The unsuccessful plaintiff is the appellant herein.
2. For the sake of convenience, the parties are referred to as per the ranking before the Trial Court.
3. The plaintiff Union filed the suit, in O.S.No.150 of 1998, before the learned Principal District Munsif, Kumbakonam, for the relief of injunction restraining the defendants from collecting professional tax from the members of their Union on the ground that no prior notice for levy of professional tax was issued and there was no order for levy of professional tax.
4. After contest, the learned Principal District Munsif, Kumbakonam, by Judgment and Decree, dated 27.04.2000, decreed the suit.
5. Aggrieved by the Judgment and Decree passed by the learned Principal District Munsif, Kumbakonam, the first defendant preferred an appeal, in A.S.No.8 of 2004, before the learned Additional Subordinate Judge, Thanjavur.
6. After contest, the learned Additional Subordinate Judge, Thanjavur, by Judgment and Decree, dated 04.02.2005, allowed the appeal, set aside the the Judgment and Decree passed by the learned Principal District Munsif, Kumbakonam and dismissed the suit.
7. Challenging the correctness of the Judgment and Decree passed by the learned Additional Subordinate Judge, Thanjavur, the plaintiff has preferred the present second appeal.
8. The brief averments of the plaint that are necessary to decide this appeal are as follows:
The plaintiff Union is affiliated to INTUC and it is represented by its General Secretary. The Drivers, Conductors, Ticket Inspectors and other Employees of the former Kumbakonam Cholan Transport Corporation and the present Tamil Nadu State Transport Corporation, Kumbakonam Division-I are members of the plaintiff Union. The plaintiff Union is recognized by the Managing Director of Tamil Nadu State Transport Corporation, Kumbakonam Division-I. A resolution was passed by the Executive Members of the plaintiff Union empowering the General Secretary to file the suit. There are more than thousand members in the plaintiff Union and it's registration number is 97/TAJ. The second defendant, while paying salary, has been deducting professional tax from the salary of the employees. The professional tax so deducted from the salary of the employees has to be paid to the first defendant and for which, the first respondent has already sent a notification to the second defendant. In the present circumstances, as per the provisions of the Tamil Nadu District Municipalities Act as well as other relevant Acts, a Municipality, without prior notification, cannot direct to deduct professional tax. Such deduction of professional tax without prior notification is not recognized by law. The members of the plaintiff Union are not liable to pay professional tax as directed by the first defendant. The deduction of professional tax without proper orders or without proper notification would cause heavy loss to the plaintiff Union. Therefore, they filed the suit seeking the relief as stated above. If the relief sought for is not granted, the plaintiff Union would face heavy loss and difficulty. The professional tax is deducted once in six months and salary bills have been prepared in the last week of every months. The first defendant has sent a notification for such deduction of professional tax to the second defendant during the second week of March, 1998. Hence, the plaintiff Union is entitled to the relief sought for.
9. The brief averments of the written statement filed by the first defendant that are necessary to decide this appeal are as follows: It is true that the first defendant has been collecting professional tax from the members of the plaintiff Union. But, it is not correct to state that such collection is without their consent and it is between Rs.100/- and Rs.200/-. It is also incorrect to state that the deduction of professional tax is without prior notification and without following due procedures. It is utter false to state that the procedures followed by the defendants are against the law and they are not in accordance with law. If the plaintiff states that this Court in writ jurisdiction has held that the Municipalities are not empowered to collect professional tax without following due procedures, they have to produce orders of this Court to that effect. In fact, the first defendant has effected an advertisement in Dinamalar Newspaper, dated 04.09.1992 and sent a notification to the plaintiff Union as per the provisions of Sections 93, 97 and 97A of the Tamil Nadu District Municipalities Act, 1920 and as per G.O.No.647, dated 13.08.1996. The first defendant has been collecting professional tax from the other members of the plaintiff Union. It is incorrect to state that notification for collection of professional tax was not sent to the members of the plaintiff Union. The action of the plaintiff Union is only to avoid the payment of professional tax. Without collecting professional tax, property tax etc., the first defendant cannot discharge its liability to the public. It is the bounden duty of the members of the plaintiff Union to pay professional tax as they are getting salary. The first defendant cannot be prevented from collecting professional tax. The members of the plaintiff Union are liable to pay professional tax and they are not exempted from paying professional tax. Such collection of professional tax is followed by a long passage of time. Hence, the suit is liable to be dismissed with costs.
