IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 WP(C).No. 17813 of 2004(U) -------------------------- PETITIONER: ------------------ AIPE JOSEPH, PANKAYATH HOUSE, VYTTILA P.O., KOCHI-19. BY ADV. SRI.A.ANILKUMAR SMT.K.S.SAIRA RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LABOUR & REHABILITATION(S) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, ERNAKULAM. R1 BY GOVERNMENT PLEADER SRI.K.P. PRADEEP R2 BY ADV. SRI.P.RAMAKRISHNAN, SC,KMTWF BOARD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29 /07/2009 , THE COURT ON 29/07/2009 DELIVERED THE FOLLOWING: WP(C).No. 17813 of 2004(U) APPENDIX PETITIONER'S EXHIBITS: P1 : COPY OF THE PARTNERSHP DEED DATED 12.3.1990 P2 : COPY OF FDO NO.B1-1008/8 DATED 31.12.93 OF THE 2ND RESPONDENT. P3 : COPY OF ORDER G.O.(RT) NO.531/2004/LBR DATED 23.2.2004 OF THE FIRST RESPONDENT. P4 : COPY OF FDO NO.B1-1008/88/EE-690/FDO/92-96 DATED 30.6.1996OF THE SECOND RESPONDENT. P5 : COPY OF ORDER G.O. (RT) NO.567/2004/LBR DATED 25.2.2004 OF THE FIRST RESPONDENT. RESPONDENTS' EXHIBITS: N I L // TRUE COPY // P.A. TO JUDGE. app/- C.K. ABDUL REHIM, J. ------------------------- W.P ( C) No.17813 of 2004 ------------------------------------ Dated this the 29th July, 2009 J U D G M E N T 1. Petitioner is challenging Ext.P2 and P4 final determination orders issued under the provisions of the Kerala Motor Transport Workers Welfare Fund Act 1985 (herein after referred to “the Act”, for short) for the periods of 1989 -1992 and 1992 - 1996 respectively. The statutory appeals filed against Ext.P2 and P4 were dismissed by the 1st respondent through Exts.P3 and P5 respectively. The contribution in question is demanded with respect to a stage carriage Bus to which the petitioner is the registered owner. 2. Main contention of the petitioner is that he was conducting the stage carriage operation in partnership with two of his brothers, namely Sri.Simon Saju and George. W.P ( C) No.17813 of 2004 2 The Deed of partnership constituted on 12.3.1990 is produced as Ext.P1, which revealed constitution of a partnership under the name and style as 'DAYA' with the object of conducting stage carriage operation with Bus bearing Registration NO.KCE-2970, which stands registered in the name of the petitioner. Clause 6 of Ext.P1 Deed stipulates that all the three partners will actively work in the service as driver, conductor and door checker, for finding self employment without drawing any salary or other remuneration and that they are entitled only for profit or to bear the loss. The contention of the petitioner is that all the three partners are working in the Bus Service and apart from the partners, other workers are engaged only on a temporary basis. Hence, the impugned determination orders are challenged to the extent it treated the partners as workers of the Bus Service. It is also contended that other persons shown as employees in the impugned orders are not permanent workers, and the petitioner is not liable W.P ( C) No.17813 of 2004 3 to pay contribution in respect of those workers. 3. Both the 2nd respondent as well as the appellate authority had concurrently found that the petitioner is liable to pay the contributions as determined, mainly relying on the statements recorded from the petitioner as well as from the employees on different occasions. It is also based on the inspection conducted by the 2nd respondent that the names of different workers employed in the Bus Service was ascertained. But it is pertinent to note that the respondents have not recorded statement of the two brothers of the petitioner who were working as partner. There is no evidence to the effect that any employee had given statement to the effect that those two persons were working in the Bus Service by drawing wages. Inspite of specific contention raised by the petitioner and inspite of production of the partnership deed, even the appellate authority had not adverted to the question regarding inclusion of the partners in the determination order as employees. But, W.P ( C) No.17813 of 2004 4 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 in any manner. 4. Under the above circumstances the impugned orders, ExtsP2 and P4, which were confirmed in appeal through Exts.P3 and P5 are hereby set aside, to the extent it imposed liability on the petitioner to pay contributions in respect of Sri.P.J.Simon @ Simon Saju and Sri.P.J.George. The 2nd respondent is directed to issue modified determination order accordingly, deleting those persons from the list of workers and by recomputing the amount of contribution payable by the petitioner. Consequent orders in this regard may be passed as early as possible at any rate within a period of two months from the date of receipt of a copy of this judgment. Needless to say that the amount already paid by the petitioner shall be appropriated in W.P ( C) No.17813 of 2004 5 accordance with the order to be issued and excess if any is to be refunded to the petitioner. The writ petition is disposed of as above. C.K. ABDUL REHIM, JUDGE. app/-