Valsamma P. Toms v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** ## **TUESDAY, THE 5TH DAY OF JUNE 2012/15TH JYAISHTA 1934** ## **WP(C).No. 15174 of 2007 (F)** **---------------------------** ## **PETITIONER :** **--------------------** ## **VALSAMMA P.TOMS, PUNNAMADAM HOUSE, PERMPETTY P.O. KOTTANGAL PANCHAYAT, PATHANAMTHITTA DISTRICT.** ## **BY ADVS.SRI.V.SANTHARAM SRI.ANTO THOMAS** ## **RESPONDENT(S):** **--------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF LABOUR AND SOCIAL AFFAIRS, THIRUVANANTHAPURAM.** **2. THE DISTRICT EXECUTIVE OFFICER, KERALA MOTOR WORKER'S WELFARE FUND BOARD PATHANAMTHITTA.** **3. THE DEPUTY TAHSILDAR (RR), MALLAPPALLY, PATHANAMTHITTA.** **4. T.C.WILSON, S/O.CHACKO, THENGUPALLIL VEEDU, PADIMON P.O., KOTTANGAL VILLAGE PATHANAMTHITTA.** **R1 & R3 BY GOVT. PLEADER SRI. T. R. RAJESH R2 BY ADV. SRI.K.HARILAL, SC,KMTWF BOARD R4 BY ADVS. SRI.T.S.JOHN** **SRI.M.S.RADHAKRISHNAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **...2/-** **Mn** ## **WP(C).No. 15174 of 2007 (F)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **EXT.P1 : COPY OF THE PROVISIONAL DETERMINATION ORDER NO. B 2428/PDO/02-03 DATED 5.4.03 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER.** - **EXT.P2 : COPY OF THE ORDER NO. E.P.471/PDO/02-03 DATED 5.5.03 PASSED BY THE SECOND RESPONDENT TO THE PETITIONER.** - **EXT.P3 : COPY OF THE CHALLAN DATED 7.7.03 SHOWING THE ARREARS OF THE WELFARE FUND DUES FOR THE YEAR 2002-03 FOR THE VEHICLE KL 5/H-831.** - **EXT.P4 : COPY OF THE APPEAL DATED 26.8.03 FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT.** - **EXT.P5 : COPY OF THE REVENUE RECOVERY DEMAND NOTICE DATED 3.5.2007 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **EXT.P6 COPY OF OBJECTION DATED 8.5.2007 TO EXHIBIT P5 NOTICE GIVEN BY THE PETITIONER TO THE 3RD RESPONDENT.** - **EXT.P7 COPY OF THE SALE AGREEMENT DATED 27.7.2003.** **EXT.P8 COPY OF PROVISIONAL DETERMINATION ORDER NO. E.P. 147/PDO/03-04 DATED 28.3.2007.** **EXT.P9 COPY OF OBJECTION DATED 11.4.2007 TO EXT.P7 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT.** ## **RESPONDENT'S EXHIBITS : NIL** **//TRUE COPY//** **P.A. TO JUDGE** **Mn** ## **S. SIRI JAGAN, J.** ------------------------------------------- ## W.P.(C) No.15174 of 2007 ---------------------------------------------Dated this the 5[th] day of June, 2012 ## **JUDGMENT** The petitioner was the owner of two motor vehicles namely,KL 3/G 2369 and KL 5/H 831. Proceedings were initiated by the 2[nd] respondent for recovery of contributions under the Kerala Motor Transport Workers' Welfare Fund Act in respect of the employees of both vehicles. Ext.P2 final determination order was passed in respect of the 1[st] vehicle. The petitioner claims to have filed Ext.P4 appeal before the 1[st] respondent against that order. According to the petitioner, pending the said appeal, the 3[rd] respondent issued Ext.P5 revenue recovery notice for recovery of the amount covered by Ext.P2 final determination order. The petitioner is challenging the recovery proceedings pending appeal. In respect of the 2[nd] vehicle, Ext.P8 provisional determination order was issued to the petitioner. The petitioner submits that the petitioner had already transferred the vehicle to the 4[th] respondent and therefore, the petitioner is not liable for payment of contributions under the Act in respect of the 2[nd] W.P.(C)No.15174/07 2 vehicle. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) call for the records leading to Exhibit P2, P5 and P8 and verify its legality, propriety and correctness and quash the same. ii) direct the first respondent to consider Exhibit P4 and pass appropriate orders after giving the petitioner an opportunity of being heard and till then the Exhibit P-5 may be kept in abeyance. iii) direct the 3[rd] respondent to consider Exhibit P6 and pass appropriate orders, after hearing the petitioner, before taking any further action on Exhibit P-5. iv) direct the second respondent to consider Exhibit P9 objection filed pursuant to Exhibit P8 order and pass appropriate orders after giving the petitioner an opportunity of being heard.” 2. A counter affidavit has been filed by respondents 1, 2 and 4. The 1[st] respondent has stated that Ext.P4 appeal has not been received by the 1[st] respondent. It is also submitted that the last date for filing the appeal was on 14.8.2003 and the petitioner herself has stated in the writ petition that the appeal is dated 26.8.2003. According to the 1[st] respondent, there is no provision in the Act to condone delay in filing an appeal also. The 2[nd] respondent would take the stand that the amounts are due from the petitioner, since there is no stay by W.P.(C)No.15174/07 3 any authority. He would contend that since Ext.P8 is only a provisional determination order, the petitioner can raise all his contentions and adduce evidence in support of the same during the enquiry before passing the final determination order. 3. I have considered the rival contentions in detail. As far as the prayer of the petitioner for disposal of Ext.P4 appeal stated to have been filed before the 1[st] respondent is concerned, the 1[st] respondent categorically asserts that Ext.P4 appeal has not been received by the 1[st] respondent. In fact, in the writ petition in paragraph 4, the petitioner herself submits that the appeal was filed through a local agent. The appeal itself is dated 26.8.2003. The last date for filing the appeal was on 14.8.2003 and there is no provision in the Act for condonation of delay in filing the appeal also. A Division Bench of this Court has, in _**Asst. Commissioner of Central Excise**_ v. _**Krishana Poduval,**_ [2005(4) KLT 947] held that in such circumstances the remedies come to an end like in a time barred suit. Therefore, on any count, the petitioner is not entitled to any relief in respect of the same. Ext.P2 order has W.P.(C)No.15174/07 4 become final and the petitioner has no escape from the liability under Ext.P2 order, insofar as all her remedies have become barred by limitation. 4. As far as the contention regarding Ext.P8 provisional determination order is concerned, since the same has not become final, the petitioner is perfectly free to adduce evidence before the 2[nd] respondent in support of the petitioner's contention and the 2[nd] respondent has to consider the evidence produced by the petitioner in support of his contention during the enquiry pursuant to Ext.P8, before passing a final determination order. Without passing a final determination order, the 2[nd] respondent cannot recover any contributions also. Therefore, it is not necessary to interfere with Ext.P8 at this stage. In view of the above findings, there is no merit in this writ petition and accordingly, the same is dismissed. ## **S. SIRI JAGAN, JUDGE** acd W.P.(C)No.15174/07 5 W.P.(C)No.15174/07 6