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2024 Supreme(Ker) 692
IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH, J.
C.K. Sasidharan, S/o. Late Krishnan – Petitioner
Versus
The Welfare Fund Inspector, Kerala Toddy Workers Welfare Fund Board and Ors. – Respondents
WP(C) No. 22691 Of 2013, WP(C) No. 23564 Of 2013
Decided On : 25-07-2024
For the Petitioner: Sri. M.G. Karthikeyan, Sri. Nireesh Mathew.
For the Respondents: Sri. Renil Anto, SC; Sri. Joy George, SC; Sri Santhosh Kumar, Sri G. Santhosh Kumar.
IMPORTANT POINT
A person cannot be deemed an 'employer' under the Kerala Toddy Workers Welfare Fund Act unless they have the authority to hire and employ workers, as clarified by the Supreme Court.
Headnote:
Fact of the Case:
The petitioner, a senior citizen and employee of the licensees of certain toddy shops, challenged a determination order that held him liable for welfare fund contributions under the Kerala Toddy Workers Welfare Fund Act, 1969. The petitioner argued he was merely an employee and not a licensee, thus not liable for the contributions.
Finding of the Court:
The court found that the petitioner was not an employer as defined under Section 2(c) of the Act of 1969. The court emphasized that the petitioner did not have the authority to employ others and was not the licensee of the toddy shops.
Issues: Whether the petitioner could be classified as an 'employer' under the Kerala Toddy Workers Welfare Fund Act, 1969, and thus liable for the welfare fund contributions.
Ratio Decidendi: The court relied on the definitions of 'employer' and 'employee' in the Act, and referenced the Supreme Court's judgment in Joseph Joseph v. State of Kerala, which clarified that mere association with the business does not equate to being an employer without proof of authority to hire workers.
Final Decision: The court allowed the writ petitions, set aside the impugned orders, and ruled that the petitioner was not liable for the welfare fund contributions.
JUDGMENT :
Dinesh Kumar Singh, J.
Heard Mr M G Karthikeyan learned Counsel for the petitioner, and Mr G Santhosh Kumar learned Standing Counsel for the respondents.
2. These two writ petitions have been filed for similar reliefs relating to two different series of toddy shops. The orders impugned are dated 11.12.2017. The facts and the issues in these writ petitions are almost the same and, therefore, the facts of W.P.(C) No.23564/2013 are taken note of.
3. The petitioner, a senior citizen, was working as an employee of respondent nos. 2 and 3, the licensees of the Toddy Shop nos. 135 to 138 of the Kuttanadu Excise range. These respondents were the successful bidders for these toddy shops, along with shop nos.119 to 122. The 1st respondent passed the final determination order under Section 8 of the Kerala Toddy Workers Welfare Fund Act 1969 (for short ‘Act of 1969’) making the petitioner also liable to pay welfare funds for the toddy shops. The petitioner, aggrieved by the said determination order by the 1st respondent, filed an appeal before the 4th respondent. The Appellate Authority, vide Ext.P2 order dated 31.03.2005, remanded the matter back to the 1st respondent for de novo enquiry and passing a fresh order in accordance with the law.
4. On remand, the 1st respondent issued Ext.P4 final determination order dated 11.12.2007, fastening the liability to pay welfare fund in respect of toddy shop no.135 in Kuttanadu Excise range for the Abkari Year 2000-01 on the petitioner on the ground that the shop was actually conducted by the petitioner. The petitioner challenged the said order preferring an appeal before the 4th respondent. However, the 4th respondent, vide Ext.P6, has rejected the appeal and these orders are the subject matter of challenge in these writ petitions before this Court.
5. Learned Counsel for the petitioner submits that the petitioner was not a licensee of the toddy shops, and he was just an employee who assisted respondent nos. 2 and 3 in conducting the affairs of the toddy shop. He further submits that the petitioner is not liable to discharge the liability of the welfare fund in respect of the toddy shop in question. The petitioner, being a salesman, could not have been able to employ any other person. Hence, the liability of payment of welfare funds could not have been fastened on him.
5.1 In support of his submission, the learned Counsel for the petitioner has placed reliance on the judgment in the case of Joseph Joseph v State of Kerala, 2002 KHC 171.
6. On the other hand, Mr G Santhosh Kumar, learned Standing Counsel, submits that the definition of ‘employer’ is wide enough and includes the license holder, as well, as the occupier of the shop. The petitioner had entered into an agreement with the shop of the licensees and Union officials. The petitioner was in a position to hire a person, and, therefore, the petitioner has been directly held responsible for remitting the welfare fund contribution in time. ‘Employer’ as defined in Section 2(c) of the Act of 1969 would mean any person who employs, directly or indirectly, other persons in the establishment.
6.1 The learned Standing Counsel has placed reliance on the judgment of this Court in Sasi V v. State of Kerala, 2016 KHC 694 to submit that as per Section 2(c) of the Act of 1969, the licensee or any other person who conducts the shop and collects the welfare fund contribution from the workers come within the definition of ‘employer’. The petitioner had collected the welfare fund contribution from the workers. Therefore, he was responsible for remitting the welfare fund amount of the workers working in the shop.
7. Section 2(c) of the Act of 1969 defines ‘employer’ as under:
“2. Definitions:
(c) "employer" means any person who employs, whether directly or through another person, or whether on behalf of himself or any other person, one or more employees and includes any person who has a licence for the manufacture distribution, storage or sale of todd
