Kerala High Court
Jose Abraham vs State Of Kerala on 29 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
WP(C) NO. 3190 OF 2021
PETITIONER:
JOSE ABRAHAM
S/O E.P. ABRAHAM,
PROPRIETOR, AISWARYA CERAMICS,
MALLAPPALLY ROAD,
VENNIKULAM, PURAMATTOM,
PATHANAMTHITTA DISTRICT-689 544
BY ADV. SANIL JOSE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF LABOUR,
THIRUVANANTHAPURAM-695 001
2 DISTRICT LABOUR OFFICER,
LABOUR OFFICE, KOLLAM-691 003.
3 ASSISTANT LABOUR OFFICER,
LABOUR OFFICE, MALLAPPALLY-689 585
4 KERALA HEADLOAD WORKERS WELFARE BOARD,
PATHANAMTHITTA -689 645,
REPRESENTED BY ITS DISTRICT OFFICER.
BY ADV SRI.JUSTIN JACOB, GOVT.PLEADER
ADV.SRI.K.SIJU
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 25.10.2021, THE COURT ON 29.10.2021 DELIVERED
THE FOLLOWING:
W.P.(C) No.3190/21 -:2:-
BECHU KURIAN THOMAS, J.
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W.P.(C) No.3190 of 2021
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Dated this the 29th day of October, 2021
JUDGMENT
Petitioner's request for registration of his employees as
headload workers in his establishment was rejected by the
registering authority under the Kerala Headload Workers Act, 1978.
The appeal preferred by the petitioner was also rejected and hence
he has invoked the jurisdiction of this Court under Article 226 of the
Constitution of India.
2. Petitioner is the owner of an establishment by name 'M/s
Aiswarya Ceramics'. The said establishment is situated in an area
covered by the scheme framed under the Act. Applications for
registration of his employees as headload workers filed under Rule
26A of the Kerala Headload Workers Rules, 1981 (for short 'the
Rules') were rejected on the ground that, the employees were
working as salesmen and that if they are permitted to be registered
as headload workers, the existing headload workers attached to the
Welfare Board will be deprived of their livelihood. An alleged direction
of the Labour Commissioner was also relied upon stating that if
identity cards are issued to attached labourers, the headload workers
under the Welfare Board will lose their job opportunities.
3. Petitioner preferred an appeal before the Appellate
Authority. However, the Appellate Authority by order dated
16.11.2020 rejected the appeal, stating that the employees of the
petitioner were working as salesmen, and that, if they are permitted
to be registered as headload workers, the existing attached workers
in the Welfare Board will be deprived of their livelihood. The alleged
direction from the Labour Commissioner was also relied upon by the
appellate authority while rejecting the appeal. In other words, the
same reasoning, as stated by the registering authority, was repeated
by the appellate authority also. This writ petition is preferred
challenging the aforesaid orders of the authorities under the Act.
4. A statement has been filed on behalf of the fourth respondent
stating that the establishment of the petitioner is situated in pool 48 of
Vennikulam and that 9 registered headload workers from the pool are
regularly engaged by the petitioner. It was also stated that granting
registration to the permanent workers of the petitioner will adversely
affect the job 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.
5. I have heard Adv. Sanil Jose, the learned counsel for the
petitioner, Adv. Justin Jacob, the learned Government Pleader and
Adv.K.Siju, the learned counsel for the fourth respondent.
6. There is no dispute that the employees of the petitioner
are working in his establishment, that too, as permanent workers.
None has disputed the capacity of petitioner's employees to carry out
loading and unloading works. Since the workers of the petitioner had
applied for registering as headload workers and the fact that the
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
petitioner's establishment.
7. The denial of registration by the third respondent is for the
reason that if registration is granted to the petitioner's employees, the
same will affect the job opportunities of the headload workers
attached to the Kerala Headload Workers Welfare Board. It was also
stated that the employees of the petitioner were salesmen and not
doing any 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 petitioner, are perverse and not valid
in the eyes of law.
8. 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)
KLT 554) held that, while considering the application for registration
as headload workers under Rule 26A of the Rules, the Registering
Authority's look out 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. 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 application
was submitted by the workers themselves is evidence of the
willingness of the workers to work as headload workers. The nature
of work of the applicants prior to the application has no significance
as the applicants could not have worked as headload workers or do
headload work in a scheme covered area without obtaining
registration.
9. 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
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 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.
10. 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.
11. When the employees of the petitioner have expressed
their inclination to work as headload workers and even applied for
registration, there is no legal justification, as happened in the present
case, to deny registration to such 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 at all a ground
under law for denying registration to workers who are willing to do
loading and unloading works.
12. In view of the above, Ext.P3 and Ext.P4 are liable to be
set aside. It is declared that the employees of the petitioner, who had
applied for registration as headload workers, are entitled to obtain
registration as headload workers, attached to the establishment of
the petitioner.
13. Accordingly, there will be a direction to the third respondent
to grant registration to the employees of the petitioner who had
applied for registration as headload workers attached to the
petitioner, and issue necessary identity cards 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 disposed of as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX OF WP(C) 3190/2021
PETITIONER'S/S' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE CURRENT TRADE LICENSE
FOR THE PERIOD 18.9.2020 TO 31.3.2021
ISSUED BY THE PURAMATTOM GRAMA PANCHAYAT
WITH TRUE ENGLISH TRANSLATION OF THE
RELEVANT PAGE.
EXHIBIT P2 TRUE COPY OF THE MUSTER ROLL MAINTAINED
BY THE PETITIONER FROM JANUVARY 2019 TO
DECEMBER 2020.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 12.3.2020
PASSED BY THE 3RD RESPONDENT WITH ITS
TRUE ENGLISH TRANSLATION.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 16.11.2020
PASSED BY THE 2ND RESPONDENT WITH ITS
TRUE ENGLISH TRANSLATION.
EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED
12.10.2015 IN W.P.C NO. 19800/2015 OF
THIS HON'BLE COURT.
