Asokan vs State of Kerala

K.S. Radhakrishnan, J.—uestion involved in this case is as to whether petitioner, who is not a licensee of certain Toddy Shops, would come within the definition of ''employer'' u/s 2(c) of the Kerala Toddy Workers Welfare Fund Act, hereinafter called the ''Act''.

Petitioner was served with notice u/s 8 of the Kerala Toddy Workers Welfare Fund Act, 1989 to determine the contribution due to the Kerala Toddy Workers Welfare Fund, constituted under the Act. It was stated petitioner, along with 7th respondent, was conducting Toddy Shop Nos. 1 to 26 of Paravoor excise range for the year 1987-88. Pursuant to the notice petitioner appeared and contended that he had no occasion to run the shops for the said period, and therefore he was not an employer within the meaning of Section2(c) of the Act. However, petitioner was served with Ext.P 1 preassessment notice dated May 31, 1994 determining the contribution payable by the petitioner and 7th respondent at Rs. 10,05,907/-. Petitioner filed objections before the 5th respondent. He reiterated his stand that he was never an employer, and therefore he was not liable to pay contribution. However, his objections were rejected and an order was passed by the Welfare Fund Inspector stating evcnthough petitioner was not a licensee, he was conducting the shops during the relevant period along with 7th respondent, T.Soman. It was pointed out that T.Soman was only a name-lender and in fact petitioner was conducting the shops. Aggrieved by the said order, petitioner preferred appeal before the Government u/s 8 (5) of the Act and the Government dismissed the appeal vide Ext.P6 order dated December 30, 1995. Aggrieved by Ext.P6, petitioner has approached this Court.

Main contention raised by counsel for the petitioner is that since seventh respondent is admittedly the licensee, petitioner cannot be mulcted with liability. According to counsel, there is no. evidence whatsoever to show that petitioner was the licensee of the shops for the said period. In the absence of any evidence, respondents 1 to 6 ought to have treated the etitioner as the employer for payment of contribution.

A counter affidavit has been filed on behalf of the 5th respondent. Fifth respondent''s stand is that petitioner himself was conducting the shops and that 7th respondent was only a name- lender. It is their stand that licensee and petitioner are equally liable to pay contribution, and therefore respondents 1 to 6 can proceed against the petitioner. It is stated since petitioner defaulted payment, recovery proceedings were in- itiated against him as per Section 8 of the Act.

I heard counsel for the petitioner as well as counsel appearing for respondents. The term ''employer'' is defined u/s 2(c) of the Actasfollows:

"''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 license for the manufacturing, distribution, storage or sale of toddy under the Abkari Act for the time being in force."

It is evident from the above mentioned statutory provision that a person need not be the ''licensee'' to satisfy the definition of employer u/s 2(c) of the Act, Legislature used the expression ''means and includes''. Where the legislature used the expression ''means and includes'' in the definition clause, such a definition has to be given wider meaning, as held by the Supreme Court in Krishi Utpadan Mandi Samiti v. Sankar Industries Ltd 1993 Supp.(iii)SCC 361 . Act is enacted to provide for the constitution of fund to promote the welfare of toddy workers in the State of Kerala. Since the Act is a welfare legislation provisions of the said Act are to be liberally construed. As held by the Supreme Court in M/s. International Ore and Fertilizers (India) Pvt. Ltd. Vs. Employees'' State Insurance Corporation, while construing welfare legislation, a liberal construction should be placed on the provisions of the legislation so that purpose of the legislation should be achieved rather than frustrated or stultified.

When we consider the question on the basis of the above mentioned legal principle, it is clear that even if the petitioner is not a licensee, if it can be established that he was actually conducting the shops, he will come within the definition of Section 2(c) of the Act, In the instant case, enquiries were conducted with notice to the petitioner. Though petitioner received the notice, he did not attend various enquiries conducted on April 29, 1989, May 20, 1989, August 18, 1990 and various other dates. On the basis of statements of workers and others, a pre-assessment notice was issued to the petitioner on May 31, 1994. Petitioner filed objections on November 16, 1994. Again an enquiry was conducted. During the time of enquiry, counsel for the petitioner cross-examined union leaders. They all gave evidence to the effect that petitioner was actually conducting the shops. It has come in evidence that petitioner was paying salary due to the employees and he was withdrawing P.F.amount. Licensee of the Shops Sri T.Soman also gave evidence to the effect that petitioner was conducting the shops. It was found licensee, Soman, was an employee of the shop at Kuthiyathode range and he was not treated or considered as Abkari Contractor, It is after conducting enquiries, and on the basis of evidence adduced by the employees and others, that the Welfare Fund Inspector came to the conclusion that petitioner was conducting the toddy shops during the relevant period. It is a finding of fact. Government also, while entertaining his appeal petition u/s 8(5) of the Act, came to the conclusion after persuing the records, that petitioner was conducting the shops for the year 1987-88.

Question as to who has actually conducted the shops during the relevant period is purely a question of fact. Two authorities have concurrently found that petitioner is in fact the ''em- ployer''. As held by the Supreme Court in Kanshi Ram Verma Vs. Municipal Committee, Mansa through its Executive Officer, Punjab and Others, and Babu v. Deputy Director of Consolidation, A.I.R, 1982 S.C. 756, High Court under Article 226 of the Constitution of India cannot enter into evidence and redetermine the question of fact, unless the said finding is perverse, or supported by no evidence. Supreme Court also in the decision in Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram, has taken the view that High Court should not interfere with the finding of inferior Tribunal or Court, unless the finding is perverse or not based on any material which resulted in manifest injustice. Except to the limited extent indicated above, High Court has no jurisdiction.

This Court in V.M. Subramaniam v. State of Kerala 1990 (1) K.L.N. 64 took the view that u/s 2(c) ''employer'' is defined in very wide terms and it embraces both the principal employer as well as the immediate employer. One who employs a person on behalf of the principal employer or the contractor is also included in the ambit of employer. In this case, after evaluating the entire facts, the Welfare Fund Inspector as well as the Government came to the conclusion on the basis of oral and documentary evidence that it is the petitioner who was the employer.

Under the above mentioned circumstances, this Court is not justified in interfering with Exts. P2 and P4 orders. Original Petition is accordingly dismissed.