IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 OP.No. 28093 of 2001(T) ----------------------- PETITIONER: --------------- DAISY CHERIAN, 186, GIRI NAGAR, COCHIN - 20. BY ADV. MR. KURIAN GEORGE KANNAMTHANAM, SENIOR ADVOCATE RESPONDENTS: --------------- 1. THE DEPUTY TAHSILDAR (RR), KANAYANNUR TALUK, ERNAKULAM. 2. THE VILLAGE OFFICER, ELAMKULAM, ERNAKULAM. 3. THE DISTRICT EXECUITVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND, PALARIVATTOM, COCHIN - 25 4. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LABOUR & REHABILITATION (S) DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM R1, R2 & R4 BY SPECIAL GOVERNMENT PLEADER MR. P.K. SOYUZ R3 MR. P.RAMAKRISHNAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 21/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 28093 OF 2001 APPENDIX PETITIONER'S EXHIBITS : EXT. P1 : PHOTOCOPY OF ORDER NO. B1.383/89 DATED 28.04.1990 EXT.P2 : PHOTOCOPY OF APPEAL MEMORANDUM DATED 23RD JULY, 1990 FILED BEFORE THE GOVERNMENT. EXT. P3 : PHOTOCOPY OF G.O (Rt) NO. 3089/99/LBR DATED 20.09.1999 OF THE LABOUR & REHABILITATION (S) DEPARTMENT. /TRUE COPY/ P.A. TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ O.P No . 28093 of 2001 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 21st October, 2011 JUDGMENT The assessment under the Kerala Motor Transport Workers Welfare Fund Act, in respect of the period 1986-'87, 1987 - '88 and 1988 - '89 is under challenge in this Original Petition. 2. The petitioner is the widow of one Mr. P.C. Cherian, who was conducting a transporting business as the owner of the lorries bearing Nos. KDE 4962, KRF 7512, KBE 5688, KCF 3726, KEP 1703, KLO 3436 and KLO 4808. It is stated that the husband of the petitioner was sought to be assessed by the 3rd respondent under the relevant provisions of the above Act and Ext. P1 final determination order was passed on 28.04.1990 for the period in question, casting a liability to the tune of Rs. 79,976/- as the amount to be satisfied towards the contribution. Being aggrieved of the same, the husband of the petitioner preferred Ext. P2 appeal under Section 8 (5) of the Act before the Government. The case of the petitioner is that, after filing the appeal, the husband of the petitioner took his last breath and nothing was heard further from any of the authorities. But on a fine morning, the petitioner was served with a revenue recovery notice issued in the O.P. No. 28093 of 2001 : 2 : name of her husband, demanding the amount allegedly due from the husband of the petitioner, which made the petitioner to approach this Court by filing the present writ petition. 3. Heard both the sides. 4. The learned counsel for the petitioner submits that, the enquiry made by the petitioner revealed that the Government had passed Ext. P3 order in Ext. P2 appeal, without serving any notice to the legal heirs of the deceased husband of the petitioner Mr. P.C. Cherian, who had preferred the appeal. It is also pointed out that, the factum of death of the appellant/Mr. Cherian, who had preferred the appeal, was very much known to the appellate authority as borne by contents of Ext. P3 itself. The observations made by the appellate authority in the penultimate paragraph of Ext. P3 are as follows : “In order to finalize the case a hearing was fixed and notice sent to the appellant. However the notice was returned with the Postal Authorities' remarks “Addressee left present address, not known”. When the details of legal heirs wee called for from the District Executive Officer, Kerala Motor Transport Workers Welffare Fund Board, Ernakulam, the District Executive Officer has informed that Sri.P.C. Cherian has expired and Smt. Daizy Cherian was the legal heir of the appellant. Hence the hearing notice sent to Smt. Daisy Cherian in the address given by the District Executive Officer, but the notice was returned with the Postal Authorities with the remarks “un-claimed”. O.P. No. 28093 of 2001 : 3 : From the above, it is clear that, the appellate authority was informed that the appellant, who preferred Ext. P2 was no more and the petitioner was shown as the legal heir, to whom a notice was stated as issued, but returned as “un-claimed”. There is a specific case for the petitioner, as contained in paragraph 10 of the original petition, that immediately after the demise of the husband, the petitioner sustained a major car accident and was hospitalized for nearly a month. As stated in paragraph 11, after that, she was residing with her son or daughter since she was not in a position to stay alone. It is asserted in the original petition that she was never served with any notice before finalization of the proceedings by the appellate authority vide Ext, P3. The said specific averment of the petitioner is not sought to be controverted by the respondents. On the other hand, it is revealed from the counter affidavit stated as filed by the first respondent that no demand notice was actually served upon the petitioner. In the above circumstances, this Court finds that the proceedings ought to have been finalized by the 4th respondent/appellate authority only after issuing notice to all the legal heirs of the deceased appellant, who preferred Ext. P2. O.P. No. 28093 of 2001 : 4 : 5. In the said circumstances, Ext. P3 is set aside and the matter is remitted to the 4th respondent for fresh consideration, after issuance of a notice to all the legal heirs. The proceedings as above shall be finalized in accordance with law, as expeditiously as possible, at any rate within three months from the date of receipt of a copy of this judgment. The Original Petition is disposed of Sd/- P. R. RAMACHANDRA MENON, JUDGE kmd