Kerala High Court
Salin Jose S vs The District Labour Officer/The ... on 5 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
WP(C) NO. 11659 OF 2020
PETITIONERS:
1 SALIN JOSE S.
LEYON ENTERPORISES, G.F.8/97,
M.M.JUNCTION, PANDALAM - 689 501.
2 BALARAJ R.
PADAPPURATHU VILA,
KARUMANOOR, PARASALA P.O. - 695 502.
3 AJI N.
KURUVIPAZHANJI VILA VEEDU,
KARUMANOOR, PARASSALA P.O. - 695 502.
4 SAJI N.
ABISHA BHAVAN,
MURIANKARA, PARASALA P.O. - 695 502.
5 DHAS V.
E.V.BHAVAN, THETTIKKUZHI,
KODAVILAKOM, PARASALA P.O. - 695 502.
BY ADVS.
SRI.KURIAN GEORGE KANNANTHANAM (SR.)
SRI.THOMAS GEORGE
RESPONDENTS:
1 THE DISTRICT LABOUR OFFICER/THE CHAIRPERSON
KERALA HEADLOAD WORKERS WELFARE FUND BOARD,
PATHANAMTHITTA, PIN - 689 645.
W.P.(C) No.11659/20
-:2:-
2 THE ASSISTANT LABOUR OFFICER
ADOOR, PIN - 691 523.
*3 THE DISTRICT LABOUR OFFICER,
THE APPELLATE AUTHORITY, PATHANAMTHITTA, PIN -
689645
*(ADDL. R3 IS IMPLEADED AS PER ORDER DATED
29.07.2020 IN IA NO. 2/2020 IN WPC NO.11659/2020.
BY ADVS.
SRI.K.SIJU
SMT.SABEENA P.ISMAIL, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 25.10.2021, THE COURT ON 05.11.2021 DELIVERED THE
FOLLOWING:
W.P.(C) No.11659/20
-:3:-
BECHU KURIAN THOMAS, J.
------------------------------------
W.P.(C) No.11659 of 2020
--------------------------------------
Dated this the 5th day of November, 2021
JUDGMENT
Applications for registration as headload workers filed by
petitioners 2 to 5 were rejected by the registering authority for
reasons including the often repeated statement that existing
registered headload workers attached to the welfare board will be
prejudicially affected. The joint appeal preferred by the workers
together was also rejected stating the same reason. The applicants
for registration as headload workers along with their employer has
approached this Court challenging the order rejecting their
applications.
2. First petitioner is carrying on the business in sale of cement
products, concrete windows, door frames, decorative pillars, clay
tiles, ceramic tiles etc, under the name and style 'Leyon Enterprises'
at Adoor, Pathanamthitta District, in Kerala. He also runs a unit for
manufacturing the aforesaid products. Petitioners 2 to 5 are the
W.P.(C) No.11659/20
permanent workers employed by the first petitioner. The
establishment of the first petitioner is situated in a scheme covered
area. The employer had expressed his willingness to engage
petitioners 2 to 5 for the loading and unloading work in his
establishment and the workers also agreed to offer their services as
headload workers. It was on the said mutual consent that
applications were filed by petitioners 2 to 5 for registration as
headload workers.
3. In fact, first petitioner's claim that these employees who are
seeking registration as headload workers were regularly engaged for
loading and unloading work, even prior to the year 2017. First
petitioners claimed that he was maintaining all registers and other
records relating to employment of the permanent employees. It is
further pleaded that the employees of the first petitioner who were
doing loading and unloading work, were not registered earlier, since
the area was not an area covered under the scheme notified under
the Kerala Headload Workers Act, 1978 (for short the Act).
However, applications were filed by petitioners 2 to 5 on 02-12-2019
for registration as evidenced by Ext.P4, and while the applications
were pending, a show-cause notice was issued to the first petitioner
W.P.(C) No.11659/20
proposing penal action for not registering under the scheme and for
not utilizing the registered workers for loading and unloading works.
4. In the meantime, by order dated 27-01-2020, the second
respondent rejected the applications of petitioners 2 to 5. While
rejecting the applications, it was observed that the predominant work
of the employees of the first petitioner was not headload work and
that if registration is granted for the permanent workers of the first
petitioner, the existing registered headload workers will lose their
employment opportunities and further, there was no necessity to
have four permanent workers employed for headload work, when the
loading and unloading work in the establishment was only once a
week. It was also observed that since the employer had not
maintained the records required under law, there was no evidence to
show that the first petitioner had employed any headload workers in
his establishment.
5. The appeal preferred by petitioners 2 to 5 before the first
respondent was rejected by Ext.P15 order dated 18-05-2020. The
reasons were more of a repetition of the order of the registering
authority. It was stated that the Act was enacted only for the benefit
of headload workers and that even though applicants had given
W.P.(C) No.11659/20
statements to the effect that they were doing headload work in the
establishment, the appellate authority was satisfied that the
predominant work of the applicants was not headload work and
further that if registration was granted to the applicants, it will
prejudice the existing job opportunities of the attached workers of the
welfare board.
