Kerala High Court
P.N.Sasi vs The Deputy Excise Commissioner on 7 July, 2020
Author: A.M.Badar
Bench: A.M.Badar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.M.BADAR
TUESDAY, THE 07TH DAY OF JULY 2020 / 16TH ASHADHA, 1942
WP(C).No.20712 OF 2019(L)
PETITIONERS:
1 P.N.SASI,
AGED 75 YEARS
SON OF NARAYANAN, PAZHANILATHU, THALAYAZHAM P.O,
VAIKOM-686 607, KOTTAYAM DISTRICT.
2 P.R PAVITHRAN,
AGED 80 YEARS
SON OF RAMANKUTTY, PAKKUVALLIL, AMBIKA MARKET P.O,
VAIKOM-686 144, KOTTAYAM DISTRICT.
BY ADVS.
SRI.P.B.SAHASRANAMAN
SRI.T.S.HARIKUMAR
RESPONDENTS:
1 THE DEPUTY EXCISE COMMISSIONER
OFFICE OF THE EXCISE CIRCLE OFFICE, KOTTAYAM-686 001.
2 KERALA TODDY WORKERS WELFARE FUND BOARD,
ULLOR, THIRUVANANTHAPURAM-695 011,
REPRESENTED BY ITS SECRETARY.
3 THE WELFARE FUND INSPECTOR,
BHEEMANPADI, KOTTAYAM WEST P.O, KOTTAYAM-686 003.
R1 BY SRI.V.MANU, SENIOR GOVERNMENT PLEADER
R2-R3 BY ADV. SRI.G.SANTHOSH KUMAR, SC.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.20712 OF 2019 2
JUDGMENT
Dated this the 7th day of July 2020 By this writ petition, petitioners who were licensees of group of toddy shops of Vaikom Range are praying for directing the 1st respondent-Deputy Excise Commissioner to transfer their amounts lying with the 1st respondent in the Treasury Savings Account (TSA) with interest to the 2nd respondent-Kerala Toddy Workers Welfare Fund Board with a direction that the said amount be adjusted towards the amount due to the said Board.
2. It is the case of petitioners that they were licensees of toddy shops of Vaikom Range till the year 2017-2018. Thereafter they are not running those toddy shops. By virtue of Section 2(c) of the Kerala Toddy Workers' Welfare Fund Act, 1969, they become "employer" and as such they were jointly and severally liable to remit contribution of workers by deducing the same from wages for being remitted to the Kerala Toddy Workers Welfare Fund Board. It is stated that a sum of about Rs.25 lakhs is due and payable towards arrears of workers' welfare fund contribution by petitioners and at WP(C) No.20712 OF 2019 3 the instance of the 2nd respondent, proceedings have been initiated for recovering the same. Petitioners submitted that they had addressed a letter, Ext.P1, to the 1 st respondent-Deputy Commissioner of Excise requesting that the amount deposited by them and kept in the Treasury Savings Account with the Excise Department be transferred for clearing dues of welfare fund contribution payable under the Kerala Toddy Workers Welfare Fund Act, 1969. However, no action was taken on representation of petitioners and therefore, petitioners are praying for a direction to the 1st respondent to transfer the amount of petitioners kept in the Treasury Savings Account to the 2nd respondent-Board for clearing the dues payable by petitioners.
3. This writ petition is opposed by 1 st respondent-Deputy Commissioner of Excise by filing counter affidavit. According to the Excise Department, the Circle Inspector of Excise, Vaikom had directed petitioners to produce certificate to the satisfaction of the Deputy Commissioner of Excise that wages and other benefits to workers have been paid in full. However, there was no response WP(C) No.20712 OF 2019 4 from petitioners and the Circle Inspector of Excise reported that a sum of more than Rs.22 lakhs is due from petitioners in respect of Toddy Workers Welfare Fund as on 31.12.2018 and accordingly, revenue recovery proceedings are initiated against petitioners under the provisions of Section 9 of the Kerala Toddy Workers' Welfare Fund Act, 1969. It is further averred by the 1 st respondent that the amount deposited in the Treasury Savings Account cannot be released to petitioners until and unless wages and other benefits to the workers have been paid in full. By placing reliance on Rule 5 of the Kerala Abkari Shops Disposal Rules, 2012, the 1 st respondent contended that the amount lying in Treasury Savings Account shall not be released to the grantees until the grantees prove to the satisfaction of the Deputy Commissioner of Excise that wages and other benefits to the workers have been paid in full. In other words, according to the Deputy Commissioner of Excise, a clear recommendation from the Circle Inspector of Excise that there are no outstanding dues, is necessary for processing the application at Ext.P1 submitted by petitioners for transferring the amount lying in WP(C) No.20712 OF 2019 5 the Treasury Savings Account to the Toddy Workers Welfare Fund.
