WELFARE FUND INSPECTOR Vs. N. E. MOHANAT

JUDGEMENT

(1.) Writ petition was preferred by respondents 1 to 4 seeking a writ of certiorari to quash Ext. P7 final determination order dated 26-5-1992 and also the appellate order. Ext. P9, passed by the Government confirming the final determination order. Welfare Fund Inspector found that the writ petitioners were conducting toddy shop No. 31 of Alwaye range for the year 1985-86 though licensee was the sixth respondent. Enquiry as contemplated under S.8 of the Kerala Toddy Workers as contemplated under S.8 of the Kerala Toddy Workers Welfare Fund Act, 1969 was conducted on 26-5-1982 by the Welfare Fund Inspector. Sworn statement of the licensee and the workers had revealed that though the shop was bid by the sixth respondent the business was conducted by the petitioners along with the sixth respondent. Licensee and all the writ petitioners were therefore found to be employers as defined in S.2 (c) of the Kerala Toddy Workers Welfare Fund Act, 1969. Based on the evidence gathered at the enquiry, pre assessment notice was served on the petitioners. Petitioners filed detailed objection to the pre assessment notice. Since the objection raised by the petitioners was not tenable final determination order was passed and the same was confirmed by the appellate authority. Petitioners contended by the appellate authority. Petitioners contended before the learned single judge that they were not the licensees of the shop in question and they were registered employees of toddy shop No. 31 of Alwaye range for the year 1985-86 and in fact fourth respondent was the licensee. It is also stated, burden is entirely on the department to show that petitioners were the licensees and therefore would fall within the definition of S.2(c) of the Act. Learned single judge accepted the contention of the petitioners and allowed the original petition and quashed Exts. P7 and P9. Aggrieved by the same this appeal has been preferred by the Welfare Fund Inspector and the Board.

(2.) We have perused the oral evidence adduced by the 6th respondent before the Welfare Fund Inspector. He has categorically stated that even though he was the licensee the shop was conducted by the petitioners. Workers of the shop have also asserted that it was the petitioners who were conducting the shop and not by the sixth respondent. List of workers of the shop was also made available wherein petitioners do not figure as workers during the relevant period. Therefore, the version that they were the workers of the shop was not substantiated. All the fact finding authorities have concurrently found that the petitioners were employers of the shop within the meaning of S.2(c) of the Act. Legal position is well settled that a person need not be a licensee to satisfy the definition of employer under S.2(c) of the Act. Reference was made to the decision of this court in Asokan v. State of Kemis ( 1996 (2) KLT 796 ).

(3.) We are of the view, learned single judge was not justified in upsetting the findings of fact rendered by the fact finding authorities. Records made available were also examined by us. We have gone through the deposition of the licensee as well as the employees. There is nothing to discredit their version. Fact finding authority after conducting enquiry was satisfied that in fact petitioners were conducting the toddy shop in question. We are of the view, this court sitting in jurisdiction under Art.226 of the Constitution of India is not justified in reversing the findings on facts. We therefore affirm the legal principle laid down in Asokan's case, supra. The judgment of the learned single judge is set aside and the appeal is allowed.