Arun K. George vs The Deputy Labour Commissioner, Kollam ...
2023 Latest Caselaw 13105 Ker

Kerala High Court

Arun K. George vs The Deputy Labour Commissioner, Kollam ... on 15 December, 2023

                                    1
WPC 33191 and 33647/23



               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR.JUSTICE BASANT BALAJI
FRIDAY, THE 15TH DAY OF DECEMBER        2023 / 24TH AGRAHAYANA, 1945
                         WP(C) NO. 33647 OF 2023
PETITIONER/S:
             P.K.JAYAPRAKASH, AGED 54 YEARS S/O. KUNJANPILLAI,
             PALLATHERIL, KALLELI BHAGHOM P.O, KARUNAGAPALLY,
             KOLLAM, PIN - 690519
             BY ADVS. SUMAN CHAKRAVARTHY K.R.RIJA BREJITHA
             UNNIKRISHNAN SUDEESH K.E.


RESPONDENT/S:


     1       THE DEPUTY LABOUR COMMISSIONER, KOLLAM, CIVIL
             STATION. P.O., VIDYA NAGAR, KOLLAM, PIN - 691013
     2       THE CONCILIATION OFFICER, DISTRICT LABOUR OFFICE,
             KOLLAM, PIN - 691013
     3       THE ASSISTANT LABOUR OFFICER, OFFICE OF THE LABOUR
             OFFICE, KARUNAGAPALLY, PIN - 690518
     4       ARUN K. GEORGE, AGED 36 YEARS S/O GEORGE JOHN,
             KALAMATH HOUSE, KALLELI BHAGOM P.O, KRUNAGAPPALLY,
             MANAGING PARTNER, KALAMATH AGENCIES, KALLELI
             BHAGOM,P.O. KRUNAGAPPALLY,KOLLAM, PIN - 690519
     5       S.NAZARUDEEN (INTUC), SURUMI MANZIL, NIYA NAZHIKAM,
             JONAKAPPURAM, BEACH NORTH, PALLITHOTTAM P.O.,
             KOLLAM, PIN - 691067
     6       RAMAKRISHNA PILLAI (AITUC) , VELAYANIKKAL VEEDU,
             NEELESHWARAM, KOTTARAKKARA, KOLLAM, PIN - 691505
     7       SHAHARUDEEN( INTUC), KALAVARAYIL, PADA NORTH,
             KARUNAGAPALLY, KOLLAM, PIN - 690518
     8       JAYAKRISHNA PILLAI (AITUC), CHENNATHALA, THOPPIL
             IDAKKULANGARA P.O., KOLLAM, PIN - 690523
     9       CHITTUMALA NAZAR (INTUC), POOL NO.9, KALLELI
             BHAGAM. P.O., KARUNAGAPALLY, KOLLAM, PIN - 690519
                                   2
WPC 33191 and 33647/23

     10      SHAJI KRISHNAN, NANDHU BAVANAM, KALLELI BHAGAM.
             P.O., KARUNAGAPALLY, KOLLAM, PIN - 690519
     11      THODIYUR RAMACHANDRAN, (INTUC), MAITHRI, THODIYUOOR
             NORTH, KARUNAGAPALLY, KOLLAM, PIN - 690523
     12      VISHWANATHAN (UTUC), KESHAVA NIVAS, KALLELI BHAGAM.
             P.O., KARUNAGAPALLY, KOLLAM, PIN - 690519
     13      THE KERALA HEADLOAD WORKERS WELFARE FUND BOARD
             (KHWWFB), REPRESENTED BY ITS CHIEF EXECUTIVE
             ENGINEER DISTRICT OFFICE, KOLLAM USHUS BUILDING,
             ANDAMUKKAM, KOLLAM, PIN - 691001
             BY ADVS. T.GOPALAKRISHNAN K.SIJU


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 15.12.2023, ALONG WITH WP(C).33191/2023, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
                                     3
WPC 33191 and 33647/23



