Kerala High Court
M/S.Rajasree Industrial Printer vs The Regional Transport Officer on 22 May, 2014
Author: K.Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THURSDAY, THE 22ND DAY OF MAY 2014/1ST JYAISHTA, 1936
WP(C).No. 21295 of 2011 (J)
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PETITIONERS:
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1. M/S.RAJASREE INDUSTRIAL PRINTER,
REPRESENTED BY ITS MANAGING PARTNER G.RAJESH,
RESIDING AT H.NO.59, RAJASREE, VIDYA NAGAR
KOCHI UNIVERSITY P.O., KOCHI-682 022
ERNAKULAM DISTRICT.
2. K.GOPALAKRISHNAN NAIR, CHAIRMAN,
M/S.RAJASREE INDUSTRIAL PRINTER, RESIDING AT,H.NO.59
RAJASREE, VIDYA NAGAR, KOCHI UNIVERSITY P.O.
KOCHI-682 022, ERNAKULAM DISTRICT.
BY ADVS.SRI.C.ANILKUMAR (KALLESSERIL)
SRI.C.Y.VINOD KUMAR
RESPONDENTS :
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1. THE REGIONAL TRANSPORT OFFICER,
ERNAKULAM.
2. THE DISTRICT EXECUTIVE OFFICER,
KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD
PALARIVATTOM, ERNAKULAM DISTRICT, PIN 682 025.
3. THE EMPLOYEES PROVIDENT FUND
COMMISSIONER, OFFICE OF THE EMPLOYEES PROVIDENT
FUND COMMISSIONER, KOCHI-682017, REPRESENTED BY
THE ACCOUNTS OFFICER.
4. STATE OF KERALA, REPRESENTED BY THE
SECRETARY TO GOVERNMENT, TRANSPORT DEPARTMENT
SECRETARIATE, THIRUVANANTHAPURAM.
R1 BY GOVERNMENT PLEADER SMT. SHOBA ANNAMMA EAPEN
R2 BY ADV. SRI.P.RAMAKRISHNAN, SC,KMTWF BOARD
R3 BY DR.S.GOPAKUMARAN NAIR SENIOR ADVOCATE
BY ADVS. SRI.A.RAJASIMHAN,SC,EPF ORGANISATION
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-05-2014,
ALONG WITH WPC. 24183/2013, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
BP
WP(C).No. 21295 of 2011 (J)
APPENDIX
PETITIONER'S EXHIBITS :
P1: COPY OF THE REGISTRATION CERTIFICATE RELATING TO THE VEHICLE
BEARING REGN.NO.KL-07/AX-2145.
P2: COPY OF THE LETTER ISSUED BY THE R3 TO THE EFFECT THAT THE
PETITIONER FIRM IS COVERED UNDER THE EMPLOYEES PROVIDENT FUND
AND MISCELLANEOUS PROVISIONS ACT 1952 WITH CODE NO. KR/24886.
P3: COPY OF THE RELEVANT PAGE AT THE NOTIFICATION RELATING TO THE
AMENDMENT OF THE KERALA MOTOR VEHICLE TAXATION ACT VIDE
NOTIFICATION DT 12/8/2005.
P4: COPY OF THE JUDGMENT IN WPC NO. 31784/2007 DT 30/10/2007 ON THE FILE
OF THIS HON'BLE COURT.
P5: COPY OF THE DEED OF RECONSTITUTION DT 30TH SEPTEMBER, 2009 OF
THE 1ST PETITIONER FIRM.
