Research › Browse › Judgment

Kerala High Court · body

1999 DIGILAW 267 (KER)

Prabhakaran v. District Executive Officer

1999-06-29

A.R.LAKSHMANAN, S.SANKARASUBBAN

body1999
JUDGMENT Lakshmanan, Ag. C.J.- 1. The Judgment of the Court was delivered by Lakshmanan, Ag. C. J.- Heard Mr. T. M. Sunil for the appellant and Mr. Alexander Thomas, Government Pleader for respondent No. 2. 2. This Writ Appeal was filed against the Judgment of C. S. Rajan, J. in O.P. 10910/96 dated 1st February 1999. The said Original Petition was filed by the appellant to quash Exts. P-4 to P-11 and to declare that the District Executive Officer, Kerala Motor Transport Workers Welfare Fund Board, Palakkad has no jurisdiction to pass Exts. P-4 to P-11 orders. The Original Petition was heard and dismissed by the learned Single Judge by directing the appellant to avail himself of the remedy of filing an appeal before the Government under the Kerala Motor Transport Welfare Fund Act along with a petition to condone the delay if any in filing the appeal on account of the pendency of the Original Petition in this court. Learned Judge has also directed the appellant to pay a sum of Rs. 7,500/- on or before 28th February 1999. Being aggrieved against the Judgment the above Appeal has been preferred. Since no counter affidavit was filed in the Original Petition, we directed the respondent to file a counter affidavit. Accordingly the Chief Executive Officer of the Motor Transport Workers Welfare Fund has filed a counter affidavit along with Ext. R-1(a) which is the statement submitted by the appellant on 1st November 1995. 3. According to the appellant the vehicle in question was used solely for his wife's rice mill business and was never let out on hire of reward and therefore it will not come under the purview of the Kerala Motor Transport Workers Welfare Fund Act, 1985. It is the case of the appellant that he was given notice of hearing by the first respondent on 28th June 1995 alone and no notice was given in regard to the hearing held on 22nd July 1995, 31st August 1995 and 1st November 1995 and that the first respondent without conducting the enquiry passed the order under Exts. P-4, P-5 and P-6. Two contentions were raised before us by the learned counsel for the appellant. The first contention relates to the jurisdiction of the first respondent, District Executive Officer to decide Exts. P-4 to P-6. P-4, P-5 and P-6. Two contentions were raised before us by the learned counsel for the appellant. The first contention relates to the jurisdiction of the first respondent, District Executive Officer to decide Exts. P-4 to P-6. According to the appellant the first respondent is not an officer appointed under S.7 of the Act and also does not have the authorisation of the Chief Executive Officer as contemplated by S.8 of the Act. The second contention relates to the passing of orders by the first respondent under Exts. P-4 to P-6. It is submitted that the said orders have been passed without observing the principles of natural justice and therefore the said orders are bad in law in view of S.8(4) of the Act. 4. Respondents submitted that notices were issued to the appellant and infact he also appeared before the respondent on 1st November 1995 and submitted a sworn statement, a copy of which is produced and marked as Ext. R-1(a). In regard to the contention regarding jurisdiction it is submitted that S.8 of the Act confers power on the Chief Executive for authorising the District Officer to take steps for determination of the dues. 5. Section 7 of the Act deals with Appointment of Officers. The said section provides that the Government may appoint a Chief Executive Officer and such other officers and staff as they consider necessary to assist the Board in the discharge of its functions and duties under this Act. Clause (2) of S.7 provides that the Chief Executive Officer and the other officers appointed under sub-section (1) shall exercise such powers and discharge such duties as may be prescribed. Sub clause (3) deals with the method of recruitment, salary and allowances, discipline and other conditions of service of the Chief Executive Officer and the other officers and staff appointed under sub-section (1). S.8 provides for avenue for determination of the amount due from employers. S.8 reads thus: "8. Determination of amount due from employers. (1) The Chief Executive Officer or any other officer appointed under sub-section (1) of S.7 authorised by him in this behalf may, by order, determine the amount due from any employer under the provisions of this Act or of the scheme and for this purpose, may conduct such inquiry as ho may deem necessary. Determination of amount due from employers. (1) The Chief Executive Officer or any other officer appointed under sub-section (1) of S.7 authorised by him in this behalf may, by order, determine the amount due from any employer under the provisions of this Act or of the scheme and for this purpose, may conduct such inquiry as ho may deem necessary. Section 8(4) was relied on for the proposition that no order determining the amount due from any employer shall be made under sub-section (1) of S.8 unless the employer has been given reasonable opportunity of being heard. S.8(5) provides