Merely Because Person Is Associated With Business Of Establishment Or Shop, It Cannot Be Said That He Is Employer: Kerala HC

The Kerala High Court reiterated that merely because a person is associated with the business of an establishment or shop, it cannot be said that he/she is an employer.

The Court reiterated thus in two writ petitions filed by a 63-year-old man seeking similar reliefs to two different series of toddy shops.

A Single Bench of Justice Dinesh Kumar Singh relied upon the judgment of the Supreme Court in the case of Joseph Joseph v. State of Kerala (2002) KHC 171 in which it was held that merely because the person is associated with the conduct of the business of an establishment or shop, it cannot be said that he had employed workers on his own behalf.

The Apex Court in the aforesaid judgment had held as follows –

“A perusal of S.2(c) m, any person, whether directly or through any other person or whether on behalf of himself or any other person, as employer. The employment by any person can be for himself or for any other person. Merely because the person is associated with the conduct of the business of an establishment or shop, it cannot be said that he had employed the workers on his own behalf. There may be cases where it can be shown that besides the owner any other person conducting the business of the said shop may employ workers on his own behalf and not on behalf of original owner. But in the absence of proof to the contrary, particularly in view of the statement of principal employer that he had employed the workers, the intermediary persons could not be held to be the employer of the workers who were employed for the conduct of the business in the shop covered under the Act.”

Advocate M.G. Karthikeyan appeared on behalf of the petitioner while Standing Counsel G. Santhosh Kumar appeared on behalf of the respondents.

In this case, the petitioner, a senior citizen, was working as an employee of the licensees of the Toddy Shops of the Kuttanadu Excise range (respondents). These respondents were the successful bidders for the toddy shops and the Welfare Fund Inspector, Kerala Toddy Workers Welfare Fund Board passed the final determination order under Section 8 of the Kerala Toddy Workers Welfare Fund Act 1969 making the petitioner also liable to pay welfare funds for the toddy shops. Being aggrieved, the petitioner filed an appeal before the Secretary (Labour & Rehabilitation).

The Appellate Authority remanded the matter back to the Welfare Fund Inspector for de novo enquiry and passing a fresh order in accordance with law. On remand, the said Inspector issued a final determination order fastening the liability to pay welfare fund in respect of the toddy shop in Kuttanadu Excise range for the Abkari Year 2000-01 on the petitioner on the ground that the shop was actually conducted by the petitioner. The petitioner challenged this by filing an appeal before the said Secretary, however, the same was rejected. As a result, the petitioner approached the High Court.

The High Court in the above regard observed, “The respondents have not brought on record anything to substantiate that the petitioner was in a position to employ any person without the consent and approval of the licensees. It is not in dispute that the petitioner was not the licensee, but he was an employee of the licensee. The license for the toddy shop was granted in favour of respondents 2 and 3.”

The Court took note of the fact that the case is from Abkari Year 2000-01 and now it is 2024. It further noted that the petitioner has aged, and it is stated that he is not keeping well. It added that the writ petition was filed in 2013 when he was 63 years old.

“11 years have passed since the filing of the writ petition. In view thereof, this Court is of the opinion that the petitioner was not an ‘employer’ as defined under Section 2(c) of the Act of 1969 and taking into account the judgment of the Supreme Court in Joseph Joseph (supra), both the writ petitions are allowed”, it ordered.

Accordingly, the High Court allowed the petitions and set aside the impugned orders.

Cause Title- C.K. Sasidharan v. The Welfare Fund Inspector & Ors. (Neutral Citation: 2024:KER:55911)

Appearance:

Petitioner: Advocates M.G. Karthikeyan and Nireesh Mathew.

Respondents: Standing Counsel G. Santhosh Kumar, Advocates Renil Anto, and Joy George.

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