IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 WP(C).No. 10085 of 2004(A) -------------------------- PETITIONER: ------------ RAJEEV, AGED 38 YEARS, S/O. GOVINDAN, RAJEEV BHAVANAM, PUTHUPALLY KUANAM, NOORANADU VILLAGE, MAVELIKKARA TALUK. BY ADV. SRI.A.AHZAR SRI.SANAL.S RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIATE, GOVT. OF KERALA, THIRUVANANTHAPURAM. 2. TODDY WORKERS WELFARE FUND INSPECTOR, PATHANAMTHITTA. BY ADV. SRI.KOSHY GEORGE,SC,KTWWFB,(TODDY WORKE FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2008, THE COURT ON 23/07/2008 DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF THE PROCEEDINGS OF R2 DT.31.1.2000. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR, J. .................................................................... W.P.(C) No.10085 of 2004 .................................................................... Dated this the 23rd day of July, 2008. JUDGMENT The petitioner's case is that he is not liable to pay Toddy Workers Welfare Fund contribution as he was only a salesman. However, Standing Counsel for the second respondent referred to Ext.P1 adjudication order whereunder demand is raised against five persons including the petitioner as they were found to be carrying on business on enquiry. It is not known whether four others have contested the liability. The employees of the toddy shops also gave statement that petitioner and four others were carrying on business in the toddy shops. If petitioner was carrying on business along with others, petitioner is liable to pay contribution irrespective of whether he is licencee or not. The petitioner has not produced the agreement by which the licencee entrusted the job of managing the toddy shop to the petitioner and others. Even though petitioner has relied on judgment of the Supreme Court in JOSEPH JOSEPH & OTHERS V. STATE OF KERALA & OTHERS (2002(2) Supreme 55), I do not think the judgment bars recovery from the persons who actually carried on business because he answers the description of 2 "employer". In any case the question whether there is an employer- employee relationship between those who managed the toddy shop and those who were employed in the toddy shop is a mixed question of law and fact and the same has to be decided only based on evidence, agreement, terms of employment etc. Inspite of statutory remedy available by way of appeal, petitioner has not filed the same. I do not think there is any scope for entertaining writ petition in the matter. If petitioner has grievance, petitioner is free to file statutory appeal before the appellate authority. However, since W.P. was pending and stay was granted for long period, the petitioner is granted two months time from today to file appeal and obtain stay from the appellate authority. Interim order granted by this court will continue for two months from now and thereafter recovery will be continued if petitioner does not obtain stay from the appellate authority. W.P. is disposed of as above. C.N.RAMACHANDRAN NAIR Judge pms