IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929 WA.No. 1674 of 2005 ----------------------------------- AGAINST THE JUDGEMENT IN WPC.21205/2003 Dated 03/02/2005 .................... APPELLANT: II RESPONDENT IN WRIT PETITION: --------------------------------------------------------------------- THE DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, ERNAKULAM. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENTS/PETITIONER & RESPONDENTS 1, 3 & 4 IN WRIT PETITION: --------------------------------------------------------------------------------------------------------- 1. P.M.PAILY, PULAYATTU HOUSE, PANGARAPPILLY P.O. MULANTHURUTHY VIA, ERNAKULAM DISTRICT- 682 314. 2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, LABOUR AND REHABILITATION (S) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DEPUTY TAHSILDAR, (RR), KANAYANNUR TALUK. 4. THE VILLAGE OFFICER, THIRUVANKULAM VILLAGE. R2 TO R4 BY GOVERNMENT PLEADER SRI.M.P.SREEKRISHNAN R1 BY ADV. SRI.P.R.RAMACHANDRA MENON THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & K.M.JOSEPH, J. ------------------------------------------------------ W.A.No.1674 of 2005 ------------------------------------------------------- Dated, this the 9th day of January, 2008 JUDGMENT H.L.Dattu, C.J. A short question would arise in this writ appeal for our consideration and decision. (2). This appeal arises out of an order passed by the learned Single Judge in W.P.(C) No.21205 of 2003 dated 3rd February, 2005. By the impugned order, the learned Judge has quashed the recovery proceedings initiated by the second respondent under the provisions of the Kerala Motor Transport Workers' Welfare Fund Act 1985 (“Act” for short). (3). The competent authority under the Act had passed orders dated 6-5-1996 and 15-5-1996, inter alia, directing the petitioner to pay welfare contribution under the provisions of the Act in respect of Motor Transport Undertaking KRE-9214 for the period 1993-1994 and 1993-1995. The orders so passed by the Executive Officer were the subject matter of appeals before the State Government. The State Government has rejected the appeals. Aggrieved by these two orders, the petitioner was before this Court in W.P.(C) No.21205/2003. The learned Single Judge has disposed of the writ petition with certain observations to the effect that, if it is a family business run by them, then of course, there is no scope for considering some of them as motor workers and another as employer. The afore-said observation made by the learned Judge is the broad proposition, which is difficult to accept. This aspect of the matter need not be considered by us, since we intend to remand the matter to the authority for fresh disposal, in W.A.No.1674/2005 -2- accordance with law, without being influenced by any of the observations made by the learned Judge. In the instant case, provisional assessment orders came to be passed by the competent authority under the Act, inter alia, holding that the petitioner is liable to pay a sum of Rs. 5,544/- in respect of Motor Transport Undertaking KRE 9214 for the period 1993-94 and a sum of Rs.20,246/- between 1993 and 1995. The said provisional orders came to be served on the employer, inter alia, directing him to file his objections, if any, to the said orders passed. After receipt of the orders so passed, the employer filed his detailed statement of objections. In that, had contended that, he had not employed any employees on wages in respect of Motor Transport Undertaking KRE 9214. In fact, it was stated in the statement of objections that, they are all his relatives and they are not paid any wages as such. (4). The Executive Officer, while confirming the provisional assessment order so passed, had not adverted to the statement of objections filed by the employer. In fact, he has only stated in the order as under: “ During the course of the above Enquiry, the Employer Mr.Paily deposed that, though the vehicle was purchased in 4/93, it was actually in control of the former owner for quite some time and further that the vehicle could not be plied for about 4 months in view of the repairs necessitated. It was also deposed that no documents were available to prove the above facts. In the absence of proof/evidence, the above contention does not deserve any consideration. W.A.No.1674/2005 -3- Therefore, considering the above deposition and other available materials in detail and also on the basis of my personal investigation, the Provisional Determination Order is confirmed as per this Final Determination Order. For the reasons stated above, the Statement of Objections of the Employer and the documents produced in support thereof are found as not liable to be considered/liable to be considered.” (5). A perusal of the order passed by the Executive Officer would clearly demonstrate that, though the employer had filed his statement of objections to the provisional assessment order passed, he has not considered the objections so filed. (6). In the provisional assessment order itself it was made clear by the Officer that, the order passed by him is only provisional and the employer is permitted to file his objections, if any, to the proposal made in the provisional assessment order. When such a proposal was objected to by the employer, it was expected of the Executive Officer to have considered that objection and thereafter should have passed the final order. In the instant case, without considering the statement of objections so filed, the Executive Officer has proceeded to pass orders dated 6-5-1996 and 15-5-1996. The orders so made, (Exts.P1 and P1(a)), in our opinion, are not only arbitrary but also contrary to principles of natural justice. Therefore, the impugned W.A.No.1674/2005 -4- orders so passed cannot be sustained by us. Accordingly, we pass the following: ORDER (i). The Writ Appeal is allowed. (ii). The orders passed by the learned Single Judge is set aside. (iii). The matter is remitted back to the Executive Officer, Kerala Motor Transport Workers' Welfare Fund Board, Palarivattom, Ernakulam, to consider the statement of objections filed by the petitioner to the provisional assessment orders passed and pass a reasoned order, in accordance with law, without being influenced by any one of the observations made by the learned Single Judge while disposing of the writ petition. (7). In view of the order passed in the writ appeal, all pending interim applications are closed. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (K.M.JOSEPH) JUDGE MS