IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 WP(C).No. 3656 of 2010(F) ------------------------- PETITIONER(S): --------------- AIPU JOSEPH,S/O.JOSEPH,AGED 54 YEARS, PANKETH HOUSE,ELAMKULAM,VYTTILA,KANAYANNOOR TALUK, KOCHI-19. BY ADV. SRI.R.MURALEEDHARAN PILLAI SRI.P.V.LONACHAN RESPONDENT(S): --------------- 1. THE DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, SIVARAMA MENON ROAD,ERNAKULAM. 2. STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT LABOUR AND REHABILITATION DEPARTMENT,THIRUVANANTHAPURAM. ADV. SRI.P.RAMAKRISHNAN, SC,KMTWF BOARD FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.SURENDRA MOHAN, J ........................................... WP(C).NO. 3656 OF 2010 ............................................ DATED THIS THE 23rd DAY OF MARCH, 2010 JUDGMENT The petitioner was the Managing Partner of a firm, which was operating Stage Carriage vehicle bearing registration No.KCE-2970, along with other partners. The petitioner was the registered owner of the Stage Carriage. As per the terms of the partnership deed, the partners were to work as Driver, Conductor, Door Checker, etc without any remuneration, but on the basis of share of profits. Other workers were also engaged on temporary basis. The complaint of the petitioner is that without considering any of the above facts, the first respondent has passed final determination orders for the years 1989 to 1996 under the provisions of Kerala Motor Transport Workers Welfare Fund Act, 1985(hereinafter referred to as `the Act' for short), which are produced as Exts.P2 and P2(A) respectively. Though the petitioner challenged the said determination orders in statutory appeals filed by him, the appeals were dismissed by Exts.P3 and P3(A) orders. 2. The petitioner had filed WP(C) 17813 of 2004 before this Wpc 3656/2010 2 court challenging the determination orders passed against him. As per judgment dated 29.7.2009, the impugned orders were set aside and fresh orders were directed to be passed. Accordingly, Ext.P5 order has been passed, which is under challenge in this writ petition. 3. According to the petitioner, though the partners of the partnership firm have been excluded while determining the contribution due, one person by name, Muhamed has been included as a driver of the petitioner, without any basis. It is the case of the petitioner that Muhamed had worked with the petitioner only on temporary basis and that too, on a few occasions. According to the counsel for the petitioner, there is absolutely no material or evidence to show that Muhamed was an employee of the petitioner. Therefore, Ext.P5 to the extent it determines contribution in respect of the said Muhamed is unsustainable and liable to be set aside. 4. The standing counsel for the first respondent, P.Ramakrishnan submits that Muhamed was included in the determination order Exts.P2 and P2(A) also. Though the said determination orders were challenged unsuccessfully before the appellate authority as well as this court, the Wpc 3656/2010 3 determination was found to be justified. The only question on which fresh orders were directed to be passed by this court was regarding the coverage of the partners as workers. Therefore, it is pointed out that there are no grounds to interfere with Ext.P5. 5. I have heard the counsel for the petitioner as well as the learned counsel for the first respondent, P.Ramakrishnan. I have also considered the rival contentions anxiously. 6. A reading of Ext.P4 shows that the contention of the petitioner before this court in WP(C) 17813 of 2004 was also that apart from the three partners who were working on the Stage Carriage, workers were engaged only on temporary basis. Therefore, it follows that all workers who had worked for the petitioner were engaged only on temporary basis. After considering the contentions of the petitioner, this court has made the following observations with respect to the other employees. “But, with respect to the other employees, there is absolutely no materials to arrive at any conclusion that the findings arrived at by the 2nd respondent based on evidence, which is confirmed in appeal, is erroneous or improper Wpc 3656/2010 4 in any manner”. 7. It is clear from the above observation that this court had repelled the contention of the petitioner that the other employees were only temporary employees not entitled to the benefits of the Welfare Fund Scheme. I notice from Ext.P2(A) that the name of Muhamed has been included as an employee of the petitioner for the years 1994-95 and 1995-96. Since Ext.P4 judgment has considered the objections of the petitioner regarding inclusion of the employees in Ext.P2(A), and has found such inclusion to be justified, it is not open to the petitioner to question the same again in this writ petition. No other challenge is made against Ext.P5 determination order. 8. In view of the above, I do not find any grounds to interfere with Ext.P5. The challenge against Ext.P5 therefore fails. 9. The learned counsel for the petitioner made a last plea to permit him to pay the balance amount due as per Ext.P5 in instalments. It is submitted that he has sold off the vehicle and that he is at present not having any source of income. In the above circumstances, the petitioner is granted permission to pay the balance amount due as per Wpc 3656/2010 5 Ext.P5 in three equal monthly instalments starting from 15.4.2010, the subsequent instalments to be paid on the 15th of every succeeding month. It is made clear that the first respondent would be free to initiate appropriate action in accordance with law to recover the amounts due in the event of default on the part of the petitioner to pay any one of the instalments. 10. In the result, this writ petition is dismissed. No costs. K.SURENDRA MOHAN, JUDGE lgk