IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 4TH JANUARY 2008 / 14TH POUSHA 1929 OP.No. 33194 of 2002(B) ----------------------- PETITIONER: ------------ K.K.MOHAMMED, AGED 60 YEARS, S/O.KHADER, KALLARAKKAL HOUSE, PALLILAMKARA, KALAMASSERY.(DIED) ADDL.PETITIONER: P.M. JAMEELA, AGED 56, DO. DO. (ADDL. PETITIONER SUBSTITUTED AS THE NEW PETITIONER IN THE PLACE OF THE DECEASED PETITIONER AS PER ORDER DT.235.2003 IN CMP NO.13965/2003) BY ADV. SRI.P.GOPALAKRISHNA MENON SRI.M.JITHESH MENON RESPONDENTS: ------------- 1. THE DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS, WELFARE FUND BOARD, PALARIVATTOM, COCHIN -25. 2. GOVERNMENT OF KERALA, REPRESENTED BY COMMISSIONER AND SECRETARY, LABOUR DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIATE, TRIVANDRUM 3. SRI.AYOOB, PARUTHIKATTUPADY, PANAYIKULAM, ALANGAD.P.O., ALUVA. 4. SRI. K.S.VARGHESE, KATTIPARAMBIL HOUSE, NAYARAMBALAM P.O., ERNAKULAM DISTRICT R1 BY ADV. SRI.P.RAMAKRISHNAN, SC,KMTWF BOARD SRI.M.AJITH R2 BY SMT. T.B. REMANI, GOVERNMENT PLEADER THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 04/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO.56194/02 DISMISSED 4/1/08 SD/- T.R. RAMACHANDRAN NAIR, JUDGE. APPENDIX EXT.P1-TRUE COPY OF THE STATEMENT FILED BY R3 DATED 27.4.2001 EXT.P2- DOL BY R4 DATED 27.4.2001 EXT.P3= TRUE COPY OF THE FINAL DETERMINATION ORDER OF R1 DATED 30.4.2001 EXT.P4-TRUE EXTRACT OF THE GROUNDS RAISED IN THE APPEAL MEMORANDUM FILED BY THE PETITIONER DATED 14.8.2001 EXT.P5-TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 3.1.2002 EXT.P6-TRUE COPY OF THE FINAL DETERMINATION ORDER OF R1 DT.16.1.2002 EXT.P7-TRUE EXTRACT OF THE GROUNDS IN THE APPEAL MEMORANDUM FILED BY THE PETITIONER DT.4.3.2002 EXT.P8-TRUE COPY OF ORDER OF R2 DATED 7.10.02 EXT.P9-TRUE COPY OF THE ORDER OF R1 DATED 25.10.02 //TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NO.33194 of 2002-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of January, 2008. JUDGMENT Aggrieved by the orders Exts.P3, P6, P8 and P9, the petitioner has approached this court in this original petition. He is the registered owner of stage carriage bearing registration No. KL-7/G.1690. This was registered on 4.8.1994. According to the petitioner, he wanted to provide self employment to his four sons and two nephews whose names are mentioned in the original petition. The vehicle was being operated on the route Ernakulam - North Parur for a period of five years. It is the case of the petitioner that nobody was taken from outside to work in the bus and the operation was conducted completely as a family business and therefore there was no occasion to pay any fixed salary to any of these persons who are his sons and nephews. 2. By Ext.P3, the first respondent assessed the total amount payable as Rs.1,64,655/- to the Motor Transport Workers Welfare Fund. The same is for the years 1994- 2000. Ext.P6 is the order for the year 2000 - 2001. As per Ext.P6, the balance amount payable is Rs.13,142/-. The petitioner challenged the same in appeal before the Government. OP 33194/2002 -2- 3. The above appeal was disposed of by Ext.P8. In Ext.P8, the assessment was modified and the Government found that Shri Hassan and Shri Khader are the petitioner's sons and therefore their names should be excluded from the impugned orders. As regards the other two employees, viz. Shri K.S. Varghese and Shri Ayoob are concerned, the findings were against the petitioner. The matter was remanded to the authority to pass a fresh order. After remand, the authority passed Ext.P9 order refixing the balance amount at Rs.56,076/- and the total amount at Rs.89,326/-. The orders Exts.P3, P6, P8 and P9 are challenged on various grounds. 4. Learned counsel for the petitioner strenuously contended that as regards the two employees, viz. Shri Varghese and Shri Ayoob also, the conclusion arrived at by the authorities which were confirmed in the appellate order, are totally misconceived, as they are not permanent workers but only casual workers. It is therefore submitted that no assessment could have been made in respect of them also. 5. I heard learned Standing Counsel for the first respondent who pointed out that as far as the issue is concerned, in Ext.P8 there is a detailed consideration by the Government and the findings rendered by the Government do not suffer from any infirmity warranting interference in these proceedings. 6. The issue was considered by the Government in Ext.P8, in a OP 33194/2002 -3- detailed manner. The proceedings were initiated after a request was received from Shri K.S. Varghese stating that he is the driver in stage carriage KL/7- G 1690 for about six years. Enquiry notices were issued to the petitioner and after taking evidence, the orders have been passed. The deposition of Shri K.S. Varghese was also taken. The Government noticed in Ext.P8 that only after the provisional determination order was passed, the two employees have filed affidavits supporting the stand of the petitioner. The said conduct was not appreciated by the Government, since it was a belated attempt to wriggle out of the liability. In fact, it is based on the deposition of Shri K.S. Varghese that a finding was rendered in favour of the petitioner to exclude the names of Shri Hassan and Shri Khader. It is also noticed in Ext.P8 that the employer has not maintained statutory records which would have been crucial to decide the dispute. Therefore, the Government found that the final determination orders do not also suffer from any other infirmity as far as that aspect is concerned. 7. Learned counsel for the petitioner relied upon the affidavits filed by Shri Varghese and Shri Ayoob to contend for the position that they are only casual workers. But as noticed already, the said argument was rejected by the Government for valid reasons. It cannot be said that the said findings suffer from any infirmity. It is to be noticed herein that the proceedings itself was initiated after request was received from Shri K.S. Varghese who OP 33194/2002 -4- was a driver. Further, the burden was clearly on the petitioner to plead and prove that they were only casual workers. It cannot be disputed that he was bound to maintain statutory records, but no such records were forthcoming. Therefore, it is a matter where the authority was justified in drawing conclusions against the petitioner as regards those two employees. In the light of the above, I do not find any infirmity in the orders impugned. Accordingly, the original petition is dismissed. As per the interim order, the petitioner has already deposited a sum of Rs.35,000/-. The petitioner is allowed to remit the balance amount in six monthly instalments. The first respondent will issue a communication showing the balance amount due, within three weeks from the date of receipt of a copy of this judgment to enable the petitioner to start payment. The first instalment shall be paid before 15.2.2008 and the remaining instalments will be paid before 15th of every month. The last instalment should cover the entire balance amount as on that date. (T.R. Ramachandran Nair, Judge.) kav/ OP 33194/2002 -5- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. No.33194 of 2002-B - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 4th January, 2008.