4. Respondents 2 and 3 also opposed the writ petition by filing a statement contending that as per the provisions of Section 4 of the Kerala Toddy Workers' Welfare Fund Act, 1969, petitioners being employers were responsible to remit workers' welfare fund contribution after deducting the same from the wages of the workers. However, petitioners failed to remit the same to the 2nd respondent and therefore, revenue recovery proceedings are initiated against petitioners. It is further contended by the 2nd respondent-Board that TSA amount of petitioners lying with the Excise Department is half of the dues of workers welfare fund and petitioners have not stated about remittance of balance dues. Hence petitioners are not entitled for any relief.
5. Learned counsel appearing for parties have advanced arguments in tune with their pleadings. Learned counsel for petitioners submitted that as petitioners are not running toddy shops any more, their amount lying in the Treasury Savings Account kept with the Deputy Commissioner of Excise needs to be transferred WP(C) No.20712 OF 2019 6 to the 2nd respondent-Board for discharge of part of the liability of petitioners. A statement was made at the Bar on instructions by the learned counsel for petitioners that petitioners will then clear the balance amount due and payable by them to 2 nd respondent-Board within a period of two months.
6. As against this, by drawing my attention to Rule 5 of the Kerala Abkari Shops Disposal Rules, 2012, learned counsel for 1 st respondent-Deputy Commissioner of Excise argued that unless and until no dues certificate is produced by petitioners, amount in the Treasury Savings Account cannot be released in their favour. Learned counsel for the 1st respondent submitted that satisfaction of the Deputy Commissioner of Excise that wages and other benefits to the workers have been paid in full is necessary for releasing the amount kept in the Treasury Savings Account in favour of the grantees. However, learned counsel appearing for the 1 st respondent fairly accepted the fact that an amount of Rs.9,00,040/- is in deposit in TSA No.8910 in the name of the 1 st petitioner whereas amount of Rs.9,94,237/- is in deposit in TSA No.8536 in the name of the WP(C) No.20712 OF 2019 7 2nd petitioner. Similar stand is taken by respondents 2 and 3 during the course of the arguments.
7. I have carefully considered the submissions advanced and have also perused the relevant Rules. For the sake of convenience, it is appropriate to reproduce the relevant portion of Rule 5(7) which reads thus:
"When the sale for each group/range commences, the officer conducting the sale shall announce the name of the group/range, the number and name of toddy shop to be sold, the annual rental fixed for the group/range and the rental for three years and shall invite applications for taking up the privilege from the intending purchasers. The applicant desirous of purchasing the privilege shall thereon submit application in writing before the officer conducting the sale requesting for the grant of privilege. The application shall be in form 11 appended to these rules and shall bear necessary court fee stamps of the value prescribed by law. The application shall be accompanied by a Bank Draft drawn in favour of the Deputy Commissioner of Excise concerned for an amount equal to the annual rental fixed for the group range. In addition, the applicant shall furnish a bank guarantee or bank draft in favour of the Deputy Commissioner of Excise of the Division concerned or solvency by way of deposits in Treasury Savings Account, pledged in WP(C) No.20712 OF 2019 8 the name of Deputy Commissioner of Excise of the Division concerned equivalent to the wages and other benefits to the workers of the group range payable for one month, which shall be fixed by the Toddy Workers Welfare Fund Board.....".
Rule 5(10) reads thus:
"As soon as the privilege of any group/range is provisionally declared under sub-rule 9 the officer conducting the sale shall immediately enter in the ''Sale List'', the name of the group/range sold, the name of the applicant declared by whom as the grantee of privilege of that group/range, the annual rental fixed as licence fee for that group/range and the rental for three years and any such details as he may think necessary. The Sale List shall be signed and dated at the place of sale, by the officer conducting the sale and by the applicant declared by him to be the grantee of privilege. The Bank Guarantee furnished under sub-rule 7 towards wages and other benefits to the workers shall be retained by the Deputy Commissioner of Excise concerned and be renewed until the full wages and other benefits to the workers are paid by the grantee/licensee or until such wages and other benefits are realised from the Bank Guarantee or the amount pledged, as provided under sub rule (10A) whichever is earlier. Bank Draft accepted in lieu of Bank Guarantee shall be deposited in Treasury Savings Account pledged in the name of the Deputy Commissioner of Excise concerned. The Bank Guarantee or the amount in the account pledged in favour of the Deputy Commissioner of Excise shall not be released to the grantee WP(C) No.20712 OF 2019 9 until he proves to the satisfaction of the Deputy Commissioner of Excise that the wages and other benefits to the workers have been paid in full".
