Rajas vs Suresh
2021 Latest Caselaw 4790 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

           THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

    WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

                      WP(C).No.12355 OF 2020(T)


PETITIONER(S) :

      1       RAJAS,
              AGED 25 YEARS,
              S/O. RAFEEQ, RESIDING AT THECHARAKKAL, MANAGER,
              A.T.K. ENTERPRISE, COMPANY PADI, ALUVA,
              ERNAKULAM DISTRICT-683106.

      *2      * SUPPLEMENTAL PETITIONER IMPLEADED

              SAMEER MAHROOF MANOLI,
              AGED 45 YEARS,
              S/O.MAHROOF, NAJATH MANZIL,
              CHOCLI P.O., KANNUR,
              PIN - 670 672.

              SUPPLEMENTAL P2 IS ADDED AS PER ORDER DATED
              11/01/2021 IN I.A. NO.3/2020.

              BY ADV. SRI.S.SUJIN

RESPONDENT(S) :

      1       SURESH,
              OFFICER BEARER, OFFICE OF THE CITU,
              EDAPPALLY, ERNAKULAM DISTRICT, PIN-682024.

      2       UNNI,
              CONVENER, OFFICER OF THE CITU, EDAPPALLY,
              ERNAKULAM DISTRICT, PIN-682024.

      3       THE CIRCLE INSPECTOR OF POLICE,
              ELAMAKKARA POLICE STATION,
              ERNAKULAM DISTRICT, PIN-682026.

      4       STATE OF KERALA,
              REPRESENTED BY ITS CHIEF SECRETARY,
              GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
 WP(C).No.12355 OF 2020       2




      * 5    * ADDL.R5. IMPLEADED

             HEAD LOAD WORKERS WELFARE BOARD,
             HEAD OFFICE, ERNAKULAM NORTH, KALOOR
             ERNAKULAM-682 018.

             ADDL.R5 IS IMPLEADED AS PER ORDER DATED 21.08.2020
             IN IA NO.1/2020 IN W.P.(C) 12355/2020.



             R1-2 BY ADV. SRI.V.P.PRASAD
             R5 BY SRI.S.KRISHNA MOORTHY, SC, KHWWB
             R6 BY ADV. S.SUJIN

             SRI. P.P. THAJUDEEN, GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.12355 OF 2020             3




                                JUDGMENT

A.T.K. Enterprises, is an establishment engaged in the sale and

distribution of floor tiles. They have two godowns in Kochi. The main godown

is at Company Padi at Kalamasserry, which was established about two years

back. They have established a new showroom cum godown at Edappally,

Kochi recently. For the purpose of loading and unloading, the petitioners

have their own workers, who have been issued with cards under Rule 26A of

the Head Load Workers Rules. The cards have been produced as Exhibits P1

to P6. The 2nd petitioner is the present manager of the establishment.

2. According to the petitioners, on 17.6.2020, when a consignment

of tiles was brought to their establishment at Edappally, the same was

obstructed by respondents 1 and 2, who are union workers. It is contended

that since the petitioners have registered workers holding 26A cards to carry

on their business, the respondents have no legal authority to obstruct the

functioning of the establishment. In order to maintain law and order and to

prevent breach of peace, the petitioners approached the 3rd respondent and

reported the incident and sought protection to enable them to carry on their

business. However, the 3rd respondent refused to intervene on the ground

that it was a labour dispute. According to the petitioners, the interference

caused by the party respondents is illegal and the police are bound to

interfere to safeguard the rights of the petitioners to carry on the business.

It is in the afore circumstances that the petitioners are before this Court

seeking a direction to the 3rd respondent to afford adequate protection to

the petitioners and their permanent workers for engaging in loading and

unloading works in the establishment of the petitioners without any

obstruction from the party respondents.

3. When this matter had come up for admission on 23.6.2020, this

Court had granted an interim order as prayed for.

4. The 1st respondent has filed a counter-affidavit for and on

behalf of the 2nd respondent. It is stated that respondents 1 and 2 are the

registered pool workers of Pool No. 44 in the Edappally area. The said area

has been notified as a scheme implemented area under the Kerala Headload

Workers Scheme, 1983. According to respondents 1 and 2, since the

establishment of the petitioners is situated in a scheme covered area, the

petitioners are bound to engage the pool workers. It is further stated that

the persons named in Exts.P1 to P6 are illegal migrant workers attending to

works in the establishment without their names being entered in the payroll.

It is further stated that against the order granting registration to the workers

engaged by the petitioners, the 1st respondent herein has preferred an

appeal before the appellate authority under Rule 26C of the Headload

Workers Rules and the same is pending.

5. In view of the contentions raised by the respondents, the

petitioners have produced Ext.P7 muster roll, Ext.P8 wages register and

Ext.P9(a) series service records of the workers of the establishment. In the

course of proceedings, the Headload Workers Welfare Fund Board was

impleaded as additional respondent.

6. I have heard Sri. N.N.Sugunapalan, the learned senior counsel

appearing for the petitioners as instructed by Sri. S. Sujin, the learned

counsel, Sri. V.P.Prasad, the learned counsel appearing for the respondents 1

and 2, Sri. S. Krishnamoorthy, the learned standing counsel appearing for the

additional respondent and Sri.P.P.Thajudeen, the learned Government

Pleader.

