M.S.Asharaf vs Deputy Labour Commissioner
2021 Latest Caselaw 9217 Ker

W.P.(C) No. 32094/2013                 :1:


                    IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT

                     THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

            FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942

                            WP(C).No.32094 OF 2013(J)


PETITIONER/S:

                 M.S.ASHARAF
                 AGED 42 YEARS
                 S/O.SAID MOHAMED, MANAKKATTUPARAMBIL,KANJIRAMATTOM P.O.

                 BY ADVS.
                 SMT.AYSHA YOUSEFF
                 SRI.JOBI.A.THAMPI
                 SMT.M.KABANI DINESH
                 SMT.MOLLY JACOB
                 SMT.RABIA BEEGAM T.K.
                 SMT.T.V.SREEJA
                 SMT.SITHARA SHAMSUDEEN

RESPONDENT/S:

        1        DEPUTY LABOUR COMMISSIONER
                 APPELLATE AUTHORITY UNDER THE KERALA HEADLOAD WORKERS ACT,
                 OFFICE OF THE REGIONAL JOINT LABOURCOMMISSIONER, KAKKANAD,
                 ERNAKULAM - 682 030.

        2        DISTRICT LABOUR OFFICER
                 CIVIL STATION, KAKKANAD - 682 030

        3        KERALA HEADLOAD WORKERS WELFARE BOARD
                 REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER,ERNAKULAM, KOCHI -
                 682 018.

        4        KERALA HEADLOAD WORKERS WELFARE BOARD
                 SUB OFFICE, REPRESENTED BY ITS CHAIRMANMULANTHURUTHY P.O.,
                 ERNAKULAM 682 314

        5        S.K.SURENDRAN
                 S/O.KUMARAN, PALAKUNNUMALAYIL, KANJIRAMATTOM P.O.,ERNAKULAM
                 - 682 315.
 W.P.(C) No. 32094/2013                :2:



                 R1, R3 BY SRI.KOSHY GEORGE, SC, KHLWWB
                 R1 BY SRI.C.S. AJITH PRAKASH, SC, KHWWB
                 R1 BY SRI.S.KRISHNA MOORTHY, SC, KHWWB
                 R1, R5 BY ADV. SRI.VIVEK VARGHESE P.J.
                 R1 BY ADV. SRI.VARUGHESE M EASO



                 SRI.SURIN GEORGE IPE,SENIOR GOVERNMENT PLEADER

      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-03-2021, THE
      COURT ON 19-03-2021 DELIVERED THE FOLLOWING:
 W.P.(C) No. 32094/2013                :3:


                   Dated this the 19th day of March, 2021.

                                JUDGMENT

This writ petition is filed challenging Ext. P6 order dated 09.12.2013

passed by the Deputy Commissioner --Appellate Authority, Ernakulam under

Section 21(7) of the Headload Workers Act, 1978 ('Act, 1978 for brevity),

whereby the boundaries of pool Nos. 31 and 35 situated near Kanjiramattom

at Gamma Junction and the junction at Amballoor, Ernakulam were

demarcated.

2. Brief material facts for the disposal of the writ petition are as

follows:

The petitioner is a headload worker and is a leader of Pool No. 35,

which is operating in Kanjiramattom locality. There is yet another pool No.

31 in the same locality, which according to the petitioner, is within the area

covered by Pool No. 35, of which the 5 th respondent namely S.K. Surendran

is the pool leader, in order to carry on the unloading work of construction

materials brought to the construction sites. According to the petitioner, there

was no quarrel or dispute between the workers of pool Nos. 31 and 35 as

the work of the pools were clearly demarcated. However, on 11.05.2013, the

workers of pool No. 31, under the leadership of the 5 th respondent,

physically obstructed the unloading work of the tiles in the godown of NSS

Building, where the workers of pool No. 35 are entitled to work.

3. Thereupon, the petitioner raised a dispute before the Assistant

Labour Officer, who convened conciliation conferences on 11.06.2013 and

17.06.2013. However, no settlement could be arrived at and therefore, a

failure report was sent to the District Labour Officer, who did not take any

measures to proceed with the matter and thereupon, a direction was

secured by the petitioner in W.P.(C) No. 16977 of 2013 to pass orders on the

pending proceedings. Accordingly, the District Labour Officer --second

respondent, has passed Ext. P1 order, which according to the petitioner,

clearly demarcated the area allotted to pool Nos. 31 and 35. Aggrieved by

Ext. P1 order of the District Labour Officer, 5 th respondent, who is the leader

of pool No. 31, approached the Deputy Labour Commissioner, the first

respondent, and according to the petitioner, even before preferring an

appeal, a stay of Ext. P1 was granted by the Deputy Commissioner.

