SHOUKATH Vs. WELFARE FUND INSPECTOR NO. II

JUDGEMENT

(1.) AFTER a long drawn out litigation, the petitioner herein, is again before this Court challenging the joint and several liability cast on the petitioner under the Kerala Toddy Workers Welfare Fund Act, 1969 (for brevity Welfare Fund Act). The assessment was passed with respect to 75 toddy shops coming within Anthikkad Rage, having T.S. Nos. 97 to 171, for the period from 17.4.1999 to 4.6.1999. Admittedly the said shops were licensed to one A.S. Santhoshkumar, by the Excise Department, under the Abkari Shops Department Management Rules, 1972. Proceedings were taken against the petitioner on the ground that the petitioner was the de facto Manager of the shops, despite the licensee being another. The original determination order made under the Act was challenged in O.P. No. 1206 of 2000 which was disposed of; directing the petitioner to file an appeal. In appeal there was a remand order and again the revised determination order was passed on 31.3.2003 holding that the petitioner was the de facto employer of the toddy shops. The contributions were determined, interest levied and liability fixed jointly on the petitioner and the licensee. An appeal filed against the said determination order went in favour of the petitioner on the strength of the dictum in Joseph Joseph v. State of Kerala <nocit>(2002 (1) KLT 827 (SC)</nocit>). The said appellate order is not produced here. However, the documents produced herein would indicate that the appeal filed was allowed on the basis of the afore cited judgment of the Honourable Supreme Court and the matter remanded for de novo consideration.

(2.) THE fresh proceedings initiated and the determination order passed thereon, is under challenge herein. Notices were issued to the employees, unions, the licensee and the petitioner herein and their depositions were taken, based on which Ext. P1 determination order has now been passed. At the outset it is to be noticed that Ext. P1 order specifically records the fact that the licensee had appeared before the Officer and unequivocally declared that he had been conducting the shop and there was none other involved in the management. However, the determination officer found that the petitioner along with the licensee and one N.K. Vijayan, who was the Manager of the said shops were jointly and severally responsible for the welfare fund contributions due under the Act. The appeal filed against such determination order stood rejected by Ext. P6, against which the present Writ Petition is filed.

(3.) SRI . Renil Anto, the learned standing counsel for the Board relies on the deposition of various witnesses, the employees and union leaders, at the enquiry to urge that the determination order is to be sustained. The petitioner is revealed to have actively involved in the management of the toddy shops during the said period, according to the workers and office bearers of the unions. Such depositions are also said to be produced along with the statement filed on 9.2.2015. Joseph Joseph (supra) was relied upon to contend that though the Honourable Supreme Court held that there should be evidence to hold an intermediary person to be the employer of the Workers under the Welfare Fund Act; the mere fact that the licensee was prohibited under the Kerala Abkari Act and Rules framed thereunder to transfer the management to any third party, would not restrict the Board's right to proceed against any such de facto employer. The learned standing counsel would also place reliance on Ouseph Aly v. Welfare Fund Inspector <nocit>(1989 (1) KLT 26)</nocit>, Asokan v. State of Kerala <nocit>(1996 (2) KLT 796)</nocit> and Kelan v. State of Kerala <nocit>(2007 (2) KLT 933)</nocit>; to further sustain the order impugned herein.