Amal Gopi vs State Of Kerala
2021 Latest Caselaw 16231 Ker

                      IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                        PRESENT

                        THE HONOURABLE MR. JUSTICE A.M.BADAR

           WEDNESDAY, THE 4TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943

                               WP(C) NO. 5765 OF 2021

PETITIONERS:

     1         AMAL GOPI
               AGED 30 YEARS
               S/O.GOPI, VARAMBANANIKKAL, ODAMTHODU,
               MANATHANA P.O., KANNUR DISTRICT.

     2         SREEJITH N.S.
               AGED 33 YEARS
               S/O.SREEDHARAN, NARAMGOLI, PALAYATH VAYAL,
               PEUVA P.O., KANNUR DITRICT.

     3         VIJESH P.M.
               AGED 31 YEARS
               S/O.GEORGE, PANTHAPLAKKAL HOUSE,
               PERUMBUNNA P.O., KANNUR DISTRICT.

               BY ADV PEEYUS A.KOTTAM


RESPONDENTS:

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

     2         DISTIRCT LABOUR OFFICER
               LABOUR OFFICE, SP OFFICE RD, THAVAKKARA,
               KANNUR, KERALA - 670 002.

     3         ASSISTANT LABOUR OFFICER
               LABOUR OFFICE, SP OFFICE RD., THAVAKKARA,
               KANNUR, KERALA - 670 002.

     4         KERALA HEAD LOAD WORKERS WELFARE BOARD
               KANNUR DISTRICT OFFICE, FOOD GRAINS BHAVAN BLDG.,
               2ND FLOOR, RAJEEV GANDHI ROAD, J.S.POUL JN.,
               KANNUR - 670 001, REPRESENTED BY ITS CHAIRMAN.


               R1-R3 BY SMT. SABEENA P. ISMAIL, GOVERNMENT PLEADER

               R4 BY ADV SHRI.THOMAS ABRAHAM, STANDING COUNSEL


THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.08.2021, THE COURT

ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 5765 OF 2021
                                            2



                                      JUDGMENT

Dated this the 4th day of August 2021 Heard all parties. The petitioners, who are

working with M/s. New Steel Win Company, are

desirous of having registration as head load

workers as per provisions of Rule 26 A of the

Kerala Head Load Workers Rules, 1987. They

preferred an application for registration which

came to be rejected by the 3rd respondent as per

communication at Ext.P4(a). The reason for

rejection is to the effect that as the 4th

respondent, Board has objected to the application

for registration, the same is rejected. The

petitioners carried that order in appeal under

provisions of Rule 26C of the Kerala Head Load

Workers Rules, 1987. The appeal came to be rejected

by the 2nd respondent, District Labour Officer and

the appellate authority with the following reasons;

"As per Ref. 1 the Assistant Labour Officer

submitted that, M/s.New Steel Win Co., Myladumpara, is a WP(C) NO. 5765 OF 2021

company that comes under the jurisdiction of Kerala

Headload Workers Welfare Board and the Chairman of the

Board commented that the afore mentioned three

applicants are not eligible for 26A card. As there are

other laborers with 26A card in the area, issuing 26A

card for three laborers in a single company is not

desirable. It is understood that there is a chance of

other head load workers in the area may be unemployed

due to issuance of the card. It is also seen that the

employer is the one who submitted the appeal.

Due to the aforesaid reasons, the request of Sri.

Amal Gopi, Sri. Vijesh P.M and Sri. Sreejith N.S. for

issuance of 26A card is being rejected using the power

of the appellate authority conferred as per Section 26 c

of Kerala Headload Workers Rules and thereby dismissed

this appeal. Hence the appeal is concluded."

2. The learned counsel for the petitioners

argued that the issue involved in the petition is

covered by judgment of the Hon'ble Division Bench

of this Court in the matter of Gangadharan C.P. and

Another v. Abdul Nasir and Others reported in 2016

(5) KHC 238 and therefore the petition deserves to

be allowed. The objection by the Board or the fact WP(C) NO. 5765 OF 2021

that other head load workers are working in the

scheme covered area cannot be a reason for

rejection of the application for registration.

3. The learned Government Pleader as well as

the learned Standing Counsel appearing for the 4 th

respondent Board argued that the petitioners are

not head load workers, but they were working as

crane operators. It is further argued that the area

is a scheme covered area were other head load

workers are already working. Therefore, grant of

registration to the petitioners would amount to

depriving the head load workers in the scheme

covered area of their livelihood.

4. I have considered the submissions so

advanced and perused the materials placed before

me.