               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR.JUSTICE BASANT BALAJI
FRIDAY, THE 15TH DAY OF DECEMBER        2023 / 24TH AGRAHAYANA, 1945
                         WP(C) NO. 33191 OF 2023


PETITIONER/S:


             ARUN K. GEORGE, AGED 36 YEARS S/O. GEORGE JOHN,
             KALAMATH HOUSE KALLELIBHAGOM P.O, KRUNAGAPPALLY,
             MANAGING PARTNER, KALAMATH AGENCIES,
             KALLELIBHAGOM,P.O. KRUNAGAPPALLY,KOLLAM, PIN -
             690519
             BY ADV K.R.SUNIL


RESPONDENT/S:


     1       THE DEPUTY LABOUR COMMISSIONER, KOLLAM DISTRICT,
             CIVIL STATION. P.O., VIDYA NAGAR, KOLLAM, PIN -
             691013
     2       THE CONCILIATION OFFICER, DISTRICT LABOUR OFFICE,
             KOLLAM, PIN - 691013
     3       THE ASSISTANT LABOUR OFFICER OFFICE OF THE LABOUR
             OFFICE, KARUNAGAPALLY, PIN - 690518
     4       A.M IQBAL (CITU) MULLAKKAL VEEDU, BEACH NORTH,
             KOLLAM-, PIN - 691006
     5       S. NAZARUDEEN (INTUC), SURUMI MANZIL, NIYA NAZHIKAM,
             JONAKAPPURAM, BEACH NORTH, PALLITHOTTAM P.O.,
             KOLLAM, PIN - 691006
     6       RAMAKRISHNA PILLAI (AITUC) VELAYANIKKAL VEEDU,
             NEELESHWARAM KOTTARAKKARA, PIN - 691505
     7       SUNIL KUMAR. G. (CITU) KOCHAYYATH, PADA NORTH,
             KARUNAGAPPALLY, PIN - 690518
     8       SHAHARUDEEN (INTUC), KALAVARAYIL PADA NORTH,
             KARUNAGAPALLY, PIN - 690518
                                    4
WPC 33191 and 33647/23

     9       JAYAKRISHNA PILLAI JAYAKRISHNA PILLAI (AITUC)
             CHENNATHALA THOPPIL IDAKKULANGARA PO., PIN - 695122
     10      SHRI CHITTUMALA NAZAR (INTUC), CHITTUMALA, KOLLAM,
             PIN - 691502
     11      SHAJI KRISHNAN NANDHU BAVANAM, KALLELI BHAGAM. PO.
             KARUNAGAPALLY, PIN - 690519
     12      P.K JAYAPRAKASH (CITU), AREA SECRETARY,
             KARUNAGAPALLY, PIN - 690519
     13      THODIYUR RAMACHANDRAN (INTUC), MAITHRI THODIYUOOR,
             NORTH,KARUNAGAPALLY., PIN - 690523
     14      ADDL.R14. THE HEAD LOAD WORKERS WELFARE BOARD,
             KOLLAM DISTRICT, USHUS BUILDING, ANDAMUKKAM, KOLLAM,
             REP BY ITS CHIEF EXECUTIVE OFFICER, KOLLAM 691 001
             [IS IMPLEADED AS PER ORDER DATED 11.10.2023 IN
             I.A.1/2023 IN WP(C)33191/2023].
     15      ADDL.R15. MOHANAN PILLAI AGED 59 YEARS, S/O.
             CHANDRASEKHARAN UNNITHAN,   KOIPPURATHU VEEDU,
             KALLELIBHAGOM P.O.,   KARUNAGAPPALLY, KOLLAM-690 519
     16      ADDL.R16. SAJEEB. E AGED 44 YEARS, S/O.
             IBRAHIMKUTTY, KOTTAVEETTIL KIZHAKKETHIL,
             KALLELIBHAGOM P.O., KARUNAGAPPALLY, KOLLAM-690519
             [ADDL.R15 & ADDL.R16 ARE IMPLEADED AS PER ORDER
             DATED 24.11.2023 IN I.A.3/2023 IN WP(C)33191/2023].
             BY ADVS. KISHORE D T.GOPALAKRISHNAN K.SIJU MEERA
             GOPINATH(K/001803/1999.) R.MURALEEKRISHNAN
             (MALAKKARA)(K/000583/2008)


