IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933 WP(C).No. 15750 of 2003(Y) -------------------------- PETITIONERS: --------------- 1. K. SREEDHARAN, PUTHUSSERYKALAM, VILAYODI, PALAKKAD 2. K. GANGADHARAN, PUTHUSSERYKALAM, VILAYODI, PALAKKAD. 3. K. PRABHAKARAN, PUTHUSSERYKALAM, VILAYODI, PALAKKAD. BY ADV. MR. P.V.JAYACHANDRAN RESPONDENTS: --------------- 1. THE JOINT SECRETARY TO LABOUR, KERALA MOTOR TRANSPORT WORKERS APPELLATE AUTHORITY, THIRUVANATHAPURAM. 2. THE DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, PALAKKAD. 3. THE DEPUTY TAHSILDAR (RR), TALUK OFFICE, CHITTOOR, PALAKKAD. R1 AND R3 BY SENIOR GOVERNMENT PLEADER MR. SHIBU JOSEPH R2 ADV. MS. I.SHEELADEVI, SC,KMTWF BOARD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2011, ALONG WITH WPC NO. 16053 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 15750 OF 2003 APPENDIX PETITIONER'S EXHIBITS : EXT. P1 : TRUE COPY OF THE PARTNERSHIP AGREEMENT DATED 02.05.1995 EXT. P2 : TRUE COPY OF THE MOTARIZED AFFIDAVIT DATED 11.08.1997 EXT. P3 : TRUE COPY OF THE OBJECTION DATED 21.04.2001 EXT. P4 : TRUE COPY OF THE FINAL ASSESSMENT ORDER FOR THE PERIOD 1995 - 2000 DATED 16.06.2001 EXT. P5 : TRUE COPY OF MEMORANDUM OF APPEAL DATED 05.09.2001 EXT. P6 : TRUE COPY OF DEMAND NOTICE DATED 20.11.2002 ISSUED BY THE 3RD RESPONDENT. EXT. P7 : TRUE COPY OF JUDGMENT IN O.P. NO. 37028 OF 2002 EXT. P8 : TRUE COPY ORDER NO. G.O (Rt.) NO. 880/2003 LBR DATED 28.03.2003 EXT. P9 : TRUE COPY OF THE ORDER G.O. (Rt.) NO. 2507/1997 DATED 01.09.1997 /TRUE COPY/ P.A. TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P (C) No . 15750 & 16053 of 2003 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 20th October, 2011 JUDGMENT Fixation of the liability under the Kerala Motor Transport Workers Welfare Fund Act is the common issue involved in both these writ petitions. The first petitioner in both the cases are brothers and were carrying out operation of stage carriages by forming a partnership with the other petitioners in the concerned writ petitions as stated therein. The common case of the petitioners is that there was no employer - employee relationship between the first petitioner and others in both the case. For the reason that the other petitioners were not joining hands with the first petitioner as partners, which is no more as a measure of self employment, the assessing authority issued provisional determination order. On receipt of the provisional determination order, the petitioners preferred a detailed representation before the assessing authority, but without any regard to the actual facts and figures the assessing authority finalized the order. Met with the situation the first petitioner in both the cases preferred statutory appeal under the Act to the Government. It is also the case of the petitioners that in spite of producing copy of the relevant partnership deed, the appellate authority W.P. (C) Nos. 15750 & 16053 of 2003 : 2 : has not looked into the subsequent partnership deed (i.e. Ext. P2 in O.P.16053 of 2003) which in fact is a modified partnership deed wherein reference has been made to the existing partnership arrangement. Observing that Ext. P2 was executed only subsequent to the assessment year in question, the relief sought for was declined and the appeal was dismissed which forms subject matter of challenge in these writ petitions. 2. Heard the learned Government Pleader appearing on behalf of the respondent as well. 3. During the course of hearing, it is brought to the notice of this Court that assessment has made by the concerned executive officer, treating the petitioners other than the first petitioner in both the cases as the employees of the first petitioner, which inference is strongly rebutted by the parties concerned, who obviously have joined hands with the alleged employer i.e. first petitioner and filed the writ petitions. 4. There is also a case for the petitioners that the nature of engagement or the operation that was being undertaken by the petitioner by sharing the profits will give any cause of action to have the assessment under the relevant provisions of the Act and the law in this W.P. (C) Nos. 15750 & 16053 of 2003 : 3 : regard has been laid down by this Court in Rajendran Nair Vs. State of Kerala (2000 (3) KLT 76). It is also stated that the statute however was amended subsequently in the year 2005. After which the operation of the motor vehicles even on the basis of partnership is liable to be assessed, which however is stated as not applicable to the case of the petitioners, since the issue is being prior to the date of the amendment. 5. The learned Government Pleader appearing for the respondent submit that in spite of service of summons/notice nobody was examined from the part of the petitioner to substantiate the facts and figures. Similarly, there is no observation in the appellate order passed by the appellate authority about the document produced as Ext. P2 pertaining to subsequent year and hence no application. The petitioners have in fact filed copies of the deeds in the appeal preferred before the first and second respondent, where reference is made to both the partnership deed as Annexures R1 and R2. If the prior documents were also produced, stated as referred to in Ext. P2 as well and if the petitioners were actually operating the stage carriages on the basis of the partnership, sharing the profits without any element of W.P. (C) Nos. 15750 & 16053 of 2003 : 4 : wages and in the absence of employer - employee relation, the petitioners are entitled to have the benefit of verdict passed by this Court 2000 (3) KLT 76 (cited supra). * It is also brought to the notice of this Court that the first respondent under similar circumstances have considered the case of the other aggrieved parties and held that in the case of operation of stage carriage by way of partnership there is no employer - employee relationship and that no contribution is actually intended to be paid under the Act. A copy of the said order passed by the first respondent has been produced as Ext. P9. in W.P(C) No. 15750 of 2003 and Ext. P6 in W.P.(C) No. 16053 of 2003 6. In the said circumstances, the matter requires to be considered by the Government with reference to both the deeds, which are produced before this Court and seen referred to as Annexures 1 and 2 in the appeal preferred before the appellate authority. It is also open for the first petitioners in both the cases to examine the other petitioners, who are stated as the employees of the first petitioner before the first respondent in support of their case, if so desired. The proceedings as above shall be finalized as expeditiously as possible at W.P. (C) Nos. 15750 & 16053 of 2003 : 5 : any rate within three months from the date of receipt of a copy of this judgment. Both the writ petitions are disposed of. P. R. RAMACHANDRA MENON, JUDGE kmd