IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 OP.No. 15294 of 2003(U) ---------------------------------- PETITIONER(S): ----------------------- MARIAMMA THOMAS W/O. LATE THOMAS, CHANNANGANATTU HOUSE, VAKATHANAM VILLAGE AND POST, KOTTAYAM DISTRICT. BY ADV. SRI.P.KURUVILLA JACOB RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE COMMISSIONER AND SECRETARY TO GOVERNMENT, LABOUR AND REHABILITATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, KOTTAYAM. 3. THE CHIEF EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, KOLLAM 4. THE DEPUTY TAHSILDAR, REVENUE RECOVERY SECTION, CHANGANACHERRY. 5. THE VILLAGE OFFICER, VAKATHANAM, KOTTAYAM DISTRICT ADDL. R6 TO R8 ARE IMPLEADED. 6. JOSEPH CHACKO MADATHIPARAMBIL HOUSE, KURICHY POST, KOTTAYAM DISTRICT. 7. ABRAHAM MATHEW, ELAVAKOTTAYIL HOUSE, VAKATHANAM VILLAGE AND KARA, CHANGANACHERRY TALUK. OP.NO. 15294/2003 8. K.R.DILEEP, S/O. RAGHAVAN, KUNNUMPURATHU HOUSE, PAKKIL POST, KOTTAYAM DISTRICT. ADDL. R6 TO R8 ARE IMPLEADED AS PER ORDER DT. 17.6.04 IN IA. NO.3736/03. BY GOVERNMENT PLEADER MR.ARAVINDA KUMAR BABU T.K. - R1, 4 & 5 BY ADV. MR.P.RAMAKRISHNAN SC, MTWWF BOARD O R2 & R3 MR.K.K.SATHEESH FOR R6,7,8 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 16/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RDER ON CMP. NO.25424/03 I.A. NO.12829/2003 IN OP. NO.15294/2003 DISMISSED 16/06/2009 SD/- V.K.MOHANAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE NOTICE DT. 27.5.99 OF THE 2ND RESPONDENT COMMUNICATED TO THE PETITION. P2;- COPY OF THE PETITIONER'S LETTER DT. 7.7.99 FORWARDED TO 2ND RESPONDENT RAISING OBJECTION AGAINST THE PRELIMINARY DETERMINATION ORDER PASSED IN RESPECT OF STAGE CARRIAGE WITH REGISTRATION NO.KL5/9720 FOR THE PERIOD 93-99. P3:- COPY OF THE PETITIONER'S EXPLANATION DT. 30.7.99 FORWARDED TO 2ND RESPONDENT. P4:- COPY OF THE 2ND RESPONDENT'S REGISTERED NOTICE DT. 6.8.99 FORWARDED TO THE PETITIONER AND ALLEGED EMPLOYEES OF STAGE CARRIAGE WITH REGISTRATION NO.KL5/9720. P5;_ COPY OF THE FINAL DETERMINATION ORDER DT. 28.2.02 OF THE 2ND RESPONDENT COMMUNICATED TO THE PETITIONER. P69a):- COPY OF THE 4TH RESPONDENT'S DEMAND NOTICE DT. 8.7.02 ISSUED TO THE PETITIONER UNDER SECTION-7 OF THE KERALA R.R.ACT. P6(b):- COPY OF THE 4TH RESPONDENT'S DEMAND NOTICE DT. 8.7.02 ISSUED TO THE PETITIONER UNDER SECTION-34 OF THE EKR R.R.ACT. P7:- COPY OF THE IST RESPONDENT'S ORDER IN APPEAL DT. 13.2.03 COMMUNICATED TO THE PETITIONER RECENTLY. P8(a):- COPY OF THE LETTER DT. 17.8.99 OF ABRAHAM MATHEW, ELAVAKOTTAYIL HOUSE, VAKATHANAM FORWARDED TO 2ND RESPONDENT. P8(b):- COPY OF THE LETTER DT. 16.8.99 OF JOSEPH CHACKO, MADATHIPARAMBIL, KURICHY FORWARDED TO 2ND RESPONDENT. P9:- COPY OF THE AGREEMENT DT. 15.3.92 EXECUTED BETWEEN PETITIOENR, BABY PHILIP AND K.C.BABY REGARDING THE OPERATION OF STAGE CARRIAGE WITH REGISTRATION NO.KL5/9720. P10:- COPY OF THE ORDER DT. 1.4.03 IN CMP. NO.19260/03 IN OP. 11260/03 OF THE LEARNED SINGLE JUDGE. TRUE COPY P.S. TO JUDGE TSS V.K.MOHANAN, J. ---------------------------------------- OP. No.15294 OF 2003 ---------------------------------------- Dated, 16th day of June, 2009 JUDGMENT Challenging Exts.P7 and P5, the petitioner who is the R.C. owner of a vehicle bearing registration No.KL5/9720, approached this Court by preferring the above writ petition. Ext.P5 is the final determination order issued by the 2nd respondent under the provisions of Kerala Motor Transport Workers Welfare Fund Act,1985 by which the petitioner is directed to pay a sum of Rs.1,12,577/- towards the contribution as per the above Act. Against the above order, the petitioner approached this Court by filing O.P.No.20128/2002 and, by judgment dated 19.7.2002, this court directed the Ist respondent to dispose of Ext.P5 appeal therein. Thus in terms of the direction contained in the above judgment, Ext.P7 order was issued by the Government confirming the final determination order issued by the 2nd respondent. It is the above order challenged in this writ petition. 