V.K. Ashokan v. Kerala Toddy Workers Welfare Fund Board & Secretary to Government, Labour & Rehabilitation Department

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **WEDNESDAY, THE 4TH DAY OF JULY 2012/13TH ASHADHA 1934** **WA.No. 1254 of 2012 () IN WPC/13053/2007 ----------------------------------------AGAINST THE ORDER/JUDGMENT IN WPC.13053/2007 DATED 21-05-2012** **APPELLANT(S)/2ND RESPONDENT:** **-------------------------------------** **V.K. ASHOKAN, VELAMPATH HOUSE, BENNAT ROAD, CHEMBUKKAVU, THRISSUR.** **BY ADVS.SHRI.A.K.JAYASANKAR NAMBIAR (SR) SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI** ## **RESPONDENT(S)/PETITIONER & 1ST RESPONDENT :** **--------------------------** **1. THE KERALA TODDY WORKERS WELFARE FUND BOARD, REPRESENTED BY THE CHIEF WELFARE FUND INSPECTOR, ULLOOR, THIRUVANANTHAPURAM 695 011.** **2. THE SECRETARY TO GOVERNMENT, LABOUR & REHABILITATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **R2 BY MR.GEORGE MECHERIL, GOVERNMENT PLEADER R1 BY MR.RENIL ANTO, SC** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.A.NO.1254/2012** ## **APPENDIX** ## **APPELLANT'S EXHIBITS** |**ANNEXURE-A :**|**COPY OF JUDGMENT IN W.A.NO.1752/1999 DATED 17/05/2005.**| |---|---| |**ANNEXURE-B :**|**COPY OF ORDER GO(Rt) NO.399/2011/LBR, DATED**| |**11/03/2011.**|| ||**//TRUE COPY//**| ||**PA TO JUDGE.**| ## **jg** C.R. ## C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. .................................................................... W.A.No.1254 of 2012 .................................................................... Dated this the 4[th] day of July, 2012. ## J U D G M E N T ## Ramachandran Nair, J. This Writ Appeal is filed challenging the judgment of the learned Single Judge vacating Government Orders in appeal issued under Section 8(5) of the Kerala Toddy Workers Welfare Fund Act, 1969 (hereinafter referred to as the Act for short) and restoring final adjudication of Toddy Workers Welfare Fund contribution found payable jointly by the Appellant and licensees by the Welfare Fund Inspector in terms of Section 8 (1) of the Act. 2. We have heard learned Senior counsel Shri.A.K.Jayasankar Nambiar appearing for the appellant, learned Standing Counsel Shri.Renil Anto appearing for the 1[st] respondent and learned Government Pleader appearing for the 2[nd] respondent. 3. The facts leading to the controversy are the following:The appellant participated in auction and obtained toddy shop W.A.No.1254/2012 -2- licence for running 42 toddy shops in Thrissur Range for a period of three years commencing from 01/04/1997 to 31/03/2000. However, on account of abkari offences committed, the appellant's licence was cancelled on 26/09/1997. Thereafter the licence was again issued to Shri.M.V.Sukumaran and Shri.P.C.Chandran. The appellant's specific case is that he was in jail and he was disabled from carrying on business in the toddy shops after cancellation of the licence. However, in the course of adjudication for determination of liability for the employer under Section 8(1) of the Act, Employees in the toddy shops and Trade Union Leaders gave evidence before the Adjudicating Officer that subsequent licensees were not the persons who actually carried on business but it was the appellant who in their names actually carried on business in the toddy shops, and even collected employees share of contribution which is 8% of the salary. Based on evidence collected in adjudication, the Welfare Fund Inspector issued Ext.P6 adjudication order determining liability jointly on the appellant and on the above named licensees. The adjudicating officer also found in W.A.No.1254/2012 -3- enquiry that the actual licensees are in penuary and they had no means or capacity to carry on liquor business in 42 toddy shops. The appellant challenged the adjudication order issued in the joint names of himself and the actual licensees named above only for the purpose of getting himself exonerated from liability. Appellant's objective is only to fix liability on the licensees who were found to be only name lenders and from whom recovery is out of question. Appeal filed under Section 8(5) of the Act was decided in favour of the appellant by the Government vide Ext.P9 order, the operative portion of which is as follows:- “On perusal of the connected records of the Welfare Fund Inspector, Thrissur it is seen that the employees have tendered evidence during the enquiries conducted on 29-09-03 and 19-2-04 that the toddy shops were actually conducted by the appellant even though the license was given to R2 and R3 during the period under challenge and they were paid and other benefit by the appellants himself. Trade Union representative who were present for the enquiry have endorsed the above deposition of employees. But the respondents 2 and 3 viz., M.V.Sukumaran and P.C.Chandran have deposed on 19-02-04 that they were the licensers of toddy shop Nos.55-96 of Thrissur range for the period from 1-11-97 to 31-03-02 and that they have already collected 8% of Welfare Fund from the wages