P. N. Gopinathan v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** # **TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941** # **WP(C).No.27916 OF 2010(L)** ## **PETITIONER:** ## **P.N.GOPINATHAN, AGED 55, S/O.NARAYANAN, SADANANDA SADANAM, KOTTAMURI, CHENGANACHERRY.** **BY ADVS. SRI.C.S.MANILAL SRI.S.NIDHEESH** ## **RESPONDENTS:** - **1 STATE OF KERALA & OTHERS REPRESENTED BY THE SECRETARY TO GOVERNMENT,, LABOUR AND REHABILITATION DEPARTMENT,, SECRETARIAT, TRIVANDRUM - 695001** - **2 THE WELFARE FUND INSPECTOR KERALA TODDY WORKERS WELFARE FUND BOARD,KOTTAYAM - 686001** - **3 THE DEPUTY TAHASILDARREVENEU RECOVERY TALUK OFFICE, CHANGANACHERRY - 686101** - **4 KRISHNAN SREEDHARAN PARAYIL HOUSE, KILIROOR, CHANGANACHERRY - 686020** - **R1 BY ADV. SRI.K.D.BABUSCKTWWFBTODDY WORKERS WE** ## **SR. GP. S. GOPINATHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.27916 OF 2010(L) 2 ## JUDGMENT ## This writ petition is filed seeking the following prayers. “(i) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P4 and quash the same is illegal. (ii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1[st] respondent to consider Ext.P2 appeal on its merit and to pass orders thereon within a time frame with a further direction to keep in abeyance Ext.P4 proceedings till the 1[st] respondent taken a decision on Ext.P2 appeal”. 2. Heard the learned counsel for the petitioner and the learned Government Pleader as well as the learned Standing Counsel appearing for the 2[nd] respondent – Welfare Fund Board. 3. It is submitted by the learned counsel for the petitioner that revenue recovery proceedings had been initiated against the petitioner pursuant to Ext.P1 determination order dated 10.10.2008. It is contended that a statutory appeal had been preferred against Ext.P1, which was liable to be considered and disposed of before any further steps were taken for recovery of the amounts due. It is contended by the learned counsel for the petitioner that Ext.P1 order was totally illegal and was against the WP(C).No.27916 OF 2010(L) 3 provisions of the enabling statutes. It is, therefore, submitted that the action of the respondents in seeking to recover amounts from the petitioner on the basis of Ext.P1, which is a void order in the eyes of law, is completely without jurisdiction. 4. A counter affidavit has been placed on record by the 2[nd] respondent. It is stated that the petitioner was actually conducting the toddy shop in question during the relevant period. Pursuant to the directions issued by the Division Bench of this Court in W.A. No.399/2000 dated 28.06.2000, it is submitted that the question of recovery of welfare fund amounts from the petitioner was considered afresh after affording an opportunity to the petitioner and two other persons, who were involved in the conduct of the shop. It is stated that they were given ample opportunity to cross examine the 5 employees, who had given statements to the effect that they had been employed by persons other than the licensee. It is stated that Ext.P1 Final Determination Order had been issued after considering all the relevant factual aspects in the matter and against the same, the petitioner had preferred a statutory appeal. The appeal has also been rejected by Government Order dated 11.03.2011 on the finding that the petitioner was not an employee, but was, as a WP(C).No.27916 OF 2010(L) 4 matter of fact, conducting the shop in question even though he is not a licensee. It is stated that, in view of the dismissal of the appeal, nothing survives for consideration and the amounts due are liable to be paid by the petitioner and in failure thereof, the revenue recovery proceedings are liable to be proceeded. 5. The learned counsel for the petitioner made a valiant attempt to sustain the challenge against Ext.P4 on the ground that Ext.P1 order, which found that the petitioner would fall within the definition of “employer” as per Section 2(C) of the Kerala Toddy Workers' Welfare Fund Act, 1969 is a nullity in law and therefore, it cannot be implemented by recovery of amounts under the Revenue Recovery Act. The learned counsel places reliance on the decision of the Apex Court in Kiran Singh and others v. Chaman Paswan and others (AIR 1954 SC 340) in support of the above contention. The learned counsel would also submit that the decision of the Apex Court in Joseph Joseph v. State of Kerala (2002 (1) KLT 827 SC) squarely covers the issue as decided in Ext.P1 in favour of the petitioner since the conduct of a toddy shop by a person other than the licensee has been held to be an illegality and that the Board in its determination order could not have perpetuated such an illegality. WP(C).No.27916 OF 2010(L) 5 6. Having considered the contentions advanced, I find that the petitioner had raised no challenge as against the Final Determination Order in Ext.P1 in the writ petition. The challenge was only against the Revenue Recovery proceedings. The further directions sought for was for consideration of the statutory appeal preferred by the petitioner before recovering any amounts from the petitioner. It is not in dispute that the appeal preferred by the petitioner under Section 8(5) of the Kerala Toddy Workers' Welfare Fund Act was dismissed by the Government Order dated 11.03.2011. The Government had refused to interfere with Ext.P1 Final Determination Order. In the absence of any challenge against the order dismissing the appeal, which was rendered as early as on 11.03.2011, I am of the opinion that the revenue recovery proceedings cannot be independently challenged by the petitioner on the ground of illegality in Ext.P1 or the appellate order thereon. 7. The learned Standing Counsel for the 2[nd] respondent Board places reliance on the Bench decision of this Court in Ashokan V.K. v. Kerala Toddy Workers Welfare Fund Board and Another (2012 KHC 647) and Sasi V. and others v. State of Kerala and Others (2016 KHC 694) to contend that any person, who acts WP(C).No.27916 OF 2010(L) 6 as an employer in respect of a toddy shop is liable to pay the contributions to the welfare fund as per law. I am of the opinion that the question as to the legality or otherwise of Ext.P1 or the Government Order issued in the statutory appeal preferred against the same, is not required to be considered by this Court in view of the fact that the said orders are not under challenge. The decision relied on by the petitioner is with regard to the question as to whether a decree which is passed without jurisdiction can be challenged in the collateral proceedings. Ext.P1 as well as the order passed by the Government on the statutory appeal are admittedly orders of Final Determination and rejection of appeal passed with jurisdiction by the competent Authorities. In the above view of the matter without the orders being set aside or nullified in a manner known to law, the said orders cannot be ignored or wished away. In the above view of the matter, I am of the opinion that the challenge against Ext.P4 proceedings for recovery of amounts based on Ext.P1, which has since been upheld in appeal is not maintainable, since the original orders and the appellate order are not under challenge. The prayers sought for in the writ petition, therefore, cannot be granted. However, it is submitted WP(C).No.27916 OF 2010(L) **==> picture [8 x 9] intentionally omitted <==** by the learned Standing Counsel for the Board that there is an amnesty scheme in force and that the petitioner can be given an opportunity to pay off the amounts due as per the said scheme provided he makes an application on or before 22.11.2019. If the petitioner avails such opportunity, the respondents shall take appropriate steps in accordance with law. Sd/ANU SIVARAMAN JUDGE Bng/20.11.19 WP(C).No.27916 OF 2010(L) 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ASSESSMENT ORDER PASSED BY THE 2ND RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BEFORE THE 1ST RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE POSTAL RECEIPTS EVIDENCING SENDING OF APPEAL.** **EXHIBIT P4 TRUE COPY OF THE REVENUE RECOVERY NOTICE ISSUED BY THE 3RD RESPONDENT DEMANDING AN AMOUNT OF RS.85,870/- AS DUE TO THE WELFARE FUND.**