Nishad M.B vs The District Labour Officer
2021 Latest Caselaw 20844 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

        THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

 WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943

                   WP(C) NO. 11601 OF 2021

PETITIONER:

          NISHAD M.B
          AGED 31 YEARS, S/O. M.A. BASHIR,
          MAB VEGETABLES, ONION AND POTATO MERCHANTS,
          MARKET P.O.
          MUVATTUPUZHA
          NOW RESIDING AT MALIYEKKAL THAZHATH HOUSE,
          PUTHUPADI P.O. PERUMATTOM,
          MUVATTUPUZHA 686 673.
          BY ADV BIJU ABRAHAM


RESPONDENTS:

    1     THE DISTRICT LABOUR OFFICER,
          ERNAKULAM,
          DISTRICT LABOUR OFFICE,
          CIVIL STATION, KAKKANAD, 682 030.
    2     THE ASSISTANT LABOUR OFFICER,
          OFFICE OF THE ASSISTANT LABOUR OFFICE,
          MUVATTUPUZHA, MUDAVOOR P.O. 686 669.
   *3     KERALA HEADLOAD WORKERS WELFARE BOARD
          SUB OFFICE, MARKET P.O.,
          MUVATTUPUZHA 686673
          REPRESENTED BY ITS CHAIRMAN
          *(ADDL. R3 IS IMPLEADED AS PER ORDER DATED
          04.06.2021 IN I.A. NO.1/2020 IN W.P.(C)
 W.P.(C) No.11601/21               -:2:-


              NO.11601/2021)


              BY ADVS.
              SRI.S.KRISHNA MOORTHY, SC, KHWWB
              SMT.SABEENA.P.ISMAIL ,GOVT. PLEADER



       THIS     WRIT   PETITION   (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 01.10.2021, THE COURT ON 06.10.2021 DELIVERED
THE FOLLOWING:
 W.P.(C) No.11601/21                      -:3:-




                         BECHU KURIAN THOMAS, J.
                           ------------------------------------
                           W.P.(C) No.11601 of 2021
                          --------------------------------------
                      Dated this the 6th day of October, 2021

                                    JUDGMENT

Petitioner is challenging the rejection of Ext.P1 to Ext.P9

applications submitted by his permanent employees for registration

as headload workers in the establishment of the petitioner. By

Ext.P12, the second respondent rejected the applications while by

Ext.P15, the first respondent, as the appellate authority, rejected the

appeal and hence this writ petition is preferred.

2. Petitioner is the proprietor of an establishment that deals

with the wholesale marketing of vegetables. Petitioner is having nine

permanent workers attached to the establishment and loading and

unloading works were being carried out in his establishment with his

own permanent workmen along with the union workers as and when

the situation warranted such employment. According to the petitioner,

from November, 2020 onwards, the headload workers registered with

the third respondent started demanding exorbitant amounts and even

delayed the unloading of goods, thereby causing damage to the

vegetables that were brought to the petitioner's establishment.

Though several complaints were filed before the third respondent,

the registered headload workers of the unions continued to indulge in

activities that were prejudicial to the petitioner, causing immense

loss. Faced with such adverse conditions, petitioner sought

registration of his permanent workers, who were doing loading and

unloading activities earlier, as permanent headload workers.

3. Initially, applications were filed by four persons on

23-11-2020 and thereafter applications were submitted by the

remaining five permanent workers on 02-12-2020 before the second

respondent. According to the petitioner, even though all the workers

are willing to do the work of loading and unloading and the petitioner

is ready and willing to engage those workers as headload workers,

the second respondent rejected the applications filed by petitioner's

workers as per Ext.P12 order. The appeal preferred by the petitioner

was also rejected by the first respondent as per Ext.P15. In view of

the aforesaid adverse orders, petitioner challenges those orders and

has also sought for a direction to grant registration to the workers of

the petitioner, who had applied as per Ext.P1 to Ext.P9 for

registration as headload workers.

4. Adv. Biju Abraham, the learned counsel for the petitioner

vehemently contends that the orders rejecting the application

submitted by petitioner's workers for registration as headload

workers are patently absurd and contrary to the settled principles of

law laid down by this Court in the decisions in Rajeev v. District

Labour Officer (2010 (4) KLT 783) as well as the recent decision in

Manzoor v. District Labour Officer (2021 (5) KLT 554). It was

contended that the applicants were doing loading and unloading work

in the petitioner's establishment, especially when the registered

headload workers were not attending to the work, even after

requests. They also expressed their willingness to work as headload

workers and thus the application for registration ought to have been

allowed. Referring to the findings of the second respondent in

Ext.P12, the learned counsel contended that, it is evident from the

order itself that the applicants had been doing loading and unloading

work in petitioner's establishment and that the order rejecting the

applications was based upon reasons which were unsustainable

under law.

