IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931 OP.No. 27819 of 2002(J) ----------------------- PETITIONER(S): --------------- P.C. CHUMMAR, PULICKAL HOUSE, KADAVOOR P.O., KOTHAMANGALAM. BY ADV. SRI.MATHEW SKARIA SRI.JOSE THOMAS (PEEDIKAYIL) SMT.REKHA LAURIAN SRI.ROOPESH P.R. RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, LABOUR AND REHABILITATION (S) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, ERNAKULAM. 3. VARKEY, S/O. JOSEPH, KOCHUMUTTATH HOUSE, ENANALLOOR, MUVATTUPUZHA. 4. JOSHI JOSEPH, PAREKKATTIL HOUSE, MULAKULAM (N), KOTHAMANGALAM. BY ADV. SRI.P.RAMAKRISHNAN,SC THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 14/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 27819 of 2002(J) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - PHOTOCOPY OF AGREEMENT OF SALE DATED 13.7.1989 EXECUTED BY THE 3RD AND 4TH RESPONDENTS. EXT.P2 - PHOTOCOPY OF THE FINAL DETERMINATION ORDER NO. B2.327/89 DATED 11.1.95 OF THE 2ND RESPONDENT. EXT.P3 - PHOTOCOPY OF THE CHALAN RECEIPT OF CANARA BANK, PALARIVATTOM FOR PAYMENT OF RS.25,209/- BY THE 4TH RESPONDENT. EXT.P4 - PHOTOCOPY OF THE JUDGMENT OF THE HIGH COURT DATED 25.1.1996 IN O.P. NO. 1532/96 G. EXT.P5 - PHOTOCOPY OF THE ORDER, G.O.(Rt) NO. 2571/2002/LBR OF THE 1ST RESPONDENT DATED 4.9.2002 // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... O.P. No.27819 of 2002 ................................................. Dated this the 14th day of September, 2009 J U D G M E N T The petitioner is challenging Ext.P2 final determination order and Ext.P5 appellate order under the Kerala Motor Transport Workers Welfare Fund Act in respect of the motor vehicle KCF 1080. The contention of the petitioner is that the petitioner had sold that vehicle to one Thomas who in turn sold it to respondents 3, who in turn sold the same to the 4th respondent. Therefore, according to the petitioner, petitioner is not the employer as defined under the Act and therefore the petitioner is not liable to pay contributions under the Act. The petitioner relies on the decision of Paulose v. State of Kerala [2001(1) KLT 727] in support of the contention. The counsel for the 2nd respondent would point out that Ext.P2 order was passed after issuing several notices to the petitioner, all of which were accepted by him. He never cared to appear before the 2nd respondent and deny his liability. Notice was also issued to the 4th respondent who initially filed a statement, but did not appear O.P. No.27819 of 2002 -2- thereafter. It is under the above circumstances, both the petitioner and the 4th respondent were made jointly and severally liable for the contributions due under the Act. The contention of the petitioner is that he did not appear before the 2nd respondent in response of notice, since he was not the employer and the 4th respondent was the employer. But he admits that he continues to be the registered owner of the vehicle. In support of his contention that he was not the employer, he relies on Ext.P5 appellate order, wherein it is noted that before the 2nd respondent the 4th respondent had admitted having conducted the bus service employing workers. Therefore according to the petitioner the 3rd respondent was the employer as defined under the Act and therefore he alone is liable. 2. I have considered the rival contentions in detail. 3. In paragraph 1 of the original petition the petitioner states thus: “1. The petitioner was the registered owner of a stage carriage with registration No. KLF 459. In 1984 the said vehicle was sold to Sri. Thomas, Packal house, Ayavana, Muvattupuzha. Within an year the said Thomas sold the said vehicle to the 3rd respondent. The said vehicle was 1970 model Fargo. By 1987 the vehicle ceased to be road-worthy. By that time the petitioner purchased a new vehicle having registration No. KCF 1080. Immediately, the 3rd respondent desired O.P. No.27819 of 2002 -3- to purchase the said vehicle for substituting the old vehicle. Therefore the petitioenr sold the said vehicle KFC 1080 to the 3rd respondent. Thereafter the stage carriage permit of KLF 459 was transferred to the new vehicle, KCF 1080 and the service was being operated by the 3rd respondent. At no point of time the petitioner operated the said stage carriage. But he could not transfer the registration to the 3rd respondent on account of the existence of Hire Purchase Agreement.” Therefore it is very clear that there was repeated dealings between the petitioner and the 3rd respondent with respect to vehicles purchased by the petitioner. The petitioner never cared to change the registration of the vehicle after the alleged sale. Despite having received several notices from the 2nd respondent, he did not care to appear before the 2nd respondent and disclaim liability for payment of contributions. What has been stated in Ext.P5 is only as follows: “......... On 2.4.93, Shri. Joshy Joseph, possessor of the above Stage Carriage deposed. He admitted conducting service employing workers. .........” It is not stated therein that the 4th respondent is the only owner and that the petitioner did not have anything to do with the conducting of services. That being so there is no clear evidence to show that the petitioner had nothing to do with the operation of the vehicle. Even before the appellate authority, the petitioner did not care to prove that he is not the employer. That O.P. No.27819 of 2002 -4- being so, I do not find any fault with the order whereby both the petitioner and the 4th respondent were jointly and severally made liable. If the petitioner has a case that the 4th respondent alone is liable, the petitioner would be free to proceed against the 4th respondent for recovery of amounts due. In any event, I am not inclined to exercise my discretionary jurisdiction in favour of the petitioner, who has not cared to produce material either before the 2nd respondent or the 1st respondent to prove his case. Accordingly, the writ petition is dismissed. S. SIRI JAGAN, JUDGE rhs