Kerala High Court
Muhammed Ashiq Y vs The District Labour Officer on 16 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.M.BADAR
MONDAY, THE 16TH DAY OF JULY 2021 / 14TH ASHADHA, 1943
WP(C) NO. 8646 OF 2021
PETITIONERS:
1 MUHAMMED ASHIQ Y.
AGED 22 YEARS
S/O. YUSAF K.A., NEDUVAKKAD HOUSE, KINASSERI, KANNADI,
PALAKKAD.
2 ANSHAD M.
AGED 28 YEARS
S/O. MUHAMMED ABDEEN, T.H.MAHAL, METTUVALAVU,
THATHAMANGALAM, PALAKKAD.
3 SAJITH S.
AGED 29 YEARS
S/O. SACHIDANATHAN, AYYAPPANKAVU, PERUMATTI, PALAKKAD.
4 NOUFAL S.
AGED 24 YEARS
S/O. ABDUL AZIZ, METTUVALAVU, THATHAMANGALAM P.O.,
PALAKKAD.
5 A.B. TRADERS
VAZHAKKODE, PERUVAMBU, CHUNGAM, PALAKKAD, REPRESENTED
BY ITS PROPRIETOR, ANSHAD M.
BY ADV V.A.JOHNSON (VARIKKAPPALLIL)
RESPONDENTS:
1 THE DISTRICT LABOUR OFFICER
DISTRICT LABOUR OFFICE, CIVIL STATION, PALAKKAD-678
001.
2 THE ASSISTANT LABOUR OFFICER
OFFICE OF THE A.L.O, IIND CIRCLE, CIVIL STATION,
PALAKKAD-678 001.
3 CHAIRMAN
SUB OFFICE, KERALA HEAD LOAD WORKERS WELFARE BOARD,
KODUVAYUR, PALAKKAD-678 501.
WP(C) NO. 8646 OF 2021
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4 KERALA HEAD LOAD WORKERS WELFARE BOARD
DISTRICT COMMITTEE, IST FLOOR, M.A.COMPLEX, OPP. KSEB
OFFICE, T.B.ROAD, PALAKKAD-678 014, REPRESENTED BY ITS
CHAIRMAN.
5 GOPALAKRISHNAN
AGED 51 YEARS
S/O. VELAYUDHAN, SECRETARY, HEAD LOAD AND GENERAL
WORKERS UNION (C.I.T.U), PERUVAMBU, PALAKKAD-678 531.
6 THE CIRCLE INSPECTOR OF POLICE
PUDUNAGARAM POLICE STATION, PUDUNAGARAM, PALAKKAD-678
503.
BY ADV SHRI.THOMAS ABRAHAM
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.07.2021, THE COURT ON 16.07.2021 DELIVERED THE FOLLOWING:
WP(C) NO. 8646 OF 2021
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JUDGMENT
The petitioners no. 1 to 4 are Head Load Workers sought to be
employed by the 5th petitioner A.B.Traders, a firm dealing with food
materials, for the purpose of loading and unloading work. The 5 th
respondent started work from October 2020. Because of their engagement
as Head Load Workers by the 5 th petitioner, petitioners no.1 to 4 had
applied for registration as Head Load Workers with the 2 nd respondent on
29/09/2020. However, the 2nd respondent by an order at Ext.P11 dated
13.01.2021 was pleased to reject the application for registration as Head
Load Workers made by petitioners no. 1 to 4 with the following reasons.
"An enquiry conducted on 22/12/2020 at Vazhakkode,
Peruvambu, Chungam it was found that the establishment in
question remain closed. Applicants, employees and employer
employer were not present in the said place. Nor could loading
activities were found in the establishment. The said
establishment was registered as per law. The employer failed to
produce service records, muster roll, wage register, wage slip
and register of employment and other records as per the
headload workers Act and Rules pertaining to his employees. No
medical certificates issued by a competent doctor were
produced. Apart from that the Headload Workers Welfare board
has requested not to do issue Headload Workers card to the
applicants since the place of establishment comes under the
place of operation of the headload workers board. Considering
WP(C) NO. 8646 OF 2021
the aforementioned aspects the applications of Muhammed
Ashiq, Sajith, Noufal are rejected."
