Quashed

Rajappa Kaimal v. State of Kerala

Kerala HC2 Sept 2019WP(C)/5517/2018

Case brief

AI extract

What is this about?

Petitioner challenged a revenue recovery notice issued for alleged welfare cess arrears. Court quashed the notice, finding it relied on a non-existing debt where the recovery was actually intended for gratuity dues payable to another employee under a different Act.

What did the court decide?

Set aside Ext.P6 notice issued under Section 34 of Kerala Revenue Recovery Act for alleged welfare cess dues; Respondent No.4 permitted to initiate recovery for gratuity dues.

Rajappa Kaimal Vs State of Kerala — Labour and Industrial Disputes | 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 S.V.BHATTI

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MONDAY, THE 02ND DAY OF SEPTEMBER 2019 / 11TH BHADRA, 1941

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WP(C).No.5517 OF 2018(L)

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PETITIONER:

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RAJAPPA KAIMAL, SPACE ENGINEERS WELFARE SOCIETY (SEWELS), SARABHAI INSTITUTE OF SCIENCE & TECHNOLOGY, URIAKODE, VELLANAD, THIRUVANANTHAPURAM.

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BY ADV. SRI.A.CHANDRA BABU

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, LABOUR DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE DEPUTY LABOUR COMMISSIONER/ASSESSMENT OFFICER, BUILDING AND OTHER CONSTRUCTION WORKERS' WELFARE BOARD, THYCAUD, THIRUVANANTHAPURAM 695 001

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3 THE DISTRICT COLLECTOR, COLLECOTRATE, THIRUVANANTHAPURAM - 695 001

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4 THE DEPUTY TAHSILDAR, REVENUE RECOVERY, NEDUMANGAD, THIRUVANANTHAPURAM - 695 101

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5 ADDL. R5.THE SECRETARY, KERALA BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE BOARD, THIRUVANANTHAPURAM IS IMPLEADED AS PER ORDER DATED 26.07.2018 IN IA NO.3884/2018.

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WP(C).No.5517 OF 2018

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6 ADDL. R6.L.SINDHU, AGED 42 YEARS, D/O.C.M.BALAKRISHNAN NAIR, SWARA-1238-C, SREEKANTESWARAM, FORT P.O., TRIVANDRUM-695 001. ADDITIONAL 6TH RESPONDENT IMPLEADED AS PER THE ORDER DATED 21.03.2019 IN I.A.01/2019.

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SRI.MATHEW GEORGE VADAKKEL, SR.GOVERNMENT PLEADER SRI.M.R.SARIN, FOR R4

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.5517 OF 2018

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JUDGMENT

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Heard Sri.Chandrababu A., the learned counsel for the petitioner, Sri.Mathew George Vadakkel, the learned Sr.Government Pleader and Sri.M.K.Sarin, the learned counsel appearing for the 4^th respondent.

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The petitioner challenges Ext.P6 notice as illegal. Recovery steps through Ext.P6 for the alleged dues under the Building and Other Construction Workers Welfare Cess Act, 1996 are misconceived. According to petitioner, petitioner paid an amount of Rs.4,43,989/towards welfare cess under the Act, and there is no arrear under the Act. The petitioner refers to and relies on the narrative portion in Ext.P6 which reads as follows;

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"Secretary, Kerala Building and Other Construction Workers Welfare Board, Thiruvananthapuram. RR.2017/3173/1

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For the default of labour dues, the Village Officer, Vellanad Village, Nedumangad Taluk is hereby authorised to attach the properties of the undersaid defaulters.

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WP(C).No.5517 OF 2018

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Name of the Village	Name of the defaulter Period due	of Amount due	Due date	Demand notice fee	Interest rate	Date, amount payable
Vellanad	Receiver Sarabhai Institute of -	1,04003/-	-	75/-	28.01.14 to 10%	Amount +5% CC+DDC
	Science and					+DNF+10% interst from
	Technology					28.01.14

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The due amount, fee for demand notice and recovery proceedings if not paid immediately, the attached properties will be put up for auction. Place :Nedumangad

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Date: Deputy Tahisildar Revenue Recovery Nedumangad

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The petitioner submits that recovery through Ext.P6 is illegal and unconstitutional. Before referring to the counter affidavit filed by 4^th respondent, the circumstances under which respondent No.6 has come on record and on account of the stay granted by this Court against Ext.P6 how the 6^th respondent is prevented from realising the fruits of Ext.R6(1) made under payment of Gratuity Act, 1972 are stated.