of the employees. Neither the respondents W.A.No.1254/2012 -4- (R2 and R3) nor the appellant filed objection against the Provisional Determination Orders issued in 9/04. Even though they were in receipt of the Provisional Determination Orders. Hence the final assessment orders were issued by the Welfare Fund Inspector confirming the provisional assessment, with Joint responsibility to remit the welfare fund contribution. As the license of the appellant stands cancelled from 26-09-97, and that he is retained from the business of toddy, the appellant is not liable to remit the Welfare Fund Contribution demanded by the Welfare Fund Inspector for the period from 1- 11-97 to 31-3-99. Hence the final determination orders dated 17-12-04 and 28-12-04 are set aside exonerating him from the liability of remitting welfare fund demanded by the Welfare Fund Inspector, Thrissur. The Welfare Fund inspector may issue revised assessment Order to R2 and R3, i.e. M.V.Sukumaran and P.C.Chandran licensees for the period from 1-11-97 to 31-3-2000.” 4. The Welfare Fund Board constituted under the Act challenged Ext.P9 appellate order issued by the Government before this Court under Article 226 of the Constitution of India contending that the order is against proved facts and established law, arbitrary and will completely defeat the purpose of adjudication, that is to collect workers' welfare fund contribution from the person who actually carried on toddy business in the toddy shops. The learned Single Judge W.A.No.1254/2012 -5- relied on several earlier judgments of this Court and held that the person who actually carried on toddy business in the toddy shops irrespective of whether license was in his name or not or whether he has carried on business on licences taken in the name of others is liable to pay contribution as employer, and allowed the WP(C) on merit by reversing the orders of the Government in appeal and restored the original final adjudication order determining liability. It is against this judgment, this Writ Appeal is filed by the appellant, whose licence though cancelled was found on enquiry to have continued business after taking licence in the names of two other persons stated above. 5. Before us, learned Senior counsel appearing for the appellant raised a contention that the adjudicating authority has no authority to file WP(C) against the appellate order of the Government issued under Section 8(5) of the Act. In support of this contention he has relied on the decision of the Supreme Court in Mohtesham Mohd. Ismail v. Spl. Director, Enforcement Directorate and Another, reported in 2007(8) SCC 254, wherein the Supreme Court held that adjudicating W.A.No.1254/2012 -6- authority in the absence of any power conferred upon it in this behalf by the Central Government, cannot prefer any appeal against the order passed by the Appellate Board. This decision is rendered in the context of proceedings under the Foreign Exchange Regulation Act. Learned Standing Counsel appearing for the 1[st] respondent, on the other hand, submitted that in the first place it is not the adjudicating authority, who filed the WP(C) in the High Court challenging the appellate order, and on the other hand, it was filed by the Welfare Fund Board which is the Apex Board constituted under the statute to administer the Act for the welfare of the employees. Secondly, he contended that the appellate order is final under the statute and when such order issued is arbitrary and defeats the purpose of the statute, the only remedy is writ before the High Court, which the Board is obliged to file to save the employees' interest. 6. It is seen that the jurisdiction of the 1[st] respondent to file WP(C) challenging the appellate order of the Government before the High Court was not raised before the learned Single Judge and there was no occasion for the learned W.A.No.1254/2012 -7- Single Judge to consider it. However since it is a pure question of law we permitted the appellant to raise the objection in appeal before us and we proceed to consider the same. Section 8(1) & 8(5) of the Act are extracted hereunder for easy reference:- “8. Determination of amounts due from employers:- (1) The Chief Welfare Fund Inspector or any other Welfare Fund Inspector authorised by him in this behalf may, by order, determine the amount due from any employer under the provisions of this Act or of the scheme and for this purpose may conduct such inquiry as he may deem necessary. xxx xxx xxx (5) Any person aggrieved by an order under sub-section (1) may prefer an appeal to the Government or any other authority as may be specified by the Government within sixty days from the date of the receipt of the order and the decision of the Government or of such authority on such appeal shall be final.” 