8. A perusal of the provisions of these rules make it clear that a successful applicant is required to furnish bank guarantee or bank draft for making deposit in the Treasury Savings Account pledged in the name of the Deputy Commissioner of Excise. The amount to be kept under such account is required to be equivalent to the wages and other benefits payable to the workers of the toddy shops for a period of one month. This deposit in the name of successful applicant can be released only when such grantee of toddy shop proves to the satisfaction of the Deputy Commissioner of Excise that wages and other benefits to workers have been paid in full. Thus if licensee of the toddy shop desires to realise the amount kept by him in the Treasury Savings Account pledged with the Excise Department, then he is duty bound to prove to the satisfaction of the Deputy Commissioner of Excise that he had paid wages and other benefits to the workers of the toddy shop. In the case in hand, petitioners are not seeking realisation of the amount deposited by WP(C) No.20712 OF 2019 10 them and lying in the Treasury Savings Account in their name. Petitioners are only praying for transferring the amount due and payable by them to the 2nd respondent-Board because dues to the Board are required to be paid by them. As petitioners are not claiming their money lying in the Treasury Savings Account, requirement of proving that they had paid wages and other benefits to the workers is not applicable.
Undisputedly, revenue recovery proceedings for recovering the dues of Kerala Toddy Workers Welfare Fund are initiated against both petitioners. These proceedings are commenced reportedly under the Kerala Revenue Recovery Act, 1968. By virtue of the provisions of Kerala Revenue Recovery Act, 1968, even the Revenue Recovery Officer can attach deposit of petitioners lying in Treasury Savings Account pledged with the Deputy Commissioner of Excise. The deposit in the Treasury Savings Account made by both petitioners was meant for clearing the dues of wages and other benefits payable to their workers. The object behind such deposit is to see that employer should not escape from the liability to pay dues WP(C) No.20712 OF 2019 11 of workers employed by him in the toddy shops. In the case in hand, petitioners being employers are in arrears of dues payable to the workers under the provisions of Kerala Toddy Workers Welfare Fund Act, 1969. Therefore, sub rules 7 and 10 of Rule 5 of the Kerala Abkari Shops Disposal Rules, 2012 cannot create any hurdle either in attachment of such amount by the Revenue Recovery Officer for realising such dues or in transferring that amount directly to the 2nd respondent-Board under orders of the court. Instead of adopting circuitous way of attachment of the amount under deposit in the Treasury Savings Account of petitioners for clearing dues, interest of justice can be served by directing transfer of amount to the 2 nd respondent-Board for wiping off at least in part the amount due and payable by petitioners towards arrears of Toddy Workers Welfare Fund. In this view of the matter, this writ petition is allowed with following order:
i) The 1st respondent-Deputy Commissioner of Excise shall take effective steps for transferring the amount lying in deposit in TSA Nos.8910 and 8536 in WP(C) No.20712 OF 2019 12 the names of petitioners to 2nd respondent-Kerala Toddy Workers Welfare Fund Board towards dues of workers welfare fund of petitioners within a period of three weeks from the date of this order.
ii) On receipt of such amount, the 2nd respondent is directed forthwith to intimate the balance amount due and payable by petitioners.
iii) Petitioners are directed to deposit the balance amount due and payable by them to the 2nd respondent-Board within a further period of two months.
Sd/-
A.M.BADAR JUDGE smp WP(C) No.20712 OF 2019 13 APPENDIX PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE LETTER SENT BY THE PETITIONERS TO THE 1ST RESPONDENT DATED 23.10.2018.
EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE LETTER
No.K3/VAIKOM/GROUP-II/WELFARE FUND
ARREARS/4007/18 DATED 29-12-2018.
RESPONDENTS' EXHIBITS
ANNEXURE R1(a) A TRUE COPY OF THE COMMUNICATION ISSUED TO
THE PETITIONERS DTD.20.05.2019 BY THE
CIRCLE INSPECTOR OF EXCISE, VAIKKOM.
EXHIBIT R1(a) A TRUE COPY OF TRANSACTION HISTORY
PERTAINING TO TSA No.8910 FROM 01.01.2002
TO 12.02.2020.
EXHIBIT R1(b) A TRUE COPY OF THE SB PASS BOOK PERTAINING
TO TSA No.8910 FROM 01.08.2016 TO
12.02.2020.
EXHIBIT R1(c) A TRUE COPY OF THE TRANSACTION HISTORY
PERTAINING TO TSA No.8536 FROM 1.1.2002 TO
12.2.2020
EXHIBIT R1(d) A TRUE COPY OF THE SB PASS BOOK PERTAINING
TO TSA No.8536 FROM 01.08.2016 TO
12.02.2020.
EXHIBIT R1(e) A TRUE COPY OF THE COMMUNICATION
DTD.20.05.2019 ISSUED TO THE PETITIONERS BY THE CIRCLE INSPECTOR OF EXCISE, VAIKOM.
True Copy P.S to Judge smp