6. A counter affidavit has been filed by the first respondent
stating that the establishment of the first petitioner is situated in a
area covered under the headload workers scheme and that the
attempt to obtain registration under rule 26A is with an intention to
evade the requirement to engage the registered headload workers
attached to the welfare board. It was further stated that an inspection
was conducted in the establishment on 23-01-2020, on which date, it
was noticed that one guest worker was carrying out the loading and
unloading work in the establishment, since the petitioners 2 to 5 had
gone for a marriage. After first respondent also pleaded that during
inspection the first petitioner had failed to produce statutory registers
maintained under the Act, various records were produced by the first
petitioner and the same are retained by the court.
7. A statement has been filed on behalf of the welfare board
W.P.(C) No.11659/20
stating that the establishment of the first petitioner was coming in an
area known as a Medical Mission pool and that there were six
registered workers in the pool. After referring to clause 6(2) of the
Scheme of 1983, it was stated that, in areas where the scheme
applies, an employer cannot be allowed to utilize the services of the
headload worker who is not registered under the provisions of the
scheme and the occasional headload work required in the
establishment could easily be carried out by the existing registered
workers. It was further pleaded that petitioners 2 to 5 are not
principally employed for headload work in the establishment and
hence they cannot come within the purview of the definition of the
Act. It was also stated that members of pool No.48 of Vennikulam
were regularly engaged by the first petitioner and also that granting
registration to the permanent workers of the first petitioner will
adversely affect the job opportunities of registered workers attached
to the Board and that the Registering Authority had issued orders
declining the application based upon the objection raised by the
fourth respondent- the Kerala Headload Workers Welfare Board.
8. I have heard Adv. Thomas George, learned counsel for the
petitioners, Adv. K.Siju, learned counsel for the first respondent and
W.P.(C) No.11659/20
Adv.Sabeena P. Ismail, learned Government Pleader for respondents
2 and 3.
9. There is no dispute that petitioners 2 to 5 are working in the
establishment of the first petitioner, that too, as permanent workers.
None has disputed the capacity of petitioners 2 to 5 to carry out
loading and unloading works. Since petitioners 2 to 5 had applied for
registering themselves as headload workers and the fact that the first
petitioner expressed his willingness to employ them as headload
workers in his establishment itself is sufficient indication, that they
are capable and willing to do loading and unloading works in the first
petitioner's establishment.
10. Registration to petitioners 2 to 5 was denied for the reason
that if registration is granted to them, the same will affect the job
opportunities of the headload workers attached to the Kerala
Headload Workers Welfare Board and also that the predominant
work of petitioners 2 to 5 was not headload work. In my considered
view, the reasons stated by the registering authority as well as the
appellate authority, to deny registration to the employees of the first
petitioner, are perverse and not valid in the eyes of law.
W.P.(C) No.11659/20
11. The specific case of the petitioners is that the area where
the first petitioner's establishment is situated was notified as an area
coming under the scheme only in 2019, while petitioners 2 to 5 had
been working in the establishment as headload workers, even prior
to the coming into force of the scheme and therefore it cannot be
held that petitioners 2 to 5 had not worked as headload workers.
12. Even otherwise, a reading of the order of the appellate
authority as well as of the registering authority would reveal that
petitioners 2 to 5 were indulging in loading and unloading work since
it was observed that the work of loading and unloading was not their
predominant work. In such circumstances, there is no merit in the
contention of the respondents that petitioners 2 to 5 have not done
any loading and unloading work.
13. The right of an employer to engage his own permanent
employees as headload workers, in an area covered by the headload
workers scheme, under the Act, is subject to only one requirement -
the employees must be registered as headload workers under the
Act. This Court had in Rajeev v. District Labour Officer (2010 (4)
KLT 783) as well as in Manzoor v. District Labour Officer (2021 (5)
W.P.(C) No.11659/20
KLT 554) held that, while considering the application for registration
as headload workers under Rule 26A of the Rules, the lookout of the
Registering Authority is not whether the applicant was a headload
worker or not prior to such registration, but whether the employer is
willing to engage the applicant as a headload worker and whether he
has the physique for headload work. It was further held that, there
was no requirement under law, that the applicant must have been
working in the establishment as a headload worker for becoming
eligible for such registration. The fact that the applications were
submitted by the employees is evidence of the willingness of the
employees to work as headload workers. The nature of work of the
applicants prior to the application has no significance as they could
not have worked as headload workers or do headload work in a
scheme covered area without obtaining prior registration.