7. No doubt the order of the appellate authority i.e. the Government, is final under Section 8(5) as far as the statute is concerned. This only means that the statute does not provide any Forum, whether Court or otherwise, to entertain challenge against the appellate orders issued by the Government. However, this does not mean that the High Court's W.A.No.1254/2012 -8- extraordinary jurisdiction under Article 226 of the Constitution of India is affected by finality conferred on appellate orders by the statute. It is settled law that no statute, whether Central or State can control the extraordinary jurisdiction of High Courts conferred under Article 226 of the Constitution of India the exercise of which is governed by law settled by various decisions of the High Courts and of the Supreme Court. So much so, the statutory finality conferred on appellate orders issued by the Government under Section 8(5) of the Act does not affect the jurisdiction of the High Court. 8. The next question raised by the learned Senior counsel appearing for the appellant that it is the adjudicating authority who has filed the WP(C) challenging the appellate order is factually incorrect because WP(C) is filed not by the adjudicating authority but by the Board constituted under the Act, which is the Apex Body administering the provisions of the Act and the Scheme for the benefits of employees. So much so, we have to only consider whether the Board has a grievance against the appellate order and even if it has grievance, it was justified in filing WP(C) before the High Court W.A.No.1254/2012 -9- challenging appellate orders. In this regard, in the first place we have to necessarily consider the objective of the Board constituted under the Act and the powers conferred on them. The statute itself is made for providing welfare measures to toddy workers, where the Scheme is for collection of welfare fund contribution from both employees and employers during service. Benefits given to them are in bulk on death / retirement and after retirement as pension. Welfare Fund Scheme is framed by the Board which has detailed procedure for management and administration of the fund for the benefit of the employees. It is revealed from Section 6 of the Act that the Board is constituted as a body corporate with nominees of Government, employers, employees etc. Under Section 3(2) of the Act, the fund shall vest in, and be administered by the Board constituted under Section 6 of the Act. Therefore, the Welfare Fund Board is the ultimate authority which manages and administers the fund for the benefit of the employees. In fact, on going through the provisions of the Act and the Scheme, the only inference possible is that the Board acts as trustees of the fund for the benefit of the employees. It may W.A.No.1254/2012 -10- be noticed that the Board exercises even supervisory powers on adjudication issued under Section 8(1) of the Act in as much as if an adjudication order issued by the Welfare Fund Inspector is prejudicial to the interest of the fund, the Chairman of the Board can revise such order and make up the deficiency. The ultimate objective is to recover the actual contribution both from the employees and employers for the benefit of the employees. The problem faced by the Board in this case is as to who should pay welfare fund contribution for few hundred employees in all the 42 shops all of which were originally licensed to the appellant who was their original employer. It may be noticed that in the adjudication, evidence was collected not only from employees but also from Trade Union leaders, who are people directly dealing with the employers/licensees and employees, and they gave evidence to the effect that the appellant was the real person who carried on the business even after cancellation of licence; and from the evidence furnished, the adjudicating authority found that the actual licensees, who took licence after cancellation of licence in appellant's name, are people without any resources W.A.No.1254/2012 -11- whatsoever. So much so, in our view, it is the duty of the Board to try to sustain the adjudication order determining massive amount of liability payable to hundreds of employees and if the Government in appeal commits irregularity, illegality or fraud, it is not only the right of the Board to challenge the same in WP(C) but in our view, it is the duty of the Board to challenge such Government Order if the same is prejudicial to the interest of the employees. In this case, if appellant's contention is accepted, he who carried on actual business with proxy licencees will get away with profit in business and actual licensees who are only name lenders to the appellant are found to be in penury and therefore adjudication will serve as paper orders because nothing could be recovered from licensees leaving hundreds of employees in suffering. In our view, the Board serves as trustees of the employees and wherever the interest of employees is prejudiced, it is for them to take all action within their powers to protect workers' interest. We are therefore of the view that the Board acted within their powers by filing WP(C) challenging the order issued by the Government and in fact that is their duty to the W.A.No.1254/2012 -12- Organisation and to the employees whose welfare is in their hands. The duties of the Board assume significance because of corruption and nepotism in Government leading to irresponsible and unrealistic orders of the kind issued as in this case against settled law and facts proved in adjudication. 