10. The brief averments of the written statement filed by the second defendant that are also necessary to decide this appeal are as follows: The suit filed by the plaintiff is not maintainable as per law. The plaintiff Union has to give number of its members. The plaintiff Union has not given the name and details of its members. The first defendant has ordered the second defendant to deduct professional tax for the year 1993 from the salary of its employees. As per the orders of the first defendant, the second defendant has deducted professional tax from the salary of its employees. The second defendant has not fixed the professional tax and it has no nexus with the fixation of professional tax by the first defendant. The second defendant is an unnecessary party and the suit is liable to be dismissed for joinder of unnecessary party. The suit is barred by limitation. If the suit is decreed, the second defendant would be prejudiced.
11. Based upon the above pleadings, the Trial Court had framed two issues for consideration.
12. On the side of the plaintiff, the General Secretary Vaidyanathan and one Elangovan were examined as P.Ws.1 and 2 and marked Exs.A1 to A9 and on the side of the defendants, one Chandrasekaran was examined as D.W.1 and marked Exs.B1 to B3.
13. Based upon the pleadings of the parties and the evidence in both oral and documentary, the Trial Court came to the conclusion that the plaintiff is entitled to the relief of injunction as prayed for in the plaint and decreed the suit accordingly.
14. As stated supra, the defeated first defendant preferred first appeal in A.S.No.8 of 2004, before the learned Additional Subordinate Judge, Thanjavur and the learned First Appellate Judge, on re-appreciation of the evidence, allowed the appeal, set the Judgment and Decree passed by the learned Trial Judge and dismissed the suit. Hence, the second appeal.
15. At the time of admission, the following substantial questions of law were framed for consideration:
1. On the facts and circumstances, whether the dismissal of suit by the lower appellate court holding that no notice or demand of Professional Tax is necessary from the members of plaintiff association sustainable in law?
2. Whether the decree and judgment of the lower appellate court that no notice is necessary before collection of professional tax from the members of appellants association tenable in law?
16. The plaintiff, who are the Workers Union of Cholan Transport Engineering Workers, which is affiliated to INTUC, filed the above suit in O.S.No.150 of 1998, before the learned Principal District Munsif, Kumbakonam, for permanent injunction restraining the defendants from collecting professional tax from the members of the their Union on the ground that no prior notice for levy of professional tax was issued and there was no order for levy of professional tax and hence, sought for the relief of permanent injunction as stated above.
17. The first defendant Municipality filed a written statement stating that after coming into force of the Tamil Nadu Tax on Professions, Trades, Calling and Employments Act, 1992 (Act 59 of 1992) (hereinafter, it may be referred to as ?the Act?), they have effected a paper publication, on 04.09.1992, in ?Dinamalar Newspaper? with regard to levy of professional tax, under the provisions of Tamil Nadu District Municipalities Act, as directed by the Government and they have calculated the professional tax payable by the above said members of the plaintiff Union and a demand notice was also sent to the second defendant Drawing Officer / Employer under whom the members of the plaintiff Union are working and all the procedures contemplated under the Act have been complied with and hence prayed for dismissal of the suit.
18. The second defendant Transport Corporation had also raised similar contentions in their written statement and based upon the demand notice issued by the first defendant and as per the statutory obligations cast upon them under the new Act, they have deducted the professional tax from the salary of the respective employees of the plaintiff Union.
19. The Trial Court, after a full-fledged trial, decreed the suit as prayed for and aggrieved by the same, the defendants preferred an appeal and the Lower Appellate Court, on re-appreciation of the entire documentary and oral evidence and also taking note of the provisions of the Act 59 of 1992 and relevant Government Rules and Government Orders passed thereon, allowed the appeal and set aside the Judgment and Decree passed by the Trial Court. Hence, the plaintiff is before this Court.
20. At the time of admission of this second appeal, by an order, dated 28.04.2005 in C.M.P.No.3266 of 2005, this Court has granted interim order of stay on condition that the appellant makes a deposit of 50% of the current professional tax as assessed. On 05.01.2017, when the matter came up for further orders in the miscellaneous petition, the learned counsel appearing for the first defendant Municipality filed a memo, dated 16.12.2016, indicating that the plaintiff Union has not complied with the conditional order, dated 28.04.2005 and the learned counsels on either side submitted that the appeal itself shall be taken up for final hearing and disposed of on merits and accordingly, they have putforth their submissions.
