IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 11TH NOVEMBER 2011 / 20TH KARTHIKA 1933 WP(C).No. 4815 of 2007(W) -------------------------------------- PETITIONER(S): ---------------------- K.VIJAYAN, FL-3 LICENSEE, HOTEL VIRAD, KOTTAKKAL, MALAPPURAM DISTRICT. BY ADVS. SRI.JOE JOSEPH KOCHIKUNNEL SMT.MANJU RAJAN SRI.PAULCY KURIAN SMT.A.AMRUTHA VIDYADHARAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP.BY THE SECRETARY, LABOUR DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ABKARI WELFARE FUND BOARD, REP.BY THE CHIEF WELFARE FUND INSPECTOR, THIRUVANANTHAPURAM. 3. THE DISTRICT WELFARE FUND INSPECTOR, ABKARI WORKERS WELFARE FUND INSPECTORS OFFICE, THRISSUR. R1 BY GOVT.PLEADER SRI.NOBLE MATHEW R2 & R3 BY ADVS. SRI.M.K.CHANDRA MOHANDAS,SC,K.ABKARI WW SRI .KOSHY GEORGE,SC,KAWWFB SRI.ROY CHACKO,SC,KERALA ABKARI WORKERS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/11/2011 ALONG WITH WPC.NO.26825 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV WPC.NO.4815/2007 APPENDIX PETITIONER'S EXHIBITS : P1 : COPY OF THE JUDGMENT DATED 09.09.2005 IN W.A.NO.963/1997 P2 : COPY OF THE DOCUMENTS SHOWING PROVIDENT FUND COVERAGE IN RESPECT OF HOTEL VIRAD, KOTTAKKAL. P3 : COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P4 : COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 28.08.2006. RESPONDENT'S EXHIBITS : NIL /TRUE COPY/ P.A TO JUDGE AV S. SIRI JAGAN, J. ---------------------------------------- W.P.(C) No. 26825 OF 2006 & W.P.(C) No. 4815 OF 2007 ------------------------------------------ Dated this the 11th day of November, 2011. J U D G M E N T Petitioners hold licences for conducting bar hotels in Malappuram district. According to the petitioners, the establishments of the petitioners are covered under the Employees Provident Funds and Miscellaneous Provisions Act and the scheme made thereunder. They contend that, in view of the fact that the establishments are covered under the Employees Provident Funds and Miscellaneous Provisions Act, they are not liable to pay contributions under the Kerala Abkari Workers Welfare Fund Act, 1989. The petitioners would contend that this position is covered by the Division Bench decision of this court in W.A No.963 of 1997, which is produced as Ext.P6 in this writ petition. Despite the above legal position, respondents 2 & 3 have directed the petitioners to remit contributions in respect of the employees of the petitioners under the Kerala Abkari Workers Welfare Fund Act, 1989. The impugned assessment W.P.(C) No. 4815/2007 & C.C. 2 orders have been issued in respect thereof. According to the petitioners, the demand for contributions under the Kerala Abkari Workers Welfare Fund Act is clearly against Ext.P6 decision of this court. It is under the above circumstances, the petitioners have filed these Writ Petitions seeking the following reliefs:- W.P.(C) No.26825/2006 “i) a writ of certiorari or any other appropriate writ, order or direction quashing Exts. P8 & P9 orders issued by the 3rd respondent as arbitrary and illegal. ii) a declaration to the effect that the petitioners are not liable to pay any contribution towards Abkari Workers Welfare Fund in respect of M.K.R. Enterprises,Kottakkal and Hotel Pushpak, Kondotty. iii) a declaration to the effect that the Kerala Abkari Workers Welfare Fund Act, 1989 (Act 19 of 1989) is unconstitutional and void. iv) a declaration that the Abkari Workers Welfare Fund Act is not applicable to establishments covered under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and the Payment of Gratuity Act, 1972.” W.P.(C) No.4815/2006 “i) a writ of certiorari or any other appropriate writ, order or direction quashing Ext. P4 proceedings issued by the 3rd respondent as arbitrary and illegal. ii) a declaration to the effect that the petitioner W.P.(C) No. 4815/2007 & C.C. 3 is not liable to pay any contribution towards Abkari Workers Welfare Fund in respect of Hotel Virad,Kottakkal. iii) a declaration to the effect that the Kerala Abkari Workers Welfare Fund Act, 1989 (Act 19 of 1989) is unconstitutional and void. iv) a declaration that the Abkari Workers Welfare Fund Act is not applicable to establishments covered under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and the Payment of Gratuity Act, 1972”. 2. Although the petitioners have sought a prayer for declaring the Kerala Abkari Workers' Welfare Fund Act as unconstitutional and void, the only prayer pressed before me at the time of assignments is on the question of sustainability of the impugned orders in view of Ext.P6 judgment. 3. Counter Affidavits have been filed by the 2nd respondent. I have considered the rival contentions in detail. The learned counsel for the respondents 2 & 3 submits that subsequent to Ext.P6 judgment, the Division Bench has considered the matter in O.P No. 15541/1999, wherein the government was directed to take a final decision with regard to the question as to whether there is overlapping of the provisions W.P.(C) No. 4815/2007 & C.C. 4 of the two enactments and as to whether the employees would get double benefits because of the application of the provisions of the Central as well as the State Acts. Therefore according to the counsel for the respondents 2 & 3, it is open to respondents 2 & 3 to make sure that all employees in respect of whom the contributions are demanded, are in fact covered under the Employees Provident Funds and Miscellaneous Provisions Act. But at the same time, it is not disputed before me that the government has subsequently considered the matter and held that if both enactments are implemented there would be overlapping of benefits and there would be double benefits. As such without a finding that any of the employees of the petitioners are actually not covered under the Employees Provident Funds and Miscellaneous Provisions Act, the respondent cannot demand contributions under the Kerala Abkari Workers Welfare Fund Act. 4. In these circumstances, the impugned orders are quashed. It is declared that those of the employees of the W.P.(C) No. 4815/2007 & C.C. 5 petitioners who are covered under the Employees Provident Funds and Miscellaneous Provisions Act are not required to be covered under Kerala Abkari Workers Welfare Fund Act and the petitioners are not liable to pay contributions in respect of the employees who are covered under the Employees Provident Funds and Miscellaneous Provisions Act. However, it would be open to the respondents 2 & 3 to ensure that all the workers of the petitioners are covered under the Employees Provident Funds and Miscellaneous Provisions Act and if any of the employees are not so covered, it would be open to the respondents 2 & 3 to demand contributions in respect of those employees under the Kerala Abkari Workers Welfare Fund Act. However, I make it further clear that if contributions are demanded in respect of any such employee, it would be open to the petitioners to challenge the assessment on other valid grounds available under law. These Writ Petitions are disposed of as above. S. SIRI JAGAN, JUDGE. Scl.