Sail Stockyard Workers Union ... vs Hadiyya Logistics Priavate ...
2022 Latest Caselaw 8995 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                  THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                       &
                THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
          Wednesday, the 27th day of July 2022 / 5th Sravana, 1944
                             WA NO. 1654 OF 2021

    AGAINST JUDGMENT DATED 11.12.2020 IN WP(C) 20667/2020 OF THIS COURT

APPELLANT/3RD PARTY:

     SAIL STOCKYARD WORKERS UNION (CITU), T.K. RAMAKRISHNAN MEMORIAL
     BUILDING, NADAMA, THRIPUNITHURA-682301, REPRESENTED BY ITS SECRETARY
     K.K. MOHANAN.

BY ADVS.M/S. LEGITH T.KOTTAKKAL & P.R.BANERJI

RESPONDENTS/WRIT PETITIONER AND RESPONDENTS IN WRIT PETITION:

  1. M/S.HADIYYA LOGISTICS PRIAVATE LIMITED, 33/602, HADIYYA MANSION,
     ARKKAKADAVU, VENNALA P.O., PIN-682028, KANAYANNUR TALUK, ERNAKULAM
     DISTRICT, REPRESENTED BY ITS DIRECTOR, SARJUN SUJAUDEEN.

AND 7 OTHERS.

BY ADV.SRI. P.M.ZIRAJ FOR R1

ADV.SRI. PHILIP T VARGHESE FOR R2 & R3

SENIOR GOVERNMENT PLEADER SRI.T.K.VIPIN DAS FOR R4,6,7 & 8

STANDING COUNSEL SRI.S.KRISHNAMOORTHY FOR R5

     Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum the High Court be pleased to
stay the operation of the Judgment dated 11-12-2020 in W.P.(C) No.20667 of
2020 on the file of High Court of Kerala.
     This Writ Appeal again coming on for orders along with connected
case on 27/07/2022 upon perusing the appeal memorandum and this court's
order dated 20/07/2022, the court on the same day passed the following:

                                                                     P.T.O.
 ANNEXURE A1: TRUE COPY OF THE ORDER DATED 26-03-2021 OF KERALA

STATE HEAD LOAD WORKERS, THRIPUNITHURA SUB OFFICE.
 W.A. Nos. 1654/2021 & 899/2022


                                         ..1..



  ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.
==============================================
          W. A. Nos. 1654 of 2021 & 899 of 2022
(arising out of the impugned judgment dated 11.12.2020 in WP(C) No. 20667/2020)
==============================================
           Dated this the 27th day of July, 2022

                                    ORDER

A reading of the impugned judgment rendered by the learned

Single Judge on 11.12.2020 in the instant Writ Petition (Civil)

WP(C).No.20667/2020 would disclose, that though the main pleas

of the claimant headload workers have been rejected as per the

impugned judgment, as the main works are done in a mechanized

manner by the writ petitioner establishment, it has been

specifically ordered in the penultimate paragraph of the impugned

judgment, that if there is any manual headload work, the writ

petitioner establishment will have to necessarily engage the

services of the registered pool workers. The said direction

contained in the penultimate paragraph of the impugned judgment

reads as follows:

".....................However, if there is any manual headload work, the petitioner will have to necessarily engage the services of the registered pool workers."

W.A. Nos. 1654/2021 & 899/2022

..2..

2. So also, it is ordered in the impugned judgment, that

the contesting party respondents in the WP(C) or their men will

have no right to claim that they should be engaged in the exclusion

of machines or skilled workers who operate the said equipments.

The said portion contained in the penultimate paragraph of the

impugned judgment reads as follows:

"..................The party respondents or their men will have no right to claim that they should be engaged to the exclusion of machines or skilled workers who operate the said equipment."

3. Pursuant to the directions in the WP(C), the

respondent District Labour Officer has furnished a report dated

6.11.2020 and para 'c' & para 'f' thereof read as follows:

"c) Whether the services of headload workers are required for the purpose of handling? Whether the work claimed by the respondents 1 and 2 are strapping the heavy steel girders to the crane and nothing more?

-Though loading and unloading operations are done using mechanized devices like crane, forklift, etc, attaching sling to the machine and cranes for such loading-unloading operations are done using manual labour. The same are being done by headload workers as a part of loading and unloading works in common practice.

xxxx xxxx xxxx

f) Such other details that are brought to the notice of the DLO.

