Partly allowed

The Dist.Executive Officer,Palakkad v. T.K.Saimon

Kerala HC23 May 2019RSA/274/2004

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the first year-end appeal by dismissing the suit maintainability challenge on fraud grounds and confirmed the decree against the employer. However, it dismissed the second year-end appeal due to insufficient monetary value for appellate jurisdiction.

What did the court decide?

First appeal allowed against the appellant in RSA 274/2004; second appeal dismissed for lack of value in RSA 762/2009.

The Dist.Executive Officer,Palakkad Vs… — Pension and Retirement Benefits | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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THURSDAY, THE 23RD DAY OF MAY 2019 / 2ND JYAISHTA, 1941

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RSA.No. 274 of 2004(G)

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AGAINST THE JUDGMENT AND DECREE DATED 09-04-2003 IN AS 142/1997 of II ADDITIONAL DISTRICT COURT,PALAKKAD

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AGAINST THE JUDGMENT AND DECREE DATED 11-06-1997 IN OS 80/1996 of ADDITIONAL MUNSIFF COURT, PALAKKAD

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APPELLANT/3RD RESPONDENT - 3RD DEFENDANT:

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THE DIST.EXECUTIVE OFFICER, KERALA MOTOR WORKERS WELFARE FUND BOARD, PALAKKAD.

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BY ADV. SRI.P.RAMAKRISHNAN

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RESPONDENTS/APPELLANT & RESPONDENTS 1,2,4 AND 5 - PLAINTIFF & DEFENDANTS 1,2,4 AND 5):

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1 T.K.SAIMON, AGED 36 YEARS, S/O.KOCHAPPAN, CHITTILAPPALLY VEEDU, KALLIKKAD, PALLIPPURAM AMSOM, PALAKKAD TALUK.

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2 KERALA STATE, REPRESENTED BY THE DISTRICT COLLECTOR, PALAKKAD.

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3 C.A.JOSEPH, C/O.THE PALAKKAD DISTRICT EXECUTIVE OFFICER, KERALA MOTOR WORKERS WELFARE FUND BOARD, ROBINSON ROAD, PALAKKAD.

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4 T.K.JOSEPH, C/O. THE PALAKKAD DISTRICT EXECUTIVE OFFICER, KERALA MOTOR WORKERS WELFARE FUND BOARD, ROBINSON ROAD, PALAKKAD.

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R1 BY ADVS. SRI.LIJU. M.P SRI.SAJAN VARGHEESE K. R2 BY GOVERNMENT PLEADER

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23.05.2019, ALONG WITH RSA.762/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA 274/2004 ,RSA.762/2009 2

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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THURSDAY, THE 23RD DAY OF MAY 2019 / 2ND JYAISHTA, 1941

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RSA.No. 762 of 2009(G)

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AGAINST THE JUDGMENT AND DECREE DATED 17-01-2009 IN AS 281/2008 of DISTRICT COURT, PALAKKAD

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AGAINST THE JUDGMENT AND DECREE DATED 24-10-2005 IN OS 845/2003 of PRINCIPAL MUNSIFF COURT, PALAKKAD

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APPELLANT/(APPELLANT - 3RD DEFENDANT:

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DISTRICT EXECUTIVE OFFICER, KERALA MOTOR TRANSPORT WORKERS WELFARE FUND BOARD, OFFICE OF THE DEO,KMTWWF BOARD,NINAN COMPLEX, NEAR MUNICIPAL BUS STAND, PALAKKAD.

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BY ADVS. SRI.P.RAMAKRISHNAN SMT.ASHA K.SHENOY SRI.C.ANIL KUMAR SRI.PRATAP ABRAHAM SRI.T.C.KRISHNA

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RESPONDENTS/RESPONDENTS-PLAINTIFF & DEFENDANTS 1 & 2:

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1 T.K.SIMON, S/O P.P.KOCHAPPAN, THALAKOTTOOR,NEAR SREEKRISHNA COLLEGE, KOONAMMOOCHI,THRISSUR DISTRICT.

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2 STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR,PALAKKAD.