2. It is the specific case of the petitioner that she is not conducting or operating the said stage carriage service even though once she was the operator. According to the petitioner, as per Ext.P9 agreement, the vehicle was given in possession of O.P.15294/2003 -:2:- two other persons and their names are shown in Ext.P9 agreement. So, the sum and substance of the contention of the petitioner is that she is not operating the vehicle and there is no employer-employee relationship between the petitioner and the persons whose names shown in Ext.P9. It is also the contention that the workers found in the vehicle during inspection was not the workers of the petitioner and, therefore, she is not liable to pay the contribution. 3. Though no counter affidavit is seen filed by the 2nd and 3rd respondents, a detailed counter affidavit is filed for and on behalf of Ist respondent. In the counter affidavit filed by the Ist respondent, it is stated that the 2nd respondent had issued notice in respect of stage carriage bearing Regn.No. KEO-1177 for the year 1994-98 owned by one Sri Joseph Thomas. In the said notice there was a mention about another vehicle KL-5/9720. In reply to the pre-assessment notice issued, the said Joseph Thomas stated that the said carriage vehicle bearing Regn.No.KL-5/9720 belongs to his mother, the petitioner herein. Thereafter notice was issued to the petitioner to which she filed reply dated 9.6.1999 denying the liability. From the counter affidavit it is further seen that though several opportunities were given to the petitioner, to substantiate O.P.15294/2003 -:3:- her contentions, she did not avail any such opportunities. Therefore according to the Ist respondent, the petitioner cannot escape from the liability of paying contribution as envisaged by the Act and the Scheme. 4. I have heard the learned counsel for the petitioner, the learned Standing Counsel for the respondents 2 and 3 and also the learned Government Pleader. 5. The learned counsel for the petitioner submitted that the assessment made by the 2nd respondent as per Ext.P5 is without any authority or sanction of law. According to the learned counsel, the workers in whose favour the assessment was made declared that they do not want to get the benefit of the Scheme, and in support of the above contention, the learned counsel very much placed reliance upon Ext.P8 (a) and P8(b). Additional respondents 6 to 8 were impleaded at the instance of the petitioner and they have also filed a counter affidavit supporting the contention of the petitioner. Thus according to the learned counsel, the stage carriage vehicle bearing Regn.No.KL-5/9720 was given to the signatories in Ext.P9 and the vehicle was plying by them on the basis of the specific terms contained in Ext.P9. As per Ext.P9, the profits are being shared by the petitioner and the signatories to O.P.15294/2003 -:4:- Ext.P9 as stipulated in the said agreement. Therefore, there is no employer-employee relationship and hence, the provisions of the Act are not attracted. It is also the case of the learned counsel for the petitioner that at the time of inspection conducted by the officials, certain workers were employed by the signatories to Ext.P9 on temporary basis and therefore, those persons also are not entitled to the benefit of the Act. 6. On the other hand, the learned Governed Pleader and the counsel for the Welfare Board submitted that Ext.P9 agreement was entered into with a view to defeat the benevolent provisions of the Act and Scheme so as to deny the benefit to the workers actually engaged by the petitioner. It is also pointed out by the counsel that the petitioner has managed to send a report to the Welfare Fund Board Board, when notice was initially sent to her, stating that she had expired. Subsequently, the proceedings was initiated, on getting information regarding the fact that the petitioner is alive through the intimation furnished by the son of the petitioner. So, the present attempt of the petitioner, according to the learned counsel, is to escape from the liability of paying the contribution which fixed by the 2nd respondent as per Ext.P5 and as affirmed by the government in Ext.P7 order. O.P.15294/2003 -:5:- 7. I have carefully considered the contention raised by the counsel for the petitioner as well as respondents. 