ASHOKAN Vs. KERALA TODDY WORKERS WELFARE FUND BOARD

JUDGEMENT

(1.) This Writ Appeal is filed challenging the judgment of the learned Single Judge vacating Government Orders in appeal issued under Section 8(5) of the Kerala Toddy Workers Welfare Fund Act, 1969 (hereinafter referred to as the Act for short) and restoring final adjudication of Toddy Workers Welfare Fund contribution found payable jointly by the Appellant and licensees by the Welfare Fund Inspector in terms of Section 8(1) of the Act. We have heard learned Senior counsel Shri. A.K. Jayasankar Nambiar appearing for the appellant, learned Standing Counsel Shri. Renil Anto appearing for the 1st respondent and learned Government Pleader appearing for the 2nd respondent.

(2.) The facts leading to the controversy are the following:- The appellant participated in auction and obtained toddy shop licence for running 42 toddy shops in Thrissur Range for a period of three years commencing from 01/04/1997 to 31/03/2000. However, on account of abkari offences committed, the appellant's licence was cancelled on 26/09/1997. Thereafter the licence was again issued to Shri. M.V. Sukumaran and Shri. P.C. Chandran. The appellant's specific case is that he was in jail and he was disabled from carrying on business in the toddy shops after cancellation of the licence. However, in the course of adjudication for determination of liability for the employer under Section 8(1) of the Act, Employees in the toddy shops and Trade Union Leaders gave evidence before the Adjudicating Officer that subsequent licensees were not the persons who actually carried on business but it was the appellant who in their names actually carried on business in the toddy shops, and even collected employees share of contribution which is 8% of the salary. Based on evidence collected in adjudication, the Welfare Fund Inspector issued Ext. P6 adjudication order determining liability jointly on the appellant and on the above named licensees. The adjudicating officer also found in enquiry that the actual licensees are in penury and they had no means or capacity to carry on liquor business in 42 toddy shops. The appellant challenged the adjudication order issued in the joint names of himself and the actual licensees named above only for the purpose of getting himself exonerated from liability. Appellant's objective is only to fix liability on the licensees who were found to be only name lenders and from whom recovery is out of question. Appeal filed under Section 8(5) of the Act was decided in favour of the appellant by the Government vide Ext. P9 order, the operative portion of which is as follows:-

(3.) The Welfare Fund Board constituted under the Act challenged Ext. P9 appellate order issued by the Government before this Court under Article 226 of the Constitution of India contending that the order is against proved facts and established law, arbitrary and will completely defeat the purpose of adjudication, that is to collect workers' welfare fund contribution from the person who actually carried on toddy business in the toddy shops. The learned Single Judge relied on several earlier judgments of this Court and held that the person who actually carried on toddy business in the toddy shops irrespective of whether license was in his name or not or whether he has carried on business on licences taken in the name of others is liable to pay contribution as employer, and allowed the WP (C) on merit by reversing the orders of the Government in appeal and restored the original final adjudication order determining liability. It is against this judgment, this Writ Appeal is filed by the appellant, whose licence though cancelled was found on enquiry to have continued business after taking licence in the names of two other persons stated above.