5. Requirement for registration as head load

worker is only to the extent that the person

applying must be an able body person who is in a

position to work as a head load worker. (see WP(C) NO. 5765 OF 2021

judgment in Gangadharan C.P. [supra] )

6. Whether the registration can be granted to

the workers desirous of working as head load

workers in a scheme covered area where other pool

of workers is available came to be considered by

the Hon'ble Division Bench of this Court in the

matter of Gangadharan C.P.(supra). Following are

the observations of this Court:

"17. Yet another aspect to be noted is that the status of the persons, who are the existing registered unattached workers in the area, who get aggrieved if any order is passed by the registering authority granting registration to more number of workers in the area and thus enabling them to prefer an appeal in terms of R.26C of the Rules, was made with reference to the right to live, which was declared as inclusive over right to livelihood as made clear by the Apex Court in Olga Telli's case and DTC case (cited supra). Applying the very same logic and reasoning, this Court is of the view that a similar right is there for a person, who becomes eligible, to get registered and to eke out his livelihood in the area. On a given date, a person may not be eligible but on attaining the eligibility, particularly on attaining majority and on feeling the need to maintain his family, [which may be consisting of different persons/dependents/patients/aged parents/widows/children and the like], at least by doing some loading or unloading operations, it WP(C) NO. 5765 OF 2021

definitely amounts to his right to live, which naturally includes the right to livelihood as well. This constitutional right to the person concerned cannot be denied to him merely for the reason that somebody else, who has already got berth may have to adjust a bit more with the available infrastructure.

Nobody can contend that those who became fortuitous to have obtained registration earlier could alone continue as such, denying similar rights to the others . Under such circumstances, it is always for the statutory authorities to regulate the extent of work available among the eligible hands by appropriate means/measures, either by way of rotation or otherwise and it is not by promoting only one lot and pushing down the other lot for ever. As such, even though the already existing registered unattached workers could be said as persons aggrieved on granting registration to more persons in the area and hence are eligible to prefer an appeal in terms of R.26C, it is for the appellate authority to consider all these aspects to an appropriate extent, giving effect to the scheme of the statute, without compromising the fundamental principle of equality before law and such other relevant provisions. In the instant case, since the registration sought for by the writ petitioners was in respect of 'attached workers' of the establishment and since the appellants are admittedly the registered unattached workers in the area, they could never have objected to such registration under any circumstance. No law or binding precedent is brought to the notice of this Court, to the contrary, so as to entertain the claim mooted by the appellants. The statutory authorities, particularly the registering authority and the appellate authority WP(C) NO. 5765 OF 2021

failed miserably in this regard, which has been rightly intercepted by the learned single Judge by setting aside the orders concerned. We hold that the verdict passed by the learned single Judge is perfectly within the four walls of law and is not assailable under any circumstance. Interference is declined and appeal is dismissed accordingly. No cost."

7. In the light of the ratio laid down by the

Hon'ble Division Bench of this Court in the matter

of Gangadharan C.P.(Supra), the impugned orders

cannot be sustained and therefore those are quashed

and set aside. The 3rd respondent is directed to

grant registration to the petitioners as head load

workers under Rule 26 A of the Kerala Head Load

Workers Rules, 1978 and to do all consequential

acts accordingly.

Sd/-

A.M.BADAR JUDGE SSK/04/08 WP(C) NO. 5765 OF 2021

APPENDIX OF WP(C) 5765/2021

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE MUSTER ROLL OF THE FIRM FOR THE MONTH OF DECEMBER, 2020.

EXHIBIT P2 TRUE COPY OF THE MUSTER ROLL OF THE FIRM FOR THE MONTH OF JANUARY 2021.

EXHIBIT P3 TRUE COPY OF THE MUSTER ROLL OF THE FIRM FOR THE MONTH OF FEBRUARY, 2021.

EXHIBIT P4 THE TRUE COPY OF THE ORDER ISSUED BY THE ASSISTANT LABOUR OFFICER, IRITTY DATED 26/06/2020 BEARING NO.2/2020(3).

EXHIBIT P4(A) TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.P4 ORDER DATED 26/06/2020.

EXHIBIT P5 THE TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DISTRICT LABOUR OFFICER DATED 11/11/2020 BEARING NO.G(3) 1791/20.

EXHIBIT P5(A) TRUE COPY OF THE ENGLISH TRANSLATION OF EXT.P5 ORDER DATED 11/11/2020 IS PRODUCED HEREWITH.

EXHIBIT P6 THE TRUE COPY OF THE JUDGMENT IN 2016(5) KHC 238 (GANGADHARAN C.P. & ANOTHER VS. ABDUL NASIR & OTHERS).

EXHIBIT P7 THE TRUE COPY OF THE APPEAL SUBMITTED BY 1ST PETITIONER AMAL GOPI DATED 28/07/2020 BEFORE THE DISTRICT LABOUR OFFICER, KANNUR.

EXHIBIT P7(A) TRUE COPY OF ENGLISH TRANSLATION OF EXT.P7 APPEAL DATED 28/07/2020.

RESPONDENT'S EXHIBITS:NIL


SSK                   //TRUE COPY//                  PA TO JUDGE