OTHER PRESENT:


             SR GP REKHA C. NAIR


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 15.12.2023, ALONG WITH WP(C).33647/2023 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                      5
WPC 33191 and 33647/23


                              JUDGMENT

(Dated 15th December 2023) [WP(C) Nos.33647/2023, 33191/2023]

These above two writ petitions are filed for quashing the

orders dated 25.9.2023 of the Deputy Labour Commissioner,

Kollam and dated 24.6.2023 of the District Labour officer

respectively. Therefore, these Writ Petitions are heard together

and a common judgment is passed.

WPC 33191 of 2023 is taken as a lead case and facts are

enumerated below:

2. The petitioner is the Managing Partner of an

establishment namely, Kalamath Agencies. After the

lockdown of covid -19, certain persons approached the

petitioner and informed that they are the recognised workers

coming under pool No.9 and the area in which the petitioner's

establishment lies is allotted to the workers of pool

No.9. Believing the words, they were permitted to do the

loading and unloading work. However, due to obstructions

from workers of the warehouse pool, the petitioner could not

unload the materials brought in trucks. There was physical

violence between the members of pool No.9 as well as the

warehouse pool. On enquiry with the 3rd respondent, it was

understood that as per Ext.P1 of the 14th respondent, the area is

earmarked for the warehouse pool workers.

3. Therefore, the petitioner approached this court by

filing W.P.(C) No.33655 of 2022 to provide adequate and

effective police protection for the smooth functioning of his

business. This court, by Ext.P2 judgment dated 29.11.2022,

directed the police authorities to maintain law and order and

directed the District Labour Officer to resolve the dispute under

Section 21 of the Kerala Headload Workers Act. The District

Labour Officer, as a conciliation officer, after hearing all the

parties, passed Ext.P3 order dated 24.6.2023 permitting the

workers attached to pool No.9 to carry out the work in the

petitioner's establishment.

4. Aggrieved by Ext.P3 order of the 2nd respondent, the

petitioner preferred appeal before the 1st respondent. A

direction was also obtained by the petitioner in W.P.(C)

No.29021 of 2023 to take up Ext.P5 appeal against Ext.P3 order

and to dispose of the same after hearing all the affected parties

within a period of one month. Pursuant to the direction of this

court, Ext.P7 order dated 25.9.2023 was passed rejecting the

appeal. The petitioner impugns Ext.Nos.P3 and P7 in this Writ

Petition.

5. A statement dated 12.10.2023 and a counter affidavit

dated 10.11.2023 have been filed by an additional 14th

respondent in which it is submitted that as per Ext.P1 the area

of work of warehouse pool was extended from Kottaveettil

junction to Mararithottam Janatha library junction. While so,

the Chairman of the Headload Workers Welfare Board, sub-

office, Karunagapally passed another order dated 31.12.2021

assigning the area from Kallukadavu to Midukkan Mukku and

from Midukkan Mukku to Chambakkadavu as an area for the

newly constituted pool No.9 and the pool No.9 started

functioning with effect from 1.1.2022. Ext.R14(a) filed along

with counter affidavit dated 10.11.2023 is the order dated

31.12.2021. The identity cards issued to the workers of pool

No.9 would reveal that they are entitled to do the work in the

petitioner's establishment, as the area allocated to them covers

the petitioner's establishment also. As per the judgment of this

court in W.P.C 33655 of 2022, several rounds of conciliation

settlements were done and since, there was no amicable

settlement after perusing the records and 26A cards issued to

both the board workers, came to the conclusion that the workers

are pool No.9 are entitled to work in the establishment of the

petitioner. The appellate authority also concurred with the said

finding taking note specifically endorsements issued to both the

workers assigning the area.

