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Kollam Taluk Abkari Contractors' Association Vs. Quilon Chethu Thozhilali Union and Ors. (07.03.1983 - KERHC) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1983)IILLJ369Ker
AppellantKollam Taluk Abkari Contractors' Association
RespondentQuilon Chethu Thozhilali Union and Ors.
Excerpt:
- .....may, by notification in the gazette, frame a scheme to be called the toddy workers' welfare fund scheme for the establishment of a fund under this act for employees, and there shall be established, as soon as may be after the framing of the scheme, a fund in accordance with the provisions of this act and the scheme.section 4 deals with contributions and matters which may be provided for in the scheme; and it reads as follows:4(1) the contribution which shall be paid by the employer to the fund shall be eight per cent of the wages for the time being payable to each of the employees, and the employee's contribution shall be equal to the contribution payable by the employer in respect of him.(2) the employer shall, in addition to the contribution payable under sub-section(1),.....
Judgment:

Bhaskaran, J.

1. This writ petition by Kollam Taluk Abkari Contractors' Association is directed mainly against respondents 1 to 4 associations representing toddy workers. Respondents 5 and 6 are respectively the Deputy Labour Officer, Quilon and the State of Kerala. The prayer in the writ petition is for a declaration that the members of the petitioner-association are not bound to pay any retrenchment compensation to the employees attached to the different toddy shops who are the members of the respondents' Unions, as long as they are not factually retrenched. There is also a prayer for a declaration that Sections 25F and 25FF of the Industrial Disputes Act, 1947, are not applicable to the employees of the various toddy shops of the members of the petitioner-association as long as they continue to be attached to the respective toddy shops. There are other incidental reliefs also stated in the writ petition.

2. The Kerala Toddy Workers' Welfare Fund Act, 1969 (the Act) came into force on 29.12.1969. Sub-section(1) of Section 3 of the Act provides as follows:

3. Toddy Workers' Welfare Fund:

(1) The Government may, by notification in the Gazette, frame a scheme to be called the Toddy Workers' Welfare Fund Scheme for the establishment of a fund under this Act for employees, and there shall be established, as soon as may be after the framing of the scheme, a fund in accordance with the provisions of this Act and the Scheme.

Section 4 deals with contributions and matters which may be provided for in the scheme; and it reads as follows:

4(1) The contribution which shall be paid by the employer to the fund shall be eight per cent of the wages for the time being payable to each of the employees, and the employee's contribution shall be equal to the contribution payable by the employer in respect of him.

(2) The employer shall, in addition to the contribution payable under Sub-section(1), contribute to the fund as gratuity an amount equal to five per cent of the wages for the time being payable to each of the employees.

Chapter IV of the Kerala Toddy Workers' Welfare Fund Scheme 1969 (the Scheme) deals with membership and contribution; and Rule 28 reads as follows:

28. Membership: Every employee shall be entitled and required to be a member of the fund from the beginning of each Calendar Year if he has completed three months continuous service.

Rule 29 reads as follows:

29. Contribution to the fund: (1) Every member shall contribute to the Fund and a contribution shall also become payable to the fund in respect of him by the employer. The contribution which shall be paid by the employer to the fund shall be eight per cent of the wages for the time being payable to each of the employees and the employee's contribution shall be equal to the contribution payable by the employer in respect of him.

(2) The employer shall in addition to the contribution under sub paragraph (1), contribute to the fund as gratuity an amount equal to five per cent of the wages for the time being payable to each of the employees.

Rule 30 provides 'payment of contribution':

The employer shall, in the first instance, pay both the contribution payable by himself and also, on behalf of the member employed by him, the contribution payable by such member.

Rule 33 is to the following effect:

33. Registration: (1) Every employee who is entitled to be a member shall register his name as beneficiary of the fund, in the register maintained by the Chief Welfare Fund Inspector for the purpose.

(2) (a) The Chief Welfare Fund Inspector shall : take immediate steps to determine the previous services of every employee registered under sub paragraph (1) and shall within six months, enter the service thus determined in the service register maintained for the purpose.

Explanation: Every employee for the purpose of registration under sub paragraph (1) and (2) shall be considered to be employed in the particular toddy shop or premises in : which he is working and any change in the personnel of the contractor vending toddy in his shop or premises shall not affect the employment status of his employee.

(b) A registered employee shall continue to ! be such until the amount standing to his credit is paid off.

(c) If a registered employee is retrenched or discharged or voluntarily leaves the employment in the toddy shop or premises where he was working and obtained employment in another shop or premises this change shall not affect his status as a registered employee and shall be eligible for all the benefits under this scheme as he would ! have been entitled to as if no such change had taken place.

(Proviso omitted)

3. The argument advanced by Sri K.R. Kurup, the counsel for the petitioner-association is that prior to the coming into force of the Act and the Scheme, the only liability of the contractor was to pay retrenchment compensation equal to 15 days' wages per every completed year of service. He submitted that it could never have been the intention of the legislature to saddle the contractor with the liability to pay retrenchment compensation even after the coming into force of the Act and the Scheme framed thereunder, which enjoined the employer to make contribution towards the Welfare Fund and the Gratuity.

4. The reasoning advanced in support of his argument by Sri Kurup is that after the coming into force of the Act and the Scheme, there really could be no termination of service of the worker, though the same contractor who obtained licence under Sections 18-A and 29 of the Abkari Act pursuant to auction held in accordance with the provisions of the Kerala Abkari Shops (Disposal in Auction) Rules, 1974, in a particular year might not continue to be the employer of the toddy worker, as the rule framed under Ss.l8A and 29 of Abkari Act states that after the period of the contract, he ceases to be a contractor; the worker who is attached to the shop or the premises remains as worker attached to the shop, not with the contractor.

5. This argument appears to be attractive at the first flash. On a close scrutiny, however, it could be seen that under Section 2(s) of the Industrial Disputes Act the toddy worker is a 'workman' as defined in that section, and any termination under Section 2(oo) of the said Act would naturally invite the provisions of Section 25F of that Act. It is not the case of the petitioner-association that if it amounted to retrenchment, compensation need not be paid to the workers. The only argument advanced is, in view of the provisions contained in the Act and the Scheme, the provisions of the Industrial Disputes Act would not be applicable to the case of members of the petitioner-association. There is nothing stated expressly or by necessary implication either in the Industrial Disputes Act or in the Act or in the Scheme framed under the Act to give the meaning that the legislature wanted to absolve the employers governed by the Act and the Scheme from the obligations under the Industrial Disputes Act. What is sought to be achieved by the Act and the Scheme is the welfare of the toddy workers. The welfare measures contemplated under the Act and the Scheme do not in any way destroy the rights to which an employee governed by the Industrial Disputes Act is entitled. The rights and liabilities of the employer and the workman under the Industrial Disputes Act on the one hand, and those under the Act and the Scheme on the other are not exhaustive of each other.

6. It appears to me that there is fictional or notional relationship between the workers and the shop or premises to which they are attached for the purposes of the Act and the Scheme. That does not in any way destroy the relationship between the contractor and the toddy workers, as employer and employees; nor does it take away the obligations of the employer under the provisions of the Industrial Disputes Act, particularly with reference to Sections 25F, 25FF and 25FFF thereof.

7. For the foregoing reasons I find no merit in the writ petition. The petitioner is not entitled to any of the declarations or other reliefs sought. Accordingly this writ petition is dismissed without any order as to costs.

8. Carbon copies of this judgment may be granted to the Government Pleader free of charge and to the counsel for the petitioner on usual terms, if applied for in that behalf.


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