IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 2ND APRIL 2008 / 13TH CHAITHRA 1930 WA.No. 73 of 2008 ------------------- AGAINST THE JUDGEMENT IN WPC.27116/2007 Dated 12/09/2007 .................... APPELLANT/PETITIONER: ------------------------------------ JAYALAL C., S/O. CHANDRABOSE, CHERAMPILLYTHEKKETHIL (H), KANJAVELI P.O., KOLLAM. BY ADV. SRI.M.K.CHANDRA MOHANDAS RESPONDENTS/RESPONDENTS: --------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LABOUR AND REHABILITATION (R) DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE WELFARE FUND INSPECTOR, TODDY WORKERS WELFARE FUND BOARD, KOLLAM. BY SR. GOVT. PLEADER SMT. K. MEERA. R2 BY ADV. SRI RENIL ANTO. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L. DATTU, C.J. & K.M. JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - WRIT APPEAL No.73 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of April, 2008. JUDGMENT H.L.DATTU, CJ, Sri. Jayalal is the legal representative of late Sri. Chandrabose. He was disturbed by the recovery proceedings initiated by the respondents to recover amounts due under the provisions of the Toddy Workers Welfare Fund Act, 1969. Therefore, he had approached this court in W.P.(C) No.27116 of 2007. 2. The primary contention of the petitioner before the court was that he was not a licensee under the provisions of the Kerala Abkari Act and the Kerala Abkari Shops Disposal Rules, 2002 and therefore, he was not liable to pay any amount due under the provisions of Toddy Workers Welfare Fund Act Act, 1969. 3. Respondents have filed their counter. In that, they had stated that petitioner had taken sublease of the licence granted to some other persons to vend in toddy for the excise year in question. 4. The learned Single Judge taking into consideration the agreement between petitioner's father with the licensees under the provisions of Kerala Abkari Act and the Kerala Abkari Shops Disposal Rules, has come to the conclusion that the respondents were justified in initiating proceedings to recover amounts due under the provisions of the Toddy Workers Welfare Fund Act, 1969. Being disturbed by these findings and the conclusions reached by the learned Single Judge, the petitioner in the writ petition has presented this writ appeal. 5. Sri.Chandramohan Das, learned counsel appearing for the petitioner invites our attention to the provisions of the Kerala Abkari Act and the Abkari Rules and submits that under the Act and the Rules, there is total W.A. 73/2008. 2 prohibition of subleasing or subletting the toddy shops and therefore the respondents were not justified in imposing the liability on the petitioner's father and also initiating proceedings to recover the same under the Toddy Workers' Welfare Fund Act. Learned counsel also invites our attention to the dictionary clause under the Toddy Workers' Welfare Fund Act, 1969 in particular Section 2(c) of the Act. 5. Learned counsel appearing for the contesting respondent brings to our notice the decision rendered by this court in the case of Aringath Kelan v. State of Kerala and others (W.A. No.2823 of 2007 disposed of on 3rd December, 2007) and submits that in view of the decision of this court, the appellant is not entitled to any relief whatsoever. 6. The learned Single Judge in his order has noticed, that, the licence to conduct the toddy shop under an agreement was handed over to the petitioner's father. The learned Judge has also noticed that in the evidence that was recorded by the Welfare Fund Inspector under the provisions of the Toddy Workers' Welfare Fund Act , there is an admission of the petitioner's father that he had an agreement with the licensee and was conducting the toddy shops in question and therefore the respondents were justified in initiating proceedings to recover the dues under Welfare Fund Act. 7. In Aringath Kelan's case, we have noticed the observations made by the Apex Court in Joseph Joseph v. State of Kerala (2002(1) K.L.T. 827(SC)). In the said decision the Apex Court has observed as under in paragraph 13: “A perusal of S.2(c) shows that it refers to the person who employs any person, whether directly or through any other person or whether on behalf of himself or any other person, as employer. The employment by any person can be for himself or for any other person. Merely because the person is associated with the conduct of the business of an establishment or shop, it cannot be said that he had employed the W.A. 73/2008. 3 workers on his own behalf. There may be cases where it can be shown than besides the owner any other person conducting the business of the said shop may employ workers on his own behalf and not on behalf of original owner. But in the absence of proof to the contrary, particularly in view of the statement of principal employer that he had employed the workers, the intermediary persons could not be held to be the employer of the workers who were employed for the conduct of the business in the shop covered under the Act. Law presupposes the conduct of a legal business and cannot be interpreted in a manner which frustrates the object of the Act and results in not only miscarriage of justice but violation of the statutory provision of law. If under the rules, the licensee was not authorised to lease out or sub-let the whole or any portion of the privilege or licence granted to him for conducting the Abkari business, holding the appellants as employer with respect to the licensee's shop would amount to facilitate the violation of the Kerala Abkari Shops Act, and the Rules framed thereunder. Such an interpretation is not called for as it is against the public policy. In any particular case, where the authorities find that besides the licensee any other person conducting the business in a licenced premises under the Abkari Act and the Rules framed there under is also liable to contribute to the fund under the Act, they are under the legal duty to assert and positively hold that such persons were the employers vis-a-vis the workers and that they were conducting the business either with the legal authority of the licensee or the licensing authority. The High Court has taken a general view of the matter without reference to the purpose and object of the Act and the law under which the licence to run the shop was granted. The impugned judgment is thus not sustainable.” 8. In view of what has been declared by the Apex Court in the said decision, in our opinion, the contentions canvassed by the learned counsel for the appellant may not be available to him. In view of the above, since there was an agreement between petitioner's father and the licensee, who was granted licence to deal in toddy under the provisions of Abkari Act, the respondents were justified in W.A. 73/2008. 4 levying and initiating proceedings to recover the amounts due under the Toddy Workers Welfare Fund Act. Therefore, we do not find any infirmity in the orders passed by the learned Single Judge. Accordingly, the writ appeal requires to be rejected and it is rejected. Ordered accordingly. H.L. DATTU, CHIEF JUSTICE K.M. JOSEPH, JUDGE sb/DK.