IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 WP(C).No. 22133 of 2003(I) -------------------------- PETITIONER(S): --------------- K.S.SADANANDAN, PATHIKKATTIL HOUSE, POOTHOTTA, ERNAKULAM DISTRICT. BY ADV. SRI.G.PRABHAKARAN RESPONDENT(S): --------------- 1. THE DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, ERNAKULAM. 2. GOVERNMENT OF KERALA, REPRESENTED BY THE COMMISSIONER AND SECRETARY TO LABOUR DEPARTMENT, THIRUVANANTHAPURAM. * ADDL.R3 TO 5 : 3. ANILKUMAR, PATHIKKATTIL HOUSE, POOTHOTTA, ERNAKULAM DISTRICT. 4. RAJEEV, PATHIKKATTIL HOUSE, POOTHOTTA, ERNAKULAM DISTRICT. 5. AJITHKUMAR, PATHIKKATTIL HOUSE, POOTHOTTA, ERNAKULAM DISTRICT. (* IMPLEADED AS PER ORDER DT.12.11.03 IN I.A. NO.9708/03) ADV. SRI.P.RAMAKRISHNAN, SC,KMTWF BOARD FOR R1 SMT.SHYLAJA VARGHESE FOR R3-R5 GOVERNMENT PLEADER SRI.K.P.SANILKUMAR FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C). APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:-TRUE COPY OF FINAL DETERMINATION ORDER DT.31.12.96 EXT.P2:-TRUE COPY OF THE APPEAL MEMORANDUM DT.24.7.97 EXT.P3:-TRUE COPY OF THE ORDER OF REJECTION DT.3.6.03 EXT.P4:-TRUE COPY OF THE PARTNERSHIP DEED DT.1.11.89 EXT.P5:-TRUE COPY OF THE REGISTRATION OF THE FIRM DT.15.10.99 EXT.P6:-TRUE COPY OF R.R. NOTICE NO.E8.44/03-04/KMT DT.23.8.03 RESPONDENT'S EXHIBITS:- NIL okb //True Copy// P.A. to Judge WP(C).22133/03 ORDER ON I.A.13477 OF 2003 IN WP(C).22133 OF 2003 DISMISSED. SD/- C.K. ABDUL REHIM, JUDGE. 17.6.2009 okb /True copy/ P.A. to Judge C.K.ABDUL REHIM, J. ------------------------------ W.P.(C)No. 22133 OF 2003 ------------------------------ Dated this the 17th day of June, 2009 J U D G M E N T ---------------------- 1. The challenge in this writ petition is against Ext.P3 order of the 2nd respondent issued on an appeal filed by the petitioner against Ext.P1 final determination order passed by the 1st respondent, finalizing contributions payable by the petitioner to the Kerala Motor Transport Workers Welfare Fund, for the years 1994-95 and 1995-96. In Ext.P1 the contribution was determined treating the additional respondents 3 to 5 herein, as employees of the stage carriage concerned. The contention of the petitioner before the appellate authority was that, the additional respondents 3 to 5 were not actually employees, but they were partners of the bus service. In support of his claim, the petitioner and respondents 3 to 5 have produced Ext.P4 before the 2nd respondent, which is copy of a partnership deed dt:1.11.1989 executed between the petitioner and respondents 3 to 5, forming a partnership for the purpose of conducting the stage carriage operation. The appellate authority has not accepted the said document on the ground that Ext.P5 will reveal that the firm is registered only on 15.1.1999, which is beyond the period of assessment. W.P.(C).22133/03 2 2. On a perusal of Ext.P5 it is evident that the said document is an acknowledgment issued by the Registrar of Firms with respect to receipt of a statement under Section 58(1) of the Indian Partnership Act, from “M/s.Anjali”, (name of the partnership firm). It further reveals that the said statement has been entered in the Register of firms, as No.2987 of the year 1999. Ext.P5 is dated 15th October, 1999. The appellate authority observed that eventhough the deed is executed on 1.11.1989, the firm is registered only on 15.10.1999 (mistakenly stated as 15.1.1999). But from Ext.P5 nothing is discernable as to the date of constitution of the firm, date of execution of the deed, date on which the firm applied for registration, or the date on which the registration certificate if any was issued etc: 3. The stand taken by the appellate authority discarding the contentions regarding the partnership solely based on Ext.P5 acknowledgment is not acceptable under the above context. The learned standing counsel for the 1st respondent contended that the petitioner had not raised such contentions based on the partnership before the 1st respondent, as evidenced from Ext.P1. But on a perusal of Ext.P1 it is noticed that, eventhough the order refers about the objection submitted in response to the notice, the contentions therein or the findings on the specific objections are not enumerated therein. Therefore the questions like, whether W.P.(C).22133/03 3 there was any partnership actually constituted between the petitioner and respondents 3 to 5, whether the respondents 3 to 5 were employees or partners of the stage carriage, whether there were any other employees etc: need consideration at the hands of the 1st respondent before making determination of the contributions payable and before fixing liability for payment of such contribution on the petitioner. 4. Under these circumstances I feel that a remand of the matter for issuing fresh determination order by the 1st respondent is warranted to meet the ends of justice. In the result, Ext.P1 order of final determination which stands confirmed in Ext.P3 is hereby quashed. The 1st respondent is directed to conduct necessary enquiry and adjudication in the matter after affording proper opportunity to the petitioner and respondents 3 to 5 and to issue fresh orders of final determination with respect to the years 1994- 95 and 1995-96, as early as possible, at any rate within a period of 3 months. Amounts if any recovered pursuant to Ext.P1 shall be appropriated in accordance with the fresh determination order to be issued in the mater. The writ petition is disposed of as above. C.K.ABDUL REHIM, JUDGE. okb