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According to the 6^th respondent, the petitioner did not pay gratuity and the 6^th respondent was compelled to raise a claim for payment of gratuity. The competent authority by order dated 02.05.2016 determined the gratuity payable to the 6^th respondent. The petitioner has not paid the amount covered by Ext.R6(1) dated 02.05.2016. The 6^th respondent has been communicating with respondent Nos.3 and 4 and finally steps for recovery, through revenue

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WP(C).No.5517 OF 2018

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recovery proceedings have been initiated. According to the 6^th respondent, Ext.P6 notice is issued to recover the gratuity arrears determined and payable to the 6^th respondent in terms of Ext.R6(1). By reference to the interim order granted by this Court, respondents 3 and 4 are not moving in the matter.

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Respondent No.4 on the purported mistake in Ext.P6, by way of reply has stated as follows;

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"It is respectfully submitted that, the labour dues were being collected and DDs were taken in the name of labour officer. Very often such DDs were returned and so requested to obtain DDs in the name of the Secretary Kerala Building and other Construction Workers Welfare Board, Thiruvananthapuram. But some how the village Officer, wrongly mentioned the name of the construction Board as the requisition authority in the section 7 notice. On the very same date itself, i.e:03.11.2017 notice under Section 34 of the Kerala Revenue Recovery Act were also issued to the petitioner for attaching the immovables."

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From the above it is clear that the 4^th respondent received certificate of Recovery of gratuity payable to the 6^th respondent but the office of 4^th respondent issued recovery proceedings proposing to recover cess payment under the Act, 1996. The objection noted above goes to the root of Ex.P6. Therefore on the short ground that by referring to a non existing debt the

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WP(C).No.5517 OF 2018

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recovery certificate for dues under 1996 Act is issued, therefore Ext.P6 is set aside. The interference by this Court with Ext.P6 shall not be understood as this Court examined the liability of petitioner vis-a-vis Ext.R6(1). The 4^th respondent, since has received necessary information, the 4^th respondent is free to proceed to initiate recovery proceedings for default in payment of gratuity in terms of Ext.R6.

Sd/-

S.V.BHATTI JUDGE

sru

WP(C).No.5517 OF 2018

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1 COPY OF THE 18/03/2013	ASSESSMENT ORDER DATED ISSUED BY THE 2ND RESPONDENT.
EXT.P2 COPY OF THE THE PAYMENT	RECEIPT DATED 07/09/2011 SHOWING OF RS.99,000/-.
EXT.P3 COPY OF THE THE PAYMENT	RECEIPT DATED 15/09/2011 SHOWING OF RS.1000/-.
EXT.P4 COPY OF THE THE PAYMENT	RECEIPT DATED 21/05/2013 SHOWING OF RS.4,440/-.
EXT.P5 COPY OF THE THE PAYMENT	RECEIPT DATED 21/05/2013 SHOWING OF RS.3,39,549/-.
EXT.P6 COPY OF THE 03/11/2017	REVENUE RECOVERY NOTICE DATED ISSUED BY THE 4TH RESPONDENT.
EXT.P7 COPY OF THE SENT TO THE	REPRESENTATION DATED 07/12/2017 3RD RESPONDENT.
EXT.P8 COPY OF THE SENT TO THE	REPRESENTATION DATED 10/11/2017 4TH RESPONDENT.

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RESPONDENT'S EXHIBITS:

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EXHIBIT 6[1] THE TRUE COPY OF THE ORDER PASSED IN GC NO 57/14 ON THE FILE OF CONTROLLING AUTHORITY UNDER PAYMENT OF GRATUITY ACT 1972 TRIVANDRUM DATED 2.5.2016 EXHIBIT 6[2] THE TRUE COPY OF THE ATTACHMENT NOTICE UNDER SECTION 36 OF REVENUE RECOVERY ACT ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER EXHIBIT 6[3] THE TRUE COPY OF THE ATTACHMENT MAHAZAR

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WP(C).No.5517 OF 2018

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PREPARED BY THE VILLAGE OFFICER VELLANAD

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EXHIBIT 6[4] THE TRUE COPY OF THE INTERIM ORDER IN WP(C) 5517/18 ON THE FILES OF THIS HON'BLE COURT EXHIBIT 6[5] THE TRUE COPY OF REPRESENTATION FILED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR TRIVANDRUM ON 12.11.18 EXHIBIT 6[6] THE TRUE COPY NOTICE ISSUED BY THE 4TH RESPONDENT ON 6.2.19

Rajappa Kaimal v. State of Kerala

Case brief

What is this about?

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Rajappa Kaimal v. State of Kerala

Case brief

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