Maniram Mandal vs The District Labour Officer
2021 Latest Caselaw 21304 Ker

           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. 17181 OF 2020


PETITIONERS:

    1      MANIRAM MANDAL
           AGED 28 YEARS
           SON OF GOBINDA MANDAL, MANDAPUR, BABUPUR,
           MISHIPUR, MUDAPUR, GAZOLE, MALDA, WEST
           BENGAL-732 124.
    2      SHAMEEM.S.,
           AGED 25 YEARS
           SON OF SALIM, SN MANZIL, KADAMBARA,
           POOZHANADU P.O., THIRUVANANTHAPURAM-695 125.
    3      SANTHOSH MANDAL,
           AGED 23 YEARS
           SON OF BHIKU MANDAL, KHEJURIYE GHAT, ROTIRAM
           TOLA, JAGANNATHPUR, KHEJURIAGHAT, MALDAH,
           WEST BENGAL-732 127.
    4      TAJAMUL SEKH,
           AGED 21 YEARS
           SON OF TAIMUR SEKH, SURYADIGHI KHORD
           BABUPUR, HATIMARI, MALDA, GAZOLE, WEST
           BENGAL-732 124.
    5      AL AMEEN.A.,
           AGED 28 YEARS
           SON OF ANEEHSA, MOOLAMKODUVEEDU, POOZHANDU,
           OTTASEKHARAMANGALAM, THIRUVANANTHAPURAM-695
           125.
 W.P(C)No.17181 of 2020    2


    6    AJITH.N.J.,
         AGED 20 YEARS
         SON OF JAYAN.C., ANJALI BHAVAN, MULAMMOODU,
         POOVACHAL P.O., VEERANAKAVU,
         THIRUVANANTHAPURAM-695 575.
    7    SAJEER.S.,
         AGED 29 YEARS
         SON OF SHAMSUDEEN, EDAVILAKATHU PUTHEN VEEDU,
         PO0ZYAJAD8 P.O., THIRUVANANTHAPURAM-695 125.
    8    ANEESH.A.,
         PROPRIETOR, LIYA TRADERS, XVIII/307,
         KATTEKKODE ROAD, KATTAKKADA,
         THIRUVANANTHAPURAM-695 572.
         BY ADVS.
         B.ASHOK SHENOY
         SRI.K.A.MANZOOR ALI
         SRI.P.S.GIREESH
         SRI.RIYAL DEVASSY
         SHRI.DR.ABHILASH O.U.


RESPONDENTS:

    1    THE DISTRICT LABOUR OFFICER
         OFFICE OF THE DISTRICT LABOUR OFFICER,
         THOZHIL BHAVAN, VIKAS BHAVAN P.O.,
         THIRUVANANTHAPURAM-695 033.



         DESIGNATION OF THE 1ST RESPONDENT -

         DISTRICT LABOUR OFFICER,
         CIVIL STATION, KOLLAM.

         (DESIGNATION OF THE 1ST RESPONDENT IS SUO
         MOTU CORRECTED IN LIEU OF THE 1ST RESPONDENT
 W.P(C)No.17181 of 2020    3


