Kerala High Court

Meharkhan T vs The State Police Chief on 24 June, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
        THURSDAY, THE 24TH DAY OF JUNE 2021 / 3RD ASHADHA, 1943
                        WP(C) NO. 10984 OF 2021
PETITIONER:

            MEHARKHAN T.
            AGED 47 YEARS
            S/O. THANGALKUNJU, PROPRIETOR,
            CHENALLOOR FASHINON MARBLES AND CHENALLOOR FASHION
            HOMES, CHANGANKULANGARA,
            OACHIRA, KOLLAM,
            RESIDING AT CHENALLOOR VEEDU,
            MEMANA, OACHIRA,
            KOLLAM DISTRICT.
            BY ADV. SRI. B. MOHANLAL


RESPONDENTS:

    1       THE STATE POLICE CHIEF
            POLICE HEAD QUARTERS,
            VAZHUTHACAUD,
            THIRUVANANTHAPURAM - 695 001.
    2       THE DISTRICT POLICE CHIEF
            (COMMISSIONER OF POLICE, KOLLAM CITY),
            POLICE DISTRICT HEADQUARTERS,
            KOLLAM - 691 001.
    3       THE ASSISTANT COMMISSIONER OF POLICE
            KARUNAGAPPALLY, KARUNAGAPPALLY P. O.,
            KOLLAM - 690 573.
    4       THE STATION HOUSE OFFICER
            OACHIRA POLICE STATION,
            OACHIRA P. O.,
            KOLLAM - 690 526.
    5       THE ASSISTANT LABOUR OFFICER
            KARUNAGAPPALLY,
            KARUNAGAPPALLY P. O.,
            KOLLAM - 690 573.
    6       KERALA HEADLOAD WORKERS WELFARE BOARD,
            KOLLAM DISTRICT COMMITTEE,
            REPRESENTED BY ITS CHAIRMAN,
            CHAMAKKADA, KOLLAM - 691 001.
    7       SRI. BINU RAVEENDRAN
            MEENATHERIL, PAYIKUZHI,
            OACHIRA P. O.,
            KOLLAM - 690 526.
 W.P.(C) No.10984 OF 2021

                               2

    8     SRI. BIJU
          ARJUN BHAVANAM, MEMANA,
          OACHIRA P. O.,
          KOLLAM - 690 526.
    9     SRI. MOHANAN
          KOLEDUTHU, MEMANA,
          OACHIRA P. O.,
          KOLLAM - 690 526.
    10    SRI. NAZEER
          YAZIN MANZIL, MEMANA,
          OACHIRA P. O.,
          KOLLAM - 690 526.
          BY ADVS.
          R6 - SRI. K. SIJU, SC
          SRI. S. SREEKUMAR (KOLLAM)
          SRI. V. BEENA
          R1 - R5, SRI. N.B. SUNIL NATH, GP



   THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.10984 OF 2021

                                   3




                         P.V.KUNHIKRISHNAN, J
                    --------------------------------------
                       W.P (C). No.10984 of 2021
                ----------------------------------------------
                 Dated this the 24th day of June, 2021


                             JUDGMENT

The above writ petition is filed with the following

prayers:-

"i. To issue a writ of mandamus or other appropriate writ order of direction commanding the respondents 1 to 4 to afford adequate and effective Police Protection for life and property of the petitioner and his workers for loading, unloading works in the Godown of Chennalloor Fashion Marbles and Chennalloor Fashion Homes at Valiyakulangara, Oachira Village covered in Ext.P1 to P7 without any obstruction or hindrance from workers of the respondents 7 to 10 and their henchmen or anybody in the light of the Full Bench decision of this Hon'ble Court in 1998 (2) KLT Page-732 Raghavan Vs. Superintendent of Police and 2011 (3) KHC Page-96 in Nujumudeen Vs. Police Commissioner, Kollam and Others.

ii. To issue a writ of mandamus or other appropriate writ order of direction commanding the respondents 1 to 4 to afford adequate and effective Police Protection for life and property of the petitioner and his workers for loading, unloading in the Godown at Valiyakulangara in Oachira Village covered in Ext.P1 to P7 without any obstruction or hindrance from workers of the respondents 7 to 10 and their henchmen or anybody and restrain the W.P.(C) No.10984 OF 2021

workers of the respondents 7 to 10 and their henchmen or anybody from causing any obstruction or hindrance to the ingress and egress of the works of the Shop Room, show room and Godown in the light of the Full Bench decision of this Hon'ble Court in 1998 (2) KLT Page-732 Raghavan Vs. Superintendent of Police and 2011 (3) KHC Page-96 in Nujumudeen Vs. Police Commissioner, Kollam and Others.

