMT.DAISY A. PHILIPOSE** ## **RESPONDENT(S):** **--------------** **1.WELFARE FUND INSPECTOR, THE KERALA TODDY WORKERS WELFARE FUND BOARD, OFFICE OF THE WELFARE FUND INSPECTOR, KANJANI ROAD, AYYANTHOLE, THRISSUR P.O.** **2.SECRETARY TO GOVERNMENT** **LABOUR AND REHABILITATION (S) DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM, (APPELLANT AUTHORITY UNDER THE KERALA TODDY WORKERS WELFARE FUND ACT, 1969).** **3.C.K.PRABHAKARAN, CHITTELATH HOUSE, NAYARANGADI, KODASSERY P.O., THRISSUR-680 721.** **EL** **WP(C).No. 7403 of 2016 (A)** **---------------------------** ## **4.T.A.SHAJI,** **THANADAMPARAMBIL HOUSE, NAYARANGADI, KODASSERY P.O., THRISSUR-680 721.** **5.C.K.ITTAMIN, CHITTEATH HOUSE, NAYARANGADI, KODASSERY P.O., THRISSUR-680 721.** ## **6.C.K.SAHAJAN,** **CHITTEATH HOUSE, NAYARANGADI, KODASSERY P.O., THRISSUR-680 721.** **7.LEELA, W/O.BALAN (LATE), MEPPULLI HOUSE, NAYARANGADI, KODASSERY P.O., THRISSUR-680 721.** ## **8.M.D.BAHULEYAN,** **MARICKAL KARIPATHRA HOUSE, KODASSERY P.O., THRISSUR-680 721.** ## **9.K.S.RAVI,** **KANDANI HOUSE, NAYARANGADI, KODASSERY P.O., THRISSUR-680 721.** ## **10.P.G.AJAYGOSH,** **PATTATHIPARAMBIL HOUSE, KOTTAMURI POST, THRISSUR-680 732.** ## **11.P.K.JOHNSON,** **PADAMATTUMMAL HOUSE, KOTTAMURI POST, KURUVILASSERRY, THRISSUR-680 732.** **R1 BY ADVS.SRI.RENIL ANTO,SC,KTWWFB SRI.KOSHY GEORGE,SC,KTWWFB R2 BY SR. GOVERNMENT PLEADER SRI. S. GOPINATHAN R10 BY ADVS.SRI.G.HARIHARAN SRI.PRAVEEN.H.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.03.2017, ALONG WITH WPC.7404/2016 AND CONNECTED CASES, THE COURT ON 25.05.2017 DELIVERED THE FOLLOWING:** **EL** ## **WP(C).No. 7403 of 2016 (A) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **EXT.P1A TRUE COPY OF THE INQUIRY NOTICE DATED 7.1.2013 ISSUED BY THE 1ST RESPONDENT EXT.P2A TRUE COPY OF THE AGREEMENT DATED 20.8.1999, ENTERED INTO BETWEEN C.K.PRABHAKARAN AND 10 OTHERS EXT.P3A TRUE COPY OF MEMORANDUM OF ORIGINAL PETITION IN OP NO.20624 OF 2001 EXT.P4A TRUE COPY OF JUDGMENT DATED 13.7.2001 IN OP NO.20624 OF 2001 EXT.P5A TRUE COPY OF THE PRE-ASSESSMENT ORDER NO.A1/CHDY/49-108/17/8/99-31/3/2000 DATED 12.9.2014. EXT.P6A TRUE COPY OF THE FINAL ASSESSMENT ORDER DATED 28.2.2015 PASSED BY THE 1ST RESPONDENT EXT.P7A TRUE COPY OF THE APPEAL MEMORANDUM DATED 18.6.2015 FILED BY THE PETITIONER UNDER SECTION 8(5) OF THE KERALA TODDY WORKERS WELFARE FUND ACT,1969 EXT.P8A TRUE COPY OF THE ORDER NO.53/2015/LABOUR DATED 18.1.2016 ISSUED BY THE 2ND RESPONDENT EXT.P9TRUE COPY OF THE REVENUE RECOVERY NOTICE DATED 23.4.2016, ISSUED BY VILLAGE OFFICER OF THE ALUVA WEST VILLAGE** **RESPONDENT(S)' ANNEXURE/EXHIBITS -------------------------------ANX.A COPY OF LETTER DATED 29.03.2005 EXT.R2(A) A TRUE COPY OF THE LETTER DATED 16.09.1999 EXT.R2(B) A TRUE COPY OF THE LETTER DATED 29.03.2005** **TRUE COPY** **P.S. TO JUDGE** **EL** ## **A. MUHAMED MUSTAQUE, J.** -------------------------------------------------- W.P.(C) Nos. 7403, 7404 & 9187 of 2016 and 1347 & 10374 of 2017 -------------------------------------------------- Dated this the 25[th] day of May, 2017 ## **J U D G M E N T** - 1.In all these writ petitions, challenge is made as against the determination of the amount due from the employer under the Kerala Toddy Workers Welfare Fund Act, 1969 (for short, “the Act”). - 2.The shops in question are toddy shop Nos. 49 to 108 of - Chalakkudy range. The period of determination is 17.08.1999 to 31.03.2000. Since the dispute is relating to a common assessment, all these writ petitions are being disposed of by a common judgment. However, to understand the facts involved in each case and the nature of the challenge made therein, facts are stated as follows; ## (i)WP(C) 7403/2016 - This writ petition is filed by the legal heirs of late Sri.Rajesh Kurian, one of the licensees of the above W.P.(C) No. 7403/2016 & con. cases **==> picture [20 x 8] intentionally omitted <==** shops during the above period. Sri.Rajesh Kurian died on 14.01.2002, apparently, by committing suicide. As seen from the pleadings, there was final determination of contribution on 31.01.2002. This was determined after issuing notice to Sri.Rajesh Kurian. However, some of the aggrieved employers challenged this in appeal, invoking Section 8(5) of the Act. Petitioners' case is that they received a notice from the Welfare Fund Board on 07.01.2013 regarding a de-novo enquiry ordered in appeal. Petitioners have objected to the proceedings against Sri.Rajesh Kurian on the ground of limitation. They also raised a contention that during the above period, the partnership firm, consisted of Sri.Prabhakan and others, was running the shops. Overruling the objection, the primary authority determined contribution payable, fastening the liability upon the legal heirs of Sri.Rajesh Kurian along with others. This order is produced as Ext.P6. Petitioners challenged the above order before the Government in appeal. However, they were W.P.