8. In Ext.P5, the amount is quantified as 1,12,577/- being the contribution for the period 1993-99 with respect to the vehicle bearing Regn.No.KL5-9720. Though Ext.P9 agreement is produced, it is beyond dispute that the vehicle in question is in the name of the petitioner and the said vehicle was plying in accordance with the permit given for the same. In view of Section 2 (e) of the Kerala Motor Transport Workers' Welfare Fund Act, 1985, the petitioner will come under the definition of employer and hence, the Act and Scheme established as per the provisions of the Act are applicable in the present case. Clause 27 of the Kerala Motor Transport Workers' Welfare Fund Scheme, 1985, deals with membership, which says that “every employee shall be entitled and required, to be a member of the Fund from the beginning of the financial year immediately following the date on which the scheme comes into force, if he has completed three month's continuous service”. It is also provided in Clause 27 that , “every employee employed after the commencement of O.P.15294/2003 -:6:- the scheme shall be entitled and required to be a member of the Fund from the date on which he complete three month's continuous service”. The employer as per various provisions of the scheme are required to furnish the records and also payment of the contribution etc. Admittedly, inspection was conducted on 5.4.94 though the vehicle was lastly come to the possession of the signatories in Ext.P9 on 15.3.92, during which, the additional respondents 6 to 8 were found as the workers of the said vehicle. As on today, there is no material before this Court to show as to how those workers were employed and regarding the actual employer of the said workers, if any, other than the petitioner. Even at the time of the provisional assessment order, and during the time of the enquiry conducted subsequently, the petitioner did not turn to attend the enquiry and no document was produced or evidence was adduced to show that the vehicle was not running by her or the workers were not employed by her. As long as the vehicle continued operation of which the petitioner is the R.C.owner, the Act and Scheme are attracted and the petitioner cannot escape from the liability through lame excuse. 9. As indicated earlier, the learned counsel for the petitioner, O.P.15294/2003 -:7:- on the strength of Ext.P8(a) and P8(b), submitted that the signatories to those documents who are the additional respondents are of the view that they do not want to get the benefit of the Scheme and therefore, according to the learned counsel, when the actual beneficiary of the scheme is not interested in the scheme, respondents 2 and 3 cannot insist the petitioner to pay the contribution. There is no doubt that the Act and the Scheme thereon are designed so as to give the benefit to the workers who are engaged in the field of motor transport business and the scheme will work successfully only on paying contribution to the Fund. So on the basis of Ext.P8(a) and P8(b), it cannot be said that the Scheme and Act is not applicable in the case of the petitioner. If such a contention is approved, it will go against the very object and aim of the Act and Scheme. So such contention has to be repelled. 10. The fact finding authority through thorough enquiry, for which chances were given repeatedly to the petitioner but she deliberately abstained from attending and utilising the opportunity, determined and assessed the contribution as per Ext.P5 which was confirmed by the Government as per Ext.P7 in appeal at the instance of the petitioner. This Court cannot sit in appeal against O.P.15294/2003 -:8:- the above statutory orders passed by competent authority. In the result, I find no merit in the writ petition and accordingly the same is dismissed. V.K.MOHANAN, JUDGE kvm/- O.P.15294/2003 -:9:- V.K.MOHANAN, J. O.P.No. 15294 of 2003 JUDGMENT Dated:16.6.2009..