6. A counter affidavit is filed on behalf of the 2nd

respondent also. As directed by this court in W.P.(C)

No.33655 of 2022, the 2nd respondent heard the parties and

since, conciliation could not be finalised, taking into

consideration of 26A cards issued by the Assistant Labour

officer, Karunagappally and the area earmarked to the newly

constituted pool No.9 workers, passed Ext.P3 in accordance

with law. It also states that Ext.P1 order dated 30.9.2019

passed by Kerala Headload Workers Welfare Fund Board is

without any authority. As per Rule 26A of the Kerala Headload

Workers' Rule, 1981 the authority to issue 26A cards to the

headload workers with clear demarcation of area, is with the

Assistant Labour Officer having jurisdiction.

7. Heard Shri K R Sunil and Shri Suman Chakravathy for

the petitioners, Sri. K. Siju, Sri.D Kishore for the respondents

and the Government Pleader.

8. Ext.P1 order passed by the Chairperson of the

Headload Workers Welfare Board, Karunagapally sub-office

had extended the area of operation of the warehouse pool

workers from Kottaveetil junction to Mararithottam Janatha

library junction. It was also decided to implement the same

from 1.10.2019 onwards. Ext.R14(a) order passed by the

Chairman of Kerala Headload Workers Welfare Board,

Karunagapallay dated 31.12.2021 constituted a new pool as

pool No.9 assigning area of operation from Kallukadavu to

Midukkan Mukku and from Midukkan Mukku to

Chambakkadavu. The order was to take effect from

1.1.2022. When this court, directed through Ext.P2 the District

Labour Officer, to do the conciliation under Section 21 of the

Kerala Headload Workers Act, Ext.P3 order is passed after

hearing all the affected parties and taking note of the identity

cards issued under Section 26A of the Act, to the warehouse

pool and Pool No.9. The 1st respondent came to a definite

conclusion that since the cards issued to workers of Pool No.9

specifically earmark the area as Midukkan Mukku to

Kallukadvu and from Midukkan Mukku to Chambakkadavu

and that of warehousing pool is strictly limited to

warehouse. The workers of pool No.9 alone can do the work

in the petitioner's establishment. Ext.P7 appellate order

concurs with the finding of conciliation orders.

9. Section 18(8) of the Kerala Headload Workers Act,

1978, deals with the functions of the committee appointed

under the Headload Workers Act. The functions of the

committee are as follows:

1. To pool the headload workers who are not employed under any employer or contractor

2. To arrange and regulate employment of such headload workers and to pay them wages

3. To take disciplinary action wherever necessary

4. To do as such acts as are necessary for implementation of this Act and the scheme.

10. Regulation 20 of the Kerala Headload Workers

(Regulation of Employment and Welfare) Scheme, 1983

gives the power to the Chairman to make necessary

arrangements to pool the registered workers into as many

groups as are needed and locate these groups at locations

decided by him.

11. Ext.P1 order issued by the Chairperson demarcating

the area from Kottaveettil junction to Mararithottam

Janatha library for the warehouse pool. At the same time, by

Ext.R14(a) the Chairperson has constituted a new pool by

order dated 31.12.2021 as pool No.9 for the area from

Kallukadavu to Midukkan Mukku and from Midukkan

Mukku to Chambakkadavu.

12. In the counter affidavit filed on behalf of the 14th

respondent, it is stated that the area earmarked for the

warehouse pool as per Ext.P1 is from Mararithottam Library

junction to Kottaveetil junction. It is on the eastern side of

Karunagapally - Sasthamcotta public road. The

establishment of the petitioner is situated at Midukkan

Mukku on the west side of the road, which comes within the

area of pool No.9. The area of east side of Karunagapally -

sasthamcotta road at Midukkan Mukku in Mararithottam is

in warehouse pool and the west side of the road is in Pool

No.9. Juxtaposing Ext.P1 with Ext.R14(a) there is no

overlapping of the area. It is for the Chairperson of the sub

office of the Headload Workers Welfare Board,

Karunagappaly to verify whether there is any actual

overlapping of the area and to demarcate the areas earmarked

for each pool under Section 18 of the Kerala Headload

Workers Act as well Regulation 20 of the Kerala Headload

Workers (Regulation of Employment and Welfare) Scheme,

1983.