2. Feeling aggrieved by the order passed by the 2 nd respondent
rejecting their application, the petitioners no. 1-4 preferred a statutory
appeal before the appellate authority which by an order dated 24.03.2021,
Ext.P12 was pleased to reject their appeal with the following reasons.
"A detailed hearing was conducted from Appellants, Trade
Union, headload Workers Welfare Board and registering authority
as well as the employer. It is evident from the order dated
13/1/21 issued by the registering authority under Rule 29, 27(1)
of the Headload Workers Rules that even though the employer
claims that the Appellants are his permanent employees but he
failed to substantiate the same with documentary evidence. Apart
from that though the establishment was registered under KS & CE
Act but the same so far, has not begun its functioning. It is also
evident from the order that during the time of physical inspection
conducted by the registering authority the establishment was not
functioning and the Appellant's as well as the employer was not
present in the establishment. The headload workers board has
also submitted that the establishment is situated under the
scheme covered area and the said establishment has got an
obligation to appoint registered headload workers from the
welfare board. Either the appellants or the employer and
proprietor of AB Traders would not produce any documentary
evidence at the time of hearing to prove that the appellants are
working in the management establishment as headload workers."
WP(C) NO. 8646 OF 2021
3. Feeling aggrieved by the appellate order dated 24.03.2021
passed by the appellate authority confirming the order of rejection of their
application for registration as Head Load Workers, petitioners have
preferred this petition with a prayer for quashing and setting aside the
impugned orders at Ext.P11 and P12 and for a writ of mandamus directing
the 2nd respondent to issue registration to the petitioners no. 1 to 4 as
Head Load Workers as per provisions of Rule 26A of the Kerala Head Load
Workers Rules, 1981.
4. Heard the learned counsel appearing for the petitioner at
sufficient length of time. By relying on judgment of this Court in Rajeev V
Vs. District Labour Officer, Kakkanad reported in 2010 (4) KHC 757,
the learned counsel for the petitioner argued that the authorities below
committed error of law in rejecting the application for registration as Head
Load Workers with totally unsustainable reasons. The impugned orders,
according to the learned counsel for the petitioner are based on extraneous
reasons, which are not according to the law holding the field. The
registration ought not to have been rejected for the reason that loading
activity was not found at the establishment and the employer failed to
produce service record, muster rolls, wage register etc of the petitioners
no. 1 to 4. Similarly, the Head Load Worker Welfare Board is not legally
entitled to dictate the registering authority by ordering not to issue the
Head Load Workers card.
WP(C) NO. 8646 OF 2021
5. I have heard the learned Government Pleader as well as the
learned counsel appearing for the Kerala Head Load Workers Welfare Board
and its authorities. They have argued that the area wherein the petitioners
no. 1-4 wants to work as Head Load Worker is a scheme covered area and
therefore, they are not entitled for registration. The learned Government
Pleader supported the impugned orders by contending that in the
inspection, establishment was found closed and there was no loading
activity on the spot. The employer failed to furnish the service record of
the petitioners and therefore, rejection of application is perfectly illegal.
6. I have considered the submissions so advanced and also
perused the materials placed on record.