-Though loading and unloading operations are done using mechanized devices like crane, forklift, etc attaching sling to the machine and cranes for such loading unloading operations are done using manual labour. Lifting metal plates using bars for the purpose W.A. Nos. 1654/2021 & 899/2022

..3..

of strapping, stacking, attaching slings, etc, needs manual labour. The same are being done by headload workers as a part of loading and unloading works in common practice. "

4. From the submissions of the writ petitioner

establishment, it appears, that the activities of loading and

unloading operations using mechanized devices like crane, forklift,

etc. would amount to the main loading and unloading activity,

which are fully mechanized using machines and therefore, the said

main loading and unloading work cannot be said to be manual

headload work and hence, by virtue of the mandate of Sec.9A of the

Kerala Headload Workers Act, 1978, the writ petitioner

establishment has the legal writ to engage skilled workers of their

choice to deal with such main work. Further that, the process of

attaching sling to machines and cranes for such loading and

unloading operations are incidental and ancillary to the main

mechanized work of loading and unloading operations using crane

and forklift, etc. and that therefore the said work which is ancillary

to the main work of loading and unloading operations, which are

essentially mechanized work, cannot be claimed as a right by W.A. Nos. 1654/2021 & 899/2022

..4..

headload workers under the Act, and the establishment will have

the prerogative right to engage their own skilled workers, even for

such ancillary work, going by the mandate contained in Sec.9A of

the Act, so long as such work in question of attaching sling,

strapping, etc. are incidental and ancillary to the main loading and

unloading operations done through mechanized means and

manual means.

5. Per contra, the claimant headload workers through

their learned advocates would contend that the DLO has given

report stating that the works mentioned in para 'c' thereof, has

been consistently done by the headload workers as part of loading

and unloading works in common practice. Further that, it has also

been reported by the DLO in para 'f' of the report, that loading and

unloading operations are done using mechanized devices like crane

and forklift, etc. attaching sling to machines and cranes for such

loading and unloading operations are done using manual labour,

and further that, lifting metal plates using bars for the purpose of

strapping, stacking, attaching slings, etc. needs manual labour, and

the same have been done by the headload workers as part of their W.A. Nos. 1654/2021 & 899/2022

..5..

loading and unloading works in common practice. Hence, it is

claimed by the appellant headload workers, that the works

mentioned in paras 'c' and 'f' of the abovesaid report of the DLO

have to be lawfully allotted to the headload workers as per the Act,

and not to the skilled workers of the writ petitioner establishment.

6. Sec.2(m) of the Kerala Headload Workers Act, 1978

defines 'headload worker' as follows:

"2(m) "headload worker" means a person employed or engaged directly or through a contractor in or for an establishment, whether for wages or not, for loading or unloading or carrying on head or person or in a trolly any article or articles in or from or to a vehicle or any place in such establishment or stacking articles, excluding delicate or sophisticated articles, in a vehicle or unloading by sliding using manual labour from a mechanically propelled vehicle or a person who does in connection with the work in ports, the works likes filling of fertilizers in sacks, weighing and stitching of sacks, bundling, breaking seals of containers, stacking and includes any person not employed by any employer or contractor but engaged in the loading or unloading or carrying on head or person or in a trolly any article or articles for wages in or from or to a vehicle, or any place in such establishment or stacking articles excluding delicate or sophisticated articles in a vehicle or unloading by sliding using manual labour from a mechanically propelled vehicle but does not include a person engaged by an individual for domestic purposes.

Explanation I: For the purpose of this clause, "a person engaged by an individual for domestic purposes" means any person engaged by an individual for,--

(i) shifting including transportation of furniture, personal effects and other household articles for domestic use; or

(ii) working in connection with the shifting of articles of a dwelling house of a person including work in connection with religious or social or public functions; or

(iii) cutting, removing, shifting and transportation of trees and wood for personal use; or

(iv) constructing or repairing and maintenance of house including the shifting and transportation of construction materials, equipments W.A. Nos. 1654/2021 & 899/2022

..6..

or machinery for personal use and not for the purpose of trade; or

(v) dismantling, demolishing and shifting of old building materials or equipments including their transportation which is not for industrial or commercial purpose; or

(vi) shifting and transportation of animals for personal use; or

(vii) shifting and transportation of materials including agricultural implements, agricultural machinery, raw materials, agricultural produces, other materials related to agricultural operations in such person's land; or

(viii) doing such other work or activity or process which the Government may, by notification in the Gazette, specify to be a domestic purpose;

Explanation II-- For the purpose of this clause, "delicate or sophisticated articles" mean articles which require to be handled by trained or skilled persons;"

7. Sec.9A of the Act reads as follows:

"9A. Engaging the services of headload workers.- (1) Subject to the provisions of this Act, an employer shall engage a headload worker registered under the Act in connection with the work of his establishment;

Provided that in the case of works which require assistance of skilled persons and which are to be done with due diligence or require the aid of machinery, such works may be done by engaging the persons having such skill or by the machinery, as the case may be.

(2) Every Headload worker shall be entitled to wages as prescribed by the Government under the provisions of this Act only if their services have been engaged by the employer or the owner of an establishment."

8. We specifically queried to the appellants as to whether

they will be satisfied if we confirm the observations of the learned

Single Judge in the penultimate paragraph of the impugned

judgment, that if there is any manual headload work, the writ

petitioner management will have to necessarily engage the services W.A. Nos. 1654/2021 & 899/2022

..7..

of registered pool workers, etc. To this, Sri.Philip T.Varghese,

learned Advocate and Sri.Legith T.Kottakkal, learned advocate,

both appearing for the claimant headload workers, would urge that

there has to be specific clarity as to the works that can be lawfully

allotted to the headload workers, as otherwise, the enforcement of

the abovesaid findings of the learned Single Judge will be rather

difficult, and the claims of the headload workers will be thus

denied by the writ petitioner establishment, etc. and that this Court

may decide with clairty the issue as to the exact works that could be

claimed and allotted to the headload workers, going by the

aforesaid report of the DLO.

9. Further, it appears to be common ground, that

members of the appellant Union in W.A.No.1654/2021 and the two

headload workers, who are the appellants in W.A.No.899/2022 are

the 12 workers mentioned in Anx.A1 proceedings dated 26.3.2021

issued by the Kerala Headload Workers Welfare Board, whereby

these 12 workers have been given registered pool workers status as

per para 6A of the Kerala Headload Workers (Regulation of

Employment and Welfare) Scheme, 1983, framed under the W.A. Nos. 1654/2021 & 899/2022

..8..

abovesaid Act, and this factual aspect has been confirmed by

Sri.S.Krishnamoorthy, learned Standing Counsel for the

respondent Kerala Headload Workers Welfare Board, about which

there is no dispute even for the writ petitioner establishment.

10. The writ petitioner would specifically point out, that the

benefit of the above Anx-A-1 registration can be claimed by those

12 workers only from 26.3.2021 and not prior thereto.

11. After hearing both sides, prima facie, we are of the

view that if the main loading and unloading operations in question

are mechanized and are non-manual in nature, then such works

cannot be claimed as of right by the claimant headload workers,

and going by the mandate contained in Sec.9A of the Act, the

establishment/management will have the right to engage their own

skilled workers for doing such mechanized loading and unloading

operations. So also, we would say, strapping, stacking, attaching

slings, etc. are all works which are ancillary and incidental to the

main loading and unloading operations done through mechanized

devices, then such incidental and ancillary works, though may

involve element of manual labour, cannot be claimed as of right by W.A. Nos. 1654/2021 & 899/2022

..9..

the claimant headload workers, and going by the stipulations in

Sec.9A, the management can contend that they have the

prerogative to engage their own skilled workers for doing such

works which are ancillary and incidental to the main loading and

unloading operations, which are mechanized. But, on the other

hand, if there are some works in the writ petitioner establishment,

the main component of which are manual based loading and

unloading operations and not done through mechanized devices,

and there are some works which are ancillary and incidental to

such main manual loading and unloading operations like

strapping, stacking, attaching slings, etc. then such main manual

works as well as the incidental works can be claimed by the

headload workers. Therein it is rather difficult to accept the

contention of the management, that even for that manual based

main work and ancillary work thereto, claims of headload workers

should be denied and that the employer will have the right to

engage their own skilled workers, etc. This is so, as the main

component of such loading and unloading operations as well as the

ancillary component thereto are basically and essentially W.A. Nos. 1654/2021 & 899/2022

..10..

manual work.

12. It appears, that the appellants have contended that the

writ petitioner establishment has not cared to file any objections to

the report dated 6.11.2020 filed by the DLO before the learned

Single Judge at the WP(C) stage. However, since these factual

aspects are very cardinal for deciding the issues which are

insisted to be decided by the appellants, we feel that we should not

stand on technicalities and should give reasonable opportunity to

the writ petitioner establishment as well as to the appellant

claimants, to give their respective factual pleadings on these

aspects. Hence, the writ petitioner establishment and the

appellants may file their respective affidavits stating as to the

nature of the works involved in paras 'c' & 'f' of the report dated

6.11.2020 submitted by the DLO in the WP(C), and also as to

whether which are the main components of such works which are

essentially mechanized, and which are the main components of

such works which are manual, and so also which are the incidental

works, and whether such works are incidental and ancillary to the

main manual based loading and unloading operations or whether W.A. Nos. 1654/2021 & 899/2022

..11..

such works are incidental and ancillary to the main mechanized

loading and unloading operations.

13. Pleadings on both sides may be confined only to the

aspects borne out from paras 'c' & 'f' of the DLO's report supra.

There is no necessity for us to get into the factual issues as regards

the other aspects in the DLO's report, mainly paras a, b, d & e

thereof. Affidavits of both sides shall be filed within 10 days.

The parties will also be at liberty to produce documents along with

their respective affidavits.

List on 19.8.2022.

Hand over to both sides.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

SHOBA ANNAMMA EAPEN, JUDGE

Sdk+ MMG

27-07-2022 /True Copy/ Assistant Registrar