Kerala High Court
M.S.Sudevan vs Joint Secretary To Government on 7 March, 2014
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
FRIDAY, THE 7TH DAY OF MARCH 2014/16TH PHALGUNA, 1935
WP(C).No. 30581 of 2007 (N)
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PETITIONER:
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M.S.SUDEVAN, S/O. MANJIPARAMBIL SEKHARAN,
MANJIPARAMBIL HOUSE, VATANAPILLY,
THRITHALLOOR P.O.
BY ADV. SRI.K.S.BHARATHAN.
RESPONDENTS:
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1. JOINT SECRETARY TO GOVERNMENT,
LABOUR AND REHABILITATION (S) DEPARTMENT,
(APPELLATE AUTHORITY UNDER THE KERALA TODDY-
WORKERS WELFARE FUND ACT 1969), SECRETARIAT,
THIRUVANANTHAPURAM.
2. THE WELFARE FUND INSPECTOR,
KERALA TODDY WORKER'S WELFARE FUND BOARD, THRISSUR.
3. THE ASSISTANT EXCISE COMMISSIONER,
THRISSUR.
4. THE CIRCLE INSPECTOR OF EXCISE,
KODUNGALLOORE.
5. DISTRICT COLLECTOR,
THRISSUR.
6. THE DEPUTY TAHSILDAR (R.R.),
THRISSUR.
7. THE VILLAGE OFFICER,
VATANAPPILLY.
R1, R3 TO R7 BY GOVT. PLEADER SRI. A.J. JOSE AEDAIODI,
R2 BY SRI.RENIL ANTO.K, S.C.
SRI.K.HARILAL S.C.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 07-03-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Prv.
W.P.(C).NO.30581/2007-N:
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P.1: COPY OF THE CERTIFICATE ISSUED BY THE 4TH RESPONDENT
DTD. 20/09/2002.
EXT.P.2: COPY OF THE PRE-ASSESSMENT NOTICE ISSUED BY THE 2ND
RESPONDENT DTD. 15/04/2004.
EXT.P.3: COPY OF THE FINAL ASSESSMENT ORDER DTD. 21/05/2004 PASSED
BY THE 2ND RESPONDENT.
EXT.P.4: COPY OF THE MEMORANDUM OF APPEAL DTD. 07/06/2004 FILED BY
THE PETITIONER.
EXT.P.5: COPY OF THE ORDER DTD. 15/06/2005 OF THE 1ST RESPONDENT.
EXT.P.6: COPY OF THE JUDGMENT DTD. 22/03/2006 IN
WRIT PETITION (C).NO.25647/2005 OF THIS HON'BLE COURT.
EXT.P.7: COPY OF THE LETTER DTD. 13/11/2006 ISSUED BY THE 1ST
RESPONDENT TO THE PETITIONER.
EXT.P.8: COPY OF THE JUDGMENT DTD. 30/01/2007 IN W.P.(C).NO.1263/2007,
PASSED BY THIS HON'BLE COURT.
EXT.P.9: COPY OF THE LETTER INVOKING THE AFORESAID BANK GUARANTEE
DTD. 03/02/2006 ISSUED BY THE 3RD RESPONDENT TO THE
MANAGER, CANARA BANK, VADANAPALLY.
EXT.P.10: COPY OF THE ORDER DTD. 19/05/2007 PASSED BY THE 1ST
RESPONDENT REJECTING EXT.P.4 APPEAL.
RESPONDENTS' EXHIBITS: NIL.
//TRUE COPY//
P.A. TO JUDGE.
Prv.
A.MUHAMED MUSTAQUE, J.
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W.P.(C) No.30581 of 2007
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Dated this the 07th day of March, 2014
JUDGMENT
This writ petition is filed by the holder of Abkari licence challenging orders passed by the statutory authorities, rejecting his request for exemption for payment of contribution for the period from 07.02.2003 to 31.03.2003 under the Kerala Toddy Workers Welfare Fund Act, 1969. The petitioner submits that during the above period, the shop was closed down on account of strike and no wages was paid to the employees under him. Therefore, according to him, he is entitled for exemption for payment of the contribution to the fund. This request was turned down as per Exts.P2, P3 and and P10 by the authorities. Challenging the above orders, this writ petition is filed.
