Kerala High Court
Swadeshi Trading Company vs Assistant Labour Office 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. 18958 OF 2020
PETITIONERS:
1 SWADESHI TRADING COMPANY
MANAS ARCADE, NEAR ST. ANTONY'S CHURCH,
MOONAMPEEDIKA, KANNUR - 670 001,
REPRESENTED BY MANAGING PARTNER.
2 NAJEEB K
LOADING AND UNLOADING WORKER,
SWADESHI TRADING COMPANY, MANAS ARCADE,
NEAR ST.ANTONY'S CHURCH,
MOONNAMPEEDIKARA, KANNUR - 670001.
BY ADVS.
GEORGE MECHERIL
SRI.JOJO JOSEPH
RESPONDENTS:
1 ASSISTANT LABOUR OFFICE
1ST CIRCLE, KANNUR, KANNUR - 670 002,
2 DISTRICT LABOUR OFFICER,
DISTRICT LABOUR OFFICE, KANNUR- 670 002.
3 ADDL R3
THE HEAD LOAD WORKERS WELFARE FUND BOARD
REPRESENTED BY ITS CHAIRMAN,KANNUR DISTRICT
ADDL R3 IS SUO MOTU IMPLEADED AS PER ORDER DATED 15/09/2020 IN
WP(C) 18958/2020
BY ADV SMT.SABEENA P. ISMAIL, GOVERNMENT PLEADER
ADV.THOMAS ABRAHAM, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.10.2021, THE
COURT ON 29.10.2021 DELIVERED THE FOLLOWING:
WP(C) NO. 18958 OF 2020
2
BECHU KURIAN THOMAS, J
===========================
W.P.(C) No.18958 of 2020
---------------------------------------
Dated this the 29 th day of October, 2021
JUDGMENT
The application of the 2 nd petitioner for registration
as a headload worker under the Kerala Headload
Workers Act, 1978 [for short, 'the Act'] attached to
the 1 st petitioner was rejected by the Registering
Authority for two reasons:
(i) that the Chairman of the Kerala Headload Workers
Welfare Board had objected to the grant of
registration, and
(ii) on enquiry the Registering Authority found that
the grant of registration would prejudice the existing
workers in the area.
2. The appeal filed by the 2 nd petitioner before the
District Labour Officer, was also rejected reiterating
the same reasons. Appellate Authority further
observed that within the area of 1 st petitioner's
establishment; there are eleven other business
WP(C) NO. 18958 OF 2020
establishments and the area had six registered
headload workers available under the pool of
workers. The Appellate Authority also observed that
allegation of deficiency in the number of registered
headload workers in the area, were baseless.
3. The employer as well as its permanent worker, who
sought registration as a headload worker, have
approached this Court invoking its jurisdiction under
Article 226 of the Constitution of India.
4. It is pleaded that the right of an employer to engage
a permanent worker of his choice to do the loading
and unloading works in his establishment is subject
to only one restriction that the worker must obtain a
registration under the Act, if the area is covered
under the scheme notified as per the Act. The
business establishment of the 1 st petitioner is
admittedly situated in an area covered under the
scheme, and the 2 nd petitioner had expressed his
WP(C) NO. 18958 OF 2020
willingness to do the work of loading and unloading
in the said establishment. Since the 1 st petitioner is
willing to employ the said worker as a headload
worker, there was no justifiable cause or legal
reason available to reject the application.
5. A counter affidavit has been filed by the District
Labour Officer stating that registration if granted
will prejudice the existing workers of the locality,
who are engaged by the Welfare Board. It is further
stated in the counter affidavit that due to economic
recession, there is a decline in the trade and
business and that workers would be further
prejudiced, if registration as sought for is granted.
6. I have heard Adv.Elizabeth George, the learned
counsel for the petitioners, Adv.Sabeena P.Ismail, the
learned Government Pleader and Adv.Thomas
Abraham, the learned Standing Counsel for the 3 rd
respondent-Welfare Board.
