IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 OP.No. 11389 of 2002(E) ----------------------------------- PETITIONER(S): ------------------------ 1. SMT.B.AMBILY,KADAKKALAMMA HOUSE, KADAKKAL P.O.,KOTTARAKKARA. 2. SRI.B.RAVEENDRAN NAIR,KADAKKALAMMA HOUSE,KADAKKAL P.O.,KOTTARAKKARA. 3. SRI.B.MOHANDAS,KADAKKALAMMA HOUSE, KADAKKAL P.O.,KOTTARAKKARA. 4. SRI.N.JAYADEVAN,NEDUMPANA VILLA, KADAKKAL P.O.,KOTTARAKKARA. BY ADV. SRI.P.V.JAYACHANDRAN RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA,REPRESNTED BY ITS JOINT SECRETARY TO LABOUR,KERALA MOTOR TRANSPORT WORKERS WELFARE FUND APPELLATE AUTHORITY, SECRETARIAT,THIRUVANANTHAPURAM 2. THE ADDITIONAL DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD,KOLLAM. 3. DEPUTY TAHSILDAR (RR)TALUK OFFICE, KOTTARAKKARA. R1 & R3 BY GOVERNMENT PLEADER R2 BY ADV. SRI.P.RAMAKRISHNAN, SC,KMTWF BOARD SRI.P.V.SURENDRAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 09/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts O.P.NO.11389/2002 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE PARTNERSHIP DEED P2 COPY OF THE OBJECTION DATED 13/8/2001. P3 COPY OF THE STATEMENT DATED 27/8/2001. P4 COPY OF THE ASSESSMENT ORDER BQ 682/2000-2001 B3 DATED 17/9/2001. P5 COPY OF THE STATUTORY APPEAL SUBMITTED BY THE 1ST PETITIONER. P6 COPY OF THE DEMAND NOTICE ISSUED BY THE 3RD RESPONDENT. P7 COPY OF THE ORDER G.O.(RT)NO.627/2002 LBR DATED 25/3/2002. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts O.P.NO.11389/2002 ORDER ON C.M.P.NO.19889/2002 IN O.P.NO.11389/2002 DISMISSED 09/06/2011 SD/- T.R.RAMACHANDRAN NAIR, JUDGE /TRUE COPY/ P.S.TO.JUDGE sts T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.No.11389 of 2002-E - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2011. JUDGMENT The petitioners are aggrieved by the proceedings whereby they have been made liable under the Kerala Motor Transport Workers Welfare Fund Act, 1985. It is averred that the petitioners are brothers and cousin and are operating two stage carriages bearing Reg. Nos.KBV-6372 and KL-13/A 767 on partnership agreement under the name and style of “Kadakkalamma Motors”. Ext.P1 is said to be the copy of the partnership deed. To the provisional assessment order issued by the second respondent in the year 2000-2001, the first petitioner filed an objection contending that the bus services are operated as per the partnership agreement since 1996 and there is no employer employee relationship between the partners. But, overruling the objection, the assessment order has been passed as per Ext.P4 and the appeal filed before the Government has also been rejected. 2. Heard parties. 3. Learned counsel for the petitioners submitted that there is no employer-employee relationship, as the business is run on a partnership basis. It is pointed out that these aspects have not been considered by the op 11389/2002 2 assessing authority and by the Government properly. It is also pointed out that the petitioners do not require the benefit under the Welfare Fund Act also. 4. Learned counsel appearing for the respondents submitted that the partnership deed is at a later point of time, viz. 9.2.2001 and it cannot therefore be considered. Apart from that, the petitioners have not adduced any evidence in the matter in spite of giving various opportunities. In fact, the points raised by the petitioners were elaborately considered by the Government while rejecting the appeal also. It is stated in Ext.P7 order that “ when the assessment upto 1999-2000 was completed it was on 30.3.2001 that the appellant submitted an application that the stage carriage is being operated on partnership basis, and requesting to exempt her from remitting welfare fund. But she did not attend the subsequent enquiry and produce material evidence in support of her claim. Based on the available facts, a provisional determination order was issued, for which no objection was filed by the appellant. She did not attend the subsequent enquiries.” Accordingly final determination order was issued. 5. It is also found that since the documentary evidence in support of the partnership arrangement was not produced, arguments cannot be accepted. It was further found that from 1997 onwards the stage carriage is op 11389/2002 3 operated on partnership showing profit and loss and the partnership deed is executed only on 9.2.2001 which is not applicable for the assessment period 2000-2001. The plea regarding denial of opportunity has also been rejected by the Government finding that all opportunities were given. 6. Evidently, the partnership deed is of a subsequent year. Learned counsel for the petitioner tried to explain that the documents showing the conduct of business reveals that it is a partnership business. But that will not help the case of the petitioners. Evidently, this is a case where all opportunities were given but no documentary evidence was adduced. Therefore, the assessment was done rightly. The contentions have been considered in detail while considering the appeal and the findings of the appellate authority also cannot be said to be perverse. It was rightly found that the assessment was valid and the partnership deed is executed only on 9.2.2001 which is not applicable for the assessment period 2000-2001. 7. I do not find any reason to interfere with the orders impugned. The writ petition fails and hence dismissed. No costs (T.R. Ramachandran Nair, Judge.) kav/ op 11389/2002 4 T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.No.11389 of 2002-E - - - - -- - - - - - - - - - - - - - - - - - - - - JUDGMENT 9th day of June, 2011.