7. The Headload Workers Act, 1978 was enacted to regulate the

employment of headload workers in the State of Kerala and to make

provision for their welfare, for settlement of disputes in respect of their

employment or non-employment and for matters connected therein. Going

by the scheme of the statute, which has been explained by this Court in a

catena of decisions, it is always open for the employer to engage workers of

his own to do the loading and unloading operations but the rules mandate

that he is bound to register such attached workers in terms of Rule 26A of

the Rules. If such employer fulfils the above condition and gets his attached

workers registered under Rule 26A of the Rules, he is entitled to have

absolute freedom to carry on the work using such attached workers without

any obstruction from the pool workers.

8. To controvert the contention of respondents 1 and 2 that the

workers who have got themselves registered under Rule 26A are not enrolled

in the payroll and that no registers are maintained, the petitioners have

produced the statutory registers which are to be maintained under Rule 27 of

the Headload Workers Rules. The said records reveal that the names of the

attached workers find a place in the statutory registers.

9. The provisions of the Act or the Rules will not enable the

registered pool workers of the area to contend that attached workers who

have secured registration under the Headload Workers Rules have no right or

freedom to engage in the work of the establishment in which they are

registered. If their right to engage in such work as permitted under law is

obstructed the police will be bound to interfere and grant protection.

Resultantly, this Writ Petition is disposed of with the following

directions.

1. The petitioners shall approach the 3rd respondent if any

obstruction is caused by the respondents 1 and 2 or their men with

the peaceful conduct of the business of the petitioners by

employing their attached workers registered under Rule 26A to

carry out the loading and unloading work in the establishment. If

any such complaint is received, the 3rd respondent shall grant

protection to the petitioners to have unobstructed functioning of

the establishment.

2. If the appellate authority interferes with the registration granted to

the attached workers, the petitioners will not be entitled to the

benefits of this order and they may have to work out their

remedies in appropriate proceedings.

3. If the petitioners require additional workers in addition to the

attached workers for the loading and unloading activities, they

shall approach the committee formed under S.18 and in

accordance with the provisions of the Scheme.

Sd/-

RAJA VIJAYARAGHAVAN V

JUDGE ps

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE IDENTITY CARD OF THE 1ST EMPLOYEE ISSUED FROM THE HEAD LOAD AUTHORITIES.

EXHIBIT P2 TRUE COPY OF THE IDENTITY CARD OF THE 2ND EMPLOYEE ISSUED FROM THE HEAD LOAD AUTHORITIES.

EXHIBIT P3 TRUE COPY OF THE IDENTITY CARD OF THE 3RD EMPLOYEE ISSUED FROM THE HEAD LOAD AUTHORITIES.

EXHIBIT P4 TRUE COPY OF THE IDENTITY CARD OF THE 4TH EMPLOYEE ISSUED FROM THE HEAD LOAD AUTHORITIES.

EXHIBIT P5 TRUE COPY OF THE IDENTITY CARD OF THE 5TH EMPLOYEE ISSUED FROM THE HEAD LOAD AUTHORITIES.

EXHIBIT P6 TRUE COPY OF THE IDENTITY CARD OF THE 6TH EMPLOYEE ISSUED FROM THE HEAD LOAD AUTHORITIES.

EXHIBIT P7 TRUE COPY OF THE COMPLAINT DATED 18/06/2020 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE MUSTER ROLL OF THE PETITIONER'S COMPANY.

EXHIBIT P8 TRUE COPY OF THE WAGES REGISTER OF THE PETITIONER'S COMPANY.

EXHIBIT P9(a) TRUE COPY OF THE SERVICE RECORD OF THE WORKERS OF THE OF THE PETITIONER'S COMPANY.

EXHIBIT P9(b) TRUE COPY OF THE SERVICE RECORD OF THE WORKERS OF THE OF THE PETITIONER'S COMPANY.

EXHIBIT P9(c) TRUE COPY OF THE SERVICE RECORD OF THE WORKERS OF THE OF THE PETITIONER'S COMPANY.

EXHIBIT P9(d) TRUE COPY OF THE SERVICE RECORD OF THE WORKERS OF THE OF THE PETITIONER'S COMPANY.

EXHIBIT P9(e) TRUE COPY OF THE SERVICE RECORD OF THE WORKERS OF THE OF THE PETITIONER'S COMPANY.

EXHIBIT P9(f) TRUE COPY OF THE SERVICE RECORD OF THE WORKERS OF THE OF THE PETITIONER'S COMPANY.

EXHIBIT P9(g) TRUE COPY OF THE SERVICE RECORD OF THE WORKERS OF THE OF THE PETITIONER'S COMPANY.

EXHIBIT P9(h) TRUE COPY OF THE SERVICE RECORD OF THE WORKERS OF THE OF THE PETITIONER'S COMPANY.

RESPONDENT'S EXHIBITS :

EXHIBIT R1(a) APPEAL DATED 13.07.2020 FILED BY THE 1ST RESPONDENT.

/TRUE COPY/

P.A.TO JUDGE