IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 WP(C).No. 35083 of 2003(B) ------------------------------------- PETITIONER: ------------------- S.SEEMUN, NANATHA VILAS CARDAMOM ESTATE, 62ND MILE, VANDIPERIYAR. BY ADV. SRI.P.RAMAKRISHNAN SMT.A.K.PREETHA RESPONDENTS: ------------- 1. THE KERALA LABOUR WELFARE FUND BOARD, THIRUVANANTHAPURAM, REPRESENTED BY THE LABOUR WELFARE FUND COMMISSIONER. 2. LABOUR WELFARE FUND INSPECTOR, KERALA LABOUR WELFARE FUND BOARD, IDUKKI (OFFICE: HOLIDAY HOME, KUMALI). BY ADV. SRI.K.ANAND (A.201) FOR R1 SMT.LATHA KRISHNAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/08/2008, ALONG WITH WPC NO. 35084 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 35083 of 2003(B) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED BY THE REGISTERING OFFICER, PEERMADE TO THE PETITIONER DATED 31.12.1985. EXT.P2 - TRUE COPY OF THE NOTICE NO. 06/PL/N.29 DATED 11.6.1998 ISSUED BY THE SECOND RESPONDENT. EXT.P3 - TRUE COPY OF THE ORDER NO. 113/2002(e) DATED 29.01.2003 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER. EXT.P4 - TRUE COPY OF THE REPLY DATED 26.2.2003 ISSUED BY THE PETITIONER TO THE SECOND RESPONDENT. /TRUE COPY/ PA TO JUDGE rhs S.SIRI JAGAN, J ======================= W.P(C)No.35083 & 35084 of 2003 ======================= Dated this the 21st day of August, 2008. J U D G M E N T In these writ petitions, the petitioners are disputing their liability to be covered under the provisions of the Kerala Labour Welfare Fund Act. In a connected writ petition - W.P.(C)No.28545 of 2008, this court had passed the following judgment: “In these connected case, petitioners are small planters having cardamom cultivation in 3-4 acres of land. Petitioners are stated to be close relatives. Demand under the challenge is contribution towards Labour Welfare Fund under Kerala Labur Welfare Fund Act, 1975. According to the petitioners; demand is raised by clubbing the employees together and taking their number as above 10 in a day, which attracts liability under the Act by virtue of definition of establishment contained under Sec.2(f)(iii) of the Act, which makes land owner, of tea, rubber, coffee, cardamom, oil palm or cocoa, liable if 10 or more workers are employed in any day of the preceding 12 months. The Standing Counsel for the Welfare Fund produced inspection report in one case, which shows that in the case of petitioner in WPC 28642/2003, when inspection was held on 20/08/2002, 17 workers were found engaged in the estate, though the estate was only four acres. 2. The inspection report produced in Court shows that when inspection was carried out petitioner was absent and the supervisor who was present, refused to sign inspection report or to accept the copy. I do not think refusal of the employer to receive copy of inspection report, affects validity of inspection. It is quite common that during crop season large number of employees are required for plucking the crop, which is inherent in the nature of the plantation. Since the Act makes cardamom planter liable for contribution if employees engaged on a single day in an year W.P(C)No.35083 & 35084 of 2003 - 2 - is above 10, the Welfare Fund Inspector is entitled to demand contribution. However, since petitioners have not been issued copy of inspection report ans were not heard before final orders on demand of contribution are made, WP(C)s are disposed of directing the Welfare Fund Inspector to serve copy of the inspection report in the case of each of the petitioners and complete the adjudication after hearing them. It will be open to the welfare fund inspector to conduct inspection at any time to determine the liability for the current year or for future. RR proceedings will be kept in abeyance for three months from now within which time, the inspector will serve the revised orders and send copies of the same to the recovery authorities to modify the demand and to recover the actual amount payable, if payment is not made in terms of revised demand. These WP(C)s are disposed of as above.” 2. The petitioner has today produced before me a copy of the order passed pursuant to that judgment which reads thus: “The Labour Welfare Fund Inspector, Idukki issued Shaw cause notice against the management ie. Sri. Subramanian, Employer Arunavilas Cardamom Estate, Vandiperiyar for remitting the Labour Welfare Fund Contribution consequent to the inspection held on 28.2.02. As the employer failed to remit the LWF Contribution revenue recovery steps had been initiated against the management of Arunavilas Estate. Then the management filed unit petition before the Hon'ble High Court of Kerala and the Hon'ble court Stayed the revenue recovery steps. Now as per the judgment read as 2nd above the Hon'ble High Court of Kerala disposed of the case directing the Labour Welfare Fund Inspector, Idukki to serve copy of the inspection Report in the case of each of the petitioners and complete the adjudication after hearing them. As per the above direction copy of the inspection report served to each of the petitioners along with the hearing notice under certificate of posting. As nobody present as the hearing date on 26.6.07, an other notice dated 26.6.07 were served to the petitioners posting the hearing an 2.7.07 Sri. B.R. Aravindan, Advocate, Peermade filed Vakkalath an behalf of the management for attending the hearing subsequent hearing was also conducted on 16.7.07, 23.7.07 & 30.7.07. In the meanwhile some of the W.P(C)No.35083 & 35084 of 2003 - 3 - employees now working in the Arunavilas Cardamom Estate were also summoned for taking evidence. The management also filed the statement in this case the advocate requested one month's time for producing the wages register, muster roll for the year 2001-02 and 2002-03 for verification. The management produced the above registers for verification. On going through the argument note, evidence of records filed by the management, I found that the Arunavilas cardamom estate is owned by 6 persons years back and the registration was not done at the period in question. As a part of evidence management have filed the certificate of registration of a registered owner issued by the tahsildar, Peermade Now the register submitted for the period of inspection it is seen that the name of 3 employees were written in the muster roll wages register maintained by the employer Sri. K. Subramanian, 2 employees by Sri. Murugan, 2 employees by Sri. Muraliu, 2, Employees by Sri. Arunan, 2 Employees by Smt. P Sarala the management informed that no time during the year they had employed 10 or more employees and they had not maintained the register prescribed under casual, Temporary & Badali workers act. The employees given the statement that only some workers were engaged during the plucking season in addition to the permanent workers. So it can not be proved either from the statement nor the records that the employer employed 10 or more workers in any day of the preceding 12 months as envisaged in section 2(f) (iii) of the Kerala Labour Welfare fund act 1975. In the inspection note also the number of employees written as 16 in total considering only one employer ie - Sri. S. Murali. After serving the inspection order they pointed out that Arunavilas Cardamom Estate is under the ownership of 6 persons. So it cannot be determined from this that 10 or more workers were employed by the owners of Arunavilas estate. Moreover physical verification could not be done as the date of inspection pertaining to the period 28.2.02. Hence the LWF Inspector come to the conclusion that this plantation will not come under the purview of the section 2(f)(iii) of the Kerala Labour Welfar fund Act, 1975 on the inspection date ie 28.2.02 and for remitting the contribution. This order will not be a hindrance for determining the liability, if any noticed in present or for future inspection and the exemption is granted for the period in question only.” W.P(C)No.35083 & 35084 of 2003 - 4 - 3. In the above circumstances, it is only appropriate that the 2nd respondent passes appropriate orders taking into account the judgment and the order referred to above. This the 2nd respondent shall do, as expeditiously as possible, at any rate within two months from the date of receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioners. These writ petitions are disposed of as above. S.SIRI JAGAN, JUDGE rhs