4. Thereupon, the petitioner approached this Court by filing W.P.(C)

No. 25736 of 2013, which was disposed of as per Ext. P3 judgment dated

05.11.2013 directing the appellate authority to dispose of Ext. P2 appeal

pending before the Deputy Labour Commissioner and further directed that

till a decision is taken, Ext. P1 order passed by the District Labour Officer

would be in force for allotment of work.

5. The main contention advanced by the petitioner is that none of the

aspects put forth by the petitioner before the Deputy Labour Commissioner

was taken note of and therefore, Ext. P6 order is discriminatory and

arbitrary and is liable to be interfered with. So also, it is contended that the

issue with respect to the dispute by and between pool Nos. 31 and 35 was

settled by the District Labour Officer as per Ext. P1 order dated 24.09.2013

after reassessing the area of work of the headload workers under pool Nos.

31 and 35.

6. Therefore it is contented that, the appellate authority has interfered

with the said order without understanding the true factual circumstances and

taking into account the documents produced by the petitioner at the time of

hearing to prove that the headload workers of pool No. 35 have been doing

loading and unloading work in the Keecheri Service Co-operative Bank No.

668, Galaxy Tiles, ARD 212, Vembanad Rubbers, Godown of Warehousing

Corporation etc.

7. In that view of the matter, according to the petitioner , the order

passed by the appellate authority is against the factual circumstances

available on record and the said aspect was never disputed by the 5 th

respondent . Along with the writ petition, the petitioner has also produced

Ext. P5 series of documents to show that headload works of the above

establishment have been carried out by pool No. 35 and that the amounts

were paid by the respective establishments to the workers of pool No. 35.

8. To put it short the contention advanced by the petitioner is that

Ext. P6 order passed by the Deputy Labour Commissioner cannot stand the

test of law, and since it is passed against the actual circumstances, it

becomes arbitrary and illegal and is liable to be interfered with by this Court.

9. On the other hand, the Kerala Headload Workers Welfare Fund

Board, Ernakulam and its Sub Officer, who are respondents 3 and 4, have

filed a joint counter affidavit stating that the decision taken by the appellate

authority is in accordance with law and the pool workers in pool No. 31 are

entitled to do the loading work in the area towards the north of Amballoor

junction towards the east Trippakkudam Temple, the west Chirakkal bridge

and the east railway station.

10. It is also pointed out that the pool workers of Pool No. 31 are

eligible to carry out the loading and unloading work in the shop and the

commercial establishments outside the area of pool No. 31, apart from the

general construction work. It is further submitted that now the work

arrangement is going on as per Ext. P6 order of the appellate authority.

11. A reply affidavit is filed by the petitioner reiterating the stand

adopted in the writ petition and also stating that the counter affidavit filed

by respondents 3 and 4 and many of the contentions raised are against the

facts, misleading and incorrect.

12. I have heard the learned counsel for the petitioner Smt. Molly

Jacob and the learned Standing Counsel for respondents 3 and 4, and

perused the pleadings and materials on record.

13. The sole question to be considered is whether any manner of

interference is warranted to Ext. P6 order passed by the Deputy

Commissioner, who is the appellate authority under Section 21(7) of the Act,

1978.

14. According to the learned counsel for the petitioner, the District

Labour Officer, has passed Ext. P1 order after taking into account the entire

factual circumstances and after hearing the respective parties. It is true, in

accordance with the contentions put forth by the parties, various aspects

were taken into account. However, ultimately, it was held that there was no

clarity with respect to the area of workers of pool No. 35 and the workers of

pool Nos. 31 and 35 were carrying out the unloading work, irrespective of

the demarcation of the boundaries.

15. Therefore, the District Labour Officer was basically of the opinion

that there was mistake on the part of the Kerala Headload Workers Welfare

Board in fixing the boundary of pool Nos. 31 and 35. Anyhow, the District

Labour Officer has taken Ext. P1 decision on the basis of an agreement

executed by and between the workers of Pool Nos. 31 and 35 and the owner

of the Galaxy Tiles and taking into account two communications of the

Headload workers Welfare Board dated 13.05.2013 and 06.09.2013 bearing

Nos. N-34/13-14 and W/34/13 respectively.

16. On an overall appreciation of the order passed by the District

Labour Officer, it is clear that the District Labour Officer has absolutely relied

upon the aforesaid letters in order to demarcate the boundaries between

pool Nos. 31 and 35 without understanding the actual area of work to be

allotted to the workers of the subpools. However, as per Ext. P6 order, the

Deputy Labour Commissioner has undertaken a threadbare enquiry also by

conducting a site inspection, heard the parties, and thereafter demarcated

the boundaries so as to avoid any confusion or complex situations .

17. The contention put forth by the petitioner that the pool workers of

pool No 35 carried out the works in the area now earmarked to the workers

of pool No. 31 at some point of time cannot be a ground or reason to hold so

while adjudicating a dispute that arose by and between the workers of Pool

Nos. 31 and 35. As I have pointed out earlier, the District Labour Officer has

not ventured to identify the exact situation and to arrive at a finding in

accordance with the provisions of the Act, 1978, especially Section 21

thereto.

