IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 WP(C).No. 31122 of 2008(E) -------------------------- PETITIONER(S): --------------- BEENY THOMAS, NEDIYAVILA KIZHAKKETHIL, NARIYAMPURAM POST, PATHANAMTHITTA. BY ADV. SRI.O.D.SIVADAS RESPONDENT(S): --------------- 1. THE DISTRICT EXECUTIVE OFFICER, MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, PATHANAMTHITTA. 2. THE DEPUTY TAHSILDAR (REVENUE RECOVERY), PATHANAMTHITTA. 3. THE VILLAGE OFFICER, VALLIKKODE. * ADDL.R4. THE EXECUTIVE OFFICER KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD ALAPPUZHA. (ADDL.R4 IS IMPLEADED SUO MOTU VIDE ORDER DT 20.11.08 ) ADV. SRI.K.HARILAL FOR ADDL.R4. GOVERNMENT PLEADER SRI.BEJOY CHANDRAN , R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH, J. ```````````````````````````````````````````````````` W.P.(C) No. 31122 OF 2008 E ```````````````````````````````````````````````````` Dated this the 3rd day of December, 2008 J U D G M E N T Petitioner challenges Ext.P5 and seeks a direction to respondents 1 to 3 not to initiate the proceedings against the petitioner, his properties or his vehicles for realisation of the welfare fund contribution payable by others and further direction to respondents to release the vehicle No.KL 3/K 16 belonging to the petitioner. 2. Case of the petitioner in brief is as follows. Petitioner is a stage carriage operator. The permit issued is now in respect of KL 3/K 16. The petitioner is faced with recovery notices vide Exts.P2 and P3 in respect of one N.M.Thomas. The liability is for non payment of contribution payable to the 1st respondent. By Ext.P4 mahazar dated 26.7.2008, the vehicle belonging to the petitioner came to be seized. It is specifically averred that the petitioner has no connection with the service conducted by his father. The petitioner is not managing bus service. Only the similarity is that the carriage is having the same WPC.31122/08 : 2 : name “Nediyavila”. The petitioner sought for release of the vehicle. The petitioner also submitted that if any contribution is due from the petitioner, he is ready to pay the same. It is stated that the petitioner is not liable to pay any amount towards the dues of his father and the petitioner has no connection with the service conducted by his father. Ext.P5 is a sale notice issued in respect of the petitioner's vehicle. 3. A statement has been filed by the respondent Board. Ext.R4(a) is the final determination order dated 17.12.2003 passed by the 4th respondent. Ext.R4(b) is the acknowledgment card dated 10.1.2004 signed by the petitioner. Ext.R4(c) is a copy of the final determination order dated 1.12.2003 passed by the 4th respondent acknowledged by the petitioner as per Ext.R4(d) dated 19.12.2003. Ext.R4(e) is the final determination order dated 15.4.2004 acknowledged by the petitioner by Ext.R4(f) dated 26.5.2004. Ext.R4(g) is the copy of the final determination order dated 18.10.2004 acknowledged by the petitioner by Ext.R4(h) dated 18.11.2004. Ext.R4(i) is the final determination order dated 31.5.1997 acknowledged by the petitioner by Ext.R4(j) dated WPC.31122/08 : 3 : 19.6.1997. It is, inter alia, stated as follows. The writ petition is filed in suppression of material facts. The petitioner is a chronic defaulter. The averment that the petitioner has no connection with the service conducted by his father is denied. The amount sought to be recovered by attaching his vehicle is the amount due as the welfare fund from the petitioner as the “employer” of KL-6A/513. It is submitted that eventhough his father N.M.Thomas is the registered owner, he is working abroad and the petitioner is operating the vehicle with ultimate control over the affairs of the motor transport undertaking. It is stated that in the enquiry, the workers deposed in support of the above contention. The petitioner never disputed the above finding either in the enquiry or by way of filing appeal. It is also stated that the petitioner is a defaulter with respect to vehicle No.KRC 1557 which stands in the name of the petitioner himself as registered owner. 4. The petitioner has filed a reply affidavit wherein he has inter alia taken the following stand. The petitioner has made a reference to the definition of the word 'owner' in the Motor WPC.31122/08 : 4 : Vehicle Act. He further refers the definition of the word 'employer' in the Kerala Motor Transport Workers' Welfare Fund Act. It is further stated that the petitioner cannot be said as employer in terms of the Act. The names contained in the assessment orders are the name and other details of employees registered in the name of Sri.N.M.Thomas and hence, the petitioner is not liable to pay any amount to the 1st respondent. Petitioner states that Exts.R4(a) to R4(g) are final determination orders issued in respect of stage carriage No.KL 6/A 513 and the said vehicle belongs to the petitioner's father. There was no document before the authority to prove that the petitioner is the owner or employer liable to pay contribution in respect of the names mentioned in the final determination orders. It is further stated that, in certain exhibits the petitioner's name is also mentioned and though the petitioner has received the order, no future action was taken by him since the vehicle did not belong to the petitioner. With respect to Ext.R4(i), it is stated that he is not the owner or permit holder of the vehicle mentioned. 