an appeal to the Government against determination against the order passed by the D.E.O. determining the amount. S.9 provides for deposit of advance contributions as required to be paid under the said section. S.9 also deals with provisional assessment of contribution. R.4 of the Kerala Motor Transport Workers Welfare Fund (Power and Duties of the Chief Executive Officer and District Executive Officers) Rules, 1986 specify the powers and duties of the District Executive Officer. It is beneficial to extract R.4(1) for the purpose of this case: "4. Powers and duties of the District Executive Officer. (1) The District Executive Officer shall have the power to do all or any of the following matters and he shall exercise these powers within the local limits for which he is appointed, namely:- (a) to exercise the powers mentioned in sub-section (1) of S.8 and sub-section (3) of S.9 of the Act; (b) to enter, inspect and search at all reasonable times with such assistants, if any, as he thinks fit, any premises which he has reason to believe is under the use or occupation of any motor transport undertaking for the purpose of carrying out the object of the Act and the scheme. (c) to prosecute, conduct or defend before Court any complaint or other proceeding arising under the Act; subject to the provisions of sub-section (4) of S.15 of the Act. (d) to require any employer to supply or send any return or true copy of any document or information as required under the provisions of the Act and the scheme." A reading of the above provisions and the rules made thereunder clearly provides that the Welfare Fund Act imposes a statutory duty on a vehicle operator to maintain the records. Under the Welfare Fund Act he has to submit periodical statements. Under the Welfare Fund Act he has to submit periodical statements. The appellant in fact has appeared before the first respondent and submitted a sworn statement. The sworn statement Ext. R-1(a) reads as follows: "I am the driver cum owner of the tempo van bearing number KL-9/A 864. This vehicle has come under my ownership from 5th May 1992 onwards. On 17th May 1995, I was present before this court. Thereafter I had received a provisional order for the period 1992-1995. Against that an objection was filed. Today I have come to give evidence on my objection. I have driving licence Unnikrishnan is not working in the vehicle. I have nothing to submit. There is no record to be produced. I may be exempted from welfare fund contributions." It is seen from the above statement that the appellant had knowledge about the pendency of the proceedings before the first respondent even on 17th May 1995 itself and that he has no records to be produced before the first respondent. S.8 of the Act confers power on the Chief Executive Officer for authorising the District Officer to take all steps for determination of dues. However, in view of the enabling provisions of the Act under S.7(2) the Government by G.O. (Ms.) 29/86 LBR dated 19th June 1936 have brought into effect Kerala Motor Transport Workers Welfare Fund (Power and Duties of the Chief Executive Officer and District Executive Officers) Rules, 1986. Determination under S.8(1) and S.9(3) of the Act is therefore the duty of the D.E.O. It is submitted that ever since the implementation of the scheme in 1986 this has been in operation. In the instant case the Chief Executive Officer had not, therefore issued any other notification under S.8 of the Act. We are of the view that the District Executive Officer was thus competent to issue the orders and there is no lack of jurisdiction. It is stated that circulars had also been issued later on giving guidelines to be adopted while making any determination. The counter affidavit also clearly discloses that notices have been issued to the appellant and that he had also personally appeared before the D.E.O. and submitted a sworn statement. It is stated that circulars had also been issued later on giving guidelines to be adopted while making any determination. The counter affidavit also clearly discloses that notices have been issued to the appellant and that he had also personally appeared before the D.E.O. and submitted a sworn statement. As already seen S.8(5) of the Act provides an appeal to the Government against the order passed by the D.E.O. We therefore direct the appellant to file an appeal before the appellate authority viz., the Government under the Act along with a petition to condone the delay in filing the appeal on account of the pendency of the Original Petition and this Writ Appeal. The appeal shall be filed on or before 15th July 1999. The Government, on receipt of the appeal shall dispose of the same after giving opportunity to the appellant. The appellant is at liberty to place before the Government any fresh material and also raise contentions in support of his claim. The learned Single Judge, while disposing of the writ petition, directed the appellant to pay a sum of Rs. 7,500/- on or before a specified date. It is represented that a sum of Rs. 5,179/- has been deposited by the appellant on 5th June 1999. There shall be a stay of recovery of the balance amount pending disposal of the appeal by the Government. Writ Appeal is disposed of accordingly.