9. The next question to be considered is with regard to the challenge made on merits against Ext.P9 order issued by the Government in appeal under Section 8(5) of the Act, the operative portion of which is extracted above. Learned counsel for the appellant submitted that the appellant was in jail after cancellation of licence and therefore he was not in physically present for carrying on the business. We are unable to accept this contention because physical presence of an employer is not required for carrying on business. Further the appellant cannot be present in all the 42 toddy shops located in different centres and necessarily he has to run the shops with Managers or Agents and employees. 10. The next contention is that licensee only can be the employer within the meaning of definition of “employer” contained in Section 2(c) of the Act. The issue is already W.A.No.1254/2012 -13- decided by the learned Single Judge of this Court in O.P.No.8246/2001 dated 22/03/2006 and the said judgment is confirmed by the Division Bench in the judgment in W.A.No.1107/2006 dated 05/07/2006, wherein this Court held that the person who carries on business in the toddy shop is the “employer” irrespective of whether licence was in his name or not. Further, it may be noticed that same view is taken by the Division Bench of this Court in the judgments in Kelan v. Sate of Kerala, reported in 2007(2) KLT 933 and in Welfare Fund Inspector v. Mohanan, reported in 2006(3) KLT (SN) 89 case No.126. For the sake of satisfying appellant's argument, we feel the term “employer” can be examined once again with reference to the definition contained in the statute i.e. Section 2(c) of the Act, which is as follows:- “2(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;” 11. What is clear from the above is that employer in relation to a person employed includes the person who W.A.No.1254/2012 -14- employs him directly or indirectly through another person. In this case, evidence furnished not only by employees but by Trade Union leaders is that the appellant through the licensees engaged employees who were paid salary on appellant's behalf and contributions were also collected from the employees. So much so, it is established by evidence adduced by employees and Trade Union leaders that appellant really carried on business by engaging two name lenders in whose name licence was taken after cancellation of licence in his name. Further what we notice is that licensees are not absolved from liability in as much as adjudication order is one issued determining liability jointly and severally on the appellant and on the two licensees named above. Learned Standing Counsel for the 1[st] respondent submitted that the persons in whose name licence was taken are people without any resources and are in utter penury, which also goes to establish that they were not actually the beneficiaries of business or made profit but the beneficiary is the appellant who is an established abkari contractor of the District for several years. 12. So far as the finding of the Government in Ext.P9 is W.A.No.1254/2012 -15- concerned, we are of the view that the learned Single Judge rightly interfered with the same because it will otherwise defeat the very objective of the statute and it is patently illegal because Government has not cared to find out whether the licensees have remitted or are capable of remitting even the contribution collected by them. We are told that only a paltry sum is remitted by those licensees and Government without verifying whether licensees were the real people who carried on business and ignoring the evidence relied on in adjudication, exonerated the appellant alone. In fact, the Government even after noticing the evidence furnished by the employees and Trade Union leaders about the factual position that the business was carried on by the appellant exonerated him, which is against the law settled by several decisions stated above wherein this Court has clearly held that the person who actually carried on business in toddy shops with employees engaged by him directly or through other person or persons is liable as employer. The order in appeal, Ext.P9, is contrary to the law settled by various decisions of this Court and against clear findings on facts in adjudication based on W.A.No.1254/2012 -16- reliable evidence. Above all, we have noticed in large number of cases reaching before us that Abkari business in Kerala is mostly benami that too with the blessings of the Authorities and Government, mainly in the names of ladies, and the ultimate objective is to get over all statutory liabilities. We therefore uphold the judgment of the learned Single Judge and dismiss the Writ Appeal. ## (C.N.RAMACHANDRAN NAIR, JUDGE) (C.K.ABDUL REHIM, JUDGE) jg