Kerala High Court
Sarath E.V vs The District Labour Officer 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. 11654 OF 2021
PETITIONERS:
1 SARATH E.V.
AGED 32 YEARS,
SON OF O.M. NARAYANAN NAMBIAR,
SARATH NIVAS,
VELAM, KAYARALAM, MAYIL P.O.,
KANNUR 670 602
2 RAMEESH C.
AGED 33 YEARS, SON OF PRADEEPAN K.,
KOTTOLA HOUSE,
VARAMKADAVU, VARAM P.O.,
KANNUR 670 594
3 SURAJIT MANIDAS
AGED 22 YEARS
SON OF MANORANJAN MANIDAS,
S.R.ASSOCIATES, PEROOR ROAD,
MATHAMANGALAM, VELLORA P.O.,
KANNUR 670 306
4 MAKIBUL HOQUE
AGED 23 YEARS, SON OF LAL MIYA,
S.R.ASSOCIATES, PEROOR ROAD,
MATHAMANGALAM, VELLORA P.O.,
KANNUR 670 306
*5
S.R.ASSOCIATES,
PEROOR ROAD, MATHAMANGALAM,
VELLORA P.O.,
KANNUR 670 306,
REP. BY ITS PROPRIETOR,
RABIE MUHAMMED KUTTY,
AGED 34 YEARS,
SON OF MUHAMMED KUTTY THAYYIL,
RESIDING AT MARWA MAHAL,
MANIYOOR, CHEKKIKULAM P.O.,
KANNUR 670 592 (CORRECTED)
W.P.(C) No.11654/21 -:2:-
*(THE WORDS "REPRESENTED BY ITS PROPRIETOR" TYPED
IN THE CAUSE TITLE OF W.P.(C) NO.11654 OF 2021 AS
AGAINST THE NAME OF 5TH PETITIONER IS CORRECTED
BY REPLACING THE WORDS "REPRESENTED BY ITS
MANAGING PARTNER" AS PER ORDER DATED 29.10.2021
IN IA NO.1 OF 2021).
BY ADVS.
SRI.B.ASHOK SHENOY
SRI.RIYAL DEVASSY
RESPONDENTS:
1 THE DISTRICT LABOUR OFFICER
OFFICE OF THE DISTRICT LABOUR OFFICER,
THAVAKKARA, CIVIL STATION P.O.,
KANNUR 670 002.
2 THE ASSISTANT LABOUR OFFICER
OFFICE OF THE ASSISTANT LABOUR OFFICER,
MINI CIVIL STATION, PAYYANUR P.O.,
PAYYANNUR 670 307
3 KERALA HEADLOAD WORKERS WELFARE FUND BOARD
KANNUR DISTRICT COMMITTEE,
RAJIV GANDHI ROAD, KANNUIR P.O,
KANNUR 670 001,
REP. BY ITS CHAIRMAN.
BY ADV.JUSTIN JACOB, SR.GOVT. PLEADER
ADV.S.KRISHNA MOORTHY, SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 26.10.2021, THE COURT ON 29.10.2021 DELIVERED THE
FOLLOWING:
W.P.(C) No.11654/21 -:3:-
BECHU KURIAN THOMAS, J.
------------------------------------
W.P.(C) No.11654 of 2021
--------------------------------------
Dated this the 29th day of October, 2021
JUDGMENT
Application for registration as headload workers filed by
petitioners 1 to 4 were rejected by the registering authority on the
sole reason that the existing registered headload workers attached to
the welfare board will be prejudicially affected. The appeal preferred
by the petitioners were 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 application.
2. Though respondents were served, no counter affidavits
have been filed.
3. The 5th petitioner is carrying on the business in the sale of
hardware, electrical goods, cements, plumbing materials etc., at
Mathamangalam in Kannur District. Petitioners 1 to 4 are the
permanent workers employed in the said establishment. The
establishment is situated in a scheme covered area. The employer
had expressed his willingness to engage petitioners 1 to 4 for the
loading and unloading work in his establishment and the workers
also agreed to offer their services as headload workers. It is on the
said mutual consent that applications were filed by petitioners 1 to 4
for registration as headload workers.
4. A perusal of Ext.P1 to Ext.P4 orders issued by the
registering authority as well as Ext.P5 order of the Appellate Authority
evinces that, the sole reason for rejection, as pointed out by the
learned counsel for the petitioners, is that the existing registered
headload workers in the area will be prejudicially affected.
5. This Court has already held in several decisions that the
only criteria for grant of registration as a headload worker attached to
an establishment is the willingness of a worker to work as a headload
worker and the corresponding consent of the employer to engage
such worker as a headload worker. When these two factors are
present, the registering authority is bound to register the applicant as
a headload worker. The question of prejudice to the existing workers
is a reason alien to the consideration.
6. Every person has a fundamental right to carry on an
occupation of his choice which can only be subject to reasonable
restrictions. The restriction of registration as a headload worker
introduced by the Kerala Headload Workers Act, 1978 can be
constitutionally valid only if the said restriction is reasonable. This
Court has already held in W.P.(C) No.6287 of 2021 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
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 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. 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.
7. When the facts of the present case are analysed in the
backdrop of the above observations of this Court as well as that of
the Division Bench judgment of this Court in Gangadharan C.P. and
Another v. Abdul Nasir and Others [2016 (5) KHC 238 (DB)] and of
Manzoor v. District Labour Officer (2021 (5) KLT 554), it can be
gathered that the findings rendered by the registering authority as
well as the Appellate Authority in the impugned orders are clearly
perverse, warranting interference by this Court.
8. Accordingly, I set aside Ext.P1 to Ext.P5 orders and direct
the 2nd respondent to grant registration to petitioners 1 to 4 as
headload workers under rule 26A of the Kerala Headload Workers
Rules, 1981 as attached to the establishment of the 5 th petitioner and
issue necessary identity cards to them, within a period of 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
vps
APPENDIX OF WP(C) 11654/2021
PETITIONER'S/S' EXHIBITS
EXHIBIT P1 TRUE COPY OF ORDER NO.H.L.08/2020 DATED
6.1.2021 PASSED BY 2ND RESPONDENT AND
ISSUED TO 1ST PETITIONER.
EXHIBIT P2 TRUE COPY OF ORDER NO.H.L.07/2020 DATED
6.1.2021 PASSED BY 2ND RESPONDENT AND
ISSUED TO 2ND PETITIONER.
EXHIBIT P3 TRUE COPY OF ORDER NO.H.L.11/2020 DATED
6.1.2021 PASSED BY 2ND RESPONDENT AND
ISSUED TO 3RD PETITIONER.
EXHIBIT P4 TRUE COPY OF ORDER NO.H.L.09/2020 DATED
6.1.2021 PASSED BY 2ND RESPONDENT AND
ISSUED TO 4TH PETITIONER.
EXHIBIT P5 TRUE COPY OF ORDER NO.G(3)196/2021 DATED
12.4.2021 PASSED BY 1ST RESPONDENT AND
ISSUED TO PETITIONERS.
EXHIBIT P6 TRUE COPY OF INTERIM ORDER DATED
4.12.2020 IN WP(C) NO.26945 OF 2020
BEFORE THIS HON'BLE COURT.