(C) No. 7403/2016 & con. cases **==> picture [20 x 8] intentionally omitted <==** unsuccessful in appeal. It is challenging these, the petitioners have approached this Court. • The main grounds urged before this Court is that the recovery is barred by limitation. It is submitted that the determination as against Sri.Rajesh Kurian was become final in the year, 2002; and therefore, in the light of the judgment of this Court in **Purushothaman K.N.** v. **Inspector, Thodupuzha & Others** [2012 (1) KHC 192], the recovery is barred by limitation. ## (ii)WP(C) No. 7404/2016 - This writ petition is filed by one Sri.Sebastian Joseph. His case is that he was a licensee for one day (17.08.1999 to 18.08.1999) and he was only a power of attorney of Sri.Rajesh Kurian, acting as an attorney till the death of Sri.Rajesh Kurian; and therefore, he cannot be considered as an employer, except for one day, for the purpose of making contribution. He challenges the final determination as well as the W.P.(C) No. 7403/2016 & con. cases ..4.. ## appellate order in this writ petition. ## (iii)WP(C) No.9187/2016 - This writ petition is filed by Sri.P.G.Ajay Ghosh and Sri.Ravi K.S., challenging the final determination order passed under the Act. The case of the petitioners is that they were only workers under the contractors and there was no evidence to show that they were the employers and therefore, the determination against them is illegal. (iv)WP(C) No.1347/2017 - This writ petition is filed by Sri.T.A.Shaji, Sri.C.K.Sahajan, Smt.Leela and Sri.M.D.Bahuleyan. Sri.Shaji, Sri.Sahajan and Sri.Bahuleyan would urge that they were workers under the contractors along with late Balan, the husband of Smt.Leela, and the determination of contribution against them is, therefore, illegal. They also challenge the revenue recovery on the ground of limitation. ## W.P.(C) No. 7403/2016 & con. cases ## ..5.. ## (v)WP(C) No.10374/2017 - This writ petition is filed by Smt.Jessy Johnson. According to her, her husband, Sri.Johnson, was a worker under the contractors and therefore, he cannot be proceeded under the Welfare Fund Act for levying contribution. 3.The Kerala Toddy Workers Welfare Fund Act, 1969, is a welfare legislation enacted for the benefit of toddy workers in the State. Right to vend toddy is auctioned to the licensees based on bid. Under law, a licensee is responsible for the all acts in relation to the licence given. However, the Toddy Welfare Fund Act has a peculiar definition of “employer” to cast liability not only on the licensees, who are responsible under law, but also any person, who, by virtue of his position of engagement in the toddy shop, has a status of an employer. The ordinary law to determine the employer and employee relationship, thus, is imported to the meaning of employer under the Act with respect to the W.P.(C) No. 7403/2016 & con. cases **==> picture [20 x 8] intentionally omitted <==** liability for making contribution. It is appropriate in this context to refer to Section 2(c) of the Welfare Fund Act, which reads as follows; “(c) “employer” means any person who employs, whether directly or through another person, or whether on behalf of himself or any other person, one or more employees and includes any person who has a licence for the manufacture, distribution, storage or sale of toddy under the Abkari Act for the time being in force;” Thus, going by the definition of “employer” as above, it can be discerned that meaning of “employer” has a wide connotation to include any person, who has control over the employment. A licensee, by virtue of licence, no doubt, is responsible under law in relation to the licence given. However, definition of “employer” within its sweep is capable to take in an agent, who runs the toddy shop on behalf of principal. Therefore, in appropriate cases, holder of power of attorney also would fall within the ambit of “employer” depend upon the nature of functions discharged by him. 4.In this case, one of the challenge by the writ petitioner in WP(C) No.7404/2016, Sri.Sebastian Joseph, is that he W.P.