7. Undisputedly the petitioners no. 1 to 4 have applied for
registration as Head Load Workers as per the provisions of Kerala Head Load
Workers Act and the Rules framed thereunder as well as the scheme framed
under the said Act. Undisputedly, the 5th petitioner is an establishment
coming under the schedule prescribed by the Act. Therefore all Head Load
Workers who are desirous of working with the 5 th petitioner including the
permanent workers attached to the establishment of the 5 th petitioner are
liable to get themselves registered under Rule 26A of the Rules framed
under the said act. It is trite that in the areas where the scheme is made
applicable, no Head Load Worker who is not a registered worker as per the
WP(C) NO. 8646 OF 2021
Kerala Head Load Workers Rules can be allowed or required to work in
such scheme covered area. However, the employer is competent to engage
workers of his choice as Head Load Worker at his establishment. All what is
required for getting registration under Rule 26A of the Kerala Head Load
Workers Rule is that the worker who is desirous of getting himself
registered must be having a physical capacity to do the Head Load Work
and this aspect is required to be determined by the employer of such Head
Load Worker. Any worker who is willing to work as Head Load Worker can
perform such work by getting himself registered under Rule 26A of the
Rules. The requirement that such a Head Load Worker should work first as
a Head Load Worker with an employer so as to enable him to get
registration under Rule 26A would certainly violate clause 6 of the Head
Load Worker (Regulation of Employment and Welfare) Scheme, 1983 which
provides that for working as a Head Load Worker, a person must obtain
registration under Rule 26A of the Rules. In this view of the matter, the
respondents are not justified in rejecting the application of the petitioners
no. 1 to 4 for registration as Head Load Worker on the ground that loading
activity was not found in the premises of the 5 th petitioner and the 5th
petitioner had failed to produce record of employment of the petitioners no.
1 to 4. Only after their registration as Head Load Worker, petitioners no.1
to 4 can find their place in the service record maintained by the 5 th
petitioner. Similarly, insisting for no objection from the Head Load Worker
WP(C) NO. 8646 OF 2021
Welfare Board for granting registration as Head Load Worker to an able
bodied person would violate the fundamental right to work of such able
bodied worker. Neither the Head Load Workers Act nor the Rules or
scheme framed thereunder requires no objection from the Welfare Board
for granting registration to the worker desirous of getting registration as a
Head Load Worker.
8. In this view of the matter, the impugned orders at Exts.P11 and
P12 cannot be sustained and those are liable to be quashed. I am
supported in my view by the judgment of this Court in the matter of
Rajeev V (Supra). Consequently the 2nd respondent is directed to grant
registration to the petitioners no. 1 to 4 under Rule 26A of the Head Load
Workers Rule considering the applications submitted by them for that
purpose within a period of two weeks from the date of receipt of copy of
this judgment. The learned Government Pleader to furnish copy of this
judgment to the concerned respondents for compliance. In addition, parties
to act on authenticated copy of this judgment.
The petition stands allowed, with this order.
Nsd
//true copy//
PA to Judge sd/-
A.M.BADAR
JUDGE
WP(C) NO. 8646 OF 2021
APPENDIX OF WP(C) 8646/2021
PETITIONER ANNEXURE
EXHIBIT P1 TRUE COPY OF THE LICENCE DATED 3.9.2020 ISSUED BY
THE SECRETARY, PERUVEMBA GRAMA PANCHAYAT.
EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED 25.3.2021 ISSUED
FROM THE PERUVAMBA GRAMA PANCHAYAT.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN WPC NO.18824 OF 2020
OF THIS HON'BLE COURT DATED 8.12.2020.
EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF MASTER ROLL OF
A.B.TRADERS FOR THE PERIOD FROM 1.10.2020 TO
28.2.2021.
EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGES OF REGISTER OF
WAGES OF A.B.TRADERS FOR THE PERIOD FROM
1.10.2020.
EXHIBIT P6 TRUE COPY OF THE APPLICATION OF IST PETITIONER
DATED 29.9.2020.
EXHIBIT P7 TRUE COPY OF THE APPLICATION OF 2ND PETITIONER
DATED 29.9.2020.
EXHIBIT P8 TRUE COPY OF THE APPLICATION OF 3RD PETITIONER
DATED 29.9.2020.
EXHIBIT P9 TRUE COPY OF THE APPLICATION OF 4TH PETITIONER
DATED 29.9.2020.
EXHIBIT P10 TRUE COPY OF THE JUDGMENT IN WPC NO.28089/2020 OF
THIS HON'BLE COURT DATED 16.12.2020.
EXHIBIT P11 TRUE COPY OF THE ORDER NO.HL40-43/20 DATED
13.1.2021 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P12 TRUE COPY OF THE ORDER NO.C-232/2021 DATED
24.3.2021 ISSUED BY THE IST RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE DECISION IN WPC NO.26774/2008 OF
THIS HON'BLE COURT DATED 26.10.2010 REPORTED IN
2010(4) KHC.