14. In another decision in Prasanna Kumar V. District
Labour Officer (W.P.(C)No.6287 of 2021), it was observed by this
Court as follows:
"In this context, it may be worthwhile to remind ourselves
that every person has a fundamental right under Article
19(1)(g) to carry on any occupation and the same can be
subjected only to reasonable restrictions as provided for
W.P.(C) No.11659/20
under Article 19(6). the work of loading and unloading is
not a work that requires any specialised experience or
technical or educational qualifications. Any person who is
willing to do loading and unloading must have the
freedom to do the said work unless it is curtailed by a
reasonable restriction. The restriction that is introduced
through the Act for doing headload work, in a scheme
covered area, is the requirement of registration as
headload worker. If the restriction of registration curtails
the fundamental right of every individual to do headload
work and the said restriction has to be constitutionally
valid, without falling foul of Article 19(1)(g) and Article 14,
then that restriction must be reasonable. If the restriction
is not reasonable, it will create an unreasonable
classification resulting in discrimination between those left
out of the group and those included in the group of
headload workers. Discrimination being the antithesis of
equality, the whole Act itself may not stand the test of
constitutionality. To avoid such a situation, the provisions
of the Act relating to registration have been read down to
mean willingness to do headload work with sufficient
physique and employer's consent is sufficient to grant
registration.
15. The aforesaid decision clearly declared the right of an
employee, attached to an establishment to obtain registration as a
headload worker under the Act and its Rules, even in scheme
covered areas.
16. When the employees of the first petitioner have
expressed their inclination to work as headload workers and even
applied for registration, there is no legal justification, as has
happened in the present case, to deny registration to such
W.P.(C) No.11659/20
employees, as headload workers under the Act and Rules. The
reasons stated by the Registering Authority, as well as the Appellate
Authority, to deny registration to the employees of the petitioner, as
mentioned earlier are perverse and not valid in the eyes of law. The
reduction of income or job opportunities for existing headload
workers is not a ground under law, for denying registration to
workers, who are willing to do loading and unloading works.
17. In this context, it is relevant to mention that, pursuant to the
order dated 29-07-2020 directing production of records of the first
petitioner, the same were produced on 11-08-2020 and are retained
by the Registry of the Court. The staff attendance registers of 2017 to
2021 produced by the first petitioner shows that the employees were
engaged as workers in first petitioner's establishment. The wage
register and salary receipts also show the same thing. However, the
said documents are unilateral and reference or reliance upon them is
not required in the light of the proposition of law adopted in this case.
18. In view of the above, Ext.P8 and Ext.P15 are liable to be
set aside. It is declared that petitioners 2 to 5 are entitled to obtain
registration as headload workers, attached to the establishment of
W.P.(C) No.11659/20
the first petitioner.
19. Accordingly, there will be a direction to the third respondent
to grant registration to petitioners 2 to 5 as headload workers,
attached to the first petitioner and issue necessary identity cards to
them as contemplated under Rule 26A of the Kerala Headload
Workers Rules, 1981, in a time-bound manner, at any rate, within a
period of one month from the date of receipt of a copy of this
judgment.
The writ petition is allowed as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
W.P.(C) No.11659/20
APPENDIX OF WP(C) 11659/2020
PETITIONER'S/S' EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE D & O LICENSE FOR THE
YEAR 2019-20 ISSUED BY THE PANDALAM
MUNICIPALITY.
EXHIBIT P2 A TRUE COPY OF THE REGISTRATION
CERTIFICATE DATED 6/12/19 ISSUED BY
ASST. LABOUR OFFICER, ADOOR.
EXHIBIT P3 A TRUE COPY OF THE LETTER DATED
18/11/2019 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P4 A TRUE COPY OF THE APPLICATIONS DATED
2/12/19 OF THE PETITIONERS 2 TO 5.
EXHIBIT P5 A TRUE COPY OF THE SHOW CAUSE NOTICE
DATED 01/01/2020 ISSUED BY THE 2ND
RESPONDENT.
EXHIBIT P6 A TRUE COPY OF THE REPLY DATED
06/01/2020 GIVEN TO THE 2ND RESPONDENT.
EXHIBIT P7 A TRUE COPY OF THE JUDGMENT DATED
10/01/2020 IN W.P.498/2020.
EXHIBIT P8 A TRUE COPY OF THE ORDER DATED
27/01/2020 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P9 A TRUE COPY OF THE COMMUNICATION DATED
09/01/2020 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P10 A TRUE COPY OF THE DEPOSITIONS
22/01/2020 OF THE PETITIONERS.
EXHIBIT P11 A TRUE COPY OF THE APPLICATION DATED
18/02/2020 GIVEN BY THE 1ST PETITIONER.
EXHIBIT P12 A TRUE COPY OF THE COMMUNICATION DATED
3/3/2020 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P13 A TRUE COPY OF THE APPEAL MEMORANDUM
DATED 18/02/2020 SUBMITTED BEFORE THE
1ST RESPONDENT.
EXHIBIT P14 A TRUE COPY OF THE HEARING NOTES DATED
W.P.(C) No.11659/20
5/3/2020 OF THE PETITIONERS.
EXHIBIT P15 A TRUE COPY OF THE ORDER DATED
18/05/2020 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P16 A TRUE COPY OF THE COMMUNICATION DATED
18/1/2021 ISSUED BY THE 1ST RESPONDENT
PETITON FOR STAY
