The main legal point established in the judgment is that the liability under the Kerala Building and Other Construction Workers' Welfare Cess Act extends to both the contractor and the principal employer, as interpreted from the definitions of 'employer' and 'establishment' under the Act.

CR

The petitioner is challenging the fixation of liability under the Kerala Building and Other Construction Workers' Welfare Cess Act with regard to the contribution to be paid in respect of the construction of a building which was got effected by the petitioner through the 4th respondent as a contractor. The main grievance of the petitioner is that, the statutory appeal preferred by the petitioner has been dismissed as per Ext.P7, without entertaining the same, stating that the necessary deposit to an extent of 1% of the amount in dispute has not been paid and the necessary proof of deposit has not been produced along with the appeal which is a pre-requisite as contemplated under Rule 14 of the relevant Rules.

2. With regard to the sequence of events, it is to be noted that the petitioner is a Private Limited Company, undertaking construction of flats and one of its projects by name 'Vrindavan Palace' was entrusted to the 4th respondent. It is the case of the petitioner that, by virtue of clause 6 (b) of the construction agreement executed between the petitioner and the 4th respondent, all the statutory payments in connection with the employment of workmen for the above project were to be borne by the contractor.

3. Mr. K. Ramakumar, the learned Senior counsel appearing for the petitioner submits that, after effecting the construction as above, the flats were sold by the petitioner to the prospective purchasers. While so, on 17.01.2005, the petitioner was served with Ext.P1 communication issued by the 3rd respondent demanding a sum of Rs.3,65,810/- as the contribution payable by the petitioner under the 'Act'. It is contended that, no prior notice of assessment whatsoever was served to the petitioner which however, is rebutted as not correct, in view of the earlier notice issued in this regard and produced by the petitioner himself as Exts.P2, P3 and P4. But then, there is a case for the petitioner that the said notices were issued in the individual capacity and not in the name of the petitioner Company.

4. Challenging the said proceedings, the petitioner had approached this Court earlier by filing WP(C) 2086/2005, which was disposed of, directing the petitioner to pursue the matter before the statutory authority. It was accordingly that the 3rd respondent considered the matter afresh, after giving notice to the petitioner and also the contractor, i.e., the 4th respondent, who alone was liable according to the petitioner. After evaluating the facts and circumstances, the contention of the petitioner that he was not the employer, was turned down, referring to the relevant provisions under the statute, particularly the definition clause under Section 2 (1) (i) and 2 (1) (iii). Referring to the provisions of law as above, it was observed by the 3rd respondent that the definition was only an 'enabling one', whereby inclusive interpretation was to be given so as to include the contractor as well, within the purview of the term `employer'. Accordingly, on the basis of the available materials on record, finding that the total cost of construction was Rs. 3,65,81,013/-, the extent of contribution as prescribed was fixed as Rs.3,65,810/- (1%) and the liability was mulcted upon the shoulders of the petitioner as well as the 4th respondent, jointly and severally.

5. Aggrieved by Ext.P5 order passed by the 3rd respondent, the petitioner preferred Ext.P6 appeal before the Appellate Authority. But observing that the appeal was defective, as the same was not accompanied by a Demand Draft for the requisite amount, i.e., 1% of the amount in dispute as stipulated in Rule 14 of the relevant Rules, the appeal was rejected and the position was communicated to the petitioner vide Ext.P7. The petitioner is before this Court challenging the course and proceedings as above.

6. The learned Senior Counsel for the petitioner, with reference to the pleading in the Writ Petition submits that the rejection of appeal for not satisfying the alleged