IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 WP(C).No. 30058 of 2006(C) -------------------------- PETITIONER: ------------ S.SHAJI, SUKUMARA MANDIRAM, MANGAD P.O., KOLLAM. BY ADV. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SMT.LAKSHMI B.SHENOY SRI.ABU MATHEW SRI.SOBHAN GEORGE SRI.ANTONY FIGAREDO SRI.R.SIVADASAN RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO THE GOVERNMENT, LABOUR & REHABILITATION (S) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE WELFARE FUND INSPECTOR, KERALA TODDY WORKERS WELFARE FUND BOARD, KOLLAM. R1 BY G.P. SMT. SMITHA BY ADV. SRI.RENIL ANTO, SC, KTWWF BOARD FOR R.2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/07/2008, ALONG WITH WPC NO. 30059 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX (WPC 30058/06) PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF REPORT NO. Q4-4426/03 DATED 29.9.2003 SUBMITTED BY ASST. EXCISE COMMISSIONER, KOLLAM BEFORE PRINCIPAL MUNSIFF'S COURT, KOLLAM IN OS NO.191 OF 1999 EXT.P2 TRUE COPY OF ORDER NO. E3/KOLLAM-4/84-85/323/1591 DATED 30.6.1998 ISSUED BY 2ND RESPONDENT TO PETITIONER. EXT.P3 TRUE COPY OF JUDGMENT DATED 28.1.2006 IN OS NO.191 OF 1999 ON THE FILE OF PRINCIPAL MUNSIFF'S COURT, KOLLAM. EXT.P4 TRUE COPY OF APPEAL DATED 1.8.2006 SUBMITTED BY PETITIONER BEFORE FIRST RESPONDENT. EXT.P5 TRUE COPY OF AFFIDAVIT WITH PETITION DATED 1.8.2006 FILED BY THE PETITIONER BEFORE FIRST RESPONDENT, FOR CONDONATION OF DELAY. EXT.P6 TRUE COPY OF AFFIDAVIT WITH PETITION DATED 1.8.2006 FILED BY PETITIONER BEFORE THE FIRST RESPONDENT FOR STAY. EXT.P7 TRUE COPY OF G.O.RT. NO.2565/06/LBR DATED 30.10.2006 ISSUED BY FIRST RESPONDENT TO PETITIONER. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- W.P.C. NOs.30058 & 30059 OF 2006 -------------------------------------------- Dated this the 24th day of July, 2008 JUDGMENT Petitioners are challenging assessment and demand of Toddy Workers Welfare Fund contribution from them for the year 1984-85 pertaining to toddy shop No. 4, Kuriepuzha, within the Kollam range. The case of the Welfare Fund Inspector is that on enquiry and after verification of records, he found that though the toddy shop was entrusted by the department with the petitioner in WPC 30058 of 2006, business was carried on by the petitioner in WPC 30059 of 2006. When pre-assessment notice was issued, while petitioner in WPC 30059 of 2006 received notice and filed reply, notice sent to petitioner in WPC 30058 was returned with the endorsement "refused". Consequently final determination orders were issued. Standing counsel for Toddy Workers Welfare Fund Board submitted that in the course of enquiry, the Welfare Fund Inspector was satisfied based on documentary evidence and probably the statements taken from employees that the petitioner in WPC 30059 of 2006 was carrying on business for the whole year though on record petitioner in WPC 30058 of 2006 was the person authorised to carry on business by the 2 department. However, on going through the final determination order, it is seen that Welfare Fund Inspector has not referred to the statements given by employees or unions about the business carried on by the petitioner in WPC 30059 of 2006. If licence or authorisation was in favour of one of the petitioners, and the other carried on the business, then both of them are jointly and severally liable as found by the Welfare Fund Inspector. However, since petitioners deny their involvement I feel one more opportunity can be granted to the petitioners to verify the records of assessment in the office of the Welfare Fund Inspector and to satisfy themselves about the correctness of the same. If petitioners have grievance against the order, petitioners can make an application for rectification of mistakes in the assessment and in that event, the Welfare Fund Inspector should consider the evidence on record based on which orders against the petitioners are issued and if any mistake has happened he will correct it. However, if unions representing the employees in the toddy shop who were stated to be 18 in number identified the employer through statements and final determination is based on the same, then such order is unimpeachable because workers are the best persons familiar with the employer and 3 their evidence is reliable for the purpose of final determination. If employees have given evidence and final determination is based on the same, then no rectification is called for and recovery can be continued. If petitioners are not involved based on evidence given by employees and other records, then petitioners will exonerated and Welfare Fund Inspector will issue notice to the persons concerned and make fresh adjudication. W.P.Cs. are disposed of as above. (C.N. RAMACHANDRAN NAIR) Judge kk 4