5. On the other hand, Smt. Sabeena P. Ismail, the learned

Government Pleader as well as Adv.S.Krishnamoorthy, the learned

Standing Counsel appearing on behalf of the respondents opposed

the contentions of the writ petitioner and stated that the registration of

petitioner's permanent employees as headload workers will affect the

existing workers. Relying upon the findings in Ext.P12, it was

contended that even if it is assumed that the workers of the petitioner

have done loading and unloading work only occasionally and the

same was not their predominant work in the said establishment and

hence they cannot be granted registration as headload workers

under the Kerala Headload Workers Act, 1978 (for short 'the Act').

6. This Court had recently held in Manzoor v. District Labour

Officer (supra) that registration of a headload worker to the

establishment does not depend upon prior work as a headload

worker. The only requirement contemplated under the Act and as

laid down by this Court in Rajeev v. District Labour Officer (2010

(4) KLT 783) is that the applicant must have the necessary physique

to do loading and unloading work. Physique to do loading and

unloading work has to be appreciated objectively. When a worker

expresses his willingness to work as a headload worker and the

owner of an establishment agrees to engage him as a headload

worker, the same is sufficient to treat him as a headload worker.

7. In the decision in Gangadharan v. Abdul Nasir (2016 (4)

KLT 592), it was held that the existing registered unattached workers

had no right to prevent the registration of other workers as headload

workers attached to an establishment. Viewed in the above

principles of law, it is evident that the reasons given in Ext.P12 and

Ext.P15 to reject the application of petitioner's workers for

registration as headload workers are perverse and have no legal

basis.

8. In this context it may be worthwhile to remember 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 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, in a scheme covered area, for

doing headload work, is the requirement of registration as a 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. Otherwise, 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.

9. In Ext.P12, the second respondent had entered into a

factual finding that the applicants have carried out loading and

unloading occasionally. It must be remembered that in an area which

is covered under the scheme, only persons who were registered

under the Act as a headload worker can be permitted to do loading

and unloading work. It would be impossible for any worker attached

to an establishment to do loading and unloading work without

infringing the law and unless he is registered under the Act. It is in

such circumstances that this Court had in the decision in Manzoor v.

District Labour Officer (2021 (5) KLT 554) and in Rajeev v. District

Labour Officer (2010 (4) KLT 783) held that, registration of a

headload worker to the establishment does not depend upon prior

work as a headload worker, but is based upon willingness to do

headload work and willingness to employ those workers by the

establishment. A perusal of Ext.P12 and Ext.P15 reveals that the

petitioner had engaged the applicants as permanent workers and

they have even done headload work in his establishment. It is

evident that the permanent workers of the petitioner, who had filed

Ext.P1 to Ext.P9, are entitled to be registered as headload workers

attached to the establishment of the third respondent.

10. Accordingly, I set aside Ext.P12 and Ext.P15 and direct the

second respondent to grant registration to those applicants in Ext.P1

to Ext.P9 as headload workers and issue the necessary identity

cards as contemplated under Rule 26A(3) 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

APPENDIX OF WP(C) 11601/2021

PETITIONER'S/S' EXHIBITS EXHIBIT P1 A TRUE COPY OF THE APPLICATION SUBMITTED BY ASARAF C.M. DATED 23.11.2020 BEFORE THE 2ND RESPONDENT UNDER ATTACHED CATEGORY FOR THE PETITIONER.

EXHIBIT P2               A   TRUE    COPY  OF   THE   APPLICATION
                         SUBMITTTED    BY  NISSAR    M.B.   DATED
                         23.11.2020 BEFORE THE 2ND RESPONDENT
                         UNDER    ATTACHED  CATEGORY    FOR   THE
                         PETITIONER.
EXHIBIT P3               A TRUE COPY OF THE APPLICATION SUBMITTED
                         BY ANAS DATED 23.11.2020 BEFORE THE 2ND
                         RESPONDENT UNDER ATTACHED CATEGORY FOR
                         THE PETITIONER.
EXHIBIT P4               A TRUE COPY OF THE APPLICATION SUBMITTED
                         BY BASHEER DATED 23.11.2020 BEFORE THE
                         2ND RESPONDENT UNDER ATTACHED CATEGORY
                         FOR THE PETITIONER.
EXHIBIT P5               A TRUE COPY OF THE APPLICATION SUBMITTED

BY MUHAMMED MANAF DATED 2.12.2020 BEFORE THE 2ND RESPONDENT UNDER ATTACHED CATEGORY FOR THE PETITIONER.