21. After hearing the learned counsels on either side at length and on perusing the relevant provisions, it is seen that the plaintiff Union filed the suit for injunction restraining the defendants from collecting professional tax on the ground that no prior notice was issued to them. From the evidence of P.W.1 and P.W.2, who are the General Secretary and Member of the plaintiff Union respectively, it is seen that the professional tax has been levied under the provisions of the Tamil Nadu District Municipalities Act and they have paid the professional tax accordingly. The scope of the suit is that it is not the case of the plaintiff Union that the first defendant Municipality has no power to levy professional tax nor the tax levied is excess. But, the case of the plaintiff Union is that there was no prior notice and there was no order for levy of professional tax on the individual members / employees of the plaintiff Union. D.W.1, in his cross- examination, has categorically deposed that as per the Act 59 of 1992, the tax, which could be payable by each of the employees, based upon their salary, has been fixed as per schedule and the first defendant Municipality has sent a consolidated notice to the second defendant employer. Therefore, this Court is of the view that there was a demand notice for the levy of professional tax.
22. Furthermore, on perusal of Ex.B1, G.O.No.647, dated 13.08.1992, it is seen that the drawing and disbursing officer shall recover the half yearly professional tax in the pay bill of the employee for the months of February and August of every year without waiting for the demand notice from the Commissioners of Corporations of Madras, Madurai and Coimbatore and other Local Bodies. Thus, it could be seen that as per the said Government Order, a statutory duty has been cast upon the drawing and disbursing officer to deduct half yearly professional tax in the pay bill of the employee for the months of February and August of every year without waiting for the demand notice from the respective Commissioners of the Corporations and other Local Bodies. In the instant case, as deposed by D.W.1, there was a demand notice sent by the first defendant Municipality to the second defendant Employer to recover half yearly professional tax as contemplated under the Act, 59 of 1992 and thus, this Court finds no merit in the contentions of the plaintiff in view of the factual position as deposed by D.W.1, which was undisputed and coupled with Ex.B1. Therefore, this Court is of the view that the levy of professional tax on the members of the plaintiff Union is perfectly valid and the same is in accordance with law. Accordingly, the substantial questions of law have been answered in favour of the defendants.
23. The learned counsel appearing for the second defendant Transport Corporation has brought to the notice of this Court that the constitutional validity of the Act 59 of 1992 has already been upheld by this Court. Further, he has drawn the attention of this Court to Section 27 of the Act, which specifically bars the jurisdiction of the Civil Court to deal with the matters relating to professional tax. Section 27 of the Act reads as follows:
?27. Bar of Jurisdiction.- Save as otherwise provided in this Act, no order passed or proceeding taken by any authority or officer under this Act shall be called in question in any court, in any suit or application and no injunction shall be granted by any court in respect of any action taken or to be taken by such authority or officer in pursuance of any power conferred by or under this Act.?
24. Therefore, this Court is of the view that suit itself is not maintainable in view of Section 27 of the Act and the constitutional validity of which has already been upheld by this Court and furthermore, in view of the oral evidence of D.W.1 that there was a demand notice from the first defendant Municipality to the second defendant Employer and hence all the contentions raised by the plaintiff fall to ground. The similar findings arrived at by the Lower Appellate Court are well considered and well founded and the same do not warrant any interference of this Court, since the same does not suffer from any illegality or infirmity and hence, the Judgment and Decree of the Lower Appellate Court reversing the findings of the Trial Court are sustainable in law and the suit is devoid of merits and it is liable to be dismissed.
25. In the result, the second appeal is dismissed and the Judgment and Decree, dated 04.02.2005, made in A.S.No.8 of 2004, by the learned Additional Subordinate Judge, Thanjavur, reversing the Judgment and Decree, dated 27.04.2000, made in O.S.No.150 of 1998, by the learned Principal District Munsif, Kumbakonam, are hereby confirmed. Since the conditional order, dated 28.04.2005, has not been complied with, as stated by the first defendant in his memo, dated 16.12.2016, C.M.P.No.3266 of 2005 is dismissed. No costs.
To:
1.The Additional Subordinate Judge, Thanjavur.
2.The Principal District Munsif, Kumbakonam..