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3 THE TAHSILDAR, (RR),TALUK OFFICE, PALAKKAD.

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R2 & R3 BY GOVERNMENT PLEADER R1 BY ADVS.SRI.LIJU. M.P SRI.SAJAN VARGHEESE K.

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23.05.2019, ALONG WITH RSA.274/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA 274/2004 ,RSA.762/2009 3

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JUDGMENT

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RSA.274/2004 filed against the decree and judgment of the First Appellate Court (II Addl.District Court, Palakkad) in A.S.No.142/1997 and the Trial Court (Addl. Munsiff's Court, Palakkad) in O.S.No.80/1996, by the third defendant.

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The dispute involved is with respect to the

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assessment made by the third defendant statutory authority assessing contribution towards Kerala Motor Transport Workers Welfare Fund, based on the provision contained in the Kerala Motor Transport Workers Welfare Fund,1985. It is submitted that no return was submitted by the employer/the plaintiff and as such the statutory authority, the third defendant was compelled to conduct an inspection and found two employees and accordingly an order was passed. That order and the subsequent steps initiated for recovery are under challenge in this appeal. The suit was dismissed by the Trial Court but it was reversed by the First Appellate Court and found that the suit is

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RSA 274/2004 ,RSA.762/2009 4

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well maintainable and will not come under the purview of bar under Section 23 of the Act, as there is a clear fraud played by the statutory authority the third defendant. Aggrieved by the said decree and judgment, the statutory authority/the third defendant came up with this appeal.

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It is an admitted case that no return as per the Act was submitted by the employer/the plaintiff which has necessitated an inspection by the third defendant statutory body. Based on that inspection the order under challenge was passed. But no inspection report was submitted by the statutory authority/the third defendant. It is not clear why it was not produced either before the Trial Court or before the First Appellate Court. It is also not clear on what basis they have assessed two employees

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attached with the employer of the plaintiff, especially the employer disputes, the authenticity and genuineness of the report. There should be specific evidence to show the employment of two employees with the plaintiff. It is true that no return was submitted by the plaintiff. That itself will not empower the statutory authority to pass any order in

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RSA 274/2004 ,RSA.762/2009 5

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accordance with their whims and fancies. There should

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be a legal basis for the order by way of inspection report or otherwise. The specific case advanced by them is that there is an inspection report prepared by the third defendant and by that inspection report they have detected two employees associated with the plaintiff, but the inspection report was not produced. It is a clear withholding of a relevant document if any available from the notice of the court. It would prima facie satisfy the elements of fraud as pleaded by the plaintiff and as such it would satisfy the requirement to bring the matter within the purview of Section 9 of the CPC, as fraud was saved under Section 23 of the Act, the debarring provision. At this juncture the learned counsel for the appellants relied on the decision rendered by a Single Bench of this

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Court in District Executive Officer K.M.T.W.W.F.B v.

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Pradeep (1999 KHC 154) and relied on paragraph 4 of

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the judgment. There may not be any quarrel with respect to the legal position settled by the above said decision. But it has no application in the present case since fraud is saved by the debarring clause and there is evidence to show the fraud played

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RSA 274/2004 ,RSA.762/2009 6

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by the authority. Hence, Civil Court jurisdiction is not barred under Section 9 of the CPC, suit is perfectly maintainable.

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As discussed earlier there is no basis for the

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determination done by the third defendant without having an inspection report or determination as to who are the employees attached to the plaintiffs. Hence, the decree and judgment of the First Appellate Court can only be confirmed. None of the question of law framed at the time of admission of the appeal are not attracted or involved in the appeal.

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In so far as the second appeal is concerned,

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the value of subject matter is less than the required

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amount, so as to maintain a second appeal, hence dismissed.

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The appeals fail, dismissed without cost.

Sd/-

P.SOMARAJAN

JUDGE

msp

//TRUE COPY//

P.A TO JUDGE

The Dist.Executive Officer,Palakkad v. T.K.Saimon

Case brief

What is this about?

What did the court decide?

The Dist.Executive Officer,Palakkad v. T.K.Saimon

Case brief

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