18. But in my considered opinion, the Deputy Labour Commissioner,

who is the appellate authority, has conducted a field survey and identified

the exact dispute that was pending by and between the workers of pool Nos.

31 and 35. It is quite clear and evident from Ext. P6 that the findings are

rendered by the appellate authority taking into account various factual

circumstances, especially the statement of the Deputy Labour Officer, who

has visited the sites in question and has reported the factual circumstances

available on the field. Merely because some work in the area belonging to

the workers of pool No. 31 was carried out by the workers of pool No. 35,

that will not enure to the benefit of workers of pool No. 35, since from Ext.

P1 order passed by the District Labour Officer itself, it is clear that it was on

the basis of some agreement and temporary arrangements the work was

carried out in that manner, but it shall not stand in the way of the authority

while exercising the power under the Act, 1978, when it was called upon to

decide an actual dispute pending by and between the workers of pool Nos.

31 and 35.

19. Thus, taking into account the entire pros and cons and the facts

and figures, I am of the considered opinion that there is no arbitrariness or

any other legal infirmities, justifying interference of this Court in Ext P6

order, exercising the power of judicial review conferred under Article 226 of

the Constitution of India, especially when the decision was taken by the

statutory appellate authority after providing full opportunity to the parties

and deciphering various factual circumstances, including conducting field

study to sort out the dispute finally .

Needless to say, the writ petition fails and accordingly, it is dismissed.

SHAJI P. CHALY, JUDGE.

Rv

APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1 EXT.P-1: TRUE COPY OF THE ORDER NO.C-4866/13 DTD 24.9.2013 PASSED BY THE DISTRICT LABOUR OFFICER.

EXHIBIT P2 EXT.P-2: TRUE COPY OF THE APPEAL SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 1ST RESPONDENT

EXHIBIT P3 EXT.P-3: TRUE COPY OF THE JUDGEMENT IN WPC 25736/2013 PASSED BY THIS HON'BLE COURT IN THE WRIT PETITION FILED BY THE PETITIONER

EXHIBIT P4 EXT.P-4: TRUE COPY OF THE APPEAL SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT

EXHIBIT P5 EXT.P-5: TRUE COPY OF THE LIST OF DOCUMENTS ALONG WITH THE RELEVANT DOCUMENTS SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT AT THE TIME OF HEARING THE APPEAL.

EXHIBIT P6 EXT.P-5(A): TRUE COPY OF THE RECEIPTS DATED 3.5.2010, 17.11.2012, 16.5.2013 AND 20.5.2013 ISSUED BY THE KERALA HEADLOAD WORKERS WELFARE FUND BOARD, LOCAL COMMITTEE ON RECEIPT OF PAYMENT FOR THE LOADING AND UNLOADING WORK OF GALAX TILES AND GRANITES

EXHIBIT P7 EXT.P-6: TRUE COPY OF THE ORDER DATED 9.12.2013 PASSED BY THE 1ST RESPONDENT IN EXTS.P2 AND P4 APPEAL.

EXHIBIT P8 EXT.P-7: TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER TO THE SUB INSPECTOR OF POLICE, MULANTHURUTHI DATED 20.11.2013

EXHIBIT P9 EXT.P-8: TRUE COPY OF THE RECEIPT DATED 20.11.2013 ISSUED BY THE S.I OF POLICE, MULANTHURUTHI ACKNOWLEDGING RECEIPT OF EXT.P7

EXHIBIT P9: PHOTO COPY OF THE REPRESENTATION DATED 8.2.2018. EXHIBIT P9: TRUE COPY OF THE IDENTITY CARD ISSUED BY THE ALO TO NASEER M.S.

EXT.P10: TRUE COPY OF THE CERTIFICATE ISSUED BY THE CHAIRMAN OF THE KERALA

HEADLOAD WORKERS WELFARE BOARD, SUB OFFICE, MULAMTHURUTHY.

EXT.P11: SKETCH SHOWING THE OPERATION OF AREA OF POOL NO.35 & 31.

RESPONDENTS' EXHIBITS:

EXT. R3(a): TRUE COPY OF 26A CARD ISSUED TO A WORKER V.V. JOSEPH IN POL NO.35.

EXT.R3(b): TRUE COPY OF THE 26A CARD ISSUED TO A WORKER MR. P.R. JAYAN IN POOL NO.31.

EXT.R3(c): TRUE COPY OF THE DECISION NO.E 45/2002 DATED 20.11.2004.

EXT.R3(d): TRUE COPY OF THE RELEVANT PAGE OF THE MINUTES BOOK OF THE MEETING DATED 18.05.2013.

/True Copy/

P.S to Judge.

rv