Kerala High Court
M/S.Hotel Highway Palace vs District Labour Officer on 30 May, 2016
Author: Anil K.Narendran
Bench: Anil K.Narendran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY, THE 30TH DAY OF MAY 2016/9TH JYAISHTA, 1938
WP(C).No. 18443 of 2009 (A)
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PETITIONER :
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M/S.HOTEL HIGHWAY PALACE,
NH-47, PEECHI JUNCTION,
PATTIKKAD,TRICHUR,
REPRESENTED BY ITS MANAGING PARTNER JOHN JOSEPH,
AGED 52 YEARS,
S/O.JOSEPH,
PARAKKAL HOUSE, LAKKATTOOR,
KOTTAYAM.
BY ADV. SRI.T.M.ABDUL LATIFF
RESPONDENTS :
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1. DISTRICT LABOUR OFFICER,TRICHUR.
2. ASSISTANT LABOUR OFFICER,TRICHUR.
3.EMPLOYEES
THE ASSISTANT PROVIDENT FUND COMMISSIONER,
PROVIDENT FUND ORGANIZATION, KOCHI.
R3 BY ADV. SRI.S.GOPAKUMARAN NAIR (SR.)
R3 BY ADV. SRI.M.CHANDRA BOSE
BY SR.GOVERNMENT PLEADER SRI.M.MOHAMMED SHAFI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-05-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 18443 of 2009 (A)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1 : COPY OF FL-3 LICENCE No.63/91-92.
EXT.P2 : COPY OF THE STATEMENT CONTAINING THE
NUMBER OF EMPLOYEES WORKING THE
PETITIONER'S ESTABLISHMENT.
EXT.P3 : COPY OF THE DETAILS OF REMITTANCE
OF 2007-2008.
EXT.P4 : COPY OF THE LIST AND FORM ISSUED BY THE
2ND RESPONDENT TO THE PETITIONER.
EXT.P5 : COPY OF THE STATEMENT SUBMITTED BY THE
PETITIONER BEFORE THE 3rd RESPONDENT
DTD.2.8.2008.
EXT.P6 : COPY OF THE ORDER No.A-4097/2008
DTD.29.12.2008 OF THE FIRST RESPONDENT.
RESPONDENT'S EXHIBITS : NIL.
True copy
P.A to Judge
ANIL K.NARENDRAN, J.
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W.P.(C)No.18443 of 2009
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Dated this the 30th day of May, 2016
JUDGMENT
The petitioner, who is running a Bar Hotel under the name Hotel Highway Palace at Pattikkadu in Thrissur District, has filed this writ petition seeking a writ of certiorari to quash Ext.P6 order dated 29.12.2008 by which the 1st respondent arrived at a conclusion that the petitioner is an establishment coming under the Kerala Shops and Commercial Establishments Act, 2003. The 1st respondent has also concluded that, since all the workmen under the Kerala Shops and Commercial Establishments Act, 2003 are deemed to be workmen under the Kerala Shops and Commercial Establishment Workers Welfare Fund Act, 2006 as per the provision under Section 3A of that Act, the petitioner has to comply with the provisions of the said Act. W.P.(C).No.18443 of 2009 2
2. The main contention raised in this writ petition is that, since the establishment of the petitioner is covered under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 and the Scheme made thereunder the provisions under the Kerala Shops and Commercial Establishment Workers Welfare Fund Act have no application.
3. Today, when the writ petition was taken up for consideration, it was submitted by both sides that the issue raised in the writ petition is covered in favour of the petitioner by a decision of this Court in Kalliani Vs. Kerala Shops and Commercial Establishment Workers Welfare Fund Board (2012 (4) KLT 875). In the said decision the question that came up for consideration before a learned Judge of this Court was as to whether the establishment run by the petitioner therein, which was covered under the provisions of Employees Provident Funds and Miscellaneous Provisions Act is liable to W.P.(C).No.18443 of 2009 3 pay contribution in respect of its employees under the Kerala Shops and Commercial Establishments Act and the Welfare Scheme framed thereunder. Placing reliance on the judgment of a Division Bench of this Court in Hymavathi v. Special Deputy Tahsildar (2008 (3) KLT 807) the learned Judge held that once the establishment is covered by the provisions of the EPF Act and contributions are remitted under the Scheme made thereunder, there is no liability to pay contribution under the Kerala Shops and Commercial Establishment Workers Welfare Fund Act. Paragraph 3 of the said judgment reads thus:-
"3. The said decision has considered the issue in paragraph 13 thereof, as follows:-
The learned Single Judge, in our considered view, has proceeded on the wrong assumption that it was never the intention of the State Legislature by enacting the proviso to S.4(1) of the Welfare Fund Act, to permit employers and majority of the employees to voluntarily go under the net of Provident Fund Act and thereby depriving the employees of more beneficial provisions available under the Welfare Fund Act. This, in our view, is an assumption, and this wrong assumption has led the learned Judge to W.P.(C).No.18443 of 2009 4 reject the Writ Petition. It is no doubt true that, there are two legislations, one framed by the Central Government and the other by the State Government. Both legislations are made with the avowed object of assisting the employees working in an establishment. If not for the proviso introduced by the State Legislature under the Welfare Fund Act, we think that, the learned Judge would have been justified in coming to the conclusion, that, both these legislations would operate simultaneously in their respective areas of operation, since both these provisions are meant for the welfare of the employees working of an establishment working in an establishment. In our view, even this proposition may be difficult to accept, but we refrain to comment on this and this can be kept as a weapon in the armory for a better case. However, we hasten to add, that, the conclusion reached by the learned Judge is contrary to the statutory provisions and also the observations made by the Division Bench of this Court in Unni Mammu Haji's case (1989 (1) KLT 729) where this Court has specifically observed, that, the Welfare Fund Act passed by the State Legislature applies to such establishments to which Central Act does not apply. In the present case, as the provisions of the Central Act is made applicable, may be at the instance of the employer and majority of the employees of the establishment, the employer is exempted from paying contribution under the Motor Transport Workers Welfare Fund Act, 1985.
In view of the above dictum, the petitioner is entitled to succeed. This Writ Petition is accordingly allowed. It is declared that the petitioner's establishments namely "New India Talkies, Iritty" and W.P.(C).No.18443 of 2009 5 "New India Paradise DTS Cine House, Iritty" are not liable to pay contribution under the Kerala Shops and Commercial Establishment Workers Welfare Fund Act in view of the coverage under the Employees Provident Funds and Miscellaneous Provisions Act, 1952. It therefore follows that it is not open to the 1st respondent to demand that the petitioner should pay the contribution under the said Act."
4. In view of the law laid down by this Court in Kalliani's case (supra), which has attained finality, as submitted by both sides, I find that the petitioner is entitled to succeed in its challenge against Ext.P6 order passed by the 1st respondent.
5. In the result, the writ petition is disposed of setting aside Ext.P6 order passed by the 1st respondent and declaring that, if the workers of the petitioner establishment are getting the benefit under the provisions of the EPF Act and the Scheme framed thereunder, the petitioner is not liable to pay contribution under the Kerala Shops and Commercial Establishment Workers Welfare Fund Act. W.P.(C).No.18443 of 2009 6
It is for the petitioner to produce before the 1st respondent necessary materials to prove that the establishment is covered under the provisions of the EPF Act and the Scheme made thereunder and that the contributions in respect of all the employees are being paid in terms of the said Scheme. This shall be done within a period of one month from the date of receipt of a certified copy of this judgment.
Sd/-
ANIL K.NARENDRAN, JUDGE skj True copy P.A to Judge