13. Ext.P3 is passed taking into consideration the 26A

cards issued to workers of pool No.9 as well as the warehouse

pool. The actual area of the operation of each pool can only

be decided by the committee of the Kerala Headload Workers

Welfare Board. Therefore, in order to resolve the entire area

regarding the area of pool No.9 as ware house, it is for the

Committee of the Headload Workers Welfare Fund Board,

Karunagappaly sub office to decide the issue regarding the

area of operation after hearing all the affected parties taking

into consideration Ext.P1 and Ext.R14(a)

Therefore, These Writ Petitions are allowed and

Ext.Nos.P3 and P7 orders of the 2nd respondent and the 1st

respondent are quashed and there will be a direction to the

14th respondent to direct the Committee of the Kerala

Headloard Workers Welfare Fund Bord, Karunagappaly sub

office to hear all the parties of Pool No.9 and warehouse and

all affected parties and pass orders assigning the area of

operation of pool 9 and warehousing pool, in accordance with

law, within a period of the one month of from the date of

receipt of a copy of this judgment.

Needless to say, this court has not gone into the merits

of the case and it is for the Committee of the Headload

Workers Welfare Fund Board, Sub office, Karunagappally to

take final observation, untrammelled by any of the

observations made in this judgment. Till such time the

petitioner can request the convener to allot the number of

workers required for his establishment under regulation 21 of

the Scheme.

Sd/ BASANT BALAJI, JUDGE

dl/

APPENDIX OF WP(C) 33191/2023

PETITIONER EXHIBITS

Exhibit P1 THE TRUE COPY OF THE ORDER NO. E1/2018-2019KNPY DATED 30.09.2019 DATED 30.09.2019 ISSUED BY THE 2ND RESPONDENT Exhibit P2 THE TRUE COPY OF THE JUDGMENT DATED 29.11.2022 IN

Exhibit P3 THE TRUE COPY OF THE ORDER DATED 24.06.2023 Exhibit P4 THE TRUE COPY OF THE LETTER DATED 23. 08.2023 ISSUED BY THE 2ND RESPONDENT Exhibit P5 THE TRUE COPY OF THE APPEAL PETITION AND THE PETITION FOR STAY PREFERRED BY PETITIONER BEFORE 1ST RESPONDENT, THE DEPUTY LABOUR OFFICER KOLLAM DISTRICT DATED 23.08.2023 Exhibit P6 THE TRUE COPY OF THE ORDER DATED 25.08.2023 IN

Exhibit P7 THE TRUE COPY OF THE ORDER DATED 25.09.2023 PASSED BY THE 1ST RESPONDENT Exhibit P8 THE TRUE COPY OF THE LETTER DATED 31.01.2023 ISSUED BY THE ASSISTANT LABOUR OFFICER OF KARUNAGAPPALLY Exhibit P9 The true copy of the photograph showing the lie and location of the petitioner's establishment Exhibit P10 THE COPY OF THE COMMUNICATION ISSUED BY THE ASSISTANT LABOUR OFFICER KARUNAGAPALLY TO THE DISTRICT LABOUR OFFICER KOLLAM UNDER THE R I ACT

RESPONDENT ANNEXURES

Annexure The copy of proceedings dated 31.12.2021 vide R14(a) No.E1/41/2021-2022-KNPY of the Chairperson of Kerala Headload Workers Welfare Board, Karunagappally Sub Office

Annexure The copy of identity cards of two of the workers R14(b) of Pool No.9 issued by the Assistant Labour Officer, Karunagappally under 26A of the Kerala Headload Workers Rule Annexure The copies of 26A cards of pool workers of R14(c) warehouse pool Exhibit R (10 True copy of the proceedings of the secretary

c) dated 31.12.2021 vide No.E1/42/2021-22 KNPY Exhibit R 10 True copies of the identity cards of 7 pool

