IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 2ND DECEMBER 2011 / 11TH AGRAHAYANA 1933 WP(C).No. 21382 of 2006(U) ------------------------------------- PETITIONER(S): ---------------------- C.T.DAMODHARAN, VINAYAKA SADANAM, P.O.THRIKKANDIYUR, THIRURANGADI, MALAPPURAM. BY ADVS. SRI.P.V.JAYACHANDRAN SMT.KEERTHI SOLOMON RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LABOUR & REHABILITATION DEPARTMENT, TRIVANDRUM. 2. THE DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, MALAPPURAM. 3. THE DEPUTY TAHSILDAR (R.R.), TALUK OFFICE, TIRUR. R1 & R3 BY ADV.SRI.NOBLE MATHEW, GOVT. PLEADER & R2 BY ADV. SRI.P.RAMAKRISHNAN, SC,KMTWF BOARD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2011, THE COURT ON DELIVERED THE FOLLOWING: DG WP(C).No. 21382 of 2006(U) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - COPY OF THE OBJECTION DATED 23.06.03 SUBMITTED BY THE PETITIONER. EXT.P2 - COPY OF THE ASSESSMENT ORDER DATED 03.11.2003. EXT.P3 - COPY OF THE APPLEAL SUBMITTED BY THE PETITIONER DATED 09.01.2004. EXT.P4 - COPY OF THE RECEIPT DATED 03.12.2004. EXT.P5 - COPY OF THE ORDER DATED 25.05.05. EXT.P6 - COPY OF THE LETTER DATED 19.072006. RESPONDENT'S EXHIBITS - NIL /TRUE COPY/ P.A.TO JUDGE DG S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.21382 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of December, 2011 J U D G M E N T The petitioner is the owner of a motor transport undertaking plying a stage carriage having registration No.KL 10 P 5690 in Malappuram District. The petitioner was served with a provisional determination order for assessing Kerala Motor Transport Workers Welfare Fund contribution. The petitioner submitted Ext.P1 reply to the provisional determination order. Although the petitioner was given sufficient opportunity to appear before the 2nd respondent and submit his contentions in the matter of assessment, he did not appear. Therefore, by Ext.P2 final determination order, the amounts due from him as contribution has been assessed and demanded. The petitioner filed Ext.P3 appeal against that order. The 1st respondent by Ext.P5 order dismissed the appeal. It is under the above circumstances, the petitioner has filed this W.P.(C)No.21382 of 2006 -2- writ petition seeking the following reliefs: “a) issue a writ of certiorari or appropriate writs directions or orders calling for the records leading up to ExtP6 and quash Ext.P2 assessment order issued by the 2nd respondent, Ext.P5 appellate order issued by the 1st respondent and quash the revenue recovery proceedings initiated by 3rd respondent as evident from Ext.P6. b) declare that Kerala Motor Transport Workers Welfare Fund Act of 1985 is not applicable to the stage carriage undertaking owned and operated by the petitioner and his sons for the period 2001-03.” 2. Counter affidavits have been filed by the 1st & 3rd respondents controverting the contentions of the petitioner. The Standing Counsel for the 2nd respondent points out that the petitioner never had any consistent case. He submits that in the writ petition in paragraph No.1, his contention is that casual workers named Sri. Lalan, Jayan, Narayanan and Pradeep were also deputed during the absence of the petitioner's sons, who along with the petitioner were operating the vehicle and that those casual workers have no continuous service of three months in a year, so as to be eligible for being members of the Fund so as to make the petitioner liable to pay contributions in respect of them. But in Ext.P1 explanation to the provisional determination W.P.(C)No.21382 of 2006 -3- order, all what he has stated is that the persons mentioned in the provisional determination order are not employees of the said vehicle. He does not have a case that the employees were casual employees. In fact in the writ petition he admits that M/s. Lalan, Jayan, Narayanan and Pradeep were workers of the petitioner. In Ext.P1 explanation, he would contend that they were not employees at all. In Ext.P3 appeal also he has no such contention. On the other hand what the petitioner states in Ext.P3 appeal is that the stage carriage is being operated by the appellant and his partners sharing profits and losses and no employees were deputed by the appellant to operate the stage carriage since June 2002. In Ext.P2 assessment order, contributions have been assessed on Sri. Lalan, Jayan, Narayanan and Pradeep who the petitioner admits in the writ petition were employees. In view of the inconsistent contentions of the petitioner, his contentions cannot be believed and when he admits that M/s. Sri. Lalan, Jayan, Narayanan and Pradeep were his employees there is W.P.(C)No.21382 of 2006 -4- nothing to find that the impugned orders are in any way perverse or unsustainable, is the contention raised by the counsel for the 2nd respondent. 3. I have considered the rival contentions in detail. I am inclined to agree with the counsel for the 2nd respondent. As the counsel pointed out, the petitioner did not have any consistent case at any time. In Ext.P1 he denies having employed any of the persons mentioned. He did the same thing in Ext.P3 also wherein he contended that he along with partners are running the motor transport undertaking and that no employees were deputed by him to operate the stage carriage. But for the 1st time, in the writ petition, he admits that M/s. Lalan, Jayan, Narayanan and Pradeep were deputed during the absence of the petitioner's sons. The fact that the petitioner's sons were operating the vehicles is mentioned only in the writ petition and not in the earlier pleadings. The very same persons mentioned in the writ petition have been mentioned in the final determination order as employees employed by the W.P.(C)No.21382 of 2006 -5- petitioner in respect of whom the petitioner has been directed to pay contributions. In the final determination order, they were accepted as employees based on evidence. The petitioner did not participate in the enquiry. As such there is nothing to hold that the orders are in anyway arbitrary or perverse. In view of the same, I am not inclined to believe the contentions of the petitioner and accordingly the writ petition is dismissed. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/