Post Retirement Re-Entry Of Toddy Tappers In Welfare Fund Scheme Allowed Due To Scarcity Of Skilled And Experienced Persons: Kerala HC

Clause 33A, inserted by way of Kerala Toddy Workers Welfare Fund (Amendment) Scheme 2021, permits the re-entry of toddy tappers to the welfare fund scheme who retired before superannuation due to prolonged illness on the production of medical certificates. The clause however does not mention that re-entry is permitted for toddy workers after retirement. 

A single judge bench of Justice N Nagaresh held that it cannot be stated that permitting re-entry to toddy tappers is violative of Article 14 since there is a scarcity of experienced and skilled toddy tappers in the State. The Court further stated that toddy tapping is a hazardous activity as compared to transportation, storage or sale of toddy and thus held that toddy workers cannot claim parity with toddy tappers.

“The special treatment extended to Toddy Tappers by amending the Kerala Toddy Workers Welfare Fund Scheme is due to the peculiar situation existing in the toddy sector. The scarcity of experienced and skilled Toddy Tappers which led to a crisis in the industry is the major reason for bringing amendment to the Scheme permitting re-entry of Toddy Tappers in the Scheme. Taking into consideration the afore fact, it cannot be said that the special treatment extended to Toddy Tappers who are doing a hazardous job is discriminatory vis-a-vis other workers in the toddy sector. The special treatment cannot be held as violative of Article 14 of the Constitution or of the provisions of the Rights of Persons with Disabilities Act, 2015.”

Background

The court passed the order while hearing a man's plea, who was earlier a toddy tapper but later worked as a toddy worker, challenging Clause 33A as unconstitutional to the extent that it does not allow re entry of toddy workers to the benefit scheme. 

The petitioner was initially working as a toddy tapper and was included in Kerala Toddy Workers Welfare Fund. Subscriptions up to 2004 was paid. He met with an accident in 2004 and stopped tapping due to disability and he obtained welfare fund benefits up to 2004.

After recovery, the petitioner joined as a toddy worker in a toddy shop and remitted contributions to the welfare fund from 2004. He paid subscriptions up to 2016.

The petitioner was denied membership to the welfare fund stating that persons who retired from services and obtained benefits cannot get readmission to the welfare fund. The petitioner's writ petition and writ appeal was dismissed by the Court stating that it was a policy decision.

In 2019, the Kerala Toddy Welfare Fund Board issued a circular dated July 15, 2019 stating that fresh membership can be granted only to toddy tappers who retired and obtained welfare benefits.

The petitioner has approached the Court for readmitting him to the welfare fund with effect from 2004-2005 when he started working as a toddy shop worker. He also sought a declaration that Clause 33A of the Toddy Workers Welfare Fund Scheme is unconstitutional and void ab initio to the extent to which it denies the re-entry of toddy workers to the Kerala Toddy Workers Welfare Fund.

The petitioner submitted that clause 33A permits re-entry to the welfare fund to toddy tappers and not to toddy workers. He submitted that denial of re-entry to toddy workers is violative of Article 14 of the Constitution since they are also engaged with tapping, manufacture, transport, storage or sale of toddy.

Opposing the plea, the respondents submitted that re-entry is permitted only to toddy-tappers since the young generation is turning away from toddy-tapping work. It was stated that toddy tappers have to climb at least 10 coconut trees per day and must be in good health.

Observations

The Court stated that re-entry of toddy tappers was permitted since there is a scarcity of toddy tappers in the toddy tapping sector. It noted that re-entry was permitted to allow re-entry of experienced toddy tappers who retired due to illness and have now gained physical strength.

The Court said, “The decision was taken based on a more important reason that there is scarcity of Toddy Tappers in the State. Toddy tapping is a hazardous activity, when compared to other activities in this sector, such as transport, storage and sale of toddy. The young generation is turning away from the industry in view of the hazardous nature of the work. This has led to scarcity of experienced Toddy Tappers and has created a crisis in the toddy industry.”

The Court thus stated that giving special treatment to toddy tappers is not violative of Article 14 of the Constitution since it is due to the scarcity of toddy tappers in the toddy tapping sector. It thus held that toddy workers cannot claim parity with toddy tappers.

In the facts of the case, the Court noted that the petitioner had been paying welfare fund contributions continuously till the year 2016 which was accepted by the welfare fund board without any objections. It thus stated that the respondents, after collecting subscriptions to the welfare fund scheme for over 12 years, cannot now say that the petitioner is not entitled to be readmitted into the welfare fund scheme. As such, the Court stated that the petitioner was entitled to receive the benefits of the welfare fund scheme.

Case Title: C R Sudhan v State of Kerala

Counsel for Petitioners: Advocates V M Krishnakumar, P.S.Sidharthan

Counsel for Respondents: Additional Advocate General Asok M Cherian, Government Pleader Sabeena P Ismail, Standing Counsel Renil Anto Kandamkulathy

Case Number: WP(C) NO. 8414 OF 2023

Citation: 2024 LiveLaw (Ker) 615