WP(C) NO. 18958 OF 2020
7. In a scheme covered area, the work of loading and
unloading can be done only by workers registered
under the Act and its Rules. When the employer is
willing to engage one of his permanent workers as a
headload worker, and the said permanent worker is
willing to accept such an employment, this Court
has, time and again held that the registration to
such a worker cannot be denied. The decisions in
Rajeev v.District Labour Officer [2010 (4) KLT 783]
as well as Manzoor v.District Labour Officer [2021
(5) KLT 554] are relevant for the aforesaid
propositions.
8. When a worker has the necessary physique and the
willingness to work as a headload worker; nothing
prohibits or restrains him from getting registration as
a headload worker attached to an establishment
which is willing to engage him as a headload
worker.
WP(C) NO. 18958 OF 2020
9. The reasoning adopted by the respondents in Ext.P1
and Ext.P4 that existing workers attached to the
Headload Workers Welfare Board will be prejudiced
if such new registration is granted, cannot be a
legally reasoning at all. The decisions in V.Star
Creations (P) Ltd. v. District Labour Officer [2012 (2)
KLT 883], and Majeed v.District Labour Officer [2015
(1) KLT 750], are also relevant in this context.
10. This Court also bears in mind that, every person
has a fundamental right under Article 19(1)(g) of the
Constitution of India to carry on any occupation and
the same can be subjected, only to reasonable
restrictions, as provided for under Article 19(6).
11. 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
WP(C) NO. 18958 OF 2020
curtailed by a reasonable restriction. The restriction
introduced through the Act for doing headload work,
in a scheme covered area, 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.
12. If the restriction is not reasonable, as mentioned
above, 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 in such a scenario. To avoid
such a situation, the provisions of the Act relating to
registration have been read down by this Court to
WP(C) NO. 18958 OF 2020
mean willingness to do headload work with the
necessary physique and employer's consent as
sufficient for granting registration. (See the decisions
in Rajeev v.District Labour Officer [2010 (4) KLT
783] and Manzoor v.District Labour Officer [2021 (5)
KLT 554].
13. Viewed in the above perspective, the reasoning
adopted by the respondents as mentioned earlier in
Ext.P1 and Ext.P4 are perverse and those orders are
liable to be set aside.
14. Accordingly, I set aside Ext.P1 and Ext.P4 and
direct the 2 nd respondent to re-consider the
application of the 2 nd petitioner for registration as a
headload worker in the light of the observations in
this judgment and issue the identity card to the
petitioner after granting registration to the 2 nd
petitioner as a headload worker attached to the
establishment of the 1 st petitioner within a period of
WP(C) NO. 18958 OF 2020
30 days from the date of receipt of a copy of this
judgment.
The writ petition is allowed as above.
Sd/-
BECHU KURIAN THOMAS,
JUDGE
AMV/29/10//2021
WP(C) NO. 18958 OF 2020
APPENDIX OF WP(C) 18958/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ORDER OF THE ASSISTANT LABOUR
OFFICER, VIDE ORDER NO.512/2013 DATED 06.12.2018.
EXHIBIT P2 TRUE COPY OF THE APPEAL MEMORANDUM FILED BEFORE
THE DISTRICT LABOUR OFFICER DATED 14.01.2020
FILED BY THE 1ST PETITIONER.
EXHIBIT P2(a) TRUE COPY OF THE APPEAL MEMORANDUM FILED BEFORE
THE DISTRICT LABOUR OFFICER DATED 14.01.2020
FILED BY THE 2ND PETITIONER.
EXHIBIT P3 TRUE COPY OF THE HEARING NOTICE NO.G3/193/2020
DATED 05.06.2020
EXHIBIT P4 TRUE COPY OF THE ORDER NO. G4/193/2020 DATED
17.06.2020 OF THE DISTRICT LABOUR OFFICER, KANNUR
DISTRICT 17.06.2020.
RESPONDENTS EXHIBITS NIL
TRUE COPY