(C) No. 7403/2016 & con. cases **==> picture [20 x 8] intentionally omitted <==** was only a power of attorney of Sri.Rajesh Kurian and he had conducted the toddy shop only for one day and therefore, he cannot be made liable. Then, a question would arise whether a power of attorney holder can be made liable or not. This would depend upon the functions and duties performed by the power of attorney holder. If power of attorney was given only to sign on behalf of the employer, certainly, such a power of attorney holder cannot be made liable. However, if the power of attorney holder is found to be discharging all that functions of an employer, certainly, such power of attorney holder would fall within the ambit of “employer”. What has to be considered is the nature of functions discharged by virtue of the power of attorney. If, by virtue of the power of attorney, a person has power to engage or disengage an employee or he has control over the toddy shop to run on behalf of another, certainly, he will come within the ambit of “employer”. It is not to look out of the statutory provisions as above W.P.(C) No. 7403/2016 & con. cases **==> picture [20 x 8] intentionally omitted <==** to consider the source of power for such engagement, whether it is based on a power of attorney or by any other agreement. The moment it is found that a person has power through whatever authority he might have derived from, that person will have the status of an employer. Therefore, a power of attorney holder cannot claim that he cannot be made liable to pay contribution unless he is able to show that he has no control over the toddy shop. In the absence of any evidence to show that he has no control over the toddy shop, a power of attorney holder also would be liable for contribution. In this case, Sri.Sebastian Joseph was found actively involving in running the shop. He has no case that he was a mere signatory to affix signature on behalf of Sri.Rajesh Kurian. The findings clearly establish that he has control over the shops. In such circumstances, his objection that he cannot be made liable as he was a power of attorney holder, is misconceived. W.P.(C) No. 7403/2016 & con. cases ..9.. - 5.In regard to the next question as to the claim as workers under contractors, admittedly, a partnership was formed on 20.08.1999. The partnership deed would show that Sri.Balan, Sri.Ajay Ghosh, Sri.Johnson, Sri.Shaji, Sri.Ravi etc. were all parties to such partnership. Therefore, it cannot be said that those persons were workers under the contractors. - 6.A common question of limitation was also raised in this matter. In regard to the question of limitation, it is to be noted that there was a challenge against the original determination and that was carried in appeal. There was a direction for de-novo enquiry. Again, it was appealed. Therefore, recovery is due from the date on which the order becomes enforcible. - 7.In the case of Sri.Rajesh Kurian, there is an argument that the order has become final against Sri.Rajesh Kurian in the year, 2000, and therefore, the legal heirs of Sri.Rajesh Kurian cannot be proceeded against for recovery based on a de-novo enquiry. It is to be noted W.P.(C) No. 7403/2016 & con. cases **==> picture [26 x 8] intentionally omitted <==** that in the writ petition filed by the legal heirs of Sri.Rajesh Kurian, there is no challenge regarding the revenue recovery proceedings. The order under challenge is the determination under the Act. The question as to whether the assessment as against Sri.Rajesh Kurian had become final in the year, 2000, for the purpose of reckoning limitation to initiate revenue recovery, therefore, can only be decided when there is a challenge made against the revenue recovery proceedings. It is not known whether requisitions were made immediately after the year, 2000. This question has to be left open to be decided at appropriate stage. 8.In relation to the scope of interference with the impugned orders of assessment, this Court is of the view that the power of judicial review is limited to interfere with the findings on facts. The primary and appellate authorities have to come to the conclusion based on the materials and evidence. There is no error with the decision making process of the authorities. In W.P.(C) No. 7403/2016 & con. cases **==> picture [26 x 8] intentionally omitted <==** fact, ample opportunities were given to the petitioners to prove contra. Authorities also placed reliance on the evidence given by the workers. The liability is joint and several. The agreement of partnership really pinpoints to the fact that the licensees and the parties to the agreement were running the toddy shops. 9.In the light of the facts and circumstances as above, the writ petitions are dismissed. No costs. Sd/- **A. MUHAMED MUSTAQUE JUDGE** bka/-