iii.) To declare that the petitioner and his workers covered in Ext.P1 to P7 are entitled to get Police protection for life and property for loading unloading in the Godown at Oachira Village covered in Ext.P1 to P7 without any obstruction or hindrance from workers of the respondents 7 to 10 and their henchmen or anybody in the light of the Full Bench decision of this Hon'ble Court in 1998 (2) KLT Page-732 Raghavan Vs. Superintendent of Police and 2011 (3) KHC Page-96 in Nujumudeen Vs. Police Commissioner, Kollam and Others.

iv.) Issue such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case."

2. The petitioner started a proprietary unit under the

name and style as Chenalloor Marbles and Chenalloor

Fashion Homes after obtaining permission and licence from

the statutory authorities. The petitioner has got skilled and

trained workers for doing loading and unloading works. The

entire Kollam revenue district is notified as scheme covered

area under the Kerala Headload Workers (Regulation of W.P.(C) No.10984 OF 2021

Employment and Welfare) Scheme, 1983, but no functional

operation was started in the area wherein the establishment

of the petitioner is situated. Therefore, the petitioner

submitted that he is entitled to employ his own workers for

doing the loading and unloading work in his unit. According

to the petitioner there is obstruction from respondent Nos.7

to 10.

3. The learned counsel for respondent Nos.7 to 10

submitted that the employees of the petitioner are not

having registration under the Headload Workers Act and

therefore respondent Nos.7 to 10 also may be allowed to do

the work.

4. The learned Standing Counsel appearing for the

6th respondent filed a statement in which it is specifically

stated that no functional operation of the scheme was started

in the area wherein the establishment of the petitioner is

situated.

5. It is an admitted fact that no functional operation

of the scheme was started in the area wherein the

establishment of the petitioner is situated. The only point W.P.(C) No.10984 OF 2021

raised by the contesting respondents is that, without a

registration under Rule 26 (A) of the Kerala Headload

Workers Rules, the petitioner cannot engage his employees

for loading and unloading work. This point is considered by

the Division Bench of this Court in Nujumudeen M. V. City

Police Commissioner, Kollam and Others [2011 (3) KHC

96]. The relevant paragraph Nos.11, 12, 13, 14 and 15 are

extracted hereunder:-

"11. The question appears to have been raised before the Full Bench in Raghavan v. Superintendent of Police, 1998 KHC 447 : 1998 (2) KLT 732 : 1998 (2) KLJ 459 : ILR 1999 (1) Ker. 107. Paragraph 18 to 20 may be relevant. In paragraph(18), it is observed 'therefore, all headload workers whether permanently employed in an establishment or not are to get registration under R.26A'. In paragraph (19), the learned Judges had raised the question as to what will be the consequence, if headload workers do not get registered under R.26A. That question in relation to non Scheme covered area is not considered in detail. However, in paragraph (20) of the said decision, the Full Bench had observed that:

'20. If, in an area where the Scheme is made applicable, the employer requires services of headload workers other than those whom he had permanently employed, he has necessarily to get them allotted through the committee. But, in an area where the Scheme is not made applicable and therefore there is no committee, we find no provision under the Act and the Rules which would compel the employer to engage a headload worker who has got registration under R.26A. Therefore, it has to be taken that he is entitled to engage workers of his own choice.' (emphasis supplied) W.P.(C) No.10984 OF 2021

12. Here again, we find that the question as to whether the headload worker not having registration under R.26A, is at all, entitled to work in a non Scheme covered area, had not received the pointed attention of the Full Bench also. It will be apposite straightaway to note that Karunakara Kurup (supra) was only an opinion expressed by the third Judge to whom the matter was referred by the Division Bench for opinion. It is doubtful whether that opinion can operate as dictum. However, the same matter received the attention of the Full Bench in Karunakara Kurup v. State of Kerala, 2004 KHC 41 : 2004 (1) KLT 215 (FB) : ILR 2004 (1) Ker. 329. In that decision, it appears that it has been held that in an area which is not covered by the Scheme, the employer has a right/option to employ any headload worker of his choice. Here again, the precise question - the impact of non registration under R.26A in an area not covered by any Scheme, was not considered at all.