EXHIBIT P6 A TRUE COPY OF THE APPLICATION SUBMITTED BY SULFIKAR U.B. DATED 2.12.2020 BEFORE THE 2ND RESPONDENT UNDER ATTACHED CATEGORY FOR THE PETITIONER.

EXHIBIT P7 A TRUE COPY OF THE APPLICATION SUBMITTED BY MYTHEEN V.K., DATED 2.12.2020 BEFORE THE 2ND RESPONDENT UNDER ATTACHED CATEGORY FOR THE PETITIONER.

EXHIBIT P8 A TRUE COPY OF THE APPLICATION SUBMITTED BY DINU MANDAL DATED 2.12.2020 BEFORE THE 2ND RESPONDENT UNDER ATTACHED CATEGORY FOR THE PETITIONER.

EXHIBIT P9 A TRUE COPY OF THE APPLICATION SUBMITTED BY SANIL M.S. DATED 2.12.2020 BEFORE THE 2ND RESPONDENT UNDER ATTACHED CATEGORY FOR THE PETITIONER.

EXHIBIT P10 A TRUE COPY OF THE JUDGEMENT IN WPC NO.

27665/2020 DATED 11.12.2020 OF THIS HONBLE CORUT.

EXHIBIT P11 A TRUE COPY OF THE NOTICE DATED 25.01.2021 TO THE 2ND RESPONDENT.

EXHIBIT P12 A TRUE COPY OF THE ORDER NO.

HLW/326/2020 OF THE 2ND RESPONDENT DATED 28.01.2021.

EXHIBIT P12(a) THE ENGLISH TRANSLATION OF EXHIBIT P12 EXHIBIT P13 A TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFRROE THE 1ST RESPONDENT DAED 03.02.2021.

EXHIBIT P14 A TRUE COPY OF THE ARGUMENT NOTE SUBMITTTED BY THE PETITIONER BEFORE THE 1ST RESPONDENNT ON 31.03.2021 IN APPEAL NO. H-1059 OF 2021.

EXHIBIT P15 A TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 31.03.2021.

EXHIBIT P15(a) THE ENGLISH TRANSLATION OF EXHIBIT P15 EXHIBIT P16 A TRUE COPY OF THE COMPLAINT DATED 03.02.2021 SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN OF KERALA HEAD LOAD WORKERS.

EXHIBIT P16(a) THE ENGLISH TRANSLATION OF EXHIBIT P16 EXHIBIT P17 A TRUE COPY OF THE COMPLAINT DATED 10.2.2021 SUBMITTTED BY THE PETITIONER BEFORE THE CHAIRMAN OF KERALA HEAD LOAD WORKERS.

EXHIBIT P17(a) THE ENGLISH TRANSLATION OF EXHIBIT P17 EXHIBIT P18 A TRUE COPY OF THE COMPLAINT DATED 22.03.2201 UBMITTED BY THE PETITIONER

BEFORE THE ASSISTANT LABOUR OFFICER .

EXHIBIT P18(a) THE ENGLISH TRANSLATION OF EXHIBIT P18 EXHIBIT P19 A TRUE COPY OF THE RRECEIPT OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE STATION HOUSE OFICER OF MUVATTUPUZHA POLICE STATION DATED 25.03.2021.

EXHIBIT P20 A TRUE COPY OF THE COMPLAINT SUBMITTTED BY THE PETITIONER BEFORE THE 2ND RESPONDENNT DATED 25.03.2021.

EXHIBIT P20(a) THE ENGLISH TRANSLATION OF EXHIBIT P20

RESPONDENT'S/S' EXHIBITS ANNEXURE R2(a) A TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED UNDER KERALA SHOPS AND COMMERCIAL ESTABLISHMENT ACT TO NISHAD M.B. M.A.B. VEGETABLES, MUVATTUPUZHA (WITH ENGLISH TRANSLATION) ANNEXURE R2(b) A TRUE COPY OF THE RELEVANT PAGE OF THE REGISTER BEING MAINTAINED BY THE BOARD IN RESPECT OF THE REGISTRATION GRANTED TO SRI.M.A.BASHEER WHO WAS THE EMPLOYER IN 2014