         SHOWN IN THE WRIT PETITION AS PER ORDER DATED
         20.08.2020 IN WP(C).)
    2    THE ASSISTANT LABOUR OFFICER,
         OFFICE OF THE ASSISTANT LABOUR OFFICER,
         REVENUE TOWER, NEDUMANGAD P.O.,
         THIRUVANANTHAPURAM-695 541.
    3    KERALA HEADLOAD WORKERS WELFARE FUND BOARD,
         THIRUVANANTHAPURAM DISTRICT COMMITTEE,
         KAUSTHUBHAM COMPLEX, CHENTHITTA,
         THIRUVANANTHAPURAM-695 036, REPRESENTED BY
         ITS CHAIRMAN.
    4    ADDL.R4. R.VIKRAMAN
         S/O.RAMANKUTTY, VYSHANAVOM HOUSE,
         KULATHINKARA DESAM, MYLAKARA P.O.,
         THIRUVANANTHAPURAM DISTRICT, PIN CODE - 695
         572 (POOL LEADER/CONVENER - BMS)
    5    ADDL.R5. SREEKUMAR
         S/O.VELAYUDHAN, "KARTHIKA" HOUSE, KOTTAMPALLY
         DESAM, AMBALATHINKALA P.O., KATTAKADA,
         THIRUVANANTHAPURAM, PIN CODE - 695 572.
         (CONVENER - INTUC).
    6    ADDL.R6. VASUDEVAN NAIR
         S/O.KESAVAN NAIR, "VASUDEVAM" HOUSE,
         KATTAKADA P.O., THIRUVANANTHAPURAM DISTRICT,
         PIN CODE - 695 572.. (CONVENER - CITU)
         [ADDITIONAL RESPONDENTS ARE IMPLEADED AS PER
         ORDER DATED 04.10.2021 IN I.A.NO.2/2020 IN
         WP(C)17181/2020.]
         BY ADVS.
         GOVERNMENT PLEADER
         SRI.THOMAS ABRAHAM
         V.P.PRASAD
 W.P(C)No.17181 of 2020     4


         SRI.JUSTIN JACOB -SENIOR GOVERNMENT PLEADER



THIS WRIT PETITION (CIVIL) HAVING FINALLY HEARD ON
21.10.2021, THE COURT ON 29.10.2021 DELIVERED THE
FOLLOWING:
 W.P(C)No.17181 of 2020              5



                    BECHU KURIAN THOMAS, J
                   ------------------------
                  WP(C) NO. 17181 of 2020
                --------------------------
           Dated this the 29th day of October, 2021


                              JUDGMENT

Petitioners' applications for registration as head load

workers in the establishment of the 8 th petitioner was rejected by the

registering authority under the Kerala Headload Workers Act, 1978.

The appeal preferred by the petitioners 1 to 7 was also rejected and

hence they have invoked the jurisdiction of this Court under Article

226 of the Constitution of India.

2. Petitioners 1 to 7 are permanent headload workers

employed in, and attached to the establishment under the ownership

of the 8th petitioner, by name 'Liya Traders'. The 8 th petitioner's

establishment is situated in an area covered by the scheme framed

under the Act. The applications for registration were rejected on the

ground that, if registration is granted to petitioners 1 to 7, it will

prejudicially affect the work of existing headload workers who are

already registered under the Kerala Headload Workers (Regulation of

Employment & Welfare) Scheme, 1983 and the same will cause

reduction in the income of the workers. The order rejecting the

applications observed, rather mechanically, that, on enquiry, it was

revealed that the employer was not keeping the required documents

under the Act and its Rules and hence, the applications for

registration were only to be declined.

3. Petitioners preferred an appeal before the Appellate

Authority under Rule 25A of the Kerala Headload Workers Rule, 1981

(for short 'the Rules'). It was pointed out that registers under the

Act were not liable to be maintained by the 8 th petitioner since

registration as a headload worker had not been obtained as of yet,

for any of the petitioners under the Act and that since the applicants

were willing to work as headload workers, and thir employer was

ready to accept them as such, registration ought to have been

granted.

4. The Appellate Authority however, by order dated

10.02.2020 rejected the appeal stating that loading and unloading

works for 'Liya Traders' were carried out by workers from the pool,

maintained by the Kerala Headload Workers Welfare Board and that

the Board was always ready for supplying additional workers if

required, for the establishment. This writ petition is preferred

challenging the aforesaid order of the authority under the Act.

5. A counter affidavit has been filed on behalf of first

respondent as well as the third respondent. It is pleaded in the said

counter affidavit that granting registration to the petitioners will

adversely affect the job of registered workers in the area who are

attached to the Welfare Board and that the Registering Authority had

issued orders declining the application based upon the objection

raised by the third respondent- the Kerala Headload Workers Welfare

Board.