13. Having considered the question from the nature of the statutory stipulations, the Rules and the Schemes, it appears to be evident to us that registration under R.26A is optional and no consequences flow from non registration under R.26A. Non registration under R.26A does not import any embargo against employment of the headload worker. Such unregistered worker may not work in an area where the 1983 Scheme has become functional. The 1983 Scheme alone places an embargo under clause (6) against employment of unregistered headload worker in an area, where that Scheme is functional. The other two schemes also do not in corporate a stipulation that an unregistered headload worker cannot be employed or cannot undertake work in an area to which those Schemes are applicable.

14. Therefore, the obvious conclusion is that, notwithstanding the fact that a worker has no W.P.(C) No.10984 OF 2021

registration under R.26A, he can work and he can be employed by any employer in any area in which the 1983 Scheme has not become functional. Where the other two Schemes (the 1995 Scheme and the 1999 Scheme) have become functional also, under the Act or the Rules or those schemes, there is no embargo against such employment of unregistered headload workers.

15. The unregistered headload worker in an area where the 1983 Scheme is not now functional may suffer by such non registration, in that, if 1983 Scheme is made applicable later his seniority may be lost. He may also lose the advantage of Schemes if any, introduced for the benefit of such registered headload workers. We have no hesitation to agree that the headload workers would do well to get themselves registered under R.26A, even when the Schemes are not made specifically functional in such area. But non registration does not entail any consequence of embargo against working by or employment of such unregistered workmen."

6. In the light of the above dictum laid down by this

Court, the contention of the contesting respondents cannot

be accepted. The learned counsel submitted that the

contesting respondents are ready to do the work without

creating any problem in the unit and because of the

pandemic situation they also may be allowed to do the work.

It is the discretion of the petitioner. This Court cannot issue

any direction to the petitioner to that effect. If the petitioner

want to function his unit using his own employees, this Court W.P.(C) No.10984 OF 2021

cannot order otherwise. The contesting respondents are free

to approach the petitioner for getting employment and it is

the discretion of the petitioner to take a decision on their

request. Therefore this writ petition is disposed with the

following directions:-

i) The respondent Nos.1 to 4 are directed to

afford adequate and effective police protection for

life and property of the petitioner and his workers

for loading and unloading work in the godown of

Chenalloor Marbles and Chenalloor Fashion Homes

at Valiyakulangara, Oachira Village, without any

obstruction or hindrance from respondent Nos.7 to

10.

ii). If there is any law and order problem in

future also, the petitioner is free to approach the

police authorities and the police authorities will do

the needful in accordance to law.

Sd/-

P.V.KUNHIKRISHNAN JUDGE SPR W.P.(C) No.10984 OF 2021

APPENDIX OF WP(C) 10984/2021 PETITIONER'S ANNEXURE:-

EXHIBIT P1 THE TRUE COPY OF THE CERTIFICATE OF REGISTRATION NO.32A1WPM3837DIZ4 DATED 23.04.2021 ISSUED BY THE DEPUTY COMMISSIONER, KERALA GOOD AND SERVICE ACT 2017, KOLLAM TO THE PETITIONER. EXHIBIT P2 THE TRUE COPY OF THE LAND TAX RECEIPT DATED 21.04.2021 ISSUED BY THE VILLAGE OFFICER, OACHIRA TO THE PETITIONER FOR PERIOD 2021-2022.

EXHIBIT P3 THE TRUE COPY OF THE LICENSE NO.49/2021-2022/OP.6/3615 DATED 23.04.2021 ISSUED BY THE SECRETARY, OACHIRA GRAMA PANCHAYATH TO THE PETITIONER IN BUILDING NO.X/690 FOR THE PERIOD 23.04.2021 TO 31.03.2022. EXHIBIT P4 THE TRUE COPY OF THE JUDGMENT DATED 30.12.2014 IN W.P.(C) NO.35244/2014 OF THIS HON'BLE COURT.

EXHIBIT P5 THE TRUE COPY OF THE LICENSE NO.48/2021-2022-OP6/3616 DATED 23.04.2021 ISSUED BY THE SECRETARY, OACHIRA GARAMA PANCHAYATH TO THE PETITIONER IN BUILDING NO.XVI/536. EXHIBIT P6 THE TRUE COPY OF THE TAX RECEIPT DATED 16.01.2021 ISSUED BY THE VILLAGE OFFICER, OACHIRA TO THE PETITIONER.

EXHIBIT P7 THE TRUE COPY OF THE LICENSE NO.20/2021-2022/OP6/3468 DATED 16.04.2021 ISSUED BY THE OACHIRA GRAMA PANCHAYATH TO THE PETITIONER. EXHIBIT P8 THE TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER DATED 29.04.2021 BEFORE THE 4TH RESPONDENT AND ITS RECEIPT NO.374/21 DATED 29.04.2021 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.