IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 WP(C).No. 11647 of 2004(J) -------------------------- PETITIONER: --------------- V.GANAPATHY RAMAN, LAKSHMI BHAVAN, MARAKKADA ROAD, CHALAI, TRIVANDRUM. BY ADV. MR. SUMAN CHAKRAVARTHY MS. K.R.RIJA RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LABOUR AND REHABILITATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WELFARE FUND BOARD, THIRUVANANTHAPURAM. 3. A.VELAYUDHAN NAIR, `GEETHAM', ERAYANCODE, CHERIYAKONNI P.O., THIRUVANANTHAPURAM. 4. MOHANAN NAIR, `THEKKEVILA VEEDU', AAKKULAM, CHEMPAZHANTHY P.O., THIRUVANANTHAPURAM. 5. THE TAHSILDAR (R.R), TALUK OFFICE, THIRUVANANTHAPURAM. R1 AND R5 BY GOVERNMENT PLEADER MR. BIJOY CHANDRAN R2 BY ADV. MR. K.HARILAL, SC,KMTWF BOARD R3 BY MR. T.A.UNNIKRISHNAN MR.K.SATHEESH KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P. (C) NO. 11647 OF 2004 APPENDIX PETITIONER'S EXHIBITS : EXT.P1 SERIES : TRUE COPY OF THE FINAL DETERMINATION ORDERS \ PASSED BY THE 2ND RESPONDENT FOR THE YEARS 1994 - 1995, 1995 - 1996 AND 1996 - 1997 EXT. P2 : TRUE COPY OF THE JUDGMENT DATED 3.3.99 IN O.P 5481 OF 99 OF THIS HON'BLE COURT. EXT.P3 : TRUE COPY OF THE ORDER BY THE 1ST RESPONDENT DATED 24.9.99 NO. G.O (Rt.) 1999/99/LBR EXT.P4 : TRUE COPY OF THE REVISED ORDER NO. ET. 449/94 - 97 DATED 23.10.99 EXT.P5 : TRUE COPY OF THE APPEAL ORDER BY THE 1ST RESPONDENT DATED 12.3.2004 IN G.O. (Rt.) NO. 714/2000/LBR EXT.P6 : TRUE COPY OF THE CERTIFICATE ISSUED BY R.TO., THIRUVANANTHAPURAM NO. C7/195/T/2004 DATED 21.8.2003 /TRUE COPY/ P.A. TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 11647 of 2004 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 25th day of September, 2009 JUDGMENT Ext.P1 final determination order passed by the second respondent under the Kerala Motor Transport Workers' Welfare Fund Act 1985, in respect of the tanker lorry bearing No. KE T 9226 belonging to the petitioner is under challenge in the present Writ Petition. 2. Case of the petitioner is that, the petitioner is running a retail outlet of 'Bharat Petroleum' products and for transporting said goods from the premises of the supplier, to the retail outlet, he has purchased and deployed the tanker lorry as aforesaid, engaging a driver allegedly on 'commission basis'. It is the case of the petitioner that, 15 % of the 'hire charges' were being given to the driver for every trip, on condition that appropriate arrangements had to be made at his end, to have the products transported to the retail outlet. It is without any regard to the said arrangement, that the second respondent proceeded with the steps to fix the contribution stated as payable by the petitioner under the 'Act' in respect of the employees, despite the specific objections raised by the petitioner in response to the provisional order passed in this regard. WP (C) No. 11647 of 2004 : 2 : 3. Sustainability of Ext.P1 final determination order was challenged by filing appeal before the Government, which led to Ext.P3 order, whereby the matter was remanded directing the second respondent to conduct a 'de novo' enquiry and to dispose the matter afresh, giving opportunity of fair chance to the appellant to present his case permitting him to cross examine the workers shown as employees in the impugned order. 4. It is the case of the petitioner that, pursuant to Ext.P3, eventhough he appeared through his counsel before the second respondent, nobody was present from the part of the employees, whose names were shown in the impugned assessment order. Despite issuance of summons to the said persons and adjourning the matter on different occasions, the alleged workers did not turn up. It is seen from the materials on record that, Mr. Sudeep, learned counsel representing the petitioner/appellant was present before the second respondent, who produced the authorization of the appellant on 23.10.99. It is further seen that the second respondent “recorded the deposition of the said counsel”; but thereafter, finding that the workers named in the order under challenge had not turned up, the second respondent chose to brush up the statement given by the said persons on an earlier WP (C) No. 11647 of 2004 : 3 : occasion (which however was refused to be accepted by the appellate authority, for want of necessary cross examination) and accordingly Ext.P4 order was passed fixing the liability upon the petitioner, which in turn was subjected to challenge by filing appeal again, before the Government. It is contended that the points raised from the part of the appellant, particularly as to the justifiability of the order passed by the second respondent contrary to the direction given in Ext.P3 appeal, however were not properly considered, leading to Ext.P5 order, whereby Ext.P4 was sustained and the appeal was dismissed. The petitioner is before this Court challenging Exts.P1, P4 and P5 orders. 5. Heard both the sides in detail. The learned counsel appearing for the second respondent, with specific reference to the counter affidavit filed in this regard submits that, the action pursued by the second respondent, as confirmed by the Government/appellate authority, is perfectly within the four walls of law. It is stated that the petitioner was not present in person to adduce evidence. But the factual position that, the appellant was represented through the counsel is not denied anywhere. So also, the fact that, despite issuance of summons on different occasions, the alleged employees did not turn up for adducing any evidence or to sustain the reasoning already given for WP (C) No. 11647 of 2004 : 4 : fixing the liability on the appellant, is not seen controverted in any manner. Finding that the concerned employees (whose statements given earlier were held as liable to be cross examined by the petitioner/appellant, for which specific chance and directions were given vide Ext.P3 appellate order) had not turned up, as a matter of convenience, the second respondent chose it better to have the matter finalized by passing Ext.P4 order, fixing the liability upon the petitioner on the basis of the very same statements given by the alleged employees much earlier. It is also not known, on what basis the deposition of the “counsel” for the petitioner was taken and recorded by the second respondent. Ext.P4 order passed by the second respondent, without reckoning the mandate in Ext.P3 appellate order does not appear to be correct or proper and as such, the said order cannot have any existence. As a natural consequence, Ext.P5 order confirming Ext.P4 has also to go. 6. Accordingly, Exts.P4 and P5 orders set aside. This will be without prejudice to the right of the second respondent to consider the matter afresh and to pass appropriate orders, after taking fresh evidence from the alleged workers concerned as well as from the petitioner, with liberty to both the sides to test the other in cross WP (C) No. 11647 of 2004 : 5 : examination. The matter shall be finalized as expeditiously as possible, at any rate, within 3 months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of as above. P. R. RAMACHANDRA MENON, JUDGE kmd