6. The Welfare Board, on the other hand, pleaded that the

entire loading and unloading work of the establishment of the 8 th

petitioner are being carried out by the registered workers of the

Board and that the area being covered under the scheme, if the

registration as sought for is granted, it will unduly affect the

livelihood of the existing headload workers.

7. I have heard Adv. B. Ashok Shenoy, the learned Counsel

for the petitoners, Adv. Sabeena P. Ismail, the learned Government

Pleader, Adv. Thomas Abraham the learned Counsel for the third

respondent and Adv. V.P.Prasad, the learned Counsel for respondent

4 to 6.

8. There is no dispute that petitioners 1 to 7 are working in

the establishment of the 8th petitioner that too, as permanent

workers. None has disputed the capacity of petitioners 1 to 7 to

carry out loading and unloading works. Since, petitioners 1 to 7 had

applied to be registered as headload workers and the fact that the 8 th

petitioner expressed his willingness to employ the petitioners 1 to 7

as headload workers in his establishment, is sufficient indication that

petitioners 1 to 7 are capable of doing loading and unloading works.

9. The denial of registration by the second respondent is for

the sole reason that if registration is granted to the petitioners, the

same will affect the job opportunities of the headload workers

attached to the Kerala Headload Workers Welfare Board. In my

considered view, the reasons stated by the registering authority as

well as the appellate authority to deny registration to petitioners 1 to

7 are perverse and not valid in the eyes of law.

10. The right of an employer to engage his own permanent

employees as headload workers, in an area covered by the headload

workers scheme, 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 Labout Officer, 2021 (5) KLT 554 held,

that while considering the application for registration as headload

workers under Rule 26A of the Rules, the Registering Officer'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.

11. In another decision in W.P.(C)No.6287 of 2021 Prasanna

Kumar v. District Labour Officer, it was observed by this Court as

follows:

7. 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.

12. 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.

13. When petitioners 1 to 7 have expressed their inclination

to work as headload workers and even applied for registration, there

is no legal justification, in the present case, to deny registration to

petitioners 1 to 7, 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 petitioners 1 to 7, as mentioned

earlier, are perverse and not valid in the eyes of law. The reduction

of income or job opportunities of the existing headload workers is not

a valid ground under law for denying registration to workers who are

willing to do loading and unloading works.

14. In view of the above, Ext.P1 and Ext.P3 are liable to be

set aside and it is held that petitioners 1 to 7 are entitled to obtain

registration as headload workers, attached to the establishment of

the 8th petitioner.

Accordingly, there will be a direction to the second respondent

to grant registration to petitioners 1 to 7 as headload workers

attached to the 8th petitioner, and issue necessary identity cards as

contemplated under Section 26A of the Kerala Headload Workers

Rules, 1981, in a time bound manner 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 AJ/29.10.2021

APPENDIX OF WP(C) 17181/2020

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF ORDER NO.958/2019 DATED 26.10.2019 PASSED BY 2ND RESPONDENT.

EXHIBIT P2 TRUE COPY OF MEMORANDUM OF APPEAL FILED BY PETITIONER NO.1 TO 7 BEFORE 1ST RESPONDENT ON 11.11.2019.

EXHIBIT P3 TRUE COPY OF ORDER NO.6940/2019 DATED 10.02.2020 PASSED BY 1ST RESPONDENT.

EXHIBIT P4        TRUE COPY OF INTERIM ORDER DATED
                  13.09.2018 IN WPC NO.30083 OF 2018
                  BEFORE THIS HON'BLE COURT.
EXHIBIT P5        TRUE COPY OF REGISTER OF EMPLOYMENT AND
                  WAGES IN FORM V, MAINTAINED BY 8TH
                  PETITIONER IN RESPECT OF PETITIONERS
                  NOS.1 TO 7, UNDER RULE 27(1) OF KERALA
                  HEADLOAD WORKERS RULES 1981, FOR THE
                  PERIOD FROM 01.11.2019 TO 08.02.2020.