RESPONDENT'S EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
BP
K.VINOD CHANDRAN, J
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W.P.(C).Nos. 21295/2011 & 24183/2013
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Dated 22nd May, 2014
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JUDGMENT
Both the writ petitions are with respect to an identical issue, being the dues under the Kerala Motor Transport Workers' Welfare Fund Act, 1985 with respect to a Maruti Omni Cargo Van, having registration No.KL-07/AX-2145; for the period prior to the transfer of the vehicle effected on 13.7.2013. The vehicle admittedly was purchased as a new vehicle by one firm by name M/s.Rajasree Industrial Printer, in the name of its Chairman on 12.7.2005. The vehicle was being used for the business purposes of the said Firm and the Firm was covered under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (for short "EPF & MP Act"). The employee of the firm who was the driver of the subject vehicle was also covered under the EPF & MP Act as is revealed from the certificate WP(C)s.21295/11 & 24183/13 2 issued by the Employees Provident Fund Organization. The Firm and its Chairman were the petitioners in W.P.(C).21295/2011 wherein the refusal of the authorities to accept tax without clearance certificate issued under Section 8A of the Welfare Fund Act was challenged. Such action prompted by introduction of Section 8A by way of amendment was assailed as inapplicable to the petitioners; since the proviso to sub- section 7 of Section 4 specifically exempts such vehicles whose employees are covered under the EPF & MP Act. There was also an interim order dated 18.12.2012 in the said writ petition directing provisional acceptance of tax.
2. While the said writ petition was pending, the Firm which was the original registered owner transferred the vehicle in the name of one Venkataraman.S on 13.7.2013, the latter of whom is the petitioner in W.P.(C).24183/2013. The WP(C)s.21295/11 & 24183/13 3 grievance projected therein is with respect to the refusal to accept tax on the ground that no clearance certificate has been obtained from the District Executive Officer of the Welfare Fund Board regarding satisfaction of the dues under the Welfare Fund Act. In fact, against subsequent transferee, the demand was with respect to the welfare fund dues right from the original registration of the vehicle in 2005. The petitioner in W.P.(C).24183/2013 was also aggrieved by non acceptance of the tax and in that writ petition also there was an interim direction, again directing provisional acceptance of tax subject to resolution of the dispute.
3. The facts being so, the objection raised by the learned counsel appearing for the Welfare Fund Board is that the vehicle is registered in the name of an individual and not in the name of WP(C)s.21295/11 & 24183/13 4 the Firm which is an assessee under the EPF & MP Act. The said contention is countered by the learned counsel appearing for the Firm on the ground that the registration was made in the name of the Chairman of the Firm and the vehicle is considered to be and declared so as a capital asset of the Firm. The contention of the Welfare Fund Board though prima facie is attractive, it has to be noticed that the Employees Provident Fund Organization issued a certificate, (Ext.P2 in W.P.(C).21295/2011) by which the driver of the vehicle is certified as being covered under the provisions of the EPF & MP Act and registered as an employee of the Firm. In the circumstances of the employee engaged in the vehicle having been registered as an employee and covered under the EPF and MP Act necessarily, there cannot be any determination under the Welfare Fund Act with respect to the earlier period when the vehicle was in the WP(C)s.21295/11 & 24183/13 5 ownership of the petitioners in WP(C). 21295/2011.
4. In the context of the sole employee (driver) in the vehicle being covered under the EPF & MP Act, the registration of the vehicle in the name of the Chairman is of no consequence. There can be no proceedings initiated by the District Executive Officer of the Welfare Fund Board against the earlier owner of the vehicle, the petitioners in W.P.(C). 21295/2011. W.P.(C).21295/2011 hence is allowed and it is declared that the vehicle which was in the ownership of the petitioners therein are exempted for the period it remained in their ownership; from the provisions of the Welfare Fund Act.
5. With respect to W.P.(C).24183/2013, the petitioner had obtained the ownership of the WP(C)s.21295/11 & 24183/13 6 vehicle only on 13.7.2013 prior to which the vehicle was owned and possessed by the 3rd respondent therein who has been declared to be exempted under the provisions of Welfare Fund Act by this Court. Hence, there cannot be any liability cast on the subsequent owner nor any charge created on the vehicle for the period prior to 13.7.2013. Needless to say that the petitioner in W.P.(C).24183/2013 has to necessarily, satisfy the welfare fund dues subsequent to his purchase. The said writ petition is also allowed with the aforesaid rider.
Both the writ petitions stand allowed as above, leaving the parties to suffer their costs.
Sd/-
K.VINOD CHANDRAN, Judge Mrcs