5. I heard learned counsel for the petitioner, learned WPC.31122/08 : 5 : standing counsel for the respondent Board besides learned Government Pleader. Learned counsel for the petitioner reiterates his contentions. He would contend that under section 4 read with section 10 of the Act, there is a charge over the vehicle which is the subject matter of the final determination orders, namely the vehicle belonging to the petitioner's father. The said vehicle is operating. The authorities may proceed against the said vehicle. He further submits that there is no basis to proceed against the vehicle belonging to the petitioner for realising the amounts due in respect of the business conducted in relation to the vehicle of which the petitioner's father is the owner. 6. Per contra, learned counsel for the respondent Board would submit that there is absolutely nothing illegal in recovering the amount by sale of vehicle belonging to the petitioner. The petitioner is bound by the final determination orders. The petitioner is an employer within the meaning of section 10 of the Act which provides that if the amount is not paid, it can be recovered from the employer treating it as an arrear of public revenue. He relies on the decision of the Division Bench in WPC.31122/08 : 6 : Regional Transport Officer Vs. Binu [2006 (1) KLT 188] in which the Division Bench held as follows. “ Attachment and sale of defaulter's movable property, which includes another vehicle belonging to the defaulter, is one of the modes of realisation of public revenue available to the State under section 5 of the Kerala Revenue Recovery Act.” He would contend that the petitioner has failed to challenge the final determination orders and therefore he cannot question the recovery proceedings launched against him. Learned Government Pleader submits that the petitioner cannot have a right to demand that the vehicle belonging to his father should be proceeded against and that under section 5 of the Revenue Recovery Act, any of the movables belonging to the defaulters can be proceeded against. 7. Learned counsel for the petitioner submits that the petitioner in the judgment relied on by respondent relates to the proceeding against the defaulter and the petitioner cannot be treated as a defaulter. 8. I would think that there is no merit in this writ petition. WPC.31122/08 : 7 : The final determination orders have been passed against the petitioner. The final determination orders are passed against the employer as defined in the Act. There is no relevance for the definition of the word 'owner' in the Motor Vehicle Act when considering a proceeding under the Kerala Motor Transport Workers' Welfare Fund Act. It is in the context of the concept of 'employer' that the final determination order is passed and therein there has been an enquiry and the workers have deposed also in support of the petitioner being treated as an employer within the meaning of the Act. The petitioner's father is abroad. If there is a final determination order against a person and he fails to make the payment, certainly he will become a defaulter. If that be so, the Bench decision of this court will certainly apply. Ext.P5 is only a step taken for recovering the amount due as per the final determination orders. Going by the contentions raised by the petitioner, no grounds exist for permitting the petitioner to challenge the recovery notice without challenging the final determination orders. In other words, the recovery notice is only consequential to the final determination orders. The amounts are WPC.31122/08 : 8 : due to the workers. 9. I find there is no merit in the writ petition. I also notice that I have passed an interim order in this case staying the sale. The petitioner made a specific averment that the petitioner has nothing to do with the business of his father. The petitioner suppressed from this court the final determination orders which stand admittedly passed and which have been received by him. In such circumstances, the writ petition fails and it is dismissed with costs of Rs.3,000/- (Rupees three thousand only) payable to the 1st respondent. Sd/- (K.M.JOSEPH, JUDGE) aks // TRUE COPY // P.A. TO JUDGE