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2011 DIGILAW 1110 (KER)

R. Vijayan v. State of Kerala

2011-11-11

S.SIRI JAGAN

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Judgment : S. SRI JAGAN, J. 1. Petitioners hold licences for conducting bar hotels in Malappuramm district, Accordingly to the petitioners, the establishments or the petitioners are covered under the Employees Provident funds and Miscellaneous Provisions Act and the scheme made thereunder. They contend that, in view or the fact that the establishments are covered under the Employees Provident Funds and Miscellaneous Provisions Act, they are not liable to pay contributions under the Kerala Abkari workers Welfare Fund Act, 1989. The petitioners would contend that this position is covered by the Division Bench decision of this court in W.A. No. 963 of 1997, which is produced as Ext.P6 in this writ petition. Despite the above legal position, respondents 2 & 3 have directed the petitioners to remit contributions in respect or the employees of the petitioners under the Kerala Abkari workers Welfare find Act, 1989. The impugned assessment orders have been Issued in respect thereof. Accordingly to the petitioners, the demand for contributions under the Kerala Abkari Workers Welfare Fund Act is clearly against Ext.P6 decision of this court. It is under the above circumstances, the petitioners have filed these Writ Petitions seeking the following reliefs:- W.P.(C) No. 26825/2006 “i) a writ of certiorari or any other appropriate writ, order or direction quashing Exts. P8&P9 orders Issued by the 3rd respondent arbitrary and Illegal. ii) a declaration to the effect that the petitioners are not liable to pay any contribution towards Abkari Workers Welfare Fund In respect of M.K.R. Enterprises, Kottakkal and Hotel Pushpak, Konditty. iii) a declaration to the effect that the Kerala Abkari Workers Welfare Fund Act, 1989 (Act 19 of 1989) Is unconstitutional and void. iv) a declaration that the Abkash Workers Welfare fund Act is not applicable to establishments covered under the provisions of the Employees Provident fund and Miscellaneous Provisions Act 1952 and the Payment of Gratuity Act, 1972.” W.P.(C) No. 4815/2006 “i) a writ of certiorari or any other appropriate writ, order or direction quashing Exts. P4 Proceedings issued by the 3rd respondent as arbitrary and Illegal. ii) a declaration to the effect that the petitioners are not liable to pay any contribution towards Abkari Workers Welfare Fund In respect of Hotel Virad Kottakkal. iii) a declaration to the effect that the Kerala Abkari Workers Welfare Fund Act, 1989 (Act 19 of 1989) is unconstitutional and void. ii) a declaration to the effect that the petitioners are not liable to pay any contribution towards Abkari Workers Welfare Fund In respect of Hotel Virad Kottakkal. iii) a declaration to the effect that the Kerala Abkari Workers Welfare Fund Act, 1989 (Act 19 of 1989) is unconstitutional and void. iv) a declaration that the Abkari Workers Welfare fund Act is not applicable to establishments covered under the provisions of the Employees Provident fund and Miscellaneous Provisions Act 1952 and the Payment of Gratuity Act, 1972.” 2. Although the “petitioners have sought a, prayer for declaring the Kerala Abkari Workerss’ Welfare Fund Act as unconstitutional and void, the prayer pressed before me at the time of assignment is on question of sustainability of the impugned orders in view of Ext.P6 judgment. 3. Counter Affidavit have been filed by the 2nd respondent. I have considered the rival contentions in detail. The learned counsel for the respondents 2 & 3 submits that subsequent to Ext.P6 judgment, the Division Bench has considered the matter in O.P. No. 15541/1999, wherein the government was directed to take a final decision with regard to the question as to whether there is overlapping of the provisions of the two enactments and as to whether the employees would get double benefits because of the application of the provisions of the Central as well as the State Acts. Therefore according to the counsel for the respondents 2 & 3, it is open to respondents 2 & 3 to make sure that all employees in respect of whom the contributions are demanded, are in fact covered under the Employees Provident Funds and Miscellaneous Provisions Act. But at the same time, it is not disputed before me that the government has subsequently considered the matter and held that if both enactments are implemented there would be overlapping of benefits and there would be double benefits, As such without a finding that any of the employees of the petitioners are actually not covered under the Employees Provident Funds and Miscellaneous Provisions Act, the respondent cannot demand contributions under the Kerala Abkari Workers Welfare Fund Act. 4. In these circumstances, the impugned orders are quashed. 4. In these circumstances, the impugned orders are quashed. It is declared that those of the employees of the petitioners who are covered under the employees Provident Funds and Miscellaneous Provisions Act are not required to be covered under Kerala Abkari workers Welfare Fund Act and the petitioners are not liable to pay contributions in respect of the employees who are covered under the Employees Provident Funds and Miscellaneous Provisions Act. However, it would be open to the respondents 2 & 3 to ensure that all the workers of the petitioners are covered under the Employees Provident Funds and Miscellaneous Provisions Act and if any of the employees are not so covered, it would be open to the respondents 2 & 3 to demand contributions in respect of those, employees under the Kerala Abkari Workers Welfare Fund Act. However, I make it further clear that if contributions are demanded in respect of any such employee, it would be open to the petitioners to challenge the assessment on other valid grounds available under law. These Writ Petitions are disposed of as above.