MOHAMED SALI KASIM Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONERS are aggrieved with the assessment passed under the Kerala Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996. Proceedings were initiated with respect to the construction of a commercial complex. The petitioners allegedly employed a contractor, who is the fourth respondent herein, to carry out the construction. The petitioners admit to having received the pre -assessment notice and also filed an objection produced at Ext. P13. The assessment was passed as per Ext. P2 on 5.4.2013. A show cause notice, raising the demand, was also issued as per Ext. P3.

(2.) ON 15.4.2014, an application was filed by the petitioner before the Assistant Labour Officer. The application indicated that the petitioner did not have the liability under the Cess Act for reason of the petitioner having employed a contractor, who alone employed the employees in the construction of the building. It is to be immediately noticed that, there is no provision for such an application, nor is the assessing officer under the Cess Act conferred with any powers of review. But an appeal is provided under Section 11 of the Act. Such appeal has to be filed under Rule 14 of the Building and other Construction Workers (Regulation of Employment and Conditions of Service) Kerala Rules, 1998, within a period of three months from the date of the order. The petitioner chose not to avail of the appellate remedy, but filed an application before the Assistant Labour Officer Gr. I, the Assessing Officer, who had, as noticed above, absolutely no power to consider the same.

(3.) IT is trite that, this Court, under Article 226, cannot invoke the extraordinary jurisdiction, when an alternate remedy is available and the same is not availed of by the assessee within the period stipulated or within the time in which an appeal could be filed with a delay condonation application. The Act does not contain any provision for condonation of delay, but provides only for a period of three months from the date of the order; to file an appeal. The position is covered by two decisions of this Court in Panopharam v. Union of India ( : 2010 (3) K.L.T. 149) and Assistant Commissioner of Central Excise v. Krishna Poduval ( : 2005 (4) K.L.T. 947).