2. I have heard the learned counsel for the petitioner, the learned Standing Counsel for the second respondent and the learned Government Pleader.
W.P.(C) No.30581 of 2007 2
3. The authorities passed the orders after adverting to facts. Unless finding of such facts are perverse, this court need to interfere with the order invoking its power of judicial review under article 226 of the Constitution. There is nothing on record to establish those finding of facts by the authorities are perverse or arbitrary nor there anything to show that process of arriving at such decision is vitiated by any material defects. Hence challenge to Exts.P2, P3 and and P10 must fail.
4. This writ petition was filed in the year 2007. It is submitted by the learned counsel appearing for the petitioner as well as the learned Government Pleader that the bank guarantee of `50,000/- given by the petitioner has been invoked by the third respondent-Excise Commissioner.
5. In the counter affidavit filed on behalf of the first respondent, it is stated as follows:
7. It is further submitted that liability towards payment of welfare fund and the amount set as bank guarantee are two separate entities. The bank guarantee placed by the petitioner towards Excise Department will be released only if the licensee owes no dues towards welfare board. Since he owes W.P.(C) No.30581 of 2007 3 due towards welfare fund board, the clearance certificate requested from Excise Circle Inspector, Kodungallur vide the letter dated 22.04.2006 cannot be issued until the dues being cleared off.
6. It is submitted by the learned Standing Counsel for the the Welfare Fund Board, the Board has not received any amount from the Excise Department. It is further submitted that it is for want of request on the side of the petitioner, the Excise Commissioner did not release the amount to the Welfare Fund Board. According to the learned Standing Counsel for the Welfare Fund Board, the liability of the petitioner as on 30.12.2013 is `86,360/-. The learned counsel for the petitioner points out that the original liability towards payment of contribution is only `33,236/-. This is evident from Ext.P3.
7. The learned Standing Counsel for the Board also placed the reliance before this Court, a communication from the Deputy Excise Commissioner dated 17.02.2014, in which, it is stated that the Bank Guarantee was invoked on 06.05.2006.
8. It is stated by the first respondent in the counter affidavit before this Court that the bank guarantee placed by the W.P.(C) No.30581 of 2007 4 petitioner towards Excise Department will be released only if the licensee owes no dues towards Welfare Board. Therefore, having invoked bank guarantee by the Excise Department, it was not proper to keep the amount in custody without adjusting towards any liability of the petitioner. The petitioner cannot be saddled with any liability after 06.05.2006. The bank guarantee has been invoked obviously for the reason that the petitioner is having a pre-existing liability to the Excise Department or to the Welfare Fund Board.
9. The Excise Department has no case that there is any amount due from the petitioner to them. Therefore, they ought to have released the bank guarantee to the Welfare Fund Board. Thus the petitioner is not liable for any penal interest due after 06.05.2006.
10. In view of the fact that the bank guarantee has already been invoked on 06.05.2006, the petitioner's liability as to the contribution should be determined with reference to date as on 06.05.2006. If any amount is found payable by the petitioner, even after such adjustment by reckoning liability as on 06.5.2006 W.P.(C) No.30581 of 2007 5 the Board shall communicate the same to the petitioner.
In the above circumstances, the writ petition is disposed of with the following directions:
1. The liability of the petitioner shall be determined as on 06.05.2006. The amount covered by the bank guarantee shall be adjusted against the liability to the petitioner.
However, if any amount is found due after such determination, the same shall be intimated to the petitioner and the petitioner shall make arrangements to pay the amount to the Board within a period of one month thereafter.
2. In case, if the Board finds that the amount received by them from the Excise Commissioner is in excess of the liability of the petitioner as on 06.05.2006, such excess amount be returned to the petitioner immediately.
W.P.(C) No.30581 of 2007 6
3. The third respondent shall release the amount obtained by invoking bank guarantee in favour of the second respondent within a period of one month from the date of receipt of a copy of this judgment.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ln