(a) workers Exhibit R (10 True copy of the photograph of the establishment

b) which shows the area Exhibit R (10 True copy of the receipt dated 16.2.2022 issued

e) by the Kerala Head load Workers Welfare Fund board District Committee Exhibit R (10 True copy of the receipt dated issued by the F) Kerala Head Load Workers Welfare Fund Board District Committee dated 17.09.2022 Exhibit R (10 True copy of the receipt issued by the kerala

d) Head Load Workers Welfare Fund board District Committee dated 6.1.2022 Exhibit.R14(a) The rough sketch showing the area of warehouse pool and Pool No.9 (not on scale) Exhibit.R14(b) The copy of the work cards of pool No.9 dated 6.1.2022 regarding work undertaken in the petitioner's establishment Exhibit.R14(c) The copy of the work cards of pool No.9 dated 1.2.2022 regarding work undertaken in the petitioner's establishment Exhibit.R14(d) The copy of the work cards of pool No.9 dated 19.3.2022 regarding work undertaken in the petitioner's establishment Exhibit.R14(e) The copy of the work cards of pool No.9 dated 1.4.2022 regarding work undertaken in the petitioner's establishment Exhibit.R14(f) The copy of the work cards of pool No.9 dated 7.5.2022 regarding work undertaken in the petitioner's establishment

Exhibit.R14(g) The copy of the work cards of pool No.9 dated 2.6.2022 regarding work undertaken in the petitioner's establishment Exhibit.R14(h) The copy of the work cards of pool No.9 dated 6.7.2022 regarding work undertaken in the petitioner's establishment Exhibit.R14(i) The copy of the work cards of pool No.9 dated 2.8.2022 regarding work undertaken in the petitioner's establishment Exhibit.R14(j) The copy of the work cards of pool No.9 dated 26.9.2022 regarding work undertaken in the petitioner's establishment Exhibit.R14(k) The copy of order dated 04.11.2022 in

ANNEXURES

Annexure -1 TRUE COPY OF THE IDENTITY CARD ISSUED TO THE 1ST APPLICANT BY THE KERALA HEADLOAD WORKERS WELFARE BOARD, KARUNAGAPPALLY COMMITTEE Annexure -2 TRUE COPY OF THE IDENTITY CARD ISSUED TO THE 2ND APPLICANT BY THE KERALA HEADLOAD WORKERS WELFARE BOARD, KARUNAGAPPALLY COMMITTEE

APPENDIX OF WP(C) 33647/2023

PETITIONER EXHIBITS

Exhibit -P1 THE TRUE COPY OF ORDER NO. E1/2018-2019KNPY DATED 30.09.2019 DATED 30.09.2019 ISSUED BY THE 2ND RESPONDENT Exhibit-P2 THE TRUE COPY OF THE JUDGMENT DATED 29.11.2022 IN

Exhibit-P3 THE TRUE COPY OF THE ORDER DATED 24.06.2023 BY THE 2ND RESPONDENT Exhibit -P4 THE TRUE COPY OF THE ORDER NO.HLA 05/2023 DATED 25.09.2023 PASSED BY THE 1ST RESPONDENT Exhibit-P 5 THE TRUE COPY OF THE LETTER DATED 31.01.2023 ISSUED BY THE ASSISTANT LABOUR OFFICER OF KARUNAGAPPALLY

RESPONDENT ANNEXURES

Annexure The copy of proceedings dated 31.12.2021 vide R13(a) No.E1/41/2021-2022-KNPY of the Chairperson of Kerala Headload Workers Welfare Board, Karunagappally Sub Office Annexure The copy of identity cards of two of the workers R13(b) of Pool No.9 issued by the Assistant Labour Officer, Karunagappally under 26A of the Kerala Headload Workers Rule Annexure The copies of 26A cards of pool workers of R13(c) warehouse pool Annexure The copy of photographs shown the board of the R13(d) 4th respondent's establishment as Kalamath Agencies, Midukkan Mukku