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2016 Supreme(Online)(KER) 7899
HIGH COURT OF KERALA
P.R.RAMACHANDRA MENON, ANIL K. NARENDRAN, JJ
V.SASI – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/31850/2006
SRI.N.RAGHURAJ, SMT.K.AMMINIKUTTY, SRI. M. MUHAMMED SHAFI, SRI.RENIL ANTO, SRI.M.G.KARTHIKEYAN
The court asserted that both licensees and immediate employers are jointly and severally liable under the Kerala Toddy Workers' Welfare Fund Act for employee welfare contributions.
Headnote:
Liability - Employers - Kerala Toddy Workers' Welfare Fund Act - Sections 2(c), 2(d), 8, 65 - The court reaffirmed that both licensees and immediate employers bear joint and several liability under the Welfare Fund Act for contributions, emphasizing the inclusive definitions of employer and employee within the Act.
Fact of the Case:
Licensees of toddy shops challenged their liability under the Kerala Toddy Workers' Welfare Fund Act for unpaid contributions, seeking to prove that actions should be first directed against the immediate employers running the shops, which ultimately resulted in revenue recovery proceedings against them.
Finding of the Court:
The court found that the liability imposed on the licensees was joint and several with the immediate employers, and upheld existing interpretations that allowed for recovery actions to proceed without exhaustion of remedies against the immediate employers.
Issues: Whether licensees can be proceeded against for liability under the Welfare Fund Act only after action is taken against the immediate employers.
Ratio Decidendi: The court concluded that the liability is 'joint and several', meaning that licensees can be held accountable without first exhausting remedies against immediate employers, based on the inclusive definitions in the Act.
Final Decision: The Writ Petitions are dismissed.
JUDGMENT
Ramachandra Menon, J.
Having found that a licensee under the Kerala Abkari Shops Disposal Rules 2002 is 'jointly and severally' liable to satisfy the arrears of contribution under the Toddy Workers' Welfare Fund Act, along with the immediate employer who was running the shop, is it open for the licensee to contend that he can be proceeded against only after proceeding against the assets and person of the immediate employer? The decision sought to be relied on by the petitioners/licensees in support of such contention raised by them, that it cannot be so, as reported in2006 (3) KLT 988 [Welfare Fund Inspector Vs. Jaya], has been doubted by a learned Judge of this Court passing an order of reference on 23.02.2015, which in turn is under consideration now.
2. The petitioners and three others were the licensees of the toddy shops bearing No. 1 to 142 of the Kuttanad Excise Range during the Abkari year 1988 – '99. As it was quite permissible, having not been prevented either by the Statute or by any order issued by the Department/Government, the petitioners/licensees, for reasons of their own, were getting the shops run through the concerned party respondents, who were the immediate employers, without transferring the licence.
3. By virtue of the relevant provisions in the Kerala Toddy Workers' Welfare Fund Act 1969 ('Welfare Fund Act' in short), contribution was payable by the 'employer', in respect of the employees, at the prescribed rate. Admittedly, the employers who had engaged the employees during the tenure of the licence, failed to remit the requisite extent of contribution and it fell in arrears. Proceedings were initiated against the employers (both the licensees and the immediate employers) by the concerned authorities and final determination order was passed under Section 8 of the Welfare Fund Act, fixing the liability 'jointly and severally' on the licensees as well as the immediate employers. Apart from the petitioners and the party respondents herein, several other persons were also found liable to satisfy the arrears of contribution. Recovery proceedings were pursued under the Revenue Recovery Act against the petitioners, causing their properties to be attached and sold. This made the petitioners in W.P.(C) No.31850 of 2006 to approach this Court seeking to proceed against the immediate employers as well, who were actually running the toddy shops and for such other reliefs.
4. Subsequently, it was noted by the petitioners that no steps were taken by the Department against 40 persons named in Ext. P1 and hence a direction was sought for to proceed against all the persons referred to in Ext. P1, except the petitioners against whom the proceedings under the Revenue Recovery Act had already been initiated, besides seeking for a declaration that the concerned authorities were legally bound to proceed against the persons who were found to be the employers of the concerned shops during the period 1998 – '99, by filing W.P.(C) No. 6226 of 2007. In the course of further proceedings, the authorities caused to issue a warrant to one of the licensees under Section 65 of the , which was sought to be intercepted by filing W.P.(C) No. 4961 of 2011. It is also prayed for, to cause to initiate revenue recovery action against the concerned respondents, who were the 'immediate employers' and were liable to effect the contribution under the Welfare Fund Act.
5. Heard the learned counsel for the petitioners, the learned counsel appearing for the party respondents, the learned standing counsel for the Welfare Fund Board and the learned Government Pleader appearing for the State/Department.
6. The learned counsel for the petitioners submits that the factual position that the petitioners were licensees and as to culmination of the proceedings by passing final determination order by the competent authority under the Welfare Fund Act is not under